          United States Court of Appeals
                      For the First Circuit

No. 14-1367

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                     JEAN C. FERNÁNDEZ-GARAY,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Juan M. Pérez-Giménez, U.S. District Judge]



                              Before

                    Howard, Selya and Kayatta,
                          Circuit Judges.



     Eric Alexander Vos, Federal Public Defender, Vivianne Marrero,
Assistant Federal Public Defender, Supervisor Appeals Division, and
Thomas Trebilcock-Horan, Assistant Federal Public Defender, on
brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Thomas F. Klumper, Assistant United States Attorney,
on brief for appellee.


                           May 20, 2015
             SELYA,     Circuit   Judge.        In    this   sentencing   appeal,

defendant-appellant Jean C. Fernández-Garay complains that his 120-

month sentence is both procedurally and substantively flawed.

Finding his complaints untenable, we affirm.

             The events culminating in this appeal are embedded in a

five-count indictment returned by a federal grand jury sitting in

the District of Puerto Rico, which alleged that the defendant had

possessed with intent to distribute various controlled substances

near a public housing facility, see 21 U.S.C. §§ 841(a)(1), 860(a),

and had possessed a firearm during and in relation to those crimes,

see 18 U.S.C. § 924(c)(1)(A).          On the cusp of trial, the defendant

negotiated a plea agreement (the Agreement) with the government.

In pursuance of the Agreement, he entered a guilty plea to a single

count   of   possession     of    a   firearm   in    furtherance   of    a    drug-

trafficking crime (an offense that carries a mandatory minimum

sentence of 60 months' imprisonment).                See id. § 924(c)(1)(A)(i).

The other charges were later dismissed.

             In   the    Agreement,      the    defendant      acceded    to     the

government's version of the facts.               According to that account,

federal agents and officers from the Puerto Rico Police Department

(PRPD) were patrolling a known drug point located in the Sabana

Abajo Public Housing Project in Carolina, Puerto Rico.                        At one

point, an officer engaged in a chase encountered the defendant, who

was masked and holding a .40 caliber Glock pistol in one hand and


                                        -2-
a backpack in the other.   The defendant ditched the gun and tried

to flee, but he was soon apprehended.

           Upon inspection, the gun was found to be loaded with an

extended magazine. The backpack was found to contain an additional

extended magazine, varying quantities of assorted drugs, and $680

in cash.

           The   presentence   investigation   report   (PSI   Report)

augmented the government's version of the facts.    Pertinently, the

PSI Report noted that, before fleeing, the defendant pointed his

gun at the PRPD officer and threw the backpack at him.     The Report

also more fully inventoried the contents of the backpack; in

addition to the extended magazine and cash previously mentioned,

the backpack contained 119 small baggies of marijuana, 119 small

baggies of cocaine, 262 packages of heroin, 38 packages of crack,

and three pills of indeterminate origin.

           At the disposition hearing and in conformity with the

Agreement, the parties jointly recommended a 60-month sentence.

The district court proceeded to chronicle the relevant facts,

relying mainly on the PSI Report.        The court added that the

defendant, at the time of his arrest, had in his possession a

notebook that memorialized various drug sales.     When all was said

and done, the court sentenced the defendant to a 120-month term of

immurement (double the mandatory minimum).




                                 -3-
           After    the   district   court    handed   down   the     sentence,

defense counsel began to object to the court's reliance on the fact

that the defendant had pointed his weapon at an officer. The court

cut off counsel's argument and then denied his request to "complete

the record."    This timely appeal ensued.1

           In sentencing appeals, "we first determine whether the

sentence imposed is procedurally reasonable and then determine

whether   it   is   substantively    reasonable."         United    States    v.

Clogston, 662 F.3d 588, 590 (1st Cir. 2011).                With respect to

claims of procedural error, we afford de novo review to the

interpretation      and   application    of   the   sentencing     guidelines,

evaluate the sentencing court's factfinding for clear error, and

assay its judgment calls for abuse of discretion.                  See Gall v.

United States, 552 U.S. 38, 51 (2007); United States v. Flores-

Machicote, 706 F.3d 16, 20 (1st Cir. 2013).               When assessing the

substantive reasonableness of a sentence, our review is for abuse

of   discretion     and   takes   into   account    the    totality    of    the

circumstances.      See Gall, 552 U.S. at 51; United States v. Martin,

520 F.3d 87, 92 (1st Cir. 2008).

           These standards of review may be altered by a party's

failure to preserve claims of error in the district court.                  With


      1
       The waiver-of-appeal provision contained in the Agreement
does not pretermit the appeal because the district court did not
sentence the defendant in accordance with the sentencing
recommendation limned in the Agreement.     See United States v.
Fernández-Cabrera, 625 F.3d 48, 51 (1st Cir. 2010).

                                     -4-
respect to unpreserved claims, appellate review is normally for

plain error.   See United States v. Duarte, 246 F.3d 56, 60 (1st

Cir. 2001).

          Here, however, there is a wrinkle.   A party's failure to

spell out a claim in the district court may be excused if he had no

reasonable opportunity to do so.   See Fed. R. Crim. P. 51(b).    This

makes good sense: a court should not require a lawyer "to persist

stubbornly when the judge has made it perfectly clear that he does

not wish to hear what the lawyer has to say."      United States v.

Toribio-Lugo, 376 F.3d 33, 41 (1st Cir. 2004).

          This exception is applicable here.   At the conclusion of

the disposition hearing, defense counsel attempted to object to the

court's reliance on a particular fact.       The court cut defense

counsel's argument short, precluded further argument, and did not

allow the lawyer to complete the record.       We do not condone a

district court acting in so peremptory a manner.     As a result of

the court's action, we cannot tell whether defense counsel would

have sought to interpose further objections. What is transparently

clear, however, is that the court's abrupt termination of the

sentencing proceeding foreclosed defense counsel from doing so. We

therefore treat all the defendant's claims of error as preserved.

          Having clarified our standard of review, we move to the

issues on appeal.     The defendant couches his assault on his

sentence as a challenge to its substantive reasonableness.       It is


                               -5-
nose-on-the-face plain, however, that his argument is more nuanced.

Read carefully, he advances four claims of procedural error as well

as an overall plaint about the substantive reasonableness of his

sentence.     We subdivide our analysis accordingly.

             Two of the defendant's procedural claims are related: he

argues that the sentencing court erroneously took into account two

facts that lacked adequate footing in the record.      The first fact

is that the defendant had pointed his gun at an officer.          The

second fact is the court's reference to a notebook, which it said

contained a record of drug sales.

             The first of these claims is hopeless.      Although the

government's version of the facts did not contain a description of

the defendant pointing his gun at a PRPD officer, the PSI Report

did contain such a description.     "Generally, a [PSI Report] bears

sufficient indicia of reliability to permit the district court to

rely on it at sentencing."     United States v. Cyr, 337 F.3d 96, 100

(1st Cir. 2003) (internal quotation marks omitted).        It follows

that a sentencing court may base a finding on a fact asserted in a

PSI Report as long as no objection has seasonably been made to that

assertion.     See United States v. Gallant, 306 F.3d 1181, 1188 n.5

(1st Cir. 2002); United States v. Diaz-Villafane, 874 F.2d 43, 46

n.2 (1st Cir. 1989); see also Fed. R. Crim. P. 32(i)(3)(A).

             Objections to a PSI Report ordinarily must be made before

the commencement of the disposition hearing.     See Fed. R. Crim. P.


                                  -6-
32(f)(1) (requiring parties to object within 14 days of receipt of

the PSI Report).       In this case, the defendant did not file a timely

objection to the PSI Report's assertion that he pointed his gun at

a   police     officer.      Consequently,      the   sentencing        court    could

properly find this fact based on the account contained in the PSI

Report.

               The sentencing court's reference to the notebook is a

horse of a different hue.            The genesis of the court's comment is

uncertain:      the   only   record      reference    to    such    a   notebook   is

contained in a cryptic notice of intent to use evidence filed

during the period of skirmishing that preceded the defendant's

change of plea.          See Fed. R. Crim. P. 12(b)(4).                 The notebook

itself    is    not   part   of    the   record;   its     contents     are   nowhere

described; and both the Agreement and the PSI Report are mute on

the subject.

               It is common ground that a defendant must be afforded a

reasonable opportunity to respond to the facts used against him at

sentencing.       See United States v. Millán-Isaac, 749 F.3d 57, 70

(1st   Cir.     2014);    see     also   USSG   §6A1.3(a).         To   ensure    that

opportunity, a judge should refrain from pulling sentencing facts

— like so many rabbits out of so many hats — from beyond the

sentencing record.

               Here, the sentencing court palpably erred by alluding to

a purported fact (the notebook and its content) as to which the


                                          -7-
defendant had no notice.          Still, not every error demands vacation

of a sentence: an error is deemed harmless if a reviewing court can

say with fair assurance that the sentencing court "would have

imposed the same sentence even without the error."               United States

v. Tavares, 705 F.3d 4, 25 (1st Cir. 2013) (internal quotation mark

omitted) (citing Williams v. United States, 503 U.S. 193, 202-03

(1992)); see Fed. R. Crim. P. 52(a).

             In this instance, the notebook seems little more than an

afterthought in the court's explication of the sentence. And given

the varieties and quantities of drugs contained in the defendant's

backpack, any mention of drug sales in a notebook was obviously

cumulative.     See, e.g., United States v. Anderson, 189 F.3d 1201,

1214 (10th Cir. 1999).            Because the record gives us complete

confidence that the district court would have imposed the same

sentence had it eschewed any consideration of the notebook, the

error was harmless.

             The defendant's penultimate claim of procedural error

posits that the court below did not adequately consider all the

statutory sentencing factors. See 18 U.S.C. § 3553(a). This claim

founders on the shoals of our case law.                  We have held with a

regularity    bordering      on   the   monotonous      that   even   though   "a

sentencing    court   must    consider        all   relevant   section   3553(a)

factors, it need not do so mechanically."               Clogston, 662 F.3d at

592 (internal quotation marks omitted).              In other words, the court


                                        -8-
"is not required to address those factors, one by one, in some sort

of rote incantation when explicating its sentencing decision."

United States v. Dixon, 449 F.3d 194, 205 (1st Cir. 2006).

            In the case at hand, the sentencing court vouchsafed that

it had considered the section 3553(a) factors.          This statement

itself "is entitled to some weight."         Clogston, 662 F.3d at 592

(internal quotation marks omitted).      Here, moreover, the record

gives every indication that the court said what it meant and meant

what it said.     The court referred to the defendant's personal

history and characteristics, see 18 U.S.C. § 3553(a)(1), noting for

example that he had two daughters and had worked to obtain a high-

school equivalency diploma while in prison.

            The court likewise discussed the nature and seriousness

of the offense, see id. §§ 3553(a)(1), (a)(2)(A), commenting

specifically on the large quantity of drugs and ammunition in the

defendant's custody, together with his possession of a high-

firepower    weapon.    This   recitation,    though   not   exhaustive,

sufficiently illustrates that the district court paid due heed to

the section 3553(a) factors.

            The defendant's last claim of procedural error posits

that the court below did not adequately explain the sentence. This

claim implicates 18 U.S.C. § 3553(c), which provides in pertinent

part that "[t]he court, at the time of sentencing, shall state in

open court the reasons for its imposition of the particular


                                  -9-
sentence."    We have held that "[w]hile the court ordinarily should

identify the main factors upon which it relies, its statement need

not be either lengthy or detailed."            United States v. Turbides-

Leonardo, 468 F.3d 34, 40 (1st Cir. 2006).               Put another way, the

sentencing court's explanation need not "be precise to the point of

pedantry."    Id.

             The   record   makes   manifest    that     the    district     court

premised the defendant's sentence on a panoply of facts to which it

alluded in open court immediately before imposing the sentence.

The court's statements emphasized that the offense of conviction

was quite serious: the defendant carried a firearm equipped with an

extended magazine, pointed it at a PRPD officer, held for sale

sizeable     quantities     of   various    types   of      drugs,    fled     when

confronted, and tried to hide his identity. Reading the sentencing

transcript in its entirety, it cannot plausibly be said that the

sentencing    court   failed     adequately    to   state      its   reasons   for

choosing its upwardly variant sentence.2

             The universal failure of the defendant's procedural

claims brings us to his plaint about the substantive reasonableness

of the sentence. A sentence is substantively reasonable so long as



     2
      There is no developed argumentation in the defendant's brief
that in any way implicates 18 U.S.C. § 3553(c)(2) (a statutory
provision that requires a written statement of reasons for a
sentence outside the guideline sentencing range). Any such claim
is, therefore, waived. See United States v. Zannino, 895 F.2d 1,
17 (1st Cir. 1990).

                                     -10-
it rests on "a plausible sentencing rationale" and exemplifies "a

defensible result."       Martin, 520 F.3d at 96; see United States v.

Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en banc).              The

guidelines, though advisory, constitute a starting point for the

fashioning of a sentence.        See Jiménez-Beltre, 440 F.3d at 518-19.

But where, as here, the court imposes a sentence that varies from

the guideline range, the nature and circumstances of the offense

and/or the characteristics of the offender "must justify a variance

of the magnitude in question."          Martin, 520 F.3d at 91.     A major

variance "should be supported by a more significant justification

than a minor one."    Gall, 552 U.S. at 50.

            In this instance, the mandatory minimum sentence — 60

months — is the guideline sentence.           See United States v. Rivera-

González, 776 F.3d 45, 49 (1st Cir. 2015); USSG §2K2.4(b).                The

district court's decision to vary sharply upward and double the

mandatory minimum represents a significant adjustment — but the

court's stated justification seems equally significant.              At the

expense of repeating what we previously said, the defendant,

masked, instigated a police chase; brandished a high-firepower

weapon that he pointed at an officer; and set himself up to provide

one-stop shopping for drug purchasers.           Viewed against this grim

backdrop,   we   cannot    say   that   the   district   court   abused   its

discretion either in determining that the guideline sentence did

not respond adequately to the seriousness of the offense of



                                     -11-
conviction or in imposing a substantially stiffer sentence.             See,

e.g., United States v. Díaz-Bermúdez, 778 F.3d 309, 313-14 (1st

Cir. 2015) (collecting cases).

            As a fallback, the defendant complains that the district

court's sentencing calculus impermissibly took account of the

conduct underlying the four drug-trafficking counts that were

dismissed as part of his plea negotiation.        This complaint lacks

force: the conduct underlying the dismissed counts was conduct

relevant to the offense of conviction.      See USSG §1B1.3(a)(1).         A

sentencing court may take into account relevant conduct underlying

counts dismissed as part of a plea negotiation as long as that

conduct was not used in constructing the defendant's guideline

range.   See id. §1B1.4, comment. (backg'd.) ("For example, if the

defendant    committed   two   robberies,   but   as   part   of   a    plea

negotiation entered a guilty plea to only one, the robbery that was

not taken into account by the guidelines would provide a reason for

sentencing at the top of the guideline range and may provide a

reason for an upward departure."); cf. id. §5K2.21 (explaining that

an upward departure may be justified "to reflect the actual

seriousness of the offense based on conduct . . . underlying a

charge dismissed as part of a plea agreement in the case").            There

was no error.

            We need go no further. For the reasons elucidated above,

the sentence is



                                  -12-
Affirmed.




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