          United States Court of Appeals
                      For the First Circuit


No. 15-2262

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                      OSCAR DELGADO-SÁNCHEZ,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Francisco A. Besosa, U.S. District Judge]


                              Before

                       Howard, Chief Judge,
              Torruella and Kayatta, Circuit Judges.


     Thomas J. O'Connor, Jr. for appellant.
     Mainon A. Schwartz, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.


                        February 17, 2017
           KAYATTA,    Circuit    Judge.         Oscar   Delgado-Sánchez

("Delgado") pled guilty to one count of being a prohibited person

in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

Delgado now appeals his upwardly variant sentence of seventy-two

months in prison. He contends that his guidelines sentencing range

was miscalculated because the district court erroneously found at

least one of his prior convictions to be for a "crime of violence."

He also takes issue with what he claims were procedural missteps

at sentencing, and he argues that the district court based his

above-guidelines sentence on factors that should not have been

considered.    For the following reasons, we disagree and affirm

Delgado's sentence in full.

                            I.   Background

           In March 2015, police obtained a search warrant for

Delgado's residence after they observed him carrying an AK-47

outside of his home.    When officers arrived to execute the search,

Delgado allowed them inside, confessed that he had the firearm,

and told the officers where they could find an additional magazine

and ammunition. The police arrested Delgado and seized the weapon,

which was capable of automatic fire and which was loaded with one

magazine containing twenty-nine rounds of ammunition.         They also

seized   one   more   magazine   and   sixteen   additional   rounds   of

ammunition.    Delgado pled guilty to being a prohibited person in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1).


                                  - 2 -
            The U.S. Probation Office's presentence investigation

report assigned Delgado a criminal history score of seven, the sum

of   the   criminal   history     points    attributable   to   three   prior

convictions.    The first conviction, worth three criminal history

points under U.S.S.G. § 4A1.1(a), arose out of a 2008 arrest in

San Lorenzo, Puerto Rico, for violating Article 404 of the Puerto

Rico Controlled Substances Law, P.R. Laws Ann. tit. 24, § 2404.

The second conviction, also worth three criminal history points

under U.S.S.G. § 4A1.1(a), arose out of Delgado's 2009 arrest in

Las Piedras, Puerto Rico.         In that case, Delgado pled guilty to

one count of violating Article 198 of the Puerto Rico Penal Code

(Robbery) ("Article 198"), P.R. Laws Ann. tit. 33, § 4826, and

three counts of violating Article 5.15 of the Puerto Rico Weapons

Law (Discharging or Pointing Firearms) ("Article 5.15"), P.R. Laws

Ann. tit. 25, § 458n(a).          The presentence report explained that

"[a]ccording    to    certified    court    documents,"    Delgado   and   an

accomplice "through the use of violence and intimidation" and

"using a dangerous weapon . . . robbed $60.00 in cash . . . in the

immediate presence of [a person]," and Delgado "aimed [a] firearm

at [the person] and announced the robbery."

            Delgado's third conviction, worth one criminal history

point pursuant to U.S.S.G. § 4A1.1(e), followed a guilty plea to

three counts of robbery under Article 198 and three counts of

unlawfully discharging or pointing a firearm in violation of


                                    - 3 -
Article 5.15.      According to the presentence report, "certified

court documents" revealed that these offenses arose out of two

separate robberies and a shooting in Yabucoa on March 24, 2009.

First, Delgado "robbed a cash register, $413[] in cash and between

12 and 15 cigarette boxes from [a store] through the use of

violence and/or intimidation in the immediate presence of [a

person]. He also robbed $177 in cash belonging to [another person]

through the use of violence and/or intimidation."               Second, at

4:15 P.M., Delgado, "in possession of a black 9mm firearm," robbed

a business of all of the proceeds from the day's sales and some

horse products totaling about $800.        During the robbery, Delgado

asked an individual victim where he could find the safe and

instructed that individual to "hit the safe in order to open it

and give me all the money."        Finally, "[a]ccording to certified

court documents," Delgado "shot 4 to 5 rounds into the air from a

black 9mm firearm" at 5:00 P.M.

          The presentence report also alerted the parties and the

court that probation was aware that Delgado had been arrested on

at least four other occasions.

          First,    the   report   indicated   that   Delgado    had   been

arrested in San Lorenzo in July 2008 and charged with two counts

of violating the Puerto Rico Weapons Law for possessing and

carrying without a license a loaded weapon with an obliterated




                                   - 4 -
serial number.     These charges, probation reported, were dismissed

in a preliminary hearing upon a finding of no probable cause.

            Second, the report stated that Delgado was arrested in

Yabucoa in November 2008 on grounds that (1) he committed two

violations of the Puerto Rico Controlled Substances Law, and (2) he

possessed two loaded firearms, one of which he used to rob a bar

of cash and goods "through the use of violence and intimidation"

in violation of the robbery statute and the Weapons Law.                    The

Controlled Substances Law charges were dismissed for lack of

probable cause, and, because Delgado was detained for more than

thirty days without a preliminary hearing, the robbery and firearms

charges were dismissed pursuant to Rule 64(n)(5) of the Puerto

Rico Rules of Criminal Procedure, P.R. Laws Ann. tit. 34, App. II,

§ 64(n)(5).

            Third, the report detailed another November 2008 arrest

in Yabucoa on charges that Delgado violated two provisions of the

Weapons Law by carrying two loaded firearms without a license, one

of which had an obliterated serial number.              These charges were

dismissed under the Commonwealth's Rule 64(n)(4), id. § 64(n)(4),

because     Delgado   was    not   tried     within   120    days   after   his

arraignment.

            Fourth and finally, the report alerted the parties that

probation    was   aware    that   Delgado    was   facing   pending   charges

stemming from a December 2013 arrest.            In that case, Delgado was


                                     - 5 -
charged with discharging or pointing a firearm in violation of

Article    5.15   and   unlicensed    carrying/using        of   a     firearm   in

violation of Article 5.04 of the Weapons Law, along with Aggravated

Robbery in violation of Article 190(e) of the Puerto Rico Penal

Code.   The report noted that Delgado's trial on these charges was

scheduled for early September 2015.

            In    a   separate   section     of    the    presentence     report,

probation concluded that Delgado should be subject to U.S.S.G.

§ 2K2.1(a)(3), which provides that when an individual is convicted

of an offense involving certain types of firearm and was previously

convicted of a felony "crime of violence," his base offense level

is twenty-two.        Probation did not specify which of Delgado's

previous    convictions    served    as    the    basis    for   the    "crime   of

violence"    designation.        Subtracting       three     levels     based    on

Delgado's demonstrated acceptance of responsibility, probation

proposed that Delgado's total offense level should be set at

nineteen.

            In the nearly two months that passed between the date he

was served with the presentence report and the date he appeared

for sentencing, Delgado lodged no objections to the presentence

report.     Rather, he submitted a sentencing memorandum limited to

urging the court to engage in a downward variance on account of a

chronic medical condition (the nature of which is not germane to

this appeal).     When Delgado appeared before the district court for


                                     - 6 -
sentencing on September 24, 2015, his attorney informed the court

that he had nothing to say on Delgado's behalf "other than what I

have   expressed     in   my   sentencing       memorandum."        Delgado,    too,

declined the court's offer to speak on the record.

             The   district     court    determined    that    the    presentence

report's calculations were correct:              Delgado's base offense level

was    twenty-two    "because     Mr.    Delgado     has    been    convicted     of

possessing a firearm which is described in Title 26, United States

Code, Section 5845(a) after having been convicted for a crime of

violence, robbery and brandishing a firearm during the robbery."

With   adjustments    for      acceptance   of    responsibility,       his    total

offense level was nineteen.              And he was in Criminal History

Category IV with a criminal history score of eight--the seven

points described above plus one additional point that Delgado

earned when a jury convicted him at some point in the intervening

months on the charges arising from his December 2013 arrest.                    The

advisory guidelines, the court found, thus recommended a sentence

of forty-six to fifty-seven months' imprisonment, plus a fine and

a term of supervised release.

             The   district     court    then    proceeded     to   consider     the

sentencing factors in 18 U.S.C. § 3553(a).             The court took note of

Delgado's     age,   education,      employment,      and     history    of    drug

addiction.    It also observed that Delgado had numerous convictions

and dismissed charges for firearms offenses, and it expressed


                                        - 7 -
concern with Delgado's statement to probation that he committed

robberies because he "liked to."         Finding that, in light of these

facts and the Commonwealth's serious gun violence problem, a

sentence within the proposed guidelines range of forty-six to

fifty-seven months would not achieve the goals of punishment, the

district     court      sentenced     Delgado    to   seventy-two     months'

imprisonment followed by a three-year term of supervised release.

Delgado timely appealed.

                              II.     Discussion

A.   "Crime of Violence"

             Delgado's lead argument is that the district court erred

in   calculating     his    guidelines    sentencing    range    because     it

improperly classified one of his prior convictions as a conviction

for a "crime of violence" under U.S.S.G. § 2K2.1(a)(3).                    That

provision     advises    courts     sentencing   defendants     convicted    of

certain firearms offenses to assign a base offense level of twenty-

two if "the defendant committed any part of the instant offense

subsequent to sustaining one felony conviction of . . . a crime of

violence."     A felony "crime of violence" is "any offense under

federal or state law, punishable by imprisonment for a term

exceeding one year, that . . . has as an element the use, attempted

use, or threatened use of physical force against the person of

another."     U.S.S.G. § 4B1.2(a)(1); see also id. § 2K2.1 cmt. n.1




                                      - 8 -
(adopting definition of "crime of violence" in § 4B1.2).1            Physical

force is "violent force--that is, force capable of causing physical

pain or injury to another person."          United States v. Martinez, 762

F.3d 127, 133 (1st Cir. 2014) (quoting Johnson v. United States,

559 U.S. 133, 140 (2010)).         If a criminal defendant has no prior

convictions, or none of his prior convictions is for a crime of

violence, § 2K2.1(a)(3) cannot be applied to set the defendant's

base offense level.

             Delgado   did   not   raise   this   argument   at   sentencing.

Indeed, he raised no objections at all at sentencing.               For this

reason, we are faced at the outset with a dispute concerning

whether, and by what standard, we may review Delgado's arguments

on appeal.

             Ordinarily, a party who fails to lodge an objection or

raise an argument below is deemed to have forfeited the argument

and faces plain error review. See, e.g., United States v. Sánchez-

Berríos, 424 F.3d 65, 74 (1st Cir. 2005).               But where a party




     1 The guidelines also provide an alternative definition of a
felony "crime of violence" as "any offense under federal or state
law, punishable by imprisonment for a term exceeding one year,
that . . . is burglary of a dwelling, arson, or extortion, involves
use of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another." U.S.S.G.
§ 4B1.2(a)(2) (2015). This case does not involve burglary of a
dwelling, arson, extortion, or the use of explosives, and the
government has waived any argument that one or more of Delgado's
past convictions is for an offense "that presents a serious
potential risk of physical injury to another."


                                    - 9 -
"intentional[ly] relinquish[es] or abandon[s] . . . a known right"

and that right is waivable, he may not revive his waived argument

on appeal at all.      United States v. Olano, 507 U.S. 725, 732–34

(1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).          We

treat differently waived and forfeited claims because "waiver

implies an intention to forgo a known right, whereas forfeiture

implies something less deliberate--say, oversight, inadvertence,

or neglect in asserting a potential right."            United States v.

Eisom, 585 F.3d 552, 556 (1st Cir. 2009).         The government asks us

to deem waived and therefore not reviewable Delgado's challenge to

the presentence report's designation (and the district court's

decision to adopt it) that § 2K2.1(a)(3) applies.        Delgado admits

that he failed to preserve the arguments he advances on appeal,

but nevertheless urges us to review the district court's decision

for plain error.

             We have noted that "a powerful case for waiver" is

presented where a defendant "eschews a warrantable objection to a

conclusion reached in a presentence report" because doing so "lulls

both the prosecution and the sentencing court into what will prove

to be a false sense of security if he is later allowed to do an

about-face."    United States v. Turbides-Leonardo, 468 F.3d 34, 38

(1st Cir. 2006).      This argument carries particular weight where,

as   here,   "given   the   appellant's   ready    acquiescence   in   the

characterization of his earlier conviction . . . few prosecutors


                                 - 10 -
would    have   felt   a   need    to   bring    in   the   original   record   of

conviction and few judges would have felt a responsibility to probe

the point more deeply."           Id.    And, as the government points out,

Delgado may have had some incentive not to encourage the district

court to delve deeply into his criminal history:                in light of his

having been convicted on multiple occasions of both robbery and

discharging or pointing firearms, it is possible that the district

court might have found that his record showed he had committed

more than one crime of violence and thus set his base offense level

even higher than the presentence report recommended.               See U.S.S.G.

§ 2K2.1(a)(1) (setting the base offense level at twenty-six for

defendants convicted of an offense involving a firearm described

in 26 U.S.C. § 5845(a) who have been convicted of two or more

felony crimes of violence).

            Still, "[w]here a defendant's claim would fail even if

reviewed for plain error, we have often declined to decide whether

the defendant's failure to raise the issue below constituted waiver

or mere forfeiture."        United States v. Acevedo-Sueros, 826 F.3d

21, 24 (1st Cir. 2016) (citing United States v. Aguasvivas-

Castillo, 668 F.3d 7, 13–14 (1st Cir. 2012)); see also, e.g.,

United States v. Delgado-López, 837 F.3d 131, 135 n.2 (1st Cir.

2016); United States v. Arsenault, 833 F.3d 24, 28 & n.2 (1st Cir.

2016).    Because Delgado's arguments fail under plain error review,

we decline to decide whether Delgado's failure to object to the


                                        - 11 -
presentence report constitutes a waiver.   Instead, applying plain

error review, we ask whether Delgado can show "(1) that an error

occurred (2) which was clear or obvious and which not only (3)

affected [his] substantial rights, but also (4) seriously impaired

the fairness, integrity, or public reputation of the judicial

proceedings."   Arsenault, 833 F.3d at 29 (alteration in original)

(quoting United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st

Cir. 2015)).

          To determine whether a defendant's prior convictions

were for crimes of violence, we apply the "categorical approach"

set forth by the Supreme Court in Taylor v. United States, 495

U.S. 575, 600–02 (1990).   In short, we "look to the elements of

the prior convictions as defined by the relevant statute[s]--not

to the particular facts underlying the convictions." United States

v. Castro-Vázquez, 802 F.3d 28, 35 (1st Cir. 2015) (citing Descamps

v. United States, 133 S. Ct. 2276, 2283 (2013)).      If the state

(or, as in this case, the Commonwealth of Puerto Rico) defines the

crime of conviction broadly enough that it may be committed without

the "use, attempted use, or threatened use of physical force

against the person of another," U.S.S.G. § 4B1.2(a)(1), then the

conviction cannot be used to set the defendant's base offense level

under § 2K2.1(a)(3) based on it being for a "crime of violence"

under § 4B1.2(a)(1).   United States v. Serrano-Mercado, 784 F.3d




                              - 12 -
838, 842–44 (1st Cir. 2015), cert. denied, No. 16-0237, 2017 WL

160457 (Jan. 17, 2017).

            If the statute under which the defendant was previously

convicted     is    divisible,     meaning    "it   comprises        multiple,

alternative versions of a crime not all of which qualify as a

predicate     offense,"   courts     apply    a   "modified"    categorical

approach.     Castro-Vázquez, 802 F.3d at 35; see also Mathis v.

United States, 136 S. Ct. 2243, 2249 (2016).         Under this approach,

we may refer to "Shepard" documents, see Shepard v. United States,

544 U.S. 13, 17, 25–26 (2005), including "charging documents, plea

agreements,    plea    colloquies,   jury    instructions,     and    verdict

forms," in order "to determine which of a statute's alternative

elements formed the basis of the prior conviction."                    Castro-

Vázquez, 802 F.3d at 35.

            The     district     court's     explanation     for      applying

§ 2K2.1(a)(3) to Delgado was that he had previously been convicted

of "a crime of violence, robbery and brandishing a firearm during

the robbery."      But prior to Delgado's conviction in this case, he

had never been convicted of any single offense whose elements could

be said to include both the forceful taking of property and the

brandishing of a firearm.         See P.R. Laws Ann. tit. 33, § 4826

(robbery does not involve brandishing of a firearm); P.R. Laws

Ann. tit. 25, § 458n(a) (brandishing need not occur in the course

of a robbery to be unlawful discharge or pointing of a firearm).


                                   - 13 -
Delgado argues that this error in describing what conviction the

court found to be a crime of violence requires that the finding be

set aside.

             We disagree.   True, the district court could have been

more explicit when it identified the predicate offense that it

viewed as justifying the application of § 2K2.1(a)(3).               But we

think it reasonably clear, based on the way the court described

the crime, that the court was referring to the several convictions

that arose out of Delgado's March 2009 arrest for aiming a firearm

at a person and announcing and carrying out a robbery.           As a result

of that arrest, Delgado pled guilty to one count of robbery in

violation of Article 198 and three counts of discharging or

pointing a firearm in violation of Article 5.15.               We encourage

district courts to identify predicate crimes of violence with care

and precision, but we do not find any error here, where the record

makes plain our task on appeal.

             Our   discussion   begins   and   ends   with   Delgado's   2009

convictions under Article 5.15,2 which provides, in relevant part:

             (a)   Any person shall be found guilty of a
                   felony . . . who, except in cases of self
                   defense or defense of third parties, or
                   actions in the performance of official
                   duties or legitimate sports activities:

     2 Because we find that applying U.S.S.G. § 2K2.1(a)(3) based
on Delgado's conviction under Article 5.15 was not plainly
erroneous, we decline to address whether robbery under Article 198
is a "crime of violence" justifying application of U.S.S.G.
§ 2K2.1(a)(3).


                                   - 14 -
                 (1)   Willfully fires any weapon in a
                       public place or any other place
                       where there is any person who could
                       be harmed, even though he/she causes
                       no harm whatsoever to any person, or

                 (2)   intentionally,    although    without
                       malice   aforethought,     points   a
                       weapon towards a person, even though
                       he/she causes no harm whatsoever to
                       any person.

P.R. Laws Ann. tit. 25, § 458n(a).        In his opening brief, Delgado

argued that a conviction under Article 5.15 cannot be a predicate

offense meriting application of § 2K2.1(a)(3) because it "can be

completed without the intentional use of violen[t] force on any

individual."     At oral argument and on reply, Delgado expounded

this argument, claiming that Article 5.15 is an indivisible statute

that sets forth a single crime that is not categorically violent.

He also argued that whether indivisible or divisible, Article 5.15

cannot serve as a predicate offense justifying application of

§ 2K2.1(a)(3).

          We are unpersuaded by Delgado's contention that Article

5.15 is indivisible.      Where a statute is indivisible but lists

multiple, alternative means of satisfying an element, one or more

of which can be achieved without violence, the crime defined

therein is not categorically a "crime of violence" even if the

defendant committed it by violent means identified in the statute.

Cf. Mathis, 136 S. Ct. at 2251.     A divisible statute, on the other



                                 - 15 -
hand, "list[s] elements in the alternative, and thereby define[s]

multiple crimes"; if one of those crimes is categorically violent,

it can serve as a predicate offense so long as the defendant's

conviction under the statute was for that version of the crime.

Id. at 2249.       To determine whether statutory alternatives are

"elements" or "means," we look to case law interpreting the

statute, unless the "statute on its face . . . resolve[s] the

issue."   See id. at 2256.      When the statute and the case law do

not provide a clear answer, courts may look to other relevant

documents for the purpose of determining what elements must be

proved to secure a conviction under the statute.            Id. at 2256–57.

           Neither party points us to any case law interpreting

Article 5.15, but the statute's plain text and structure strongly

suggest that it is divisible, providing two alternative sets of

elements for two different crimes.           The statute sets a criminal

penalty for two entirely distinct courses of conduct with entirely

distinct required mental states.         The statute's structure makes

clear   that   a   defendant   is   guilty    of    "discharging"   but   not

"pointing" when he willfully fires a weapon in a public place but

does not aim the weapon at anyone, and that a defendant is guilty

of "pointing" but not "discharging" when he intentionally aims a

firearm at another person but does not fire it.

           The     Commonwealth's     pattern      jury   instructions    for

Article 5.15 suggest the same. In the English-language translation


                                    - 16 -
Delgado has provided,3 judges are tasked with determining which

crime the government charged under the statute and describing only

that crime to the jury.   The instructions then provide the judge

with a menu of options, one of which is "[d]ischarging a weapon in

a public place or in another location where a person could have

suffered harm, even if no person was harmed," and another of which

is "[i]ntentionally, even if without malice, aiming a firearm


     3   The translation reads as follows:

                In this case, the defendant is charged
           with the crime of: [The Judge shall provide
           the instruction that corresponds to the facts
           charged.]

                     1)   Discharging a weapon in a
                     public place or in another location
                     where a person could have suffered
                     harm, even if no person was harmed.

                     2)   Intentionally, even if without
                     malice, aiming a weapon towards a
                     person, even if no person was
                     harmed.
                     . . . .

                     4)   Intentionally, even if without
                     malice, aiming a firearm towards a
                     person, even if no person was
                     harmed.

                The essential elements of this offense
           are the following:

                     1)   [Aiming]    [Discharging]    a
                     [weapon] [firearm].

                     2)    In a public place or any other
                     place where a person could suffer
                     harm.


                              - 17 -
towards a person, even if no person was harmed."               The judge is

directed to choose whether the criminal act charged is "aiming" or

"discharging"     and   instruct    the     jury   about   the    applicable

"essential element[]" accordingly.            Delgado contends that the

instructions show the statute to be indivisible, but they do not;

rather, to the extent they lend any insight, they confirm our

reading by providing alternative versions of the crime's elements,

negating any possibility that a jury need not find unanimously

that the selected version has been proven beyond a reasonable

doubt.

             Having determined the statute is divisible, we proceed

to determine whether either version of the crime provided under

Article 5.15 is categorically a "crime of violence."             The elements

of the offense described in Article 5.15(a)(2) (intentionally

pointing a weapon towards a person) might comprise one.                  The

government     argues   that   to    point     a     firearm     at   someone

intentionally--when not done in self-defense, defense of another,

or in the performance of official duties or legitimate sports

activities--is, in all cases, to threaten the use of physical force

against that person.      Delgado, in opposition, contends, first,

that Puerto Rico's decision to explicitly provide in the statute

that pointing under Article 5.15 can be committed without malice

aforethought shows that the crime can be committed unintentionally

or without the threatened use of force.            He argues, second, that


                                   - 18 -
pointing is not categorically a crime of violence because a person

can be convicted under this version of the offense even where, for

instance, the victim is unaware that a gun is being pointed at

him, or is aware of the pointing but knows that the offender is

joking or the gun is not loaded.                This, he argues, does not

constitute use, attempted use, or threatened use of force against

the person of another.

             Delgado's     first   argument     is   easily   dismissed.      The

definition of a crime of violence does not include malice as an

element; intentionality suffices.              See, e.g., United States v.

Tavares, 843 F.3d 1, 13 (1st Cir. 2016) (when performed with a

dangerous weapon, "'the intentional and unjustified use of force

upon the person of another, however slight'--constitutes a crime

of violence under § 4B1.2(a)(1) of the Guidelines"); United States

v. Whindleton, 797 F.3d 105, 113–16 (1st Cir. 2015) (same), cert.

dismissed, 137 S. Ct. 23 (2016), and cert. denied, 137 S. Ct. 179

(2016).

             Delgado's second argument, however, is not so easily

dismissed.      The challenge is how to define the phrase "threatened

use of physical force" in U.S.S.G. § 4B1.2(a)(1).               One might read

the phrase narrowly to require "communicat[ing] intent to inflict

harm,"    see    Threat,    Black's    Law     Dictionary     (10th   ed.   2014)

(definition #1), in which case pointing a firearm at a person

without that person's knowledge--arguably a method of committing


                                      - 19 -
the offense described in Article 5.15(a)(2)--would not qualify.

Or, one might read the phrase as also including the creation of

some "thing that might well cause harm."       Id. (definition #3).   If

this broader definition of "threat" is the one we should be using

to interpret "threatened use of force" in the guidelines, a

violation of Article 5.15(a)(2) would seem to fit.          It would make

no difference, for the purposes of determining whether pointing

"might well cause" the use of force against the victim, whether

the person at whom the firearm is aimed is aware of the threat

that has been created.

            Ultimately,    we   need   not   definitively   answer   this

question.    Delgado points to no precedent (nor are we aware of

any) that construes U.S.S.G. § 4B1.2(a)(1) as excluding the latter

definition of a "threatened use of physical force against the

person of another."       See also United States v. Cortez-Arias, 403

F.3d 1111, 1116 (9th Cir. 2005) (observing that "'threatened use

of physical force against the person of another' must logically

include . . . acts suggesting that physical force against [a]

person may be impending").4        We therefore cannot say that the




     4 The Ninth Circuit has abrogated Cortez-Arias, holding that
the predicate state-law offense at issue in that case does not
categorically constitute a crime of violence because it may be
committed recklessly.    See United States v. Narvaez-Gomez, 489
F.3d 970, 976–77 & n.3 (9th Cir. 2007). This development does not
affect our analysis, which relies on Cortez-Arias only for the
narrow proposition that the district court did not plainly err in


                                  - 20 -
district court committed error that was clear or obvious.                        See

United States v. Vanvliet, 542 F.3d 259, 270 (1st Cir. 2008)

(finding the practice of not giving an Allen charge before a jury

retires not plainly erroneous because "[w]e have not even discussed

the desirability of this practice in our own circuit precedents");

United States v. Marcano, 525 F.3d 72, 74 (1st Cir. 2008) ("[P]lain

error    cannot    be   found   in    case   law    absent      clear   and   binding

precedent . . . ."); United States v. Caraballo-Rodriguez, 480

F.3d 62, 73 (1st Cir. 2007) ("[S]ince we have not yet adopted the

[statutory] construction [defendant] urges, there is no plain

error.").

               We are left to decide only whether any of Delgado's

convictions under Article 5.15 was for intentionally pointing a

firearm at another person.             The presentence report's findings,

which the district court adopted as its own findings of fact with

no objection from Delgado, state that Delgado pled guilty to three

counts    of    violating   Article     5.15       and   that    "certified    court

documents" show Delgado aimed a firearm at a person as he announced

his intent to rob her.               But the presentence report fails to

identify which certified court documents it is referring to, and

it does not attach or include any so-called Shepard documents.

Whether the presentence report is describing factual conduct or



declining to read "threatened use of physical force" to require
communication of intent to inflict harm.


                                       - 21 -
describing the actual offense charged or admitted by Delgado

remains unclear.

           Delgado, however, makes no claim that, had the district

court examined any Shepard documents, it would have discovered

that the presentence report inaccurately characterized the charged

offense.   Therefore, even assuming that the district court clearly

erred by failing, sua sponte, to require the government to clear

up the problematic ambiguity in the presentence report, Delgado's

challenge falls short on the third prong of plain error review.

That prong, in this context, requires him to make a showing he

does not even attempt to make:   that he was actually prejudiced by

the absence of the Shepard documents describing the offense to

which he pled.   Serrano-Mercado, 784 F.3d at 848.

B.   Other Alleged Procedural Errors

           Delgado claims his sentence is procedurally unreasonable

on five other bases, all of which, for the reasons already stated,

we review for plain error.    See United States v. Cortés-Medina,

819 F.3d 566, 569 (1st Cir.), cert. denied, 137 S. Ct. 410 (2016).

His first few arguments concern a second presentence report that

was docketed on the day of his sentencing.   This second report was

identical to the presentence report Delgado received two months

earlier in all but four respects.       First, it reclassified the

charges stemming from Delgado's December 2013 arrest as a prior

conviction worth one criminal history point (rather than as pending


                               - 22 -
charges) because between the time the first presentence report was

filed and the date of sentencing, a jury had convicted Delgado on

those charges.    Second, the report added the point associated with

that   conviction   to   the   criminal   history   score   previously

calculated, raising Delgado's score from seven to eight.       Third,

the report represented that Delgado's first Yabucoa conviction,

which had originally been assigned one criminal history point, was

worth zero criminal history points.       Fourth, the report included

a paragraph addressing the medical issues raised in Delgado's

sentencing memorandum and discussed on the record at sentencing.

          Delgado argues that it was error for him to discover

only on the date of sentencing that an additional criminal history

point had been inserted into a new presentence report upon which

the court would rely.    He also argues that the district court erred

because it failed to ask him at sentencing whether he had discussed

the new presentence report with his attorney.

          We doubt that any error occurred here at all in light of

the fact that the new report appears to have been prepared after

sentencing.    During the sentencing colloquy, the district court

observed that it lacked medical records confirming that Delgado

suffered from a medical condition.    Delgado's counsel informed the

court that he had brought with him to the hearing a record from an

emergency visit Delgado had made to Ryder Hospital in Bayamón,

Puerto Rico.     Delgado's counsel delivered the medical record to


                                - 23 -
the   court    and   agreed,    in   open   court,    to   furnish      a    copy    to

probation.       The   new     report,   in   turn,    noted     that       "[d]uring

sentencing, defense counsel provided the Court and the undersigned

with a copy of the defendant's record at the Emergency Department

of the Ryder Hospital" and summarized the contents of the medical

record   delivered     at    sentencing.       In     other     words,      the     new

presentence      report   refers     retrospectively       to   the     sentencing

hearing, so it seems unlikely that the report was available to the

district court at sentencing.

              Moreover, aside from the new report's recalculation of

the criminal history points attributable to the first Yabucoa

conviction (which we will discuss momentarily), the new report

differed from the old one only by including a reference to medical

records that Delgado's counsel asked be added to the presentence

report and by confirming a new conviction that had occurred between

the production of the first report and the sentencing hearing.

The conviction was discussed at sentencing, and Delgado does not

dispute either that it did in fact occur or that it was worth one

criminal history point.          Even if one were to assume error here,

prejudice would be lacking.

              Delgado does challenge the inconsistent treatment of his

criminal history score from one presentence report to the other,

and he disputes the district court's calculation of his criminal

history score at sentencing. These claims, and the array of others


                                     - 24 -
Delgado makes concerning his criminal history score, all boil down

to an argument that he was assigned eight criminal history points

"when he had 7 at most."

             We need not determine whether Delgado's correct criminal

history score is seven or eight.                 We have previously held that a

court does not commit plain error when it incorrectly calculates

and applies a criminal history score that nonetheless results in

the   defendant      being         placed   in   the    correct    Criminal    History

Category,    because       a    Criminal      History    Category       recommends   one

guidelines sentencing range in all cases, irrespective of the

defendant's criminal history score. See United States v. Albanese,

287 F.3d 226, 229 (1st Cir. 2002) (per curiam).                       Delgado concedes

on reply that by any calculation, he would have been placed in

Criminal History Category IV. "Thus, even assuming error occurred,

it was not prejudicial because it did not affect [Delgado's]

sentence."     Id.

             For     his       fourth       argument     that     his     sentence    is

procedurally unreasonable, Delgado claims that it was error for

the district court to take note of Puerto Rico's significant

problem with gun violence.                  Our precedent flatly rejects this

argument.    See, e.g., United States v. Narváez-Soto, 773 F.3d 282,

286 (1st Cir. 2014) ("In weighing the impact associated with a

particular     crime,          a     sentencing        court    may     consider     the

pervasiveness of that type of crime in the relevant community.").


                                            - 25 -
             Delgado's final procedural unreasonableness argument is

that   the   district   court      plainly    erred     in    placing   weight    on

Delgado's dismissed weapons charges.                  We confronted a similar

argument in Cortés-Medina.           In applying plain error review, we

noted that, in light of the Supreme Court's holding in United

States v. Watts, 519 U.S. 148 (1997) (per curiam), "the Supreme

Court might well hold that a sentencing court may not accord any

significance to a record of multiple arrests and charges without

convictions unless there is adequate proof of the conduct upon

which the arrests or charges were predicated."                Cortés-Medina, 819

F.3d at 570. But we also observed that "our own precedent contains

dicta, repeated several times, positing that a series of arrests

'might legitimately suggest a pattern of unlawful behavior even in

the absence of any convictions.'"             Id. (quoting United States v.

Lozada-Aponte, 689 F.3d 791, 792 (1st Cir. 2012)). We "caution[ed]

district courts against placing weight on such speculation," but

because the state of the law was unclear, we found that the

district court did not plainly err.             Id.

             The district court here sentenced Delgado eight months

before we issued our decision in Cortés-Medina, so, like the

district court in that case, it did not have any reason to know

that we would discourage district courts from placing weight on

unsubstantiated charges.        Still, plain error review requires us to

evaluate     whether   the   law   is   clear    now,    at    the   time   we   are


                                     - 26 -
conducting appellate review, regardless of whether the law was

unclear at the time of sentencing. See Henderson v. United States,

133 S. Ct. 1121, 1127 (2013).          Delgado urges us to find that, in

the wake of Cortés-Medina, inferring that past arrests suggest a

pattern of criminal behavior is a clear error of law.

             We find that it is not.          Cortés-Medina held only that

the   law   on   this    question    was    unclear.        True,    Cortés-Medina

certainly warns district courts that, when the occasion presents

itself, we very well may sustain a preserved challenge to a

sentence that treats arrests as proof of unlawful conduct or

evidence that a defendant is likely to recidivate.                   But Delgado's

plain-error appellate challenge provides no such occasion.

C.    Substantive Unreasonableness

             Finally,     Delgado     contends       that    his     sentence     is

substantively unreasonable as a result of the combined effects of

the alleged errors discussed above, and because the district court

did not provide an explanation sufficient for the sentence it was

imposing to be reviewed effectively on appeal.                      Having already

found   that     the    district    court   did     not   plainly     err   in   its

calculations and evaluation of the sentencing factors under 18

U.S.C. § 3553(a), we need not tarry here.                    The district court

adequately       explained   itself:         Upon      accurately      calculating

Delgado's guidelines sentencing range, the court measured the need

for additional specific deterrence and evaluated the seriousness


                                     - 27 -
of the offense by explaining the impact of crimes like this one in

Puerto Rico.        It is well established in this circuit that a

sentence is substantively reasonable "so long as it rests on a

'plausible    sentencing    rationale'      and   embodies   a    'defensible

result.'"    Ruiz-Huertas, 792 F.3d at 228 (quoting United States v.

Martin, 520 F.3d 87, 96 (1st Cir. 2008)).            The district court's

sentence     does   both.    It    is   accordingly    not       substantively

unreasonable.

                            III.   Conclusion

             For the foregoing reasons, we affirm Delgado's sentence

in all respects.




                                   - 28 -
