          United States Court of Appeals
                     For the First Circuit


No. 14-1859

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                      OMAR PAULINO-GUZMAN,

                      Defendant, Appellant.


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

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


                             Before

                      Howard, Chief Judge,
               Lynch and Kayatta, Circuit Judges.


     Jane Elizabeth Lee on brief for appellant.
     Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, Susan Jorgensen, Assistant United States
Attorney, and Rosa Emilia Rodríguez-Vélez, United States Attorney,
on brief for appellee.


                        December 9, 2015
             KAYATTA, Circuit Judge.       Following his guilty plea to

one count of unlawful possession of a firearm, Omar Paulino-Guzman

("Guzman") appeals his 60-month sentence on the grounds that it is

substantively unreasonable.      After careful review of the record,

we find that the district court did not abuse its discretion in

relying in part on the sentence's supposed deterrent effect to

justify an upward variance from a recommended sentencing range of

41–51 months.

                            I.   Background1

             In the early morning of November 28, 2013, the Puerto

Rico Police Department was alerted that a gas station's security

alarm had been activated.     When agents arrived at the gas station,

they discovered that its front door had been broken.           Nearby, they

found a vehicle with its engine running and with no people inside.

Soon thereafter, the agents saw two people––one of whom was later

identified    as   Guzman––running   out     of   the   gas   station   with

merchandise.     Guzman got into the waiting vehicle and drove away.

The agents followed Guzman and saw him crash the vehicle, scramble

out, and flee.     The police approached the vehicle and saw a loaded

firearm, as well as a magazine with five additional rounds.




     1 On appeal from a guilty plea, we draw our facts from the
plea colloquy and sentencing materials. United States v. Whitlow,
714 F.3d 41, 42 (1st Cir. 2013).


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           Guzman was arrested later that day and charged with one

count of being a convicted felon in possession of a firearm.2   On

February 13, 2014, Guzman entered into a plea agreement with the

government.   Under the agreement, Guzman pled guilty, and both

parties agreed to recommend that the court impose a prison term

within the United States Sentencing Guidelines range corresponding

to Guzman's total adjusted offense level of 21.3 The court accepted

Guzman's plea as knowingly and voluntarily made and ordered the

probation office to prepare a Presentence Investigation Report

("PSR").

           The PSR, as ultimately revised, calculated a criminal

history score of 3, which placed Guzman in criminal history

category ("CHC") II.   The PSR calculated the guidelines sentencing

range associated with a total offense level of 21 and a CHC of II

as 41–51 months.

           Guzman's sentencing hearing took place on July 23, 2014.

Defense counsel, citing Guzman's low education level, troubled



     2Guzman had previously been convicted of robbery and firearms
offenses under Puerto Rico law.
     3 Due to Guzman's past conviction for a crime of violence,
his base offense level for unlawful possession of a firearm was
20. See U.S.S.G. § 2K2.1(a)(4)(A). This base offense level was
increased by four levels because Guzman possessed the firearm in
connection   with   another    felony   offense,   see  U.S.S.G.
§ 2K2.1(b)(6)(B), and then reduced by three levels to reflect
Guzman's acceptance of responsibility, see U.S.S.G. § 3E1.1,
resulting in a total adjusted offense level of 21.


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family background, drug problems, and aspirations to vocational

training, recommended a low-end guidelines sentence of 41 months.

The government, emphasizing that Guzman had been arrested only

after he had caused property damage to a gas station and recklessly

fled the scene, and referring to Guzman's past firearms offenses

and pending state charges for the damage done to the gas station,

recommended a high-end guidelines sentence of 51 months. The court

reviewed the terms of the PSR and Guzman's criminal history, as

well   as   "several    juvenile    adjudications     which,   though    not

considered for criminal history category points, may be considered

by the Court as part of the [sentencing] factors" laid out in 18

U.S.C. § 3553(a).       After noting that the PSR "satisfactorily

reflects the components of [Guzman's] offense by considering its

nature and circumstances," the court reviewed in considerable

detail Puerto Rico's struggle with a high rate of murders, the

role   of   firearms   in   those   murders,   and   the   perception   that

punishing the unlawful possession and use of firearms can reduce

the number of murders. The court also cited our decision in United

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

blessing its consideration of Puerto Rico's serious crime problem

in sentencing for violent crimes.

            Following this explanation of its concerns, the court

then announced that it elected to "exercise its discretion and

impose a variant sentence after considering all the provisions of


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[18 U.S.C. § 3553(a)]."    The court sentenced Guzman to 60 months'

imprisonment.    This appeal followed.4

                           II.   Discussion

A.   Standard of Review

          We review the district court's sentencing decisions for

reasonableness under an abuse of discretion standard.        United

States v. Trinidad-Acosta, 773 F.3d 298, 308 (1st Cir. 2014)

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

bifurcated: we first assure ourselves that the sentencing is free

of procedural error before evaluating the sentence's substantive

reasonableness in light of the totality of the circumstances.   See

id. at 308–09.    Guzman alleges no procedural error, so we proceed

immediately to the question of whether the district court abused

its discretion by imposing a substantively unreasonable sentence.5


     4 Under the plea agreement, Guzman waived his right to appeal
if the district court issued a sentence that aligned with the
"terms, conditions, and recommendations" of the agreement.
Because the court's 60-month sentence exceeded the parties'
guidelines recommendations, Guzman's waiver does not deprive this
court of jurisdiction over the appeal.
     5 Guzman concedes that he made no objection to his sentence
in the district court.   Typically, when the defendant makes no
objection to his sentence below, we set aside the challenged
sentence only if the defendant can satisfy the demanding plain-
error standard. United States v. Padilla, 415 F.3d 211, 218 (1st
Cir. 2005).     Guzman argues nonetheless that the plain-error
standard   should   not  apply   to  substantive    reasonableness
challenges. This argument runs counter to circuit precedent. See,
e.g., United States v. Díaz-Bermúdez, 778 F.3d 309, 313–14 (1st
Cir. 2015) (applying plain-error review to a substantive
reasonableness challenge not raised below); United States v.
Tavares, 705 F.3d 4, 33 (1st Cir. 2013) (same). Regardless, the


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B.     Substantive Reasonableness

              "The hallmarks of a substantively reasonable sentence

are 'a plausible sentencing rationale and a defensible result.'"

United States v. Díaz-Bermúdez, 778 F.3d at 313 (quoting United

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

substantive reasonableness, a reviewing court must remain "mindful

that deference to the trial court is a lineament of appellate

review of federal criminal sentences" and that "sentencing courts

may custom-tailor sentences to fit the distinctive circumstances

of particular cases."         United States v. Del Valle-Rodríguez, 761

F.3d 171, 176 (1st Cir. 2014).             This custom-tailoring sometimes

results in above-guidelines sentences.            See, e.g., Díaz-Bermúdez,

778   F.3d    at   313–14    (affirming    a   sentence   48   months    above   a

guidelines recommendation of 60 months).             Nevertheless, "[w]here,

as    here,   a    court    imposes   a   sentence   above     the    [guidelines

sentencing range], it must justify the upward variance."                      Del

Valle-Rodríguez, 761 F.3d at 176.

              Guzman argues that the district court here has provided

no plausible sentencing rationale.             He concedes that the district

court sought by its sentence "to deter [him] and others from . . .


government has failed to assert that plain-error review applies,
and "[w]hen the government fails to request plain error review,"
we may "review the claim under the standard of review that is
applied when the issue is properly preserved below." United States
v. Encarnación-Ruiz, 787 F.3d 581, 586 (1st Cir. 2015).
Accordingly, we proceed under an abuse of discretion standard.


                                          - 6 -
future criminal behavior" but argues that the attenuated causal

link between sentence length and deterrence renders this rationale

implausible. This argument is foreclosed by precedent, which amply

recognizes a sentence's deterrent signal as a legitimate basis for

upward variance.    See, e.g., United States v. Zapata-Vázquez, 778

F.3d 21, 24 (1st Cir. 2015).           And, indeed, Congress not only

permits the district courts to consider deterrence as a sentencing

factor    but   mandates   that    they   do   so.    See   18   U.S.C.   §

3553(a)(2)(B).6    Similarly, we have blessed consideration of local

conditions in sentencing.         See Flores-Machicote, 706 F.3d at 22–

24.

           To get around our precedent, Guzman argues that the

district court here relied exclusively on community considerations

in imposing an upwardly variant sentence and therefore did not

satisfy its obligation to root its sentence in the "nature and

circumstances of the offense and the history and characteristics

of the defendant."     18 U.S.C. § 3553(a)(1).       But even were we to

adopt the view that the community affected by Guzman's offense

does not constitute one of the "circumstances of the offense," it


      6 Guzman adduces a number of sources that question the
efficacy of lengthy sentences in achieving deterrence. But whether
or not Guzman's arguments are meritorious, they are not new. See,
e.g., Frank S. Dodge, Doing Justice, 19 A.F. L. Rev. 339, 339
(1977) (book review) (describing a 1976 study by the Committee for
the Study of Incarceration that argued that "the length of
incarceration was not necessarily important" to its deterrent
effect).


                                      - 7 -
is   clear   that   the   district   court    did   not   base   its   sentence

exclusively on community considerations.             It provided a lengthy

run-down of Guzman's criminal history, including a number of

juvenile adjudications, which it noted "may be considered . . . as

part of the [sentencing] factors."           It prefaced its discussion of

community considerations with the statement that "[t]he Court has

also considered the other sentencing factors set forth in [18

U.S.C. § 3553(a)]."         And it concluded its discussion of the

sentencing factors with a reference to Guzman's age, education,

work history, and history of drug use. The context here thus makes

clear that community considerations formed but part of a larger

calculus.7

             Finding   Guzman's   sentence     supported    by    a    plausible

sentencing rationale, our only remaining task is to ask whether a

60-month sentence represents a defensible result.                This need not

detain us long.     Each offense is associated with a "wide universe


      7Guzman argues that the court's statement that the PSR
"satisfactorily reflects the components of [Guzman's] offense by
considering its nature and circumstances" should be read as an
indication that it accepted the guidelines range as appropriate
for Guzman's conduct and that any upward variance from the
guidelines range is therefore attributable to the court's weighing
of community considerations.      Even were we to assume that
sentencing courts typically employ such conceptual partitions, the
court's statement here does not indicate that it did so.       The
court's statement should be read alongside its related statement
that it had "reviewed the guideline calculations and [found] that
the probation officer [had] correctly calculated the guideline
adjustments." It seems that the court was merely indicating that
it found no fault with the preparation of the PSR.


                                       - 8 -
of reasonable sentences."        United States v. Santiago-Rivera, 744

F.3d 229, 234 (1st Cir. 2014).        Given the district court's concern

for the unique problem of firearms in Puerto Rico and for Guzman's

criminal history––including his prior firearms offenses––we cannot

say   that   a   60-month   sentence,    representing   a   9-month   upward

variance from the recommended guidelines sentence, is outside the

universe of reasonable sentences for an offense with a statutory

maximum of 120 months.        See 18 U.S.C. § 924(a)(2).

                               III. Conclusion

             Finding   that    the   district   court   acted   within   its

discretion in imposing a variant sentence, Guzman's sentence is

affirmed.




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