          United States Court of Appeals
                       For the First Circuit


No. 16-2045

                     UNITED STATES OF AMERICA,

                             Appellee,

                                 v.

                         TRACY ANGIOLILLO,

                       Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF RHODE ISLAND

              [Hon. Mary M. Lisi, U.S. District Judge]


                               Before

                     Lynch, Selya and Thompson,
                           Circuit Judges.


     Julia Pamela Heit on brief for appellant.
     Stephen G. Dambruch, Acting United States Attorney, and
Donald C. Lockhart, Assistant United States Attorney, on brief for
appellee.


                           July 20, 2017
            SELYA, Circuit Judge.          Lurking in the penumbra of this

case is an unsettled question about the scope of a waiver-of-

appeal provision.        Although we identify that question, we assume,

without deciding, that the waiver is inapplicable in this instance.

With that assumption in place, we reach the merits of the appeal

and affirm the judgment below.

I.   BACKGROUND

            We    draw    the   relevant     facts     from   the    unchallenged

portions of the presentence investigation reports and the record

of the resentencing hearing.             See United States v. Vargas, 560

F.3d 45, 47 (1st Cir. 2009); United States v. Dietz, 950 F.2d 50,

51 (1st Cir. 1991).

            On    February      22,      2007,   defendant-appellant        Tracy

Angiolillo met a man (who turned out to be an undercover agent) in

a hotel parking lot in Pawtucket, Rhode Island.                       During the

encounter, the appellant gave the undercover agent $100, 1.15 grams

of cocaine base (crack cocaine), and .46 grams of heroin in

exchange for two semi-automatic firearms.                 After the swap was

completed, the authorities arrested the appellant and read him his

Miranda rights.          See Miranda v. Arizona, 384 U.S. 436, 444-45

(1966).     He admitted trading cash and controlled substances for

the guns.

            In   due     course,   the    government    filed   an   information

charging the appellant with being a felon in possession of two


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firearms (count 1), see 18 U.S.C. § 922(g)(1), distribution of

cocaine base (count 2), see 21 U.S.C. § 841(a)(1), and distribution

of heroin (count 3), see id.                       At around the same time, the

government filed a supplemental information alleging that the

appellant fell within the ambit of the Armed Career Criminal Act

(ACCA),    see      18    U.S.C.     §    924(e),      because   he       had    three   prior

convictions for violent felonies or serious drug offenses.                                 The

ACCA, where applicable, requires a mandatory minimum sentence of

15 years for violations of section 922(g).

              The       appellant        pleaded    guilty      to    all       three    counts

pursuant      to    a    written     plea      agreement     (the        Agreement).        The

Agreement included a provision waiving his right to appeal as long

as   the   court         sentenced       him    within    the    applicable         guideline

sentencing range (GSR).

              The        probation         office        prepared          a      presentence

investigation report (PSI Report), which confirmed that the ACCA

applied to the appellant's case. Taking that as a given and making

a    number   of        other   adjustments        (including        a    career     offender

enhancement, see USSG §4B1.1), the PSI Report calculated the

appellant's GSR to be 188-235 months.                    The district court accepted

this calculation and sentenced the appellant to three concurrent

bottom-of-the-range 188-month terms of immurement.                              No appeal was

taken.




                                               - 3 -
             While the appellant was serving his prison sentence, he

twice moved for a reduction of his sentence (once in 2013 and again

in 2014).1     Both motions were denied.    The appellant then took

another tack: on August 4, 2015, he moved to vacate his sentence

under 28 U.S.C. § 2255.     This effort was premised on Johnson II,

in which the Supreme Court held that the definition of a violent

felony in the residual clause of the ACCA was so vague as to work

an unconstitutional denial of due process.    See Johnson v. United

States (Johnson II), 135 S. Ct. 2552, 2557 (2015).2       While the

appellant's section 2255 motion was pending, the Supreme Court

made pellucid that its decision in Johnson II was substantive and,

thus, retroactive.     See Welch v. United States, 136 S. Ct. 1257,

1265 (2016).     At that juncture, the government conceded that the

appellant could no longer be viewed as subject to the ACCA, and




     1 The appellant filed these motions under 18 U.S.C. § 3582(c),
which provides that a district court may reduce a previously
imposed sentence if certain conditions are satisfied.

     2 The residual clause of the ACCA defines a "violent felony"
as "any crime punishable by imprisonment for a term exceeding one
year . . . that . . . involves conduct that presents a serious
potential risk of physical injury to another." Johnson II, 135 S.
Ct.   at   2555-56   (emphasis   omitted)   (quoting   18   U.S.C.
§ 924(e)(2)(B)). The Court found this language problematic because
it left uncertain both the way to measure risk of physical injury
and the amount of risk that qualified a crime as a violent felony.
See id. at 2557-58.        These indeterminacies "produce more
unpredictability and arbitrariness than the Due Process Clause
tolerates." Id. at 2558.


                                 - 4 -
the district court, without objection, vacated the appellant's

sentence and ordered resentencing.

          In anticipation of resentencing, the probation office

prepared a new version of the PSI Report.   This version concluded

that the appellant's GSR, calculated without reference to the ACCA

but still including the career offender enhancement, was 151-188

months.   The district court thereupon convened a resentencing

hearing, and both the court and the parties accepted the accuracy

of the reconstituted GSR.

          At the hearing, the appellant argued for a time-served

sentence on all counts.     The government argued for a 120-month

sentence on count 1 and concurrent 151-month sentences on counts

2 and 3, with full credit for time served.     The district court

sided with the government and sentenced the appellant to 120

months' imprisonment on count 1 and 151 months' imprisonment on

counts 2 and 3, giving full credit for time served and specifying

that all terms of imprisonment would run concurrently.3 This timely

appeal followed.




     3 The lower sentence on count 1 reflects the fact that,
stripped of an ACCA enhancement, any period of imprisonment under
count 1 was capped at 120 months.     See 18 U.S.C. § 924(a)(2).
Since the appellant has fully served his prison sentence on count
1, we treat his appeal, consistent with the briefing, as targeting
the amended sentences imposed on counts 2 and 3.


                               - 5 -
II.    ANALYSIS

            As a threshold matter, the government argues that this

appeal is barred by the waiver-of-appeal provision contained in

the    Agreement.       By   its   terms,    this   provision    precludes       the

appellant from appealing any within-the-range sentence.                  Although

the government acknowledges that the Agreement makes no reference

to resentencing, it nonetheless asserts that "there is nothing in

the text of the appeal waiver or in the language of the [Agreement]

that   would    render    the    waiver    inapplicable    in   this     context."

Construing this silence favorably to its position, the government

contends       that    the      within-the-range     sentence      imposed        at

resentencing falls within the compass of the waiver.

            The appellant demurs.          He points out that the government

has not identified a single case in which a court has applied a

waiver-of-appeal        provision     to    pretermit     an    appeal    from     a

resentencing.       Waivers of appeal are to be construed narrowly, see

United States v. Fernández-Cabrera, 625 F.3d 48, 51 (1st Cir.

2010); United States v. Teeter, 257 F.3d 14, 23-24 (1st Cir. 2001),

and in the appellant's view, the plain terms of the Agreement

extend only to his "sentence" — not to any subsequently imposed

resentencing.         If the government wanted to limit his right to

appeal from a resentencing, the appellant insists, the Agreement

could have — and should have — included a specific term to that

effect.


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            To be sure, this concatenation of events poses a novel

question, and the correct answer to that question is not readily

apparent.    As we recently have admonished, though, "courts should

not rush to decide unsettled issues when the exigencies of a

particular    case   do   not   require   such   definitive    measures."

Privitera v. Curran (In re Curran), 855 F.3d 19, 22 (1st Cir.

2017).   This is such a case.      Even if we assume two preliminary

points in the appellant's favor — that the appeal waiver does not

extend to resentencings and that the appellant has not forfeited

his right to contest the waiver by failing to include an argument

to that effect in his opening brief — the record discloses no

grounds upon which to vacate the appellant's new sentence.             We

explain briefly.

            In a sentencing appeal, the customary praxis is first to

review any challenges to the procedural integrity of the sentence

and then to review any challenge to its substance.            See Gall v.

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

520 F.3d 87, 92 (1st Cir. 2008).          Here, however, the appellant

makes only a bottom-line challenge to his newly imposed sentence:

he strives to persuade us that the sentence is substantively

unreasonable, given considerations such as his troubled childhood,

his poor health, the mistreatment he endured while incarcerated,

and the Sentencing Commission's recent recommendations to Congress




                                  - 7 -
regarding modifications to the career offender guideline.             We are

not convinced.

          We review the appellant's preserved claim of substantive

unreasonableness for abuse of discretion.          See United States v.

Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir.), cert. denied, 136 S.

Ct. 258 (2015). We start with first principles: the district court

must evaluate an amalgam of factors in fashioning a condign

sentence, see 18 U.S.C. § 3553(a), but the "weighting of those

factors is largely within the court's informed discretion," United

States v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011).                In any

given case, there is more than one reasonable sentence; there is

a range of reasonable sentences.            See Martin, 520 F.3d at 92

(noting that there is likely to be an "expansive" universe of

reasonable sentences in any particular case).         This makes perfect

sense: reasonableness is the touchstone of the inquiry and, in the

last analysis, "reasonableness is a protean concept."           Id.

          Of course, the discretion vested in a sentencing court,

though broad, is not unbounded.            With respect to any sentence

imposed, the court must supply "a plausible sentencing rationale"

and reach "a defensible result."         Id. at 96.   It is against this

backdrop that we examine the challenged 151-month sentence.

          We   turn   first   to   the   sentencing   court's   rationale.

Before imposing the sentence, the court considered the appellant's

checkered criminal history, which featured an array of convictions


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beginning at age 18 and continuing virtually unabated until the

commission of the crimes at issue here.                These convictions added

up to 21 criminal history points — more than enough to ensure the

appellant's     placement      for   sentencing      purposes    in    the   highest

criminal history category (CHC) — VI. In its discussion, the court

took pains to observe that the appellant's 21 criminal history

points were appreciably more than the 13 points necessary to place

a   defendant    in   CHC   VI.      Thus,    CHC    VI   was,   in    effect,      an

"underrepresentation"       that     failed    to    "capture    the   many,      many

convictions and . . . violations of bail and probation" that formed

the appellant's extensive criminal record.

            In addition, the court commented specifically on the

appellant's conduct while in custody.                The court noted that the

records    of   the   Bureau    of   Prisons      memorialized    over       a   dozen

disciplinary incidents, some as recent as 2015.                       Taken in the

ensemble, these infractions were, the court concluded, "indicative

of a lack of impulse control, a lack of maturity, [and] a lack of

respect for authority."         The court explained that the appellant's

criminal   history,     coupled      with   his     unruly   behavior    while      in

custody, counseled against accepting the appellant's invitation to

impose a time-served sentence.          In the court's view, a sentence at

the low end of the GSR was necessary in order to protect the

public.




                                      - 9 -
            To pass the test of plausibility, a district court's

sentencing rationale need not be ironclad.           See United States v.

Dixon, 449 F.3d 194, 205 (1st Cir. 2006).          The court's sentencing

rationale   in    this   case,   though   not   unarguable,   is   certainly

reasonable.      No more is exigible to pass the test of plausibility.

Cf. Ruiz-Huertas, 792 F.3d at 226-27 (explaining that "judgment

calls" normally fall within the scope of a sentencing court's

discretion).

            This brings us to the defensibility of the sentencing

outcome, that is, whether "the punishment fit[s] the crime."

United States v. Narváez-Soto, 773 F.3d 282, 289 (1st Cir. 2014).

We need not find a perfect fit; rather, we must only determine

whether the sentence falls within the wide universe of reasonable

sentences for the crimes of conviction.           With respect to such an

inquiry, the fact that the sentence is within a properly calculated

guideline sentencing range is entitled to significant weight.           See

Rita v. United States, 551 U.S. 338, 347 (2007); United States v.

Coombs, 857 F.3d 439, 452 (1st Cir. 2017).           Seen in this light,

challenging a bottom-of-the-range sentence is a heavy lift.             The

appellant's arguments are not strong enough to accomplish such a

lift.

            In support of his claim that his sentence is overly

harsh, the appellant cites his troubled childhood, his physical

and mental health, and the mistreatment that he allegedly received


                                   - 10 -
while incarcerated. He says that, as a child, he suffered repeated

sexual abuse and was exposed to lead poisoning.        Moreover, he has

an injured leg, suffers from diabetes, and has a portfolio of

psychiatric problems, including an anxiety disorder, a bipolar

condition, and schizophrenia.       He adds that, while in custody, he

was       physically   assaulted   on    multiple   occasions,   thereby

exacerbating his health issues.         And prior to his incarceration,

he struggled with drug and alcohol dependency.

              These are mitigating factors, and the appellant argues

that they should have led the sentencing court to vary downward

from the GSR.      Relatedly, he argues that, given his age (48 at the

time of resentencing), his life of crime is behind him — a

circumstance that also supports a downwardly variant sentence.

But the appellant's compendium of potentially mitigating factors

is counterbalanced by a compendium of aggravating factors, not the

least of which are his prolific criminal record and his long string

of disciplinary infractions while incarcerated.        Given this mixed

picture, the district court's decision to impose a sentence within

but at the low end of the GSR is an easily defensible outcome.4


      4The appellant also invokes the Sentencing Commission's 2016
Report to Congress (the Report), in which the Commission recommends
that career offender enhancements be reserved for those career
offenders who have committed felony crimes of violence rather than
those (like the appellant) who are career offenders by reason of
other kinds of offenses. See U.S. Sentencing Comm'n, 2016 Report
to the Congress: Career Offender Sentencing Enhancements 44
(2016). The district court considered and rejected this argument,


                                   - 11 -
            We need go no further. For the reasons elucidated above,

we hold that the appellant's 151-month sentence is substantively

reasonable.

III.   CONCLUSION

            The judgment of the district court is



Affirmed.




reasoning that the appellant's lengthy criminal history weighed
against leniency on account of the Report's hypothesis. This sort
of weighing of factors is emblematic of the type of function that
a sentencing court must perform, see Clogston, 662 F.3d at 593,
and the record reveals no sound basis for second-guessing the
district court's thoughtful evaluation. That is especially true
where, as here, the Report is merely a set of recommendations,
without any binding effect. Cf. United States v. Demers, 842 F.3d
8, 15 n.6 (1st Cir. 2016) (observing that "[w]e must decide [an]
appeal on the basis of the law as it stands, not on the basis of
the law as it might someday be").


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