              Not for Publication in West's Federal Reporter
          United States Court of Appeals
                       For the First Circuit


No. 18-1153

                     UNITED STATES OF AMERICA,

                               Appellee,

                                   v.

                       JOSÉ GUZMÁN-VÁZQUEZ,
                   a/k/a Alexis Cumba-Espinosa,

                       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, Lipez, and Barron,
                          Circuit Judges.


     Alex Omar Rosa-Ambert on brief for appellant.
     Rosa   Emilia  Rodríguez-Vélez,   United   States   Attorney,
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Thomas F. Klumper, Assistant United States
Attorney, Senior Appellate Counsel, on brief for appellee.



                           August 19, 2019
            LIPEZ, Circuit Judge.            José Guzmán-Vázquez challenges,

on   procedural    and    substantive    grounds,        his   within-guideline,

115-month   sentence      for   carjacking      in   violation    of    18   U.S.C.

§ 2119(1). After carefully considering the record and the parties'

arguments, we affirm.

                                        I.

       Guzmán-Vázquez approached an 84-year-old man in a Wendy's

parking lot and threatened to shoot him if he did not hand over

his car keys.      After grabbing the keys and taking money from the

man's wallet, Guzmán-Vázquez fled the scene in the man's car.                   He

was apprehended ten days later after crashing the vehicle.

       Guzmán-Vázquez     pleaded   guilty      to   a    one-count     indictment

pursuant to a plea agreement in which he stipulated with the

government to a total offense level ("TOL") of 21.                     The parties

did not stipulate to a criminal history category ("CHC") but noted

the guidelines ranges for various CHCs, including a range of 77 to

96 months' imprisonment for a CHC of VI.                 The parties agreed to

each   recommend    a    sentence   within     these     applicable     guidelines

ranges based on Guzmán-Vázquez's CHC.

       In the amended presentence report ("PSR"), the probation

officer followed the parties' offense level calculations, except

he included a two-level enhancement based on Guzmán-Vázquez's

knowledge that the victim was vulnerable due to age, see U.S.S.G.

§ 3A1.1(b)(1), resulting in a TOL of 23.                 The probation officer


                                     - 2 -
calculated    Guzmán-Vázquez's     criminal     history     score    to   be   20,

resulting in a CHC of VI, based on Guzmán-Vázquez's extensive

history of convictions, including for vehicular theft offenses.

The probation officer's guidelines calculations thus yielded a

sentencing guidelines range of 92 to 115 months' imprisonment.

Guzmán-Vázquez did not object to the PSR.

      At    sentencing,   Guzmán-Vázquez       did   not   contest   the    PSR's

guidelines calculations but requested a 77-month sentence based

on, inter alia, the contention that his extensive criminal history

and   the   carjacking    were   rooted   in    long-term,     untreated       drug

addiction.     The government requested a 96-month sentence based on

the circumstances of the offense and Guzmán-Vázquez's extensive

history of criminal activity.       The district court agreed with the

PSR's guidelines calculations. Considering the 18 U.S.C. § 3553(a)

sentencing factors, the court noted, inter alia, Guzmán-Vázquez's

long-term, untreated drug abuse.            Concluding that the parties'

recommended sentences did not adequately reflect the seriousness

of the offense, promote respect for the law, protect the public

from future crimes by Guzmán-Vázquez, or address the issues of

deterrence     and   punishment,      the      district     court     sentenced

Guzmán-Vázquez to 115 months' imprisonment.                The district court

also recommended a 500-hour drug treatment program.                        At the

hearing's     conclusion,   Guzmán-Vázquez's         counsel   challenged      the

procedural and substantive reasonableness of his sentence.                     The


                                    - 3 -
district court noted the objection but stated: "[T]he sentence

remains as is.        You have got to remember that he threatened this

gentleman when he committed this carjacking."                    This timely appeal

followed.1

                                        II.

 A.   Procedural Reasonableness

      Guzmán-Vázquez contends that the district court abused its

discretion       by   failing    to   consider       the    18    U.S.C.     § 3553(a)

sentencing factors, including his long-term drug abuse and lack of

treatment.       See 18 U.S.C. § 3553(a)(1) (sentencing court must

consider the defendant's "history and characteristics"); United

States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013)

(sentencing court commits procedural error by failing to consider

the § 3553(a) sentencing factors).               Contrary to his contention,

however, "[o]n this record, there is simply no reason not to

'credit the district court's statement that it considered all of

the       relevant    sentencing       factors.'"            United        States   v.

Hassan-Saleh-Mohamad, 930 F.3d 1, 3 (1st Cir. 2019) (quoting United

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

Guzmán-Vázquez argued before the district court that his criminal

history should be considered in the context of his untreated drug


      1The government concedes that the appellate waiver in the
plea agreement does not apply because Guzmán-Vázquez was not
sentenced   in   accordance    with   the   parties'  sentencing
recommendations and guidelines calculations.


                                       - 4 -
abuse.    Hence, we readily infer that the district court considered

that factor but was simply unconvinced that he warranted a lighter

sentence on that basis.        See United States v. Lozada-Aponte, 689

F.3d 791, 793 (1st Cir. 2012) ("The potentially mitigating factors

[the defendant] identifies on appeal were thoroughly discussed in

the presentence report; that the district court did not explicitly

mention them during the sentencing hearing suggests they were

unconvincing,     not   ignored.").        Indeed,     the    district     court

explicitly acknowledged Guzmán-Vázquez's history of drug abuse and

lack of treatment when discussing his background.

      Guzmán-Vázquez's        argument     that      the     district      court

impermissibly refused to consider a specific sentencing factor --

"the need for the sentence imposed . . . to provide the defendant

with . . . correctional treatment," 18 U.S.C. § 3553(a)(2)(D) --

is   at   odds   with   the   record.      Contrary    to    Guzmán-Vázquez's

contention, the district court did not state that it would ignore

his need for drug treatment in fashioning the sentence.                  Rather,

the district court stated that it could not determine the length

of the sentence based on how long it would take Guzmán-Vázquez to

complete drug treatment.        As the district court explained, this

position is consistent with Supreme Court precedent holding that

sentencing courts "may not impose or lengthen a prison sentence to

enable an offender to complete a treatment program or otherwise to

promote rehabilitation."        Tapia v. United States, 564 U.S. 319,


                                   - 5 -
335         (2011).      The    district         court   correctly    considered

Guzmán-Vázquez's rehabilitative needs, and in fact recommended

that        he   be   placed   in   a    drug     treatment   program,     without

impermissibly indexing the sentence to the length of time needed

to complete any treatment program.                  Cf. United States v. Del

Valle-Rodríguez, 761 F.3d 171, 174 (1st Cir. 2014) (explaining

that Tapia error occurs where "a sentencing court's reference to

rehabilitative needs was causally related to the length of the

sentence" rather than being "merely one of a mix of sentencing

consequences and opportunities" considered by the court).2

B.     Substantive Reasonableness

        Assuming,      favorably    to    Guzmán-Vázquez,      that   he    fully

preserved his substantive reasonableness challenge, we discern no

abuse of discretion because his sentence "rests on a 'plausible

sentencing rationale' and embodies a 'defensible result.'"                 United

States v. Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir. 2015) (quoting



        2
       Guzmán-Vázquez affirmatively waived any argument that he
was entitled to a criminal history departure when his counsel
represented to the district court that Guzmán-Vázquez was "not
making the argument that [he] is entitled to a departure." See
United States v. Walker, 538 F.3d 21, 23 (1st Cir. 2008) ("Where
an appellant has waived an objection below, we will not review
[his] argument, even for plain error."). Guzmán-Vázquez has also
waived any argument that the district court did not adequately
explain the sentence or consider sentencing disparities by failing
to develop these arguments on appeal. United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990). Additionally, he has not preserved
any argument that the district court improperly calculated the
guidelines range.


                                         - 6 -
United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)).                          In

light of the district court's focus on the serious nature of the

offense and Guzmán-Vázquez's extensive criminal history, we cannot

say that the within-guideline sentence imposed by the district

court       was   "outside    of    the    expansive      universe    of   reasonable

sentences."        United States v. Severino-Pacheco, 911 F.3d 14, 21

(1st Cir. 2018) (internal quotation marks omitted).                             Indeed,

because the sentence is within a properly calculated guidelines

range, it enjoys a presumption of reasonableness, United States v.

Llanos-Falero,        847     F.3d        29,    36    (1st   Cir.     2017),     which

Guzmán-Vázquez       can     only    rebut      by    "adduc[ing]    fairly   powerful

mitigating reasons and persuad[ing] us that the district court was

unreasonable in balancing pros and cons despite the latitude

implicit in saying that a sentence must be reasonable," Clogston,

662 F.3d at 593 (internal quotation marks omitted).                        He has not

done so.      It was well within the court's substantial discretion to

determine that the sentence it imposed was justified despite

Guzmán-Vázquez's acceptance of responsibility, his history of drug

abuse and lack of treatment, and his difficult background,3 or the


        3
       We note that the record paints a more nuanced picture of
Guzmán-Vázquez's background than he presents in his appellate
brief.   For example, although he suggests that his criminal
behavior is in some part attributable to an absentee biological
father and the lack of a "stable family environment," the PSR
contains the unchallenged statement that "[h]e was reared by his
mother and stepfather[,] who instilled good moral values and
provided proper counseling."


                                           - 7 -
fact that he may not have actually had a gun when he threatened to

shoot the carjacking victim.           See Flores-Machicote, 706 F.3d at 20

("Appellate review of federal criminal sentences is characterized

by a frank recognition of the substantial discretion vested in a

sentencing court.").4

     To the extent Guzmán-Vázquez specifically contends that his

sentence was substantively unreasonable because the district court

did not give sufficient mitigatory weight to his history of drug

abuse, this argument is foreclosed by the substantial deference we

afford    district       courts   in   weighing     the       § 3553(a)       sentencing

factors, including potentially mitigating factors.                         See United

States    v.    Joubert,    778   F.3d    247,   256    (1st     Cir.     2015)   ("The

significance given to each relevant factor is for the district

court, not an appellate court, to decide."); see also Clogston,

662 F.3d at 593 ("That the sentencing court chose not to attach to

certain    of    the     mitigating    factors    the     significance         that   the

appellant       thinks    they    deserved   does       not    make     the    sentence

unreasonable.").         In sum, we see no reason to disturb the district



     4 We also reject Guzmán-Vázquez's suggestion that his sentence
is substantively unreasonable because it is higher than the
sentence recommended by the government. As we recently explained,
"we have consistently refused to accord any decretory significance
to [the parties'] non-binding [sentencing] recommendations -- or
even to require a sentencing court to explain why it decided to
eschew those recommendations." Hassan-Saleh-Mohamad, 930 F.3d at
3 n.7 (quoting United States v. Cortés-Medina, 819 F.3d 566, 573
(1st Cir. 2016)).


                                         - 8 -
court's determination that the sentence it imposed was appropriate

in light of the seriousness of the offense and Guzmán-Vázquez's

extensive criminal history.   See United States v. Gibbons, 553

F.3d 40, 47 (1st Cir. 2009) ("We will not disturb a well-reasoned

decision to give greater weight to particular sentencing factors

over others . . . .").

                              III.

     Rejecting Guzmán-Vázquez's challenges to his sentence, we

affirm.

     So ordered.




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