          United States Court of Appeals
                     For the First Circuit


No. 18-1595

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

 CARLOS ABREU-GARCÍA, a/k/a Jorge Mejias-García, a/k/a Adalberto
               Kotts-Pérez, a/k/a Adalberto Pérez,

                      Defendant, Appellant.


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

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


                             Before

                  Lynch, Thompson, and Kayatta,
                         Circuit Judges.


     Irma R. Valldejuli on brief for appellant.
     David C. Bornstein, Assistant United States Attorney, Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Mariana E.
Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate
Division, on brief for appellee.


                          July 31, 2019
                LYNCH, Circuit Judge.        This is a sentencing appeal.

After    two     previous   deportations,     Carlos    Abreu-García   pleaded

guilty to reentering the United States illegally as a removed

alien.    8 U.S.C. § 1326(b)(2).      He was given a mid-range sentence

of forty months of imprisonment and three years of supervised

release.         Abreu now challenges the procedural and substantive

reasonableness of his sentence.         Finding no error, we affirm his

sentence.

                                      I.

A.      Facts

                Since Abreu pleaded guilty, we draw the facts from the

plea agreement, the presentence investigation report (PSR), and

the sentencing hearing transcript.            See United States v. Colón-

Rosario, 921 F.3d 306, 309 (1st Cir. 2019).                Abreu was born and

raised in the Dominican Republic.           In 2005, at the age of twenty-

eight, Abreu entered the United States on a tourist visa and stayed

after the visa expired.         Between 2005 and 2013, Abreu lived in

Boston,    Massachusetts;      the   Bronx,    New     York;   and   Allentown,

Pennsylvania.        Abreu's wife and daughter, as well as his wife's

son from a previous relationship, live in Boston.              Abreu also has

a daughter from another relationship who lives in the Bronx.

                On January 1, 2014, Abreu was convicted of possession of

a controlled substance (heroin).            When arrested, he had provided

the false name "Adalberto Kotts-Pérez."                Abreu was sentenced to


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four years' imprisonment and five years' post-release supervision.

On August 21, 2014, an immigration judge ordered Abreu removed

from the United States, and he was removed to the Dominican

Republic on July 21, 2015.

             On August 21, 2016, Abreu was apprehended by United

States Border Patrol near Miami, Florida. Abreu was then convicted

of illegally reentering the United States, 8 U.S.C. §§ 1326(a),

(b)(1), and sentenced to ten months' imprisonment and three years'

supervised release.           Abreu was again deported to the Dominican

Republic on July 5, 2017.

             In or about October 2017, Abreu reentered the United

States by boat, landing on an unknown beach in Puerto Rico.                         On

November 22, 2017, he was apprehended at the airport in San Juan,

Puerto Rico, while attempting to board a flight to New York City.

Abreu presented the officials with a false driver's license with

the name "Jorge Mejias-García."               After learning that Abreu had

entered   the       United     States     illegally      after       two       previous

deportations, the agents arrested him.

B.    Procedural History

             On February 27, 2018, Abreu pleaded guilty to reentering

the   United     States    illegally     as     a   removed    alien,      8    U.S.C.

§ 1326(b)(2).       In the plea agreement, the parties stipulated that

Abreu's   base      offense    level    was     eight.    The    plea      agreement

stipulated     to   an    eight-level    enhancement     for     a   prior      felony


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conviction, a four-level enhancement for a felony conviction that

is an illegal reentry offense, and a three-level reduction for

timely acceptance of responsibility, for a total offense level of

seventeen.   The parties jointly recommended a sentence of thirty

months'   imprisonment   "irrespective   of   the   applied   sentencing

guideline range or [Abreu's] criminal history category at the time

of sentencing."

           The PSR calculated a total offense level of seventeen

and a criminal history category of IV.          The criminal history

category was based on a score of seven, which included two points

under U.S.S.G. § 4A1.1(d) because Abreu committed the offense

while on supervised release.     The PSR stated that the guideline

sentencing range was thirty-seven to forty-six months. The maximum

term of imprisonment for the offense is twenty years, and there is

no mandatory minimum term.    8 U.S.C. § 1326(b)(2).

           At the sentencing hearing, Abreu urged the district

court to accept the recommended sentence, which he acknowledged

was below the applicable guideline range, on the ground that Abreu

had reentered the country to be with his family. Abreu also argued

that it would be "unfair" if he received a longer sentence because

of the "high probability" that he would also receive a consecutive

revocation sentence for violating the conditions of his supervised

release term.




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            The   district    court    agreed    with   the    PSR's     guideline

calculation.       The court stated that it "considered the other

sentencing factors" in 18 U.S.C. § 3553(a). The court specifically

noted that Abreu had twice before been deported, had entered the

country illegally, had used false identification to travel on a

commercial flight, and had entered the United States in violation

of the conditions of his supervised release.                 The district court

stated that it "consider[ed] a sentence at the midrange of the

guideline    range   to     reflect   the     seriousness     of   the   offense,

promote[] respect for the law, protect[] the public from further

crimes by Mr. Abreu, and address[] the issues of deterrence and

punishment."      The district court sentenced Abreu to forty months'

imprisonment, followed by a supervised release term of three years.

            After the court imposed the sentence, defense counsel

"request[ed] that the Court reduce [Abreu's] sentence to 30 months"

because "what led this Defendant to come to Puerto Rico" was that

"he wanted to be with his children."              The district court denied

the request, and defense counsel made no further objections. Abreu

timely appealed.

                                       II.

            "In sentencing appeals, appellate review is bifurcated."

United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015).

"[W]e first determine whether the sentence imposed is procedurally

reasonable     and   then    determine       whether    it    is   substantively


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reasonable."       Id. (quoting United States v. Clogston, 662 F.3d

588, 590 (1st Cir. 2011)).

A.   Procedural Reasonableness

            Abreu argues for the first time on appeal that the

district court abused its discretion in raising his criminal

history score by two points (for committing the instant offense

while on supervised release) on the ground that the sentencing

guidelines are "no longer mandatory but are only advisory."                   He

argues the district court was "not obliged" to follow U.S.S.G.

§ 4A1.1(d) when calculating his criminal history category.                    We

review unpreserved claims of procedural unreasonableness for plain

error.   United States v. Arroyo-Maldonado, 791 F.3d 193, 197 (1st

Cir. 2015).

            There was no error, plain or otherwise. It is ordinarily

true that although the guidelines are "no longer binding, . . .

[j]udges still must start out by calculating the proper Guidelines

range" before determining whether to "differ from the Sentencing

Commission's recommendations."          United States v. Rodriguez, 630

F.3d 39, 41 (1st Cir. 2010).            "The reason for this is simple

. . . . [S]tarting with the Guidelines' framework -- which gives

judges an idea of the sentences imposed on equivalent offenders

elsewhere    --    helps   promote    uniformity      and    fairness."       Id.

(citations    omitted).       Here,    Abreu   does    not   dispute   that    he

committed    the    instant   offense    while    on    supervised     release.


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U.S.S.G.    § 4A1.1(d)   states:   "Add     2   points   if   the   defendant

committed the instant offense while under any criminal justice

sentence,    including    probation,       parole,   supervised     release,

imprisonment, work release, or escape status."           The district court

correctly treated the properly calculated guideline sentencing

range as the starting point in determining Abreu's sentence.1

            To the extent Abreu is arguing that the district court

believed it lacked discretion to vary from the guidelines because

it erroneously believed they are still mandatory, there is no


     1    Abreu also states in passing that the district court's
decision to raise his criminal history score two points for
committing the offense while on supervised release constitutes
"double counting," because Abreu was also likely to receive a
consecutive revocation sentence for violating the terms of his
supervised release. He has not developed this argument, so it is
waived. United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
Moreover, "[d]ouble counting concerns usually involve the use of
a single factor more than once to calculate the Guidelines
sentencing range," which is not what happened here. United States
v. Maisonet-González, 785 F.3d 757, 764 (1st Cir. 2015); cf. United
States v. Gondek, 65 F.3d 1, 4 (1st Cir. 1995), superseded on other
grounds as recognized in United States v. Crudup, 375 F.3d 5 (1st
Cir. 2004) (describing a similar argument as "a form of double
counting" and rejecting it because "forms of double counting are
not unusual under the guidelines and are permissible where
intended, as we think is the case here" (citation omitted)). And,
even assuming that this is double counting, it is not impermissible
double counting. See United States v. Zapata, 1 F.3d 46, 47 (1st
Cir. 1993) ("In the sentencing context, double counting is a
phenomenon that is less sinister than the name implies.         The
practice is often perfectly proper."); see also Gondek, 65 F.3d at
4. "[W]hen neither an explicit prohibition against double counting
nor a compelling basis for implying such a prohibition exists,
courts should be reluctant to read in a prohibition where there is
none." United States v. Brake, 904 F.3d 97, 100 (1st Cir.), cert.
denied, 139 S. Ct. 577 (2018) (quoting United States v. Chiaradio,
684 F.3d 265, 283 (1st Cir. 2012)).


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support for that in the record.            See Kimbrough v. United States,

552 U.S. 85, 108-10 (2007). The fact that the district court chose

not to vary from the guidelines does not show that it believed it

could not vary from the guidelines.              See United States v. Vega-

Salgado, 769 F.3d 100, 104 (1st Cir. 2014) ("That the guidelines

are   advisory    is,   by   now,   a    basic   tenet   of   federal    criminal

sentencing.      We presume that federal judges know the law, and a

reviewing court should not lightly assume that a lower court is

either ignorant of or has forgotten an abecedarian principle.").

             Abreu also argues that the district court "rejected the

parties[']     recommendation       without      explanation."          While   "a

sentencing court has a duty to explain its choice of a particular

sentence," there is "no corollary duty to explain why it eschewed

other suggested sentences."             Id. at 103-04.    The district court

did explain the basis for the sentence, stating, among other

things, that Abreu had twice before been deported, had attempted

to use false identification, and had entered the United States in

violation of the conditions of his supervised release.                    No more

was necessary.

B.    Substantive Reasonableness

             Abreu argues that "the District Court did not give any

weight" to the fact that Abreu reentered the United States to see

his family and that Abreu was likely to receive a consecutive

revocation sentence for violating the conditions of his supervised


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release.   We interpret this as a challenge to the substantive

reasonableness of his sentence and assume, favorably to Abreu,

that abuse-of-discretion review applies.     See United States v.

Rodríguez-Reyes, 925 F.3d 558, 569 (1st Cir. 2019).

           The district court's decision "not to attach to certain

of the mitigating factors the significance that the appellant

thinks [he] deserved does not make the sentence unreasonable."

Clogston, 662 F.3d at 593.   A sentence is substantively reasonable

when, as here, the sentencing court gave a "'plausible sentencing

rationale' and reached a 'defensible result.'"    United States v.

Rodríguez-Adorno, 852 F.3d 168, 177 (1st Cir. 2017) (quoting United

States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)).

                             *     *     *

           Affirmed.




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