               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit


No. 14-1992

                    UNITED STATES OF AMERICA,

                               Appellee,

                                    v.

                        EUGENIO PEREZ-PEREZ,

                       Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Aida M. Delgado-Colón, U.S. District Judge]


                                 Before

                  Lynch, Thompson, and Kayatta,
                         Circuit Judges.


     Elizabeth Caddick, on brief for appellant.
     Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, Carmen M. Márquez-Marín, Assistant United
States Attorney, and Rosa Emilia Rodríguez-Vélez, United States
Attorney, on brief for appellee.


                         September 16, 2015
            Per curiam.        Eugenio       Perez-Perez   pled   guilty     in

September 2013 to being a felon in possession of a firearm, in

violation   of   18   U.S.C.    §§    922(g)(1)    and   924(a)(2),   and   was

sentenced, by upward variance, to 60 months imprisonment.              He now

challenges his sentence.       Because the sentence the district court

imposed was procedurally and substantively reasonable, we affirm.

                                        I.

            On June 12, 2013, agents of the Puerto Rico Police

Department responded to a 911 call from a woman who said she had

been threatened with a firearm.           The victim said she was at home

when Perez-Perez began calling to her from the street, asking her

to come out of the house so they could talk.             When she refused, he

pointed a firearm at her.            The victim pointed out Perez-Perez's

vehicle to the agents when they arrived.             The agents pursued and

detained Perez-Perez, and brought him to the police precinct.

During the car inventory, the agents discovered a revolver inside

a fanny pack under the driver's seat of the car.             Perez-Perez was

then placed under arrest.        The investigation later revealed that

Perez-Perez was on supervised release, having previously been

convicted under federal law of conspiracy to distribute narcotics

and carrying a weapon in relation to a drug trafficking crime.

Perez-Perez had been placed in low-intensity supervision in April

2013.




                                      - 2 -
             On September 16, 2013, Perez-Perez pled guilty to one

count of being a felon in possession of a firearm.                 The plea

agreement provided for a recommended sentence in the middle of the

applicable guideline range.      At sentencing, the parties agreed to

33 months, based on a guideline range of 30 to 37 months.                  The

district court rejected the recommendation and sentenced Perez-

Perez to 60 months.1

                                     II.

             Perez-Perez   argues    that    his   60-month    sentence     is

procedurally and substantively unreasonable.          Generally, we review

the reasonableness of a criminal sentence for abuse of discretion.

United States v. Millán-Isaac, 749 F.3d 57, 66 (1st Cir. 2014).

But   when    the   defendant   raises      no   procedural    objection    at

sentencing, our review is for plain error.            Id.     When assessing

the reasonableness of a sentence, we consider whether the sentence

was both procedurally and substantively reasonable.            United States

v. Hernández-Maldonado, 793 F.3d 223, 227 (1st Cir. 2015).                 His

sentence meets both requirements.

             A sentence is procedurally reasonable if "the district

court committed no significant procedural error, such as failing

to calculate (or improperly calculating) the Guidelines range,



      1   The parties correctly argue that the waiver of appeal
provision in the plea agreement does not, accordingly, apply. See
United States v. Ocasio-Cancel, 727 F.3d 85, 89 (1st Cir. 2013).


                                    - 3 -
treating the Guidelines as mandatory, failing to consider the

§ 3553(a) factors, selecting a sentence based on clearly erroneous

facts, or failing to adequately explain the chosen sentence."

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

Gall v. United States, 552 U.S. 38, 51 (2007)).

             Perez-Perez contends that the district court committed

a procedural error by considering his "socio-economic level," a

status which, under the guidelines, is "not relevant in the

determination of a sentence."        See U.S.S.G. § 5H1.10.      As Perez-

Perez concedes, because he failed to raise this objection at

sentencing, we review for plain error.

             Here, the district court did not reference his socio-

economic   status,   but   rather    his    educational   and   employment

background.    Perez-Perez misguidedly asserts that "socio-economic

level . . . includes his education and training."                  But the

guidelines themselves treat employment records and education as

distinct from socio-economic status.         Compare U.S.S.G. §§ 5H1.2,

and 5H1.5, with U.S.S.G. § 5H1.10. The court made these references

during a narrative of Perez-Perez's personal history, required to

be considered under 18 U.S.C. § 3553(a)(1).               He can show no

prejudice.

             Perez-Perez    also      challenges      the       substantive

reasonableness of his sentence. "We generally respect the district

court's sentence as long as the court has provided a plausible


                                    - 4 -
explanation, and the overall result is defensible."        United States

v. Innarelli, 524 F.3d 286, 292 (1st Cir. 2008).              "When the

sentence   is   outside   the   [guidelines   sentencing   range],   the

appellate court is obliged to consider the extent of the variance,

but even in that posture it 'must give due deference to the

district court's decision that the § 3553(a) factors, on a whole,

justify the extent of the variance.'"         Martin, 520 F.3d at 92

(quoting Gall, 552 U.S. at 51).

           Here, the guidelines range was 30 to 37 months.           The

district court instead imposed a sentence of 60 months.        This was

double the minimum guideline recommendation, but half of the

maximum 10-year sentence permitted under 18 U.S.C. § 924(a)(2).

The district court expressly considered the § 3553(a) factors,

noting in particular Perez-Perez's prior conviction for conspiracy

to distribute narcotics and carrying a weapon in relation to a

drug trafficking crime, and the short period of time between his

placement in low-intensity supervision and the commission of the

instant offense.   The district court stated it was departing from

the guidelines in order to impose a sentence "reflective of the

seriousness of the offense and to promote deterrence."

           Nonetheless, Perez-Perez argues that the district court

"gave no articulable reasons, specific to this case, for the upward




                                  - 5 -
variance."2 He argues that since "the Guidelines already accounted

for his criminal history and the fact that he committed this crime

while on supervised release," the district court was required --

and failed -- to give articulable reasons for imposing the variant

sentence.3

             Generally,   "[w]e   'allow   a   good   deal   of   leeway'   in

reviewing the adequacy of a district court's explanation."             United

States v. Ofray-Campos, 534 F.3d 1, 38–39 (1st Cir. 2008) (quoting

United States v. Gilman, 478 F.3d 440, 446 (1st Cir. 2007)). "When

a factor 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."     United States v. Zapete-Garcia, 447 F.3d

57, 60 (1st Cir. 2006). But while "a sentencing court's obligation

to explain a variance requires the court to offer a plausible and

coherent rationale . . . it does not require the court to be




     2    We note that "[t]he lack of an adequate explanation can
be characterized as either a procedural error or a challenge to
the substantive reasonableness of the sentence." United States v.
Crespo-Ríos, 787 F.3d 34, 37 n.3 (1st Cir. 2015).
     3    Because Perez-Perez's claim fails under either abuse of
discretion or plain error review, we treat his request for
reconsideration during sentencing as an objection.


                                   - 6 -
precise to the point of pedantry."           United States v. Del Valle-

Rodríguez, 761 F.3d 171, 177 (1st Cir. 2014).

          The district court here explained:

          I am aware what the guidelines provide and
          what the guidelines have considered. I think
          that the guidelines do not provide the
          accurate punishment and do not provide for
          accurate assessment of this type of offenses
          [sic] when they happened under this type of
          circumstance and under the scenario that I
          have.

The court adequately described what it found to be the unique

circumstances of this case, stating that it was considering whether

Perez-Perez had "any adjustments, rehabilitation, learning process

and how that is shown."     The district court stressed the fact that

Perez-Perez   not   only   committed   the    instant   offense   while   on

supervised release, but that he committed it within a few months

of being placed in low-intensity supervision:

          I can tell you one thing, your client has the
          intelligence, he has no addiction problem,
          nothing that will basically compel him to
          engage in continued illegal pattern [sic] of
          conduct as he has done in blatant disregard of
          the opportunities that were given to him under
          supervised release. . . . We're talking here
          this defendant as soon as he was placed on low
          supervision by the probation office engaged in
          new conduct.

The district court expressed that the timing of Perez-Perez's

offense demonstrated "disregard for the law and judicial system"

and a serious failure to learn from his prior mistakes:




                                 - 7 -
          [N]o true rehabilitation has been achieved and
          actually the defendant has not understood what
          the need to avoid recidivism is. And actually
          it is quite troubling that this individual,
          cognisant [sic] of the [sic] what the law is
          and having experienced what the loss of
          freedom is and having the guidance of the
          Probation Officer, is once again back here in
          court.

          This explanation was more than adequate.    Perez-Perez

posed a particular danger of recidivism, thereby justifying an

upward variant sentence.

                              III.

          For the reasons set forth above, we affirm the sentence.




                              - 8 -
