               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit


No. 16-1374

                    UNITED STATES OF AMERICA,

                               Appellee,

                                    v.

                          MALCOLM THOMPSON,

                       Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

          [Hon. George Z. Singal, U.S. District Judge]


                                 Before

                 Torruella, Lynch, and Kayatta,
                         Circuit Judges.


     Victoria L. Nadel on brief for appellant.
     Renée M. Bunker, Assistant U.S. Attorney, and Thomas E.
Delahanty II, United States Attorney, on brief for appellee.



                             March 3, 2017
           KAYATTA,    Circuit     Judge.       The    defendant,     Malcolm

Thompson, pled guilty to distribution of heroin and cocaine base,

in violation of 21 U.S.C. § 841(a)(1). Although the parties agreed

that Thompson's guidelines sentencing range was thirty to thirty-

seven months, the district court imposed an upwardly variant

sentence of forty-eight months in prison.             Thompson now appeals,

arguing that this sentence is both procedurally and substantively

unreasonable.    We affirm.

                              I.   Background

           We briefly state the facts of Thompson's crimes, as

reported   in   "the   uncontested   portions    of     the   change-of-plea

colloquy, presentence report, and sentencing hearing."                 United

States v. Gall, 829 F.3d 64, 67 n.1 (1st Cir. 2016).                Here, the

entire presentence report (PSR) is uncontested.1

           In May 2015, a cooperating individual (CI) informed the

Drug Enforcement Administration (DEA) that Thompson was importing

drugs from Arizona to Maine for resale.          Over the course of four



     1 Thompson's attorney represented at the sentencing hearing
that the probation officer revised the PSR in response to an
objection that he had improperly assigned three criminal history
points to one of Thompson's prior convictions rather than two.
The PSR included in the record on appeal does not reflect this
change. This dispute makes no difference to Thompson's criminal
history category, however, as it concerns whether Thompson has
four criminal history points or five, see U.S.S.G. ch. 5, pt. A,
Sentencing Table (showing that both four and five criminal history
points place defendant in criminal history category III), and
Thompson does not raise this issue on appeal.


                                   - 2 -
months, Thompson and his associates sold the CI 22.9 grams of

heroin and 0.34 grams of cocaine base.    In addition, at the time

of their arrests, Thompson and one of his associates possessed

$5,350 for which no legitimate source could be identified and which

the PSR therefore treated as drug proceeds.

          According to the calculation in the PSR, Thompson's

guidelines sentencing range was thirty to thirty-seven months.

This calculation was based on a total offense level of seventeen

and a criminal history category of III, resulting from five

criminal history points.

          The criminal history section of Thompson's PSR recounted

an extensive history of drug offenses, including both convictions

and pending charges.   At age seventeen, Thompson pled guilty to

possession of less than twenty-five grams of cocaine in Michigan.

A companion charge for delivery or manufacture of less than fifty

grams of cocaine was dismissed.   He was sentenced to fourteen days

in jail and eighteen months of probation.2    At age twenty-two, he

was convicted of use of a controlled substance in Michigan.

Companion charges for delivery or manufacture of cocaine and

possession of cocaine were dismissed.     He was sentenced to six

months of probation.    At age twenty-four, he was arrested and

charged with delivery or manufacture of less than fifty grams of


     2 In recounting Thompson's prior sentences, we omit community
service requirements and fines.


                              - 3 -
cocaine in Michigan. After he failed to appear in court, the court

issued a warrant, which remains active.     At age twenty-five, he

pled guilty to solicitation to commit possession of marijuana for

sale in Arizona.    According to the Arizona state presentence

investigation report written in connection with this offense,

Thompson admitted to working as a "connect" in the "drug trade" by

finding marijuana buyers and putting them in touch with marijuana

dealers.   He was sentenced to six months in jail and three years

of probation.   After he was released from jail, he violated his

probation by absconding, changing residence without permission,

failing to submit to drug testing, and other violations.    He was

sentenced to one year in jail for the probation violation.3     At

age twenty-eight, he was arrested after fleeing from a house in

Arizona where police seized 977 grams of cocaine, around 120 pounds

of marijuana, $54,000 in cash, and several loaded firearms.   When

police arrived at the house, the only person still inside was

Thompson's infant daughter, whose mother had dropped her off at

that house at Thompson's request.   At sentencing, Thompson did not

dispute the description of this event that appeared in the PSR.

However, he insisted that he did not know about the illicit




     3 It appears that Thompson did not serve this entire one-year
sentence. The sentence was imposed on May 7, 2014, but Thompson's
next arrest occurred on February 3, 2015.


                              - 4 -
activity occurring in the house, that he was outside the house the

whole time, and that he had not been charged after the arrest.4

          At   the   sentencing   hearing,   the   parties   agreed   that

Thompson's guidelines sentencing range was thirty to thirty-seven

months.   Although the government had indicated at a presentence

conference and at the beginning of the sentencing hearing that an

upward departure or variance might be warranted due to Thompson's

criminal history, the government ended up arguing for a sentence

of thirty-seven months.    Thompson's attorney argued for a sentence

of thirty months.    Thompson himself also addressed the court.

          During the argument by defense counsel and the statement

by Thompson, the district court asked several pointed questions

about Thompson's criminal history.        After defense counsel argued

that Thompson would be able to "get himself turned around," the

district court expressed skepticism.      First, the court pointed out

that Thompson had "a drug conviction at age 17, . . . a drug

involved conviction at age 19,[5] . . . a drug conviction at age 22,



     4 The government agreed that there had been no charge as of
the day of the sentencing hearing.
     5 The "drug involved conviction at age 19" to which the court
was referring was a guilty plea to fleeing a police officer in the
fourth degree in Michigan. After a police officer attempted to
pull Thompson over for speeding, he fled and a chase ensued at
speeds up to 100 miles per hour. After Thompson finally stopped
and was placed under arrest, $1,030 in cash was found in his shoe.
The PSR contained in the record on appeal does not indicate that
this money was the proceeds from selling drugs. However, defense
counsel did not argue at sentencing, and the defendant does not


                                  - 5 -
. . . a drug conviction at age 25 where he keeps getting low

sentences."       Second,   the    court    noted    that     after   Thompson's

age twenty-five conviction in Arizona, he had "admitted to being

in the drug trade," and that right after he got out of jail for

violating his probation, he began engaging in the conduct that led

to the present conviction.        In the court's view, this history was

"not an indication of somebody who's just drifting around.                    This

is a professional drug dealer.        That's what he does and he doesn't

care what the law says."          When Thompson himself addressed his

record by saying that he was "not that person anymore," the court

pressed him to specify when he had changed.                The court also asked

about Thompson's presence at the house that was raided in Arizona.

Although the court noted that there was "no evidence that [Thompson

had]   been    charged   with   anything"    or     that    he   personally   was

"involved with" the drugs in the house, the court asked why

Thompson's presence at this raid with his daughter was not a "wake-

up call."

              When imposing the sentence, the district court adopted

the PSR and found that the guidelines sentencing range was thirty

to thirty-seven months.         The court stated that it had taken into

account all the factors in 18 U.S.C. § 3553(a), including, "[m]ost

important, the nature and circumstances of the offense, the history


argue on appeal, that the district court erred in describing this
conviction as "drug involved."


                                    - 6 -
and characteristics of this defendant, the seriousness of the

offense, the need for just punishment and the need for deterrence."

The court concluded, as it had indicated during the hearing, that

it believed Thompson to be "basically a professional drug dealer

who has been engaging in drug transactions virtually his . . .

entire adult life."     The court decided to vary upwards from the

guidelines range.     It explained,

          [Thompson has] had multiple wake-up calls all
          of   which  he's   disregarded.      In  many
          circumstances,    he's     disregarded    the
          requirements to appear even in court and he
          misses being a career criminal only by the
          fact that he failed to appear on several
          felony drug offenses in Michigan. If he had
          appeared and been convicted, he would be, in
          fact, eligible to be a career criminal
          today . . . .

          I don't see that this defendant, in spite of
          his protestations, is prepared to turn over a
          new leaf. In my view, he sees this arrest and
          conviction as a cost of doing business and in
          my mind, it's my belief that he will return to
          the drug trade as he has every single time
          he's been convicted, so I think that a
          variance upward is an appropriate sentence in
          this case. . . .      In my view, an upward
          variance to 48 months is the appropriate
          sentence.

Thompson did not object to this explanation or the sentence at the

time it was imposed.

                            II.   Discussion

          Thompson challenges his sentence as both procedurally

and   substantively    unreasonable.      "The   review   process   is



                                  - 7 -
bifurcated:     we first determine whether the sentence imposed is

procedurally     reasonable      and     then    determine     whether    it     is

substantively reasonable."        United States v. Arroyo-Maldonado, 791

F.3d 193, 198 (1st Cir. 2015) (quoting United States v. Clogston,

662 F.3d 588, 590 (1st Cir. 2011)).

A.   Procedural Reasonableness

             "Typically,    we   review     sentences    imposed    under       the

advisory   Guidelines      for   abuse    of    discretion."      Id.    at    197.

However, when a defendant fails to preserve a claim of procedural

error, "the plain error standard supplants the customary standard

of review."    United States v. Bermúdez–Meléndez, 827 F.3d 160, 164

(1st Cir. 2016) (citation omitted).                "Review for plain error

entails four showings:        (1) that an error occurred (2) which was

clear or obvious and which not only (3) affected the defendant's

substantial rights, but also (4) seriously impaired the fairness,

integrity, or public reputation of judicial proceedings."                 United

States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).

             Thompson's claim of procedural error rests on three

arguments:     first, that the district court gave more weight to

certain parts of Thompson's record (his criminal history) than to

others (his expressed remorse, his early agreement to plead guilty,

his family history, his attempts to obtain an education); second,

that the district court gave more weight to some of the factors

listed in 18 U.S.C. § 3553(a) than to others; and, third, that the


                                       - 8 -
district court did not provide an explanation as to why Thompson's

case was so outside the "heartland" of cases that the advisory

guidelines range was not sufficient to reflect the § 3553(a)

factors.

           The first two arguments are easily rejected.           Although

"a sentencing court may commit procedural error by 'failing to

consider the § 3553(a) factors[,]' . . . the weighing of relevant

factors is 'largely within the court's informed discretion.'"

United States v. Santiago–Rivera, 744 F.3d 229, 232 (1st Cir. 2014)

(citations omitted); see also United States v. Rivera–González,

776 F.3d 45, 50 (1st Cir. 2015) ("The defendant's real complaint

is not that the court overlooked [the defendant's personal history

and characteristics] but that it weighed those factors less heavily

than he would have liked.      But that type of balancing is, within

wide limits, a matter for the sentencing court.").          The sentencing

court   acted   within   its   discretion   in   choosing    to   focus   on

Thompson's criminal history and to discount the significance of

his claims that he had changed.

           As to the third argument, it is true that

           when a factor relied on to justify a variant
           sentence   "is   already   included   in   the
           calculation of the guidelines sentencing
           range, a judge who wishes to rely on that same
           factor to impose a sentence above or below the
           range must articulate specifically the reasons
           that this particular defendant's situation is
           different from the ordinary situation covered
           by the guidelines calculation."


                                  - 9 -
United States v. Santa–Otero, 843 F.3d 547, 550 (1st Cir. 2016)

(quoting United States v. Zapete–García, 447 F.3d 57, 60 (1st Cir.

2006)).   A district court may satisfy this requirement by citing

to specific facts that distinguish this case from the standard

case.   See id. (rejecting a similar argument because "the District

Court did not rely solely upon [the defendant's] possession of the

machine gun in imposing the variant sentence"; rather, it "cited

to   specific   features    of   the   ammunition   that    [the   defendant]

possessed along with the machine gun"); United States v. Guzman-

Fernandez, 824 F.3d 174, 177-78 (1st Cir. 2016) (rejecting a

similar argument because "the district court distinguished [the

defendant's]      insider        participation      from     the      typical

'abuse[] . . of . . . private trust' reflected in the Guidelines"

by explaining that the defendant's insider role indicated that his

conduct was "bold[]," "planned," and "deliberate" and that the

number and details of the robberies made them more serious).

           Just as in Santa-Otero, the district court here did not

justify   its   variance    merely     by   pointing   to   the    number   of

convictions in Thompson's criminal history, which is arguably

covered by the guidelines calculation.           Rather, the court noted

that Thompson's four convictions and sentences for "drug involved"

crimes over the course of nine years indicated that he was engaged

in the drug trade essentially continuously, with no off time



                                   - 10 -
suggesting that he had reformed or was deterred by the law.6   The

district court also relied on Thompson's other interactions with

the law, including his failure to appear to face pending charges

in Michigan and his arrest in Arizona, which suggested that he

continued to disregard both his legal obligations and the "wake-

up calls" he should have been receiving.     From these facts, the

court inferred that Thompson was a "professional drug dealer,"

discredited his testimony that he planned on changing his life,

and concluded that he would merely view his arrest and conviction

as a "cost of doing business."   The district court did not plainly

err in reaching these factual conclusions or in concluding that

they placed Thompson's conviction outside the "heartland" of cases

covered by the sentencing guidelines.




     6  The district court concluded that Thompson was "a
professional drug dealer who ha[d] been engaging in drug
transactions virtually his . . . entire adult life."           This
conclusion overstated what Thompson's actual convictions showed.
Thompson was twenty-nine at the time of his arrest on the present
charges. Prior to the conviction for working as a "connect" in
the drug trade at age twenty-five, two of the convictions were for
use or possession, not selling, and one conviction was for fleeing
a police officer, as described in footnote 4, supra. But Thompson,
who presumably well knew the nature of what he was actually doing,
did not object to the court's description of his conduct, arguing
instead only that he was "not that person anymore." He also does
not argue on appeal that the district court committed plain error
by overstating the duration of his drug dealing activities.
Accordingly, we express no opinion as to whether the district court
erred in the way it understood Thompson's past behavior.


                              - 11 -
B.   Substantive Reasonableness

            Thompson asserts that his sentence is substantively

unreasonable because the guidelines sentencing range "sufficiently

satisfies the aims of sentencing . . . where the offender, his

background[,]     and   the   facts    of   the   offense    fall     within   the

heartland of cases adequately served by the advisory guidelines

range."     We have already explained why the district court's

justification of the upward variance was adequate.                   Furthermore,

an upward variance of eleven months over a thirty-seven-month

guidelines maximum is within the range of upward variances that we

have deemed reasonable.       See, e.g., Guzman-Fernandez, 824 F.3d at

178–79 (collecting cases); United States v. Díaz-Arroyo, 797 F.3d

125, 127-30 (1st Cir.), cert. denied, 136 S. Ct. 272 (2015)

(upholding as reasonable a forty-eight month sentence where the

top end of the guidelines sentencing range was twenty-one months).

                              III.    Conclusion

            For   the    foregoing      reasons,    we      affirm     Thompson's

sentence.




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