          United States Court of Appeals
                      For the First Circuit

No. 13-1302

                     UNITED STATES OF AMERICA,

                             Appellee,

                                v.

              CÁNDIDO OBED APONTE-VELLÓN, a/k/a Obed,

                       Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF PUERTO RICO

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



                              Before

                   Torruella, Lipez and Howard,
                          Circuit Judges.


     José Luis Novas Debien on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Juan Carlos Reyes-Ramos, Assistant United States
Attorney, on brief, for appellee.



                           June 13, 2014
             HOWARD, Circuit Judge.       After pleading guilty to robbery

and brandishing a firearm during a robbery, Cándido Obed Aponte-

Vellón ("Aponte") received consecutive incarcerative sentences of

72 months and 84 months.         On appeal, Aponte contends that the

district court improperly departed upward from the applicable

Guidelines sentencing range.          Because Aponte in fact received a

sentence that varied from the applicable Guidelines ranges, rather

than an upward departure under the Guidelines, and because we

discern no plain error in the variance, we affirm.

                                      I.

             In 2012, Aponte pleaded guilty to both counts of an

indictment     charging   him   and   a     co-defendant   with   robbery   in

violation of 18 U.S.C. §§ 2 and 1951 (Count One) and with knowingly

carrying, using, and brandishing firearms during and in relation to

the robbery in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A) (Count

Two).

             After a futile flurry of pro se motions in which Aponte

sought, inter alia, withdrawal of his guilty plea and appointment

of new counsel, the case proceeded to sentencing in February 2013.1

Following a presentence investigation report ("PSR") issued in

December 2012, the district court calculated an advisory Guidelines

sentencing range of 24 to 30 months' imprisonment for Count One and

a consecutive statutory minimum sentence of 84 months' imprisonment


        1
         Aponte does not press any of these pro se claims on appeal.

                                      -2-
for Count Two.     Ultimately, however, the court declined to follow

the parties' recommended 108-month total sentence due to its

concern over the lengthy record of arrests and pending charges set

forth in Aponte's PSR:

                   The Court finds . . . that the sentence
            to which the parties agree does not reflect
            the seriousness of the offense or promote[]
            respect for the law or protect[] the public
            from further crimes by Mr. Aponte.
                   As part of a sentencing court's
            inquiry, a sentencing judge may consider
            whether a Defendant's criminal history score
            substantially underrepresents the gravity of
            his past conduct. That is the case here.
                   Mr. Aponte's record of past arrests or
            dismissed charges, even though there is an
            absence of any conviction, indicates a pattern
            of unlawful behavior.

The district court proceeded to recite the PSR's list of pending or

dismissed state criminal charges against Aponte, including pending

charges of first-degree murder, robbery, and firearm violations.

In so doing, it recognized that some of the separately enumerated

counts related to the same cases: "Some of those cases are the

same, I recognize that."

            The district court imposed prison sentences of 72 months

on Count One and 84 months on Count Two, to be served consecutively

for   a   total   incarcerative   term   of   156   months.2   Following


      2
      At sentencing, the district court stated that it was
sentencing Aponte to 72 months on Count One and 84 months on Count
Two "for a total of 166 months." In its judgment and commitment
order, the district court again imposed consecutive sentences of 72
and 84 months. We therefore assume that the district court simply
made a misstatement or erred in its arithmetic at the sentencing

                                   -3-
imposition of sentence, Aponte objected that the court had erred in

"depart[ing] upward from the guidelines," because "[t]he pre-

sentence report did not identify any information that would warrant

a departure." The district court responded, "It's not a departure.

It's a variance."   Aponte disagreed, and elaborated that the court

needed to first "go by the guidelines, determine if there are any

grounds for departure."   The district court reiterated, "[T]his is

a variance, and I don't have to do that."   This appeal followed.

                                II.

          On appeal, Aponte raises four initial challenges to his

sentence, each resting on the premise that his sentence represented

an upward departure under the Guidelines.     Specifically, Aponte

contends that 1) the court failed to provide advance notice of its

intent to depart from the Guidelines range, as required by Federal

Rule of Criminal Procedure 32(h)3; 2) the court failed to determine

the extent of the departure "by using, as a reference, the criminal

history category applicable to defendants whose criminal history or



hearing, and that the total sentence was in fact 156 months'
imprisonment.
     3
      Rule 32(h) provides:

     Before the court may depart from the applicable
     sentencing range on a ground not identified for departure
     either in the presentence report or in a party's
     prehearing submission, the court must give the parties
     reasonable notice that it is contemplating such a
     departure. The notice must specify any ground on which
     the court is contemplating a departure.

                                -4-
likelihood    to   recidivate   most   closely   resembles   that   of   the

defendant's," U.S.S.G. § 4A1.3(a)(4); 3) the court failed to set

forth in writing "the specific reasons why the applicable criminal

history category substantially under-represents the seriousness of

the   defendant's   criminal    history   or   the   likelihood   that   the

defendant will commit other crimes," id. § 4A1.3(c)(1); and 4) the

court improperly considered his prior arrest record for purposes of

an upward departure, id. § 4A1.3(a)(3).          In the alternative, he

further avers that his sentence was improper even if construed as

a variance because 1) the district court imposed the variant

sentence without advance notice under Rule 32(h); and 2) the court

failed to state adequate reasons for the variance and improperly

relied upon his arrest record, rendering the sentence procedurally

unreasonable.

             Aponte's first four arguments fail for the simple reason

that the district court imposed a variant sentence rather than an

upward departure.      A "departure," as explained by the Supreme

Court, "is a term of art under the Guidelines and refers only to

non-Guidelines sentences imposed under the framework set out in the

Guidelines." Irizarry v. United States, 553 U.S. 708, 714 (2008).

Variant sentences, by contrast, were enabled by the invalidation of

the mandatory Guidelines regime in United States v. Booker, 543

U.S. 220 (2005), and result from a court's consideration of the

statutory sentencing factors enumerated in 18 U.S.C. § 3553(a).


                                   -5-
See Irizarry, 553 U.S. at 714; United States v. Vixamar, 679 F.3d

22, 33 (1st Cir. 2012); see also United States v. Grams, 566 F.3d

683, 686-87 (6th Cir. 2009).

           Although the district court explicitly described its

sentence as a "variance," Aponte contends that this nomenclature is

not dispositive and that the district court in fact relied on a

"classic ground for departure under the guidelines," to wit,

"reliable information indicat[ing] that the defendant's criminal

history category substantially under-represents the seriousness of

the   defendant's    criminal   history   or   the   likelihood   that   the

defendant will commit other crimes," U.S.S.G. § 4A1.3(a)(1).

           The district court did indeed echo § 4A1.3(a)(1) in

finding   that      Aponte's    Guidelines     criminal   history    score

"substantially underrepresent[ed] the gravity of his past conduct"

due to the pending and dismissed charges set forth in the PSR.           But

the court later explained that it was quoting from our opinion in

United States v. Flores-Machicote, 706 F.3d 16, 21 (1st Cir. 2013),

in which we recognized that "[a]s part of [the § 3553(a)(1)

'history and characteristics' inquiry], a sentencing judge may

consider whether a defendant's criminal history score substantially

underrepresents the gravity of his past conduct."           Moreover, the

court only addressed Aponte's arrest record after stating that it

had "also considered the other sentencing factors set forth in [§

3553(a)]."   Indeed, it specifically found "that the sentence to


                                    -6-
which the parties agree does not reflect the seriousness of the

offense or promote[] respect for the law or protect[] the public

from further crimes by Mr. Aponte," factors properly considered

under § 3553(a)(2)(A) & (C).

           In short, nothing in the sentencing record persuades us

that the district court intended to or in fact applied an upward

departure under U.S.S.G. § 4A1.3(a)(1).           Even if the court's

sentencing rationale were ambiguous -- and we do not think that it

is -- United States v. Marsh, 561 F.3d 81, 86 (1st Cir. 2009),

teaches that any error in a departure is harmless where the

district court would have imposed the same sentence as a variance

in any event: "If we find an alleged Guideline error would not have

affected the district court's sentence, we may affirm."          That is

the case here.    Even reading the court's initial reference to

Aponte's   past   arrests   as   invoking   the    application    of     a

§ 4A1.3(a)(1) upward departure, the court's subsequent description

of its sentence as a "variance" and its citation to Flores-

Machicote indicate that the court would have arrived at the same

sentence even if a departure were unwarranted.

           We therefore turn to Aponte's alternative assertions that

his sentence was improper even as a non-Guidelines variance.           The

first of these contentions -- that Rule 32(h) requires advance

notice even in the case of a variance -- warrants minimal scrutiny,

as that precise argument was flatly rejected by the Supreme Court


                                 -7-
in Irizarry.         See 553 U.S. at 716 ("The fact that Rule 32(h)

remains in effect today does not justify extending its protections

to variances . . . ."); see also United States v. Fernández-

Cabrera, 625 F.3d 48, 52 (1st Cir. 2010) ("[T]he Supreme Court, in

the post-Booker era, has refused to expand the notice requirement

announced in Burns [v. United States, 501 U.S. 129 (1991) (codified

as   Rule    32(h))]     beyond   the    narrow     confines      of   a   sentencing

departure." (citing Irizarry, 553 U.S. at 714-15)).                        Rule 32(h)

therefore placed the district court under no obligation to provide

advance notice of the variance.

              Aponte finally argues that his variant sentence was

procedurally unreasonable because the district court failed to

adequately weigh the § 3553(a) factors and "relied on the incorrect

premise of a pattern of unlawful behavior" inferred from Aponte's

arrest record.       Aponte did not raise any such objection below; we

accordingly review for plain error only.                      See United States v.

Dávila-González, 595 F.3d 42, 47 (1st Cir. 2010).

              In Aponte's account of the sentencing, the district court

merely      "performed    by   what     appears     to   be    rote    a   recital    of

[Aponte's] past arrests and then after counsel's objection for

failing to follow the requirements of U.S.S.G. § 4A1.3, then simply

invoked      the   Flores[-Machicote]        case    and      varied   substantially

without weighing any factors."            Aponte therefore suggests that the

district     court    failed   to     give   adequate      consideration       to    the


                                         -8-
§ 3553(a) factors.   See Gall v. United States, 552 U.S. 38, 49-50

(2007) (requiring the district court to "consider all of the

§ 3553(a) factors to determine whether they support the sentence

requested by a party" and to "make an individualized assessment

based on the facts presented").

          We    disagree   with   Aponte's   characterization   of   the

district court's sentencing decision.        As mentioned above, the

court stated that it had considered the § 3553(a) factors, and gave

specific attention to "the need for the sentence imposed to reflect

the seriousness of the offense, to promote respect for the law, .

. . [and] to protect the public from further crimes of the

defendant."    18 U.S.C. § 3553(a)(2)(A)-(C).     As we recognized in

Flores-Machicote, 706 F.3d at 21, the determination of whether "a

defendant's criminal history score substantially underrepresents

the gravity of his past conduct" is also relevant to "the history

and characteristics of the defendant," 18 U.S.C. § 3553(a)(1).

Admittedly, the district court did not go through each of the §

3553(a) factors one by one, but our caselaw does not demand such an

exhaustive approach.       See Marsh, 561 F.3d at 86 ("While the

district court's explicit acknowledgment of § 3553(a) was brief, we

do not require the court to address those factors, one by one, in

some sort of rote incantation when explicating its sentencing

decision." (internal quotation marks omitted)); see also Dávila-

González, 595 F.3d at 49 ("[T]he fact that the court stated that it


                                   -9-
had considered all the section 3553(a) factors is entitled to some

weight.").     We therefore find no plain error in the district

court's § 3553(a) calculus.

             Finally, we also reject Aponte's contention that the

district court placed too much weight upon his record of pending

and dismissed state criminal charges.      As we stated in Flores-

Machicote, "[a] record of past arrests or dismissed charges may

indicate a pattern of unlawful behavior even in the absence of any

convictions."    706 F.3d at 21 (internal quotation marks omitted);

see also United States v. Ocasio-Cancel, 727 F.3d 85, 91-92 (1st

Cir. 2013).     Aponte's PSR set forth three separate incidents of

criminal conduct charged in state court: dismissed robbery and

firearm charges from July 2010; pending aggravated robbery, first-

degree murder, and firearm charges, and dismissed harm to a minor

charges, from August 2010; and pending robbery and firearm charges

from October 26, 2010, hours after the robbery to which Aponte

pleaded guilty in this case.    It was not plainly erroneous for the

district court to have inferred a pattern of malfeasance from three

separate incidents in a four-month span.

                                 III.

             For the foregoing reasons, we affirm Aponte's sentence.




                                 -10-
