                  Not for Publication in West's Federal Reporter

          United States Court of Appeals
                         For the First Circuit

No. 11-1670

                       UNITED STATES OF AMERICA,

                                  Appellee,

                                       v.

        SEBASTIAN RODRIGUEZ-CASTRO, a/k/a Sotero Mojica,
                  a/k/a Sotero Mojica-Laureano,

                          Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF PUERTO RICO

              [Hon. José A. Fusté, U.S. District Judge]


                                    Before

              Boudin, Stahl, and Howard, Circuit Judges.


     Patricia A. Garrity, Assistant Federal Public Defender, with
whom Héctor E. Guzmán, Jr., Federal Public Defender, was on brief
for appellant.
     Thomas F. Klumper, Assistant United States Attorney, with whom
Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, were on brief for appellee.



                             September 7, 2012
            STAHL, Circuit Judge.          After being convicted of alien

smuggling and deported from the United States, defendant Sebastian

Rodriguez-Castro (Rodriguez) unlawfully reentered this country and

received a forty-six-month sentence under 8 U.S.C. §§ 1326(a) and

(b)(2).      We find the sentence procedurally and substantively

reasonable and therefore affirm.

                          I. Facts & Background

            Rodriguez,    a     native     and       citizen      of   the    Dominican

Republic, first came to Puerto Rico in 1996 and was deported in

2003. On March 25, 2008, the United States Coast Guard apprehended

Rodriguez, along with nine other undocumented immigrants, traveling

on the open ocean toward Puerto Rico, on a nineteen-foot wooden

yawl.     Rodriguez admitted to being the captain of the ship but

maintained that he had not made the trip for profit.                         Rather, he

said, he and his fellow passengers had pooled funds in order to

sail the ship to the United States.                 A series of sworn statements

from Rodriguez’s fellow passengers, taken by officers from the

Department    of   Homeland      Security           (DHS)   and    produced      during

discovery, generally corroborated Rodriguez’s claims.

            Rodriguez    pled    guilty        to    bringing     in   and    harboring

aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(i), and to aiding

and abetting illegal entry, in violation of 8 U.S.C. § 1325.

Rodriguez’s Presentence Investigation Report (PSR), dated July 29,

2008, recommended a three-level reduction in Rodriguez’s offense


                                         -2-
level because he had not committed the alien smuggling offense for

profit.1     See    U.S.S.G.      §    2L1.1(b)(1).      Rodriguez    received   a

sentence of ten months’ imprisonment for the alien smuggling count

and a sentence of six months’ imprisonment for the aiding and

abetting illegal entry count, to be served concurrently, along with

three years of supervised release. On February 12, 2009, Rodriguez

was again deported from the United States.

           On    October    12,       2010,   United   States   Immigration    and

Customs Enforcement agents conducted an immigration check at a

barber shop in San Juan, Puerto Rico and found Rodriguez there.                  He

was detained and charged with unlawful reentry after having been

deported for       an   aggravated      felony,   in   violation     of   8 U.S.C.

§§ 1326(a) and (b)(2).            Rodriguez pled guilty, without a plea

agreement.      A subsequent PSR recommended a base offense level of

eight, see U.S.S.G. § 2L1.2(a), and a sixteen-level enhancement

because Rodriguez had previously been convicted of alien smuggling,

see id. § 2L1.2(b)(1)(A)(vii).            The PSR also recommended a three-



     1
       Rodriguez has not provided us with the transcript from his
sentencing hearing for the 2008 alien smuggling offense, so we do
not know whether the district court ultimately applied the three-
level reduction. Nor has he made clear whether he submitted a copy
of that transcript or a copy of the 2008 PSR to the district judge
who sentenced him for the 2010 unlawful reentry offense. Thus, we
do not know whether the sentencing judge for the 2010 unlawful
reentry offense was aware that the Probation Office had recommended
the three-level reduction in the 2008 alien smuggling case.
Rodriguez did submit, both to us and to the sentencing judge for
the 2010 unlawful reentry offense, the sworn statements from his
fellow passengers taken by DHS.

                                         -3-
level downward adjustment for acceptance of responsibility, see id.

§ 3E1.1, resulting in a total offense level of twenty-one. The PSR

assigned Rodriguez two criminal history points for the prior alien

smuggling conviction, see id. § 4A1.1(b), and another two points

because he had committed the unlawful reentry offense while on

supervised release, see id. § 4A1.1(d).       That yielded a Criminal

History Category of III, which, when combined with the offense

level of twenty-one, resulted in a guideline sentencing range of

forty-six to fifty-seven months.        On May 10, 2011, the district

court   imposed   a   forty-six-month   sentence   and   three   years   of

supervised release.

                             II. Discussion

           We review Rodriguez’s challenge to that sentence for

procedural and substantive reasonableness.           See, e.g., United

States v. Leahy, 668 F.3d 18, 21 (1st Cir. 2012).            We begin by

determining whether the district court committed any procedural

errors, “such as failing to calculate (or improperly calculating)

the Guidelines range, treating the Guidelines as mandatory, failing

to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence

based on clearly erroneous facts, or failing to adequately explain

the chosen sentence--including an explanation for any deviation

from the Guidelines range.”    Gall v. United States, 552 U.S. 38, 51

(2007).   Our overall review of the district court’s sentencing

procedure is for abuse of discretion, but we review the court’s


                                  -4-
interpretation of the sentencing guidelines de novo and its factual

findings for clear error.          See, e.g., Leahy, 668 F.3d at 21.        If we

determine that the district court followed the correct procedure,

we will uphold the sentence “unless it ‘falls outside the expansive

boundaries’ of the universe of reasonable sentences.”                      United

States v. Zapata, 589 F.3d 475, 486 (1st Cir. 2009) (quoting United

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

A. Procedural reasonableness

           Rodriguez essentially raises three claims of procedural

error, all predicated upon the court’s decision to apply section

2L1.2(b)(1)(A)(vii) of the federal sentencing guidelines, which

recommends      a    sixteen-level        enhancement    “[i]f   the   defendant

previously was deported, or unlawfully remained in the United

States, after . . . a conviction for a felony that is . . . an

alien smuggling offense.”           U.S.S.G. § 2L1.2(b)(1)(A)(vii).

           Rodriguez’s first argument is that the district court

treated section 2L1.2(b)(1)(A)(vii) as mandatory, or at the very

least as presumptively reasonable, in violation of Gall, 552 U.S.

38, and United States v. Booker, 543 U.S. 220 (2005).                  The record

belies that claim.              The court gave Rodriguez’s counsel ample

opportunity to press his arguments and made a variety of statements

that indicated a clear awareness that it was not bound by the

guideline.      For example, the court asked Rodriguez’s counsel to

explain   why       “the   16    points   should   not   be   considered,   even


                                          -5-
advisory?” (emphasis added).               The court also said things like “I

think that [Rodriguez] should be treated like an alien smuggler,

and the 16 points should be added,” and “We’re going to [apply the

enhancement] . . . I’m sorry,” and “I am going to grant the 16

points.”       As     we     read    the   sentencing     transcript,      the    court

understood its discretion to depart or vary from the guideline but

felt that the guideline was reasonable in this particular case.

            Rodriguez’s           second   (and   related)    claim   is     that   the

district court specifically failed to acknowledge its discretion to

disagree       with        section      2L1.2(b)(1)(A)(vii)’s         sixteen-level

enhancement     on     policy       grounds.      Before     the   district      court,

Rodriguez   did       make    a     somewhat    cursory    argument   that    section

2L1.2(b)(1)(A)(vii) was not the product of empirical research by

the   United    States        Sentencing       Commission    and   that    the   court

therefore should not follow it pursuant to Kimbrough v. United

States, 552 U.S. 85 (2007), which “makes manifest that sentencing

courts possess sufficient discretion under section 3553(a) to

consider requests for variant sentences premised on disagreements

with the manner in which the sentencing guidelines operate,” United

States v. Rodríguez, 527 F.3d 221, 231 (1st Cir. 2008).                      See also

United States v. Stone, 575 F.3d 83, 89 (1st Cir. 2009) (“[A]fter

Kimbrough, a district court makes a procedural error when it fails

to recognize its discretion to vary from the guideline range based

on a categorical policy disagreement with a guideline.”).                     Section


                                           -6-
2L1.2 is not without its critics,2 but “the mere fact that a

sentencing court has the discretion to disagree with the guidelines

on policy grounds does not mean that it is required to do so.”

United States v. Ekasala, 596 F.3d 74, 76 (1st Cir. 2010) (internal

citation omitted); see also Stone, 575 F.3d at 90 (“[T]he district

court’s broad discretion obviously includes the power to agree with

the   guidelines.”).     The     district    court   here   made    no   “clear

statement showing Kimbrough error”; in other words, the court never

expressed a belief that it lacked discretion to disagree with the

guideline on policy grounds.       Stone, 575 F.3d at 91.       We therefore

“review the record as a whole to assess the district court’s

sentencing process.”     Id.

              Though Rodriguez put little emphasis on his Kimbrough

argument at the sentencing hearing,3 the record indicates that the

district court considered his argument and instead chose to agree

with the guideline, which was within its discretion.               Id. at 90.

The   court    articulated   a   clear   belief   that   the   sixteen-level

enhancement was proper not just as a general policy matter but also

in Rodriguez’s particular case.            For example, when Rodriguez’s



      2
       See, e.g., United States v. Torres-Gomez, No. 11–CR–237,
2012 WL 1424705, at *3 (E.D. Wis. Apr. 24, 2012) (collecting
cases).
      3
        As discussed below, Rodriguez’s primary argument at
sentencing was that the district court should ignore the guideline
entirely, or grant a downward departure, because Rodriguez had not
committed the prior alien smuggling offense for profit.

                                     -7-
counsel complained that section 2L1.2(b)(1)(A)(vii) was “really

stiff,” the court responded, “It’s meant to be stiff.”          When

Rodriguez’s counsel suggested that the enhancement overstated the

seriousness of Rodriguez’s prior offense, the court responded, “I

don’t think so.     I think that what happened before was pretty

serious.”    We find no evidence that the district court failed to

appreciate its Kimbrough power.    Stone, 575 F.3d at 90-93.

            Rodriguez’s third broad claim of procedural error is that

the district court failed to follow the strictures of 18 U.S.C.

§ 3553 in imposing his forty-six-month sentence.    Specifically, he

argues that the court did not offer an adequate explanation for his

sentence or consider non-frivolous arguments in favor of a downward

departure.

            We begin with the court’s explanation of Rodriguez’s

sentence, which, while not a model of thoroughness, was adequate.

The court described the prior alien smuggling offense as “pretty

serious,” emphasized that Rodriguez had been given what the court

considered “a very light sentence” for that offense, and expressed

particular concern about the fact that, when Rodriguez unlawfully

reentered the United States in 2010, he was still on supervised

release for the 2008 offense, which the court viewed as “another

confirmation of the fact that you have little respect for the law.”

The court ultimately imposed a sentence at the bottom of the

guideline range, describing that as “the fair thing to do,” but


                                  -8-
emphasized that the “case would have easily, easily allowed for a

57 month sentence,” at the top of the range.             Particularly where a

defendant receives a sentence within the guideline range, as was

the case here, the district court’s explanation of the sentence

need not “be precise to the point of pedantry,” United States v.

Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 2006), and “brevity is

not to be confused with inattention,” id. at 42.                 See also Rita v.

United States, 551 U.S. 338, 356 (2007) (“[W]hen a judge decides

simply to apply the Guidelines to a particular case, doing so will

not necessarily require lengthy explanation.”).              The fact that the

district court did not explicitly mention the 18 U.S.C. § 3553(a)

sentencing factors is not a ground for reversal, since the court

clearly considered those factors and provided an adequate rationale

for the sentence.    See, e.g., United States v. Brandao, 539 F.3d

44, 65 (1st Cir. 2008).

            The   district        court’s    above-described        findings    at

sentencing also demonstrate that the court considered Rodriguez’s

arguments in favor of a downward departure under Application Note

7 to section 2L1.2, which provides that “[t]here may be cases in

which the applicable offense level substantially overstates or

understates the seriousness of a prior conviction” and that a

departure might be warranted in such an instance. U.S.S.G. § 2L1.2

cmt. n.7.     The court spent a good deal of time listening to

Rodriguez’s   arguments      in    favor     of   a   downward    departure    but


                                       -9-
ultimately denied the request, concluding: “I see the point, but I

don’t see anything in this record that would allow me to say that

what happened previously overstates the seriousness of what indeed

happened.”   The court expressed its belief that Rodriguez’s prior

crime was a serious one, that he had not been adequately punished

for it, that he had demonstrated “little respect for the law” by

unlawfully reentering while on supervised release, and that section

2L1.2(b)(1)(A)(vii)’s “stiff” punishment was appropriate.         The

court’s discretionary decision not to depart was reasonable.

United States v. Battle, 637 F.3d 44, 51-52 (1st Cir. 2011).

          We pause, however, to note one misstep on the district

court’s part.   Rodriguez’s main argument in favor of a downward

departure was that he had not committed the 2008 alien smuggling

offense for profit and thus that his offense level substantially

overstated the seriousness of his prior conviction.4   See   U.S.S.G.


     4
       Rodriguez also argued below that the district court should
not follow section 2L1.2(b)(1)(A)(vii) in the first place, because
the United States Sentencing Commission did not intend for the
sixteen-level enhancement to apply to individuals who commit an
alien smuggling offense not-for-profit. Rodriguez has not squarely
raised that argument on appeal, so we need not address it here, but
we note that the plain language of the guideline does not make such
a distinction.    Though a defendant who has committed an alien
smuggling offense “other than for profit” receives a three-level
reduction in his base offense level under U.S.S.G. § 2L1.1(b)(1),
he does not appear to be eligible for any special treatment if he
later unlawfully reenters the country and finds himself subject to
section 2L1.2(b)(1)(A)(vii). Section 2L1.2(b)(1)(A)(vii) directs
the district court to apply the sixteen-level enhancement if the
defendant was previously convicted of any alien smuggling offense
that was not committed for the purpose of assisting a spouse,
child, or parent. See id. § 2L1.2(b)(1)(A)(vii) (prescribing a

                               -10-
§ 2L1.2 cmt. n.7.    The court responded, in part, by rejecting the

mere possibility that Rodriguez might not have been paid for his

role in the alien smuggling operation, repeatedly making statements

like, “Money’s always involved when you have these ventures.”   The

court should not have made such an assumption, well-founded though

it may have been, especially given that Rodriguez had submitted the

sworn statements prepared by DHS in support of his claims that he

had not committed the offense for profit, that multiple individuals

had taken turns operating the vessel, and that he and the other

passengers had pooled their money to pay for the trip.    The court

was free to find Rodriguez’s evidence insufficient,5 but it was not

appropriate for the court to seemingly disregard that evidence in

favor of generalizations about Rodriguez’s prior crime.

            But we need not decide whether that misstep constituted

a “clear error,” see, e.g., Leahy, 668 F.3d at 21, or, in other

words, whether based “on the entirety of the evidence, we are left

with the definite and firm conviction that a mistake has been



sixteen-level increase for “an alien smuggling offense”); id. cmt.
n.1(B)(i) (describing an “alien smuggling offense” as having “the
meaning given that term in section 101(a)(43)(N) of the Immigration
and Nationality Act”); 8 U.S.C. § 1101(a)(43)(N) (defining the term
“aggravated felony” to include any alien smuggling offense
described in 8 U.S.C. §§ 1324(a)(1)(A) or (a)(2) “except . . . a
first offense for which the alien has affirmatively shown that the
alien committed the offense for the purpose of assisting, abetting,
or aiding only the alien’s spouse, child, or parent (and no other
individual) to violate a provision of this chapter”).
     5
         See supra note 1.

                                -11-
committed,” United States v. Valdivia, 680 F.3d 33, 53 (1st Cir.

2012).    Even assuming arguendo that a clear error occurred here,

there is no need for reversal, because there is no evidence that

the district court denied the downward departure or otherwise

formulated      the   sentence    in   reliance     on    its    assumption      that

Rodriguez had committed the alien smuggling offense for profit.

Rather, as discussed above, the record indicates that the court

chose    the    within-guideline       sentence     and   denied      the   downward

departure based on Rodriguez’s recidivism and apparent lack of

respect for the law.         Any error did not affect the district court’s

selection of the sentence and was therefore harmless.                   See, e.g.,

United States v. McGhee, 651 F.3d 153, 158 (1st Cir. 2011); cf.

United States v. Kinsella, 622 F.3d 75, 86 (1st Cir. 2010) (“[I]f

the judge makes incorrect findings but the record still supports

the end result, the error is harmless and no remand is needed.”).

B.   Substantive reasonableness

               Rodriguez’s     final   claim   is     that      his   sentence    is

substantively unreasonable because the district court reached it by

applying section 2L1.2(b)(1)(A)(vii), which Rodriguez alleges was

developed without a proper empirical basis, treats broad classes of

crimes the same way, produces unwarranted sentencing disparities,

and is unduly harsh.         That is a Kimbrough argument dressed up as a

claim of substantive unreasonableness, and we will not consider it.

Rodriguez presented his Kimbrough argument to the district court,


                                       -12-
and the court agreed with the guideline, which was within its

discretion.     Stone, 575 F.3d at 90.         Kimbrough gives district

courts the leeway to disagree with a sentencing guideline on policy

grounds should they so choose; it “does not force district or

appellate courts into a piece-by-piece analysis of the empirical

grounding behind each part of the sentencing guidelines.”            United

States v. Duarte, 569 F.3d 528, 530 (5th Cir. 2009); cf. United

States v. Clogston, 662 F.3d 588, 592 (1st Cir. 2011) (holding that

“the discretion to vary under Kimbrough is not tantamount to an

obligation to do so”).

          To be sure, section 2L1.2(b)(1)(A)(vii)’s enhancement

resulted in a lengthy sentence for Rodriguez, particularly given

that he had received only ten months for the prior alien smuggling

offense and that there was some evidence that he had not committed

that offense for profit.      Sitting as a court of first instance, we

might not have imposed the same sentence, but that is not a basis

for reversal.    United States v. Madera-Ortiz, 637 F.3d 26, 30 (1st

Cir. 2011).     The district court followed the correct sentencing

procedure,    and   the   within-guideline   sentence   that   the   court

ultimately chose was not “outside the expansive boundaries of the

universe of reasonable sentences.”       Zapata, 589 F.3d at 486.

                             III. Conclusion

          Finding no reversible error, we affirm.




                                  -13-
