          United States Court of Appeals
                       For the First Circuit

No. 11-2243

                      UNITED STATES OF AMERICA,

                              Appellee,

                                 v.

                      VICTOR FLORES-MACHICOTE,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF PUERTO RICO

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


                               Before

                          Lynch, Chief Judge,
                     Souter,* Associate Justice,
                       and Selya, Circuit Judge.


     Hector L. Ramos-Vega, Assistant Federal Public Defender,
Supervisor, Appeals Division, with whom Hector E. Guzman, Jr.,
Federal Public Defender, and Patricia A. Garrity, Assistant Federal
Public Defender, were on brief, for appellant.
     Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, with whom Rosa Emilia Rodriguez-Velez, United
States Attorney, and Julia M. Meconiates, Assistant United States
Attorney, were on brief, for appellee.


                          January 23, 2013


______
   * Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
            SELYA, Circuit Judge.           After defendant-appellant Victor

Flores-Machicote      entered     a    guilty      plea,    the    district    court

sentenced him to five years in prison — a sentence well above the

top of the applicable guideline sentencing range (GSR).                          The

defendant appeals, asserting that the district court did not make

an individualized assessment of the relevant sentencing factors

but, rather, relied on impermissible considerations (including the

perceived shortcomings of the local courts and the epidemic of

violent street crime that has plagued Puerto Rico in recent times).

After careful consideration, we reject the defendant's assertions

and affirm the sentence.

            The background facts are uncomplicated.                A federal grand

jury sitting in the District of Puerto Rico indicted the defendant

on a single count of possessing a firearm as a convicted felon.

See 18 U.S.C. §§ 922(g)(1), 924(a)(2).                     The charge carries a

maximum term of imprisonment of ten years.                  See id. § 924(a)(2).

The defendant pleaded guilty, and the probation department prepared

a   presentence      investigation        report     (the    PSI    Report)     that

recommended a GSR of 33 - 41 months.

            At the disposition hearing, the parties — pursuant to a

nonbinding    plea    agreement       —    jointly    recommended      a    33-month

sentence.    The district court abjured this joint recommendation,

saying that such a sentence would be "irresponsible."                      The court

instead imposed a five-year incarcerative term.


                                          -2-
           This timely appeal ensued. In it, the defendant does not

contest the guidelines calculations contained in the PSI Report.

Nevertheless, he challenges his sentence as both procedurally

flawed and substantively unreasonable. Furthermore, he seeks to be

resentenced before a different judge.

           We review criminal sentences imposed under the advisory

guidelines regime for abuse of discretion.               See Gall v. United

States, 552 U.S. 38, 51 (2007); United States v. Martin, 520 F.3d

87, 92 (1st Cir. 2008).       Within this rubric, we assay the district

court's    factfinding       for   clear   error   and     afford   de    novo

consideration     to   its    interpretation   and   application     of   the

sentencing guidelines.       See United States v. Walker, 665 F.3d 212,

232 (1st Cir. 2011).

           The defendant's core contention is that the district

judge failed to make an individualized assessment of the relevant

sentencing factors but, rather, relied mainly on impermissible

considerations.    In support, the defendant draws our attention to

certain statements made by the judge.          For the most part, these

statements track two themes.         The first theme is composed of the

judge's references to matters such as the perceived shortcomings of

the local criminal justice system and the need to compensate for

those shortcomings.      The second theme is composed of the judge's

references to Puerto Rico's murder rate and other negative societal

factors.   The defendant asseverates that the judge's espousal of


                                     -3-
these themes resulted in a failure to treat him as an individual

and fostered unwarranted sentencing disparity.                These bevues, in

turn, led directly to the imposition of a higher than reasonable

sentence.

            In   the   sentencing    context,     we   evaluate    claims     of

unreasonableness in light of the totality of the circumstances.

Gall, 552 U.S. at 51.        This path typically involves a two-step

pavane.   First, we inquire into the existence of procedural errors

"such as failing to calculate (or improperly calculating) the

[GSR], 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."      Id.   Once we are assured that the sentence

is not infected by procedural error, we then proceed to evaluate

its substantive reasonableness.          Id.

            Appellate    review     of   federal    criminal      sentences    is

characterized by a frank recognition of the substantial discretion

vested in a sentencing court. Although the advisory guidelines are

"the starting point and the initial benchmark," id. at 49, a

sentencing judge may draw upon his familiarity with a case, weigh

the factors enumerated in 18 U.S.C. § 3553(a), and custom-tailor an

appropriate sentence, see Kimbrough v. United States, 552 U.S. 85,

109   (2007).     It    follows   that      a   "sentencing    court   may    not


                                      -4-
mechanically       assume      that    the    GSR    frames the            boundaries           of   a

reasonable sentence in every case."                        Martin, 520 F.3d at 91.

Rather, the court must take a flexible, case-by-case approach: once

the GSR is properly calculated, "sentencing becomes a judgment

call"    involving       an    intricate      array      of    factors.              Id.   at    92.

Consequently, punishment outside the GSR may be warranted in a

particular        case   "to     serve     the      objectives            of    sentencing."

Kimbrough, 552 U.S. at 91.

             When a court varies from the GSR, its reasons for doing

so   "should       typically      be     rooted      either          in    the       nature      and

circumstances       of    the    offense       or    the      characteristics              of    the

offender."        Martin, 520 F.3d at 91.                  In such a situation, the

factors deemed relevant by the sentencing court "must add up to a

plausible rationale" for the sentence imposed and "must justify a

variance of the magnitude in question."                       Id.

             Against      this    backdrop,         we     turn      to        the   defendant's

assignments of error. We begin with the argument that the district

judge,      in    fashioning       the       defendant's            sentence,         improperly

considered shortcomings in Puerto Rico's local justice system —

including its past treatment of the defendant.

             By     statute,      a      criminal        defendant's             "history        and

characteristics" are among the considerations that a court ought to

take into account at sentencing.                 18 U.S.C. § 3553(a)(1).                   As part

of   this    inquiry,     a     sentencing       judge        may    consider         whether        a


                                             -5-
defendant's criminal history score substantially underrepresents

the gravity of his past conduct.         United States v. Lozada-Aponte,

689 F.3d 791, 792 (1st Cir. 2012); Walker, 665 F.3d at 233-34; see

USSG §4A1.3(a)(1).      A record of past arrests or dismissed charges

may indicate "a pattern of unlawful behavior even in the absence of

any convictions."      Lozada-Aponte, 689 F.3d at 792 (quoting United

States v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir. 2006)) (internal

quotation marks omitted); see United States v. Gallardo-Ortiz, 666

F.3d 808, 814-15 (1st Cir. 2012). Logic dictates that a sentencing

court    may    similarly   consider    whether,   in   a    series   of   past

convictions, the punishment appears to fit the crime. If the court

concludes that an asymmetry exists which results in a substantial

underestimation of the defendant's criminal history, it may vary

the sentence upward to reflect past leniency.1              See United States

v. Moore, 239 F. App'x 509, 512 (11th Cir. 2007) (per curiam); see

also USSG §4A1.3, comment. (backg'd.).

               It is true that, in the case at hand, the sentencing

judge commented disapprovingly about what he perceived to be the

habitual leniency of the local courts.             Seen in a vacuum, this

perceived systemic shortcoming is not, in and of itself, a relevant


     1
       Our decision in United States v. Santiago-Rivera, 594 F.3d
82 (1st Cir. 2010), is not to the contrary. There, we held only
that a district judge may not "select[] a sentence for the sole
purpose of controlling the running of an unrelated local sentence."
Id. at 86. The defendant in this case does not claim that the
district judge attempted to control the running of an unrelated
local sentence.

                                       -6-
sentencing factor.           Importantly, however, the judge did not stop

there:      he   went   to     considerable       lengths   to    walk   through   the

defendant's prior interactions with the law.                  The judge explained,

in   some     detail,       why   he    believed   that     the   outcome   of   these

interactions underrepresented the seriousness of the defendant's

past criminal conduct. Specifically, he noted that the defendant's

felony conviction for simple possession of heroin and cocaine had

been reduced from a charge of possession with intent to distribute;

three       other    arrests      for   controlled     substance     violations    had

resulted in no punishment at all; and a prior conviction for

illegal appropriation of a vehicle had resulted in only a six-month

suspended sentence. In light of the conduct in which the defendant

had engaged and how he fared before the local courts, we think that

the district judge had some basis for referring to the earlier

sentences as "slap[s] on the wrist."2                We also think that the judge

reasonably could have concluded that one of the defendant's past

arrests for distribution of controlled substances likely "[fell]

through the cracks" when the local court found no probable cause to

proceed       with    the    underlying      charge.        Having   reached     these

conclusions, it was within the district judge's discretion to find

that the defendant's criminal history score did not adequately




        2
      This was relevant because, the district judge observed, "had
some Judge in the past been stronger with [the defendant] at the
beginning, perhaps he would not be here today."

                                            -7-
represent either the seriousness of his past criminal behavior or

the likelihood of his recidivism.

          We add, moreover, that the district judge's focus on the

defendant's criminal history belies the claim that the judge did

not consider the defendant's case.     That focus unmistakably shows

that the judge gave individualized attention to the defendant's

situation.    See Gall, 552 U.S. at 50, 52.

          The defendant's next argument is that the district judge

considered Puerto Rico's escalating murder rate and other local

criminal trends and that this consideration was improper. The

factual premise upon which this argument rests is solid; the record

is pellucid that the judge commented repeatedly upon these points.

Some examples follow.

          •        "What do you think that this gun that [the
                   defendant] had illegally was to be used for? Was
                   it to go to church and pray with or was it to
                   kill people? What do you think these guns are
                   for?"

          •        "When you have a society like Puerto Rican
                   society, with over 800 murders — we are reaching
                   900 already — where there are shootouts in the
                   streets every day, killings car to car, where
                   killings and beheadings are taking place in this
                   island, I cannot look at an individual like this
                   and not consider the social problem we have in
                   the streets that's creating an ambiance where you
                   cannot live in peace as a citizen."

          •        " . . . 84 percent of all murders in Puerto Rico
                   occur with the use of firearms."

          •        "I think Puerto Rico [shouldn't] tolerate one
                   more gun."


                                 -8-
           •            "It's an embarrassment.   I feel embarrassed to
                        think we have the highest murder statistics in
                        the whole United States."

           •            "We read it in the paper every day. People get
                        killed in the middle of the street, shootings
                        from car to car, all kinds of horrible, gun-
                        related crimes happening. . . . [S]tatistics
                        depict a picture of Puerto Rico that pretty soon
                        people are not going to even want to come here to
                        visit as tourists."

Along somewhat the same lines, the district judge characterized the

defendant's possession of a high-caliber weapon with a large-

capacity magazine as "part of the problem" and declared "[t]hat's

why we leave in the morning and we don't know whether we're going

to come back alive in the afternoon."

           Even though the judge's comments contain some unnecessary

rhetorical flourishes, the defendant paints with too broad a brush

in   claiming    that     they    went   beyond   the   pale.    After   all,   a

sentencing      judge    may     consider   community-based     and   geographic

factors. See Lozada-Aponte, 689 F.3d at 793 (noting in dictum that

sentencing judge's discussion of "incidence of crime in Puerto

Rico" was a "permissible [sentencing] consideration[]"); United

States v. Politano, 522 F.3d 69, 74 (1st Cir. 2008) (allowing

sentencing court "to take into account all of the circumstances

under which [the defendant] committed the offense, including the

particular community in which the offense arose"); see also United

States v. Cavera, 550 F.3d 180, 184 (2d Cir. 2008) (en banc)

(affirming imposition of upward variance on ground that GSR "failed


                                         -9-
to take into account the need to punish more severely those who

illegally transport guns into areas like New York City").     Within

this taxonomy, it is permissible for a sentencing court to consider

the incidence and trend lines of particular types of crime in the

affected community. See United States v. Landry, 631 F.3d 597, 607

(1st Cir. 2011).

             This makes good sense.   Deterrence is widely recognized

as an important factor in the sentencing calculus.     See, e.g., 18

U.S.C.   §    3553(a)(2)(B).    Community-based   considerations   are

inextricably intertwined with deterrence, which aims to "prevent[]

criminal behavior by the population at large and, therefore,

incorporates some consideration of persons beyond the defendant."

Politano, 522 F.3d at 74.       Put another way, the incidence of

particular crimes in the relevant community appropriately informs

and contextualizes the relevant need for deterrence.

             To illustrate, if a community is relatively free of

violent crime, a sentencing judge reasonably may deem a violent

crime aberrational and, thus, see no need for a heightened level of

deterrence.     If, however, violent crime is running rampant, the

judge reasonably may conclude that the need for deterrence is great

— and this may translate into a stiffer sentence.

             The defendant tacitly acknowledges this framework, but

insists that the district judge gave undue weight to the need for

deterrence.      This plaint overlooks, however, that the section


                                 -10-
3553(a) factors must be assessed in case-specific terms.         There is

no   pat   formula   dictating   how   these   factors   interrelate.   A

sentencing court has broad discretion to assay them and need not

afford equal weight to each factor in a given case.            See United

States v. Dávila-González, 595 F.3d 42, 49 (1st Cir. 2010); United

States v. Dixon, 449 F.3d 194, 205 (1st Cir. 2006).               In this

instance, we believe that the assignment of appreciable weight to

the need for deterrence was adequately explained and, in the end,

a reasonable choice.

            The judge discussed the need to promote respect for the

law, explaining that Puerto Rico is "a jurisdiction where violent

crime and gun related crime [are] so prevalent that it gets

. . . embarrassing." In acknowledging the need "to afford adequate

deterrence to criminal conduct," the judge stated:

            The word has to spread that this Court is
            going to be extremely harsh with defendants
            who conduct and carry out gun-related crimes.
            Recently there was an announcement by the
            Federal government that there are — they have
            reached into a stipulation with the local
            government whereby they are going to start
            filing all the gun cases in this Court.
            Simple reason for that, local courts are
            incapable of managing them.       And that's
            exactly what's going on.

Sentencing judges are not automatons, and a judge is entitled to

view certain types of crime as particularly heinous.           See, e.g.,

Walker, 665 F.3d at 233.         Reviewing the sentencing record as a

whole, we find that it was within the discretion of the court below


                                   -11-
to place special emphasis on the deterrence factor and to explain

that emphasis in the context of local trends.

              This is not to say that a sentencing court's emphasis on

factors that are not specifically tied to either the offender or

the offense of conviction — say, the perceived shortcomings of

local courts or the incidence of particular crimes in a given

locale — may not go too far.                A sentencing judge's resort to

community-based characteristics does not relieve him or her of the

obligation to ground sentencing determinations in case-specific

factors.       See Politano, 522 F.3d at 74.             It is possible for a

sentencing judge to focus too much on the community and too little

on   the     individual     and,   thus,    impose   a   sentence    that   cannot

withstand the test of procedural reasonableness.

              Here, however, the sentencing judge did not cross this

line.      He directed individualized attention to the defendant's

case, explicitly discussing the section 3553(a) factors as they

related      to     the   defendant.        He   addressed    the    nature    and

circumstances of the particular offense, its seriousness, and the

need to provide condign punishment.              He also paid particular heed

both    to    the    fact   that   the     defendant's   weapon     was   "a   nine

millimeter, semi-automatic pistol with a high capacity magazine,"

and to the defendant's likely recidivism. While the judge may have

lingered longer than necessary on community characteristics, the




                                         -12-
claim    that    he   did   not    give    individualized       attention   to   the

sentencing determination is unfounded.

            The defendant's claim of procedural unreasonableness has

one further dimension.        He asserts that his sentence reflects the

judge's failure to avoid unwarranted sentencing disparity.                   See 18

U.S.C. § 3553(a)(6).        To begin, this argument was not advanced in

the district court. It is, therefore, forfeited, and our review is

for plain error.       United States v. Matos, 328 F.3d 34, 43 (1st Cir.

2003).    In all events, we see no error, plain or otherwise.

            This assertion is premised on an ad hoc statistical

analysis, through which the defendant strives to convince us that

the sentencing judge routinely imposes uniquely harsh sentences.

We are not persuaded.

            Defense counsel examined 25 cases prosecuted in the

District of Puerto Rico in 2010-2011.              Based on this examination,

the defendant suggests that his above-the-range sentence is a

product of the sentencing judge's biases rather than permissible

sentencing criteria.

            Statistical      evidence       that   fails   to    satisfy    minimum

standards of reliability proves nothing.             Cf. Rathbun v. Autozone,

Inc., 361 F.3d 62, 79 (1st Cir. 2004) (explaining, in disparate

treatment       context,    that    statistical     evidence      must   "cross    a

threshold of dependability").               So it is here.        In the sampled

cases, the defendants were convicted of a variety of weapons


                                          -13-
charges.      The sample size is unhelpfully small, the analytic

methodology is quixotic, and the cases examined are not fair

congeners.    The defendants within the cohort assembled by defense

counsel    faced    diverse    charges,     had    varying     offense   levels,

exhibited differing offense characteristics, and had dissimilar

criminal histories.      Any disparities in sentencing outcomes may

rationally be attributed to, say, differences in criminal history,

the presence or absence of cooperation, or a myriad of other

factors.     See, e.g., United States v. Saez, 444 F.3d 15, 18 (1st

Cir. 2006); United States v. Washington, 187 F. App'x 3, 5 (1st

Cir. 2006) (per curiam).            The defendant's statistical proffer

accounts for none of these factors.

            Comparing apples to oranges is not a process calculated

to lead to a well-reasoned result.                Because its foundation is

porous, the defendant's claim of unwarranted sentencing disparity

fails.

            Having determined that the claims of procedural error are

untenable, we are ready for the second step of the pavane: the

defendant's complaint that his five-year sentence is substantively

unreasonable.

            In any given case, there is "a range of reasonable

sentences."        Martin,    520   F.3d    at    92.     A   sentence   is   not

substantively unreasonable merely because the reviewing court would

have sentenced the defendant differently.               Id.   "[T]he linchpin of


                                     -14-
a reasonable sentence is a plausible sentencing rationale and a

defensible result."        Id. at 96.

            Here, the district judge's sentencing calculus centered

on   the   seriousness     of    the   defendant's    criminal   conduct,   the

defendant's past history and likelihood of recidivism, and the need

for deterrence. This constituted a plausible rationale (albeit not

one to the defendant's liking).            The lens of our inquiry narrows,

therefore, to the length of the sentence imposed.

            In this regard, the defendant laments the fact that his

sentence is well above the top of the GSR.              Where, as here, the

district court imposes a sentence outside the GSR, a reviewing

court must consider the extent of the variance.             See Gall, 552 U.S.

at 51.     But even a substantial variance does not translate, ipso

facto,     into   a    finding    that     the   sentence   is   substantively

unreasonable.         See Gallardo-Ortiz, 666 F.3d at 811.         Everything

depends on context.

            In this case, the upward variance is admittedly steep.

Nevertheless, the offense conduct involved the possession of an

extremely dangerous weapon, previously stolen in a home invasion.

The defendant's criminal history is not insubstantial, and the

prospect of recidivism is real.                  He has had the benefit of

fortuitous procedural outcomes and gentle dispositions in past

interactions with the legal system, but he apparently learned no

lessons. Under these circumstances, we cannot say that a five-year


                                         -15-
sentence — one half of the statutory maximum for the offense of

conviction — is substantively unreasonable.

            We need go no further.3   For the reasons elucidated

above, we uphold the defendant's sentence.



Affirmed.




    3
       Because we have rejected the defendant's appeal on the
merits, we need not consider his prayer that he be resentenced
before a different judge.

                               -16-
