          United States Court of Appeals
                     For the First Circuit


No. 18-1217

                         UNITED STATES,

                            Appellee,

                               v.

                 JOSÉ FRANCISCO RODRÍGUEZ-REYES,

                      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, Selya, and Lynch,
                         Circuit Judges.


     Luis A. Guzmán Dupont for appellant.
     David C. Bornstein, Assistant United States Attorney, with
whom Mariana E. Bauzá-Almonte, Assistant United States Attorney,
Chief, Appellate Division, Thomas F. Klumper, Assistant United
States Attorney, Senior Appellate Counsel, and Rosa Emilia
Rodríguez-Vélez, United States Attorney, were on brief, for
appellee.


                          June 5, 2019
             LYNCH,    Circuit Judge.         This is a challenge to the

imposition of an upwardly variant sentence of thirty-six months'

imprisonment, following a guilty plea by José Francisco Rodríguez-

Reyes (Rodríguez) to a charge of being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1).                   The firearm was

an   AM-15     multi-caliber      assault     rifle    which       accepted        5.56

millimeter      military-style        ammunition.                Rodríguez        tried

unsuccessfully to escape arrest.              Rodríguez did not challenge

either   the    procedural     or    substantive      reasonableness         of    the

sentence in the district court.

             As to procedural reasonableness, Rodríguez argues on

appeal   that   the    district     court:    (1)   erred    in    the    course    of

sentencing by discussing Rodríguez's arrests that did not result

in convictions; (2) failed to consider adequately the 18 U.S.C.

§ 3553(a) factors; and (3) erred in varying upward from the

government's     sentencing       recommendation.           As     to    substantive

reasonableness, Rodríguez argues that (1) the district court did

not sufficiently consider unspecified mitigating factors and the

reasons for the government's sentencing recommendation, and (2)

the sentence imposed was longer than necessary.

             Finding    no   reversible      error,   we    affirm       Rodríguez's

sentence.




                                      - 2 -
                                      I.

            "When a sentencing appeal follows a guilty plea, 'we

glean the relevant facts from the change-of-plea colloquy, the

unchallenged portions of the presentence investigation report

. . . and the record of the disposition hearing.'"            United States

v. Dávila-González, 595 F.3d 42, 45 (1st Cir. 2010) (quoting United

States v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009)).

A.   Facts of the Offense

            On February 23, 2017, officers from the Puerto Rico

Police    Department   (PRPD)   received     information   about    a   future

firearm    transaction,   including    the   location,     date,   time,   and

description of vehicles likely to be involved.               PRPD officers,

along with agents from the federal Department of Homeland Security

(DHS), during surveillance observed Rodríguez and two other men

standing near the rear hatch of a Jeep Cherokee looking at a rifle.

Rodríguez drove away in the Jeep and the police officers and agents

followed by car; Rodríguez then parked and entered the car of

another man involved in the attempted firearm transaction.                 The

men noticed the police officers and agents and fled by vehicle.

Their vehicle eventually crashed, and the officers detained the

two men.    After Rodríguez and the other man consented to a search

of the vehicles, the officers and agents found an AM-15 multi-

caliber rifle, which Rodríguez admitted to purchasing online and

was planning to sell for $2,000.


                                  - 3 -
B.     Procedural History

               On March 8, 2017, a federal grand jury in Puerto Rico

indicted Rodríguez on one count of being a felon in possession of

a    firearm    and   one   count   of    being   an   unlawful   drug   user   in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1)

and (3), as well as aiding and abetting a co-defendant in the same

two counts, in violation of 18 U.S.C. § 2.                  Rodríguez had been

convicted of prior felony charges.                On May 11, 2017, Rodríguez

pleaded guilty to the one count of being a felon in possession of

a firearm, and the plea agreement provided for a total offense

level (TOL) of twelve.

               The Presentence Investigation Report (PSR) followed the

parties' calculations from the plea agreement, with a TOL of twelve

resulting from a base level of fourteen and the removal of two

levels for acceptance of responsibility.               See U.S.S.G. § 3E1.1(a).

Rodríguez had three prior convictions: two state illegal drug

possession convictions in Texas (one for marijuana, one for both

marijuana and cocaine), and a federal conviction for conspiracy to

commit mail fraud and bank fraud in Puerto Rico.                     This gave

Rodríguez a criminal history category (CHC) of III.                      A TOL of

twelve and a CHC of III led to a guideline imprisonment range of

fifteen to twenty-one months.

               The PSR also listed, as required, six arrests which did

not lead to convictions (but also did not lead to acquittals),


                                         - 4 -
four of which related to Rodríguez's illegal drug possession.1               See

Fed. R. Crim. P. 32(d)(2)(A)(i) (requiring that the PSR contain

information   on    "the   defendant's       history   and   characteristics,

including . . . any prior criminal record").            The drug arrests are

discussed below.       The PSR also stated that "[i]n this case a

variance [may be] considered since the defendant has a high risk

of   recidivism."      That   risk    was     evidenced      by,   inter   alia,

Rodríguez's prior criminal history (which took three pages of the

PSR to recount), the fact that the offense of conviction took place

within five months of his completion of a supervised release term

from his federal mail and bank fraud imprisonment, and a pending

arrest warrant against him in El Paso, Texas for illegal possession

of marijuana.      By the time of completion of the PSR, the pending

Texas "charge was dismissed" because Rodríguez "was convicted in

another case."

           The PSR also described a history of illegal drug use by

Rodríguez spanning more than twenty-five years.              Rodríguez stated

that he began smoking marijuana at the age of twelve and smoked

marijuana approximately five times per day, having returned to

drug use in 2002 after a one-year break following a drug treatment




      1   These arrests were, in chronological order: a 2000
Puerto Rico controlled substances possession arrest; a 2000 Puerto
Rico unlicensed firearm possession arrest; a 2005 Puerto Rico
"conjugal threats" arrest; two 2009 Texas marijuana possession
arrests; and a 2010 New York marijuana possession arrest.


                                     - 5 -
program (completed pursuant to a 2000 Puerto Rico drug charge).

Indeed, Rodríguez tested positive for marijuana on February 27,

2017, shortly after his arrest in the present case. He also stated

that he began using cocaine and Percocet when he was twenty-six,

in 2004 or 2005.      The PSR also stated that Rodríguez and his then-

wife separated in 2005 "[a]s a result" of Rodríguez's "mari[j]uana

addiction."

           In his sentencing memorandum, Rodríguez did not object

to the PSR or any facts within the PSR, including the facts as to

the disposition of his arrests and his drug use (he did say that

some of his debt had been paid off).          ("The Pre-Sentence Report

was discussed with [Rodríguez] and there are no objections.")               His

sentencing memorandum acknowledged that Rodríguez "ha[d] been

using Mari[j]uana since age 12 on a daily basis" and his drug use

"ha[d] escalated to the use of Cocaine and Percocet."

C.   Sentencing Hearing

           In   his   sentencing     memorandum   and    at    the    sentencing

hearing,   Rodríguez     requested    a   sentence      of    fifteen    months'

imprisonment, at the bottom of the guidelines range.                 Rodríguez's

counsel expressly referred to the sentencing memorandum at the

hearing.   He did not dispute the PSR's calculations.                    At the

sentencing hearing, the government requested a sentence of twenty-

one months' imprisonment, at the top of the guidelines range.                It

explained the disposition of Rodríguez's arrests that had not led


                                     - 6 -
to convictions, and Rodríguez's counsel stated that he had no

objections to the government's explanation.

                The district court accepted the PSR's calculations of

the TOL, the CHC, and the guidelines range.                 The district court

then        listed   Rodríguez's   prior   arrests   that    did   not   lead   to

convictions, accurately describing the PSR and the government's

explanation of the disposition of these arrests.

                Explaining why it was following the recommendation of

the probation officer and imposing an upwardly variant sentence

(as recommended by the probation officer), the district court gave

a number of reasons and justifications.              To start, it stated that

"neither [side's] sentence recommendation reflects the seriousness

of the offense, promotes respect for the law, protects the public

from further crimes by [Rodríguez], or addresses the issues of

deterrence and punishment."           These statements track closely the

sentencing factors laid out at 18 U.S.C. § 3553(a)(2)(A), (B) and

(C).2        The district court stated that it was also "taking into

consideration that [Rodríguez's] criminal history category is

underrepresented."




        2 In turn: "(A) to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for
the offense; (B) to afford adequate deterrence to criminal
conduct; (C) to protect the public from further crimes of the
defendant . . . ." 18 U.S.C. § 3553(a)(2).


                                      - 7 -
          The district court noted Rodríguez's "encounters with

the law since he was 21 years old," as well as Rodríguez's

"recidivism, his drug use history, [and] his lack of steady

employment."   The drug use described was that noted earlier, as

well as Rodríguez's positive test for marijuana on the date of his

arrest for the offense of conviction.     The district court also

stated that the arrest for the present firearm offense came "less

than five months after having completed his supervised release

term" for his federal wire and bank fraud conviction. The district

court further stated that it was "taking into consideration the

nature of the weapon involved, an assault rifle, which accepts

5.56 millimeter military ammunition."

          After describing these reasons for the variance, the

district court then imposed an upwardly variant sentence of thirty-

six months' imprisonment.   That variant sentence is well under the

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

the sentencing hearing, Rodríguez did not object to the sentence

or challenge its substantive or procedural reasonableness.       As

Rodríguez requested, the court recommended that he be placed in an

institution in Florida.

          Rodríguez timely appealed.




                               - 8 -
                                            II.

              "In      sentencing       appeals,          appellate        review        is

bifurcated."3        United States v. Ruiz-Huertas, 792 F.3d 223, 226

(1st Cir. 2015).            We first consider whether the sentence is

procedurally         reasonable,    and      then       consider     whether       it    is

substantively reasonable.              E.g., United States v. Clogston, 662

F.3d 588, 590 (1st Cir. 2011).

A.    Procedural Reasonableness

              Because       Rodríguez       did   not     raise      any        procedural

objections      to    his    sentence       at    the    district        court,    as   he

acknowledges, this court's review is for plain error.                              United

States v. Soto-Soto, 855 F.3d 445, 448 (1st Cir. 2017).                              Plain

error requires "four showings: (1) that an error occurred (2) which

was   clear    or     obvious    and    which     not     only     (3)    affected      the

defendant's substantial rights, but also (4) seriously impaired

the   fairness,       integrity,       or    public      reputation        of     judicial

proceedings."        United States v. Duarte, 246 F.3d 56, 60 (1st Cir.

2001); see also United States v. Romero, 906 F.3d 196, 205 (1st

Cir. 2018) (requiring showings of "(1) error, (2) plainness,


      3   Rodríguez's plea agreement contained a waiver of appeal
provision, which was to be operative provided that he was sentenced
according   to    the   agreement's    "terms,   conditions,    and
recommendations."    As Rodríguez correctly argues, the sentence
imposed exceeded the sentence recommended in the plea agreement,
and so he can appeal.     See, e.g., United States v. Fernández-
Cabrera, 625 F.3d 48, 51 (1st Cir. 2010). The government does not
argue otherwise.


                                         - 9 -
(3) prejudice, and (4) an outcome that is a miscarriage of justice

or akin to it" (quoting United States v. Tanco-Pizarro, 892 F.3d

472, 478-79 (1st Cir.), cert. denied 139 S. Ct. 354 (2018))).

             We start with Rodríguez's argument about the district

court's reference to Rodríguez's arrests that did not lead to

convictions.     We then turn to Rodríguez's arguments about the

district court's allegedly inadequate consideration of the Section

3553(a) factors and the variance from the government's sentencing

recommendation.

     1.      The District Court Did Not Plainly Err in Considering
             Rodríguez's Arrests Not Leading to Convictions as a
             Matter Leading to an Upward Variance

             Rodríguez   argues    that   the   district     court    erred   in

"reciting"     Rodríguez's   six     arrests    that   did     not    lead    to

convictions.     To the extent he is arguing that the court errs in

merely reciting an arrest record, he is flatly wrong.                See United

States v. Mercer, 834 F.3d 39, 49–50 (1st Cir. 2016).                So, we go

to the particulars.

             The government stresses that the district court "relied

on other factors" beyond arrests "when it imposed the upward

variance."    As to the arrests, the government argues that the four

drug arrests could be considered because they met the reliability

standard.     That is because they were corroborated by a number of

uncontested facts in the PSR about Rodríguez's drug use. It points




                                   - 10 -
out that one charge was dismissed not "as a result of the evidence"

but based on a Puerto Rico speedy trial rule.

              We start with an overview of the law pertinent to the

ability of the district court to impose an upward variance.                  The

statute itself says that "[n]o limitation shall be placed on the

information concerning the background, character, and conduct of

a person convicted of an offense which a court of the United States

may receive and consider for the purpose of imposing an appropriate

sentence."     18 U.S.C. § 3661.     We have held that "[a]t sentencing,

a court is not bound by the rules of evidence but, rather, may

take into account any information that has sufficient indicia of

reliability."     United States v. Díaz–Arroyo, 797 F.3d 125, 130 n.3

(1st Cir. 2015) (citing United States v. Tardiff, 969 F.2d 1283,

1287 (1st Cir. 1992)).        The Guidelines so provide.       See U.S.S.G.

§ 6A1.3(a).      The "sentencing court has wide discretion to decide

whether particular evidence is sufficiently reliable to be used at

sentencing," United States v. Cintrón-Echautegui, 604 F.3d 1, 6

(1st   Cir.    2010),   which   includes     information    contained   in     a

presentence report, United States v. Cruz, 120 F.3d 1, 2 (1st Cir.

1997) (en banc); see also United States v. Cyr, 337 F.3d 96, 100

(1st Cir. 2003) ("Generally, a PSR bears sufficient indicia of

reliability     to   permit   the   district   court   to   rely   on   it    at

sentencing." (quoting United States v. Taylor, 277 F.3d 721, 724

(5th Cir. 2001))).


                                    - 11 -
           The government cites to our recent case, United States

v. Marrero-Pérez, 914 F.3d 20 (1st Cir. 2019), relying on it in

part and distinguishing it as to the outcome.    Rodríguez did not

cite to Marrero-Pérez in briefing, but did at oral argument.

           Marrero-Pérez involves an "upward departure," id. at 22,

not a variance, as here.     Citing to a policy statement in the

Sentencing Guidelines about departures (a different category of

sentence which was at issue there), see U.S.S.G. § 4A1.3, Marrero-

Pérez stated that "error occurs when a district judge relies on an

arrest report, without some greater indicia of reliability that

the conduct underlying the arrest took place," 914 F.3d at 24

(emphasis added).4 This statement was based on Guidelines language

and is consistent with the policy statement, titled "Departures

Based on Inadequacy of Criminal History Category."        U.S.S.G.

§ 4A1.3.   Marrero-Pérez held, under plain error review, that in

the context of an upward departure, arrests supported by reliable

information that the conduct occurred could be considered, but the

arrests at issue there were not so supported, or even explained in

the PSR or otherwise.   914 F.3d at 24.


     4     At oral argument, Rodríguez focused on the phrase
"independent proof of conduct" in Marrero-Pérez, rather than "some
greater indicia of reliability." 914 F.3d at 22, 24. The former
phrase was not meant to proscribe any "weight" given to arrests,
such as "a collection of arrests," id., or consideration of conduct
underlying arrests. Nor was it meant to create a new rule that
arrests could not be mentioned by a sentencing court. See Mercer,
834 F.3d at 49–50.


                              - 12 -
             We have earlier noted concern with "accord[ing] any

significance to a record of multiple arrests and charges without

conviction unless there is adequate proof of the conduct upon which

the arrests or charges were predicated."             United States v. Cortés-

Medina, 819 F.3d 566, 570 (1st Cir. 2016) (emphasis added); see

United States v. Rondón-García, 886 F.3d 14, 25-26 (1st Cir. 2018)

(finding no clear error in a district court's reliance on an arrest

record for an "upward departure," where the defendant had "no prior

convictions"); United States v. Gallardo-Ortiz, 666 F.3d 808, 815

(1st Cir. 2012) ("We have cautioned against district courts relying

on mere arrests as indicative of a defendant's character to justify

an upward departure from the GSR since a criminal charge alone

does not equate with criminal guilt of the charged conduct."

(emphasis added)).       Reliance on bare arrests -- unexplained in the

PSR or elsewhere in the district court record and "not buttressed"

by   "some    greater    indicia    of       reliability"    -- can   indeed   be

problematic, at least for an upward departure.                Marrero-Pérez, 914

F.3d at 22, 24.         But as Marrero-Pérez also said, "a reasonable

person might in particular circumstances assign some weight to a

collection of arrests."        Id. at 22; see id. at 23 (noting that

"recidivist     behavior"      is        a     "proper      consideration[]    at

sentencing").

             It is not wholly clear from the sentencing transcript

whether the district court relied in part on the arrests, or


                                    - 13 -
instead "merely referred to [the defendant's] dismissed charges in

the course of relying on certain conduct that took place in

connection with the dismissed charges."               Mercer, 834 F.3d at 50.

Even if we assume the district court here relied in part on the

prior       illegal    drug    possession   arrests   and    that   Marrero-Pérez

squarely applies to this situation of an upward variance rather

than a departure under U.S.S.G. § 4A1.3(a),5 there was no plain

error.

               First     and     most   importantly,        other   "indicia   of

reliability" support that Rodríguez engaged in the conduct charged

underlying the four drug possession arrests that did not lead to


        5 Beyond the departure/variance distinction, discussed
infra, Marrero-Pérez involved a particular set of facts distinct
from this case.    In Marrero-Pérez, the past arrests recounted,
"usually involving at worst trivial conduct," lacked corroborating
evidence "set forth in undisputed portions of the PSR." 914 F.3d
at 22, 24. There, the district court had discussed the defendant's
alleged "utter disregard for the law," in part based on the
unsupported arrest record, and listed the exact number of arrests
and history of warrants. Id. at 22. Further, Marrero-Pérez relied
in part on prudential concerns about "still not fully explained
material submitted ex parte by the probation officer to the
[district] court concerning certain outstanding warrants." Id. at
25.
          Here, in contrast, there were no ex parte submissions by
the probation officer. The arrests mentioned by the district court
here did not involve "trivial conduct." Corroborating evidence
about consistent drug use was set forth clearly in the PSR and has
never been disputed. Further, the district court did not make any
explicit comment about Rodríguez's guilt based on arrests, see id.
at 23, instead mentioning only generally that it was "taking into
consideration that [Rodríguez's] criminal history category is
underrepresented."
          Despite these distinct facts, the result here is
consistent with Marrero-Pérez.


                                        - 14 -
convictions.     The PSR -- to which Rodríguez expressly did not

object -- discussed a range of illegal drug use by Rodríguez,6 as

did his own sentencing memorandum.       As said, Rodríguez stated that

he began smoking marijuana at the age of twelve, reverted to drug

use in 2002 after a one-year break following a drug treatment

program (completed in order to expunge his 2000 Puerto Rico drug

arrest), and smoked marijuana approximately five times per day.

Rodríguez tested positive for marijuana on February 27, 2017,

shortly after his arrest in the present case.              This covers the

time period for all of Rodríguez's arrests for drug possession

that did not lead to convictions (again, in January 2000, January

and February 2009, and October 2010).               Rodríguez's sentencing

memorandum    admitted   that    his   "addiction    has   escalated   [from

marijuana] to the use of Cocaine and Percocet."

             This provides "some greater indicia of reliability,"

beyond the mere fact of arrest, "that the conduct underlying the

arrest[s] took place."          Marrero-Pérez, 914 F.3d at 24.         Even

leaving aside the district court's consideration of the Section

3553(a) factors, discussed below, and the fact that these arrests

and charges also went to the history and characteristics of

Rodríguez, see United States v. Flores-Machicote, 706 F.3d 16, 21




     6    One of the convictions, the second Texas marijuana
conviction, was charged as a felony and involved possession of
about twenty-six pounds of marijuana.


                                   - 15 -
(1st Cir. 2013), the district court did not rely merely on a bare

arrest record.

              Second and relatedly, we have held that a sentencing

court   may    consider   arrests   not    leading    to    convictions   where

"[t]here is no reason . . . given [defendant's] failure to contest

the facts [in the PSR] and the absence of any acquittal, to doubt

that these acts occurred."          United States v. Tabares, 951 F.2d

405, 411 (1st Cir. 1991) (Breyer, J.).          As said, Rodríguez did not

dispute facts contained in the PSR or explained by the government

at the sentencing hearing.              All of Rodríguez's dismissed or

expunged charges mentioned by the district court were dismissed or

expunged "not because of any finding on the merits of the case[s],

but for other reasons."      Id.    The 2000 charge for drug possession

was expunged because Rodríguez had completed a diversionary drug

treatment program.        The charges from the two 2009 arrests for

marijuana possession in Texas were dismissed on petition of the

government due to Rodríguez's conviction on another 2009 marijuana

possession     charge.     The   2010    New   York   marijuana     charge   was

adjourned     in   contemplation    of    dismissal,       and   Rodríguez   was

arrested the next day on federal bank and wire fraud charges.

              As to the Puerto Rico weapons possession arrest, the

government said, and Rodríguez's counsel agreed at the sentencing

hearing, that the charges were dismissed due to the speedy trial




                                    - 16 -
rules in Puerto Rico.7       The district court most certainly did not

consider any arrests which led to acquittals.

           Third,   even     beyond   underrepresentation    of    criminal

history, the district court focused on a number of facts about the

offense of conviction and Rodríguez that were clearly relevant to

Section 3553(a) factors and to an upward variance, including: the

type of weapon involved, an AM-15 "assault rifle" ("nature and

circumstances of the offense"); risk of recidivism and commission

of this crime shortly after the end of a supervised release term

("protect[ing] the public from further crimes of the defendant");

and Rodríguez's consistent illegal drug use and lack of steady

employment ("history and characteristics of the defendant").            18

U.S.C. § 3553(a).     All of these provided additional reasonable

justifications for an upward variance.             We have affirmed in

numerous   cases    upward    variances    based   on   district   courts'

consideration of such factors.        See, e.g., United States v. Ortiz-

Álvarez, 921 F.3d 313, 316 (1st Cir. 2019) (involvement of an

"assault rifle"); United States v. Bermúdez–Meléndez, 827 F.3d

160, 164 (1st Cir. 2016) (involvement of an "assault rifle");

Flores-Machiote, 706 F.3d at 24 ("likely recidivism"); United




     7    The record is not clear as to the reason for the
dismissal of the conjugal threats charge, but the PSR states that
it was dismissed, and the government stated (without objection)
that further records from this arrest had been destroyed due to a
timely motion by Rodríguez filed pursuant to Puerto Rico law.


                                  - 17 -
States v. Santini-Santiago, 846 F.3d 487, 491 (1st Cir. 2017)

("drug use"); United States v. Rivera-González, 776 F.3d 45, 50

(1st Cir. 2015) ("employment record").

             There was no plain error by the district court here.8

      2.     This Case Involves a Variance Under 18 U.S.C. § 3553(a),
             Not a "Departure" Under U.S.S.G. § 4A1.3

             We have explained why there is no plain error here and

that this case is consistent with Marrero-Pérez. We add that there

is an important structural distinction between this case and

Marrero-Pérez that merits some discussion.

             Marrero-Pérez relied substantially on a policy statement

concerning    upward   departures,    as   specifically    defined    in   the

Guidelines.     914 F.3d at 22; see U.S.S.G. § 4A1.3(a); id. § 1B1.1

n.1(F)(2).      This policy statement states in part that "[i]f

reliable   information    indicates    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, an upward departure may be




      8   "Plain error review requires us to reverse only where a
lower court's error is clear or obvious in light of the prevailing
law, but 'Cortés-Medina held only that the law on this question
[consideration of arrests] was unclear.'" Rondón-García, 886 F.3d
at 26 (quoting United States v. Delgado-Sánchez, 849 F.3d 1, 13
(1st Cir. 2017)).    So, even (wrongly) reading Marrero-Pérez as
broadly as Rodríguez sought at oral argument, the district court's
reference to the prior arrests would not amount to plain error
based on the state of First Circuit law at the time of Rodríguez's
sentencing.


                                 - 18 -
warranted."      Id. § 4A1.3(a)(1).      More importantly for present

purposes, it states that "[a] prior arrest record itself shall not

be considered for purposes of an upward departure under this policy

statement."9    Id. § 4A1.3(a)(3) (emphasis added).        The Application

Notes to the Guidelines state that "Departure" means, "for purposes

of § 4A1.3 . . . assignment of a criminal history category other

than the otherwise applicable criminal history category, in order

to effect a sentence outside the applicable guideline range."            Id.

§ 1B1.1 n.1(F)(2).

             Here, in contrast with Marrero-Pérez, the district court

was varying upward, not departing, and referred specifically to

its use of the Section 3553(a) factors.            There was no assignment

of a higher criminal history category, nor any mention of a

departure.

             There are significant differences between a departure

and   a   variance.    "In   federal    criminal    sentencing,   the   term

'departure' is a term of art."         United States v. Román-Díaz, 853

F.3d 591, 596 (1st Cir. 2017).          As we have stated, quoting the

Supreme Court in part,

             [a] 'departure,' as explained by the Supreme
             Court, 'is a term of art under the Guidelines

      9    This policy statement does not purport to address upward
variances.    And in United States v. Martin, we recognized that
"[p]olicy statements issued by the Sentencing Commission . . .
normally are not decisive as to what may constitute a permissible
ground for a variant sentence in a given case." 520 F.3d 87, 93
(1st Cir. 2008).


                                 - 19 -
             and refers only to non-Guidelines sentences
             imposed under the framework set out in the
             Guidelines.' Variant sentences, by contrast,
             . . . result from a court's consideration of
             the statutory sentencing factors enumerated in
             18 U.S.C. § 3553(a).

United States v. Aponte-Vellón, 754 F.3d 89, 93 (1st Cir. 2014)

(internal citations omitted) (quoting Irizarry v. United States,

553 U.S. 708, 714 (2008)).         Other circuits have recognized this

departure/variance    distinction.        See,   e.g.,    United      States   v.

Rodriguez, 855 F.3d 526, 532 n.7 (3d Cir. 2017) ("A 'departure' is

different from a 'variance.'"); United States v. Hernandez, 435 F.

App'x 873, 877 (11th Cir. 2011) (unpub.) ("On the record as a

whole, we conclude the district court imposed a discretionary

 . . . upward variance based on the § 3553(a) factors, and not an

upward departure based on U.S.S.G. § 4A1.3(a)."); United States v.

Herrera-Zuniga, 571 F.3d 568, 586 (6th Cir. 2009) ("This Court has

recognized the distinction between sentencing departures under

U.S.S.G.   § 4A1.3   and   variances     under   18    U.S.C.      § 3553(a).");

United States v. Solis-Bermudez, 501 F.3d 882, 884 (8th Cir. 2007)

("[W]e have attempted to carefully distinguish between sentencing

departures, which are provided for in . . . USSG § 4A1.3, and

sentencing    variances,   which   are   .   .   .    based   on    the   factors

enumerated in 18 U.S.C. § 3553(a)."); United States v. Mejia-

Huerta, 480 F.3d 713, 721 (5th Cir. 2007) ("[A] sentencing court

may impose a non-Guidelines sentence, i.e., a 'variance', but not



                                   - 20 -
a 'departure,' if it calculates the proper sentencing range and

references the broad array of factors set forth in § 3553(a).").

Importantly,    the   policy   statement,     as    to   the   "arrest   record

itself," does not apply to a variance.          U.S.S.G. § 4A1.3(a).

           The variance here resulted, in part, from the district

court's determination that there was underrepresentation of the

criminal history (perhaps due to prior arrests and the conduct

underlying those arrests, perhaps due to facts underlying the prior

convictions).    It is clear that, "[a]s part of the [18 U.S.C.

§ 3553(a)(1)] inquiry, a sentencing judge may consider whether a

defendant's criminal history score substantially underrepresents

the gravity of his past conduct."           Flores-Machicote, 706 F.3d at

21.   Indeed, "the very same factors that prompted the[] comments

[on   underrepresentation]     also   fit    well    within    the   scope   of

§ 3553(a): . . . the drug use and prior arrest[s] bore on 'the

characteristics of the defendant.'"         Santini-Santiago, 846 F.3d at

491 (quoting 18 U.S.C. § 3553(a)(1)).               So, underrepresentation

"might also relate to a departure, but a sentencing court may

'echo' a departure consideration as one factor in its analysis,

while still imposing a variance."      United States v. Acevedo-López,

873 F.3d 330, 342 (1st Cir. 2017) (quoting Aponte-Vellón, 754 F.3d

at 93).   And like in Mercer, because the conduct -- here, arrests

for illegal drug use -- underlying dismissed or expunged charges

"was set forth in undisputed portions of the PSR, the District


                                  - 21 -
Court was entitled to rely on that conduct when sentencing [the

defendant]," 834 F.3d at 50, even assuming the district court

indeed did so.10

            In       Marrero-Pérez,   we    did   not    purport    to   restrict

district courts' use of the broad Section 3553(a) factors for a

variance.     Marrero-Pérez also did not purport to overrule First

Circuit cases such as Martin, Tabares, and Mercer (respectively,

recognizing      a    sentencing   court's     discretion    to    disagree   with

policy statements in the Guidelines in imposing a variant sentence;

affirming the use by a sentencing court of arrests not leading to

convictions where the defendant did not contest the conduct and

where there were no acquittals; and recognizing the district

court's    entitlement      to   consider    "conduct     that    took   place   in

connection with the dismissed charges" that was "set forth in

undisputed portions of the PSR").              See, e.g., United States v.

Viloria-Sepulveda, 921 F.3d 5, 9 (1st Cir. 2019) (citing Martin

positively); United States v. Vázquez, 724 F.3d 15, 30 n.12 (1st

Cir. 2013) (citing Tabares positively).                 Nor could it have done

so.




      10  We do not suggest that only a bare arrest record, without
more reliable explanation of or support for the underlying conduct
and without consideration of the circumstances of disposition,
would be a valid basis for an upward variance under Section
3553(a). That issue is not presented on the record before us here.


                                      - 22 -
     3.      The District Court Adequately Considered the Section
             3553(a) Factors

             Next, Rodríguez argues that the district court did not

adequately consider the 18 U.S.C. § 3553(a) factors, and that

"[n]othing in the record specifically refers to any sentencing

factor."   He is wrong.

             "Failure   to    follow   § 3553      results     in     prejudice

warranting reversal for plain error if the defendant shows a

reasonable probability that but for an obvious error the court

would have imposed a more favorable sentence."            United States v.

Ortíz-Mercado, 919 F.3d 686, 690 (1st Cir. 2019).

           The district court explicitly stated that it considered

the Section 3553(a) sentencing factors, and that statement is

"entitled to significant weight."           United States v. Calderón-

Lozano, 912 F.3d 644, 648 (1st Cir. 2019) (quoting United States

v. Arroyo-Maldonado, 791 F.3d 193, 199 (1st Cir. 2015)).                    The

district court's explanation at the sentencing hearing, as we have

recounted,     demonstrated    ample   consideration         of     Rodríguez's

"history     and   characteristics"    as   well    as   the      "nature   and

circumstances of the offense," 18 U.S.C. § 3553(a)(1), including

Rodríguez's education, and history of drug use, as well as "the

nature of the weapon involved, an assault rifle, which accepts

5.56 millimeter military ammunition."       Further, the district court

stated that Rodríguez's firearm offense came "less than five months



                                  - 23 -
after having completed his supervised release term" for his federal

wire and bank fraud offense.    Indeed, both the attempted sale of

an assault rifle and the timing of the offense are also surely

relevant to Rodríguez's likelihood of recidivism11 and the threat

he posed to the safety of the community.

          As we have said, "[f]ailure to follow § 3553 results in

prejudice warranting reversal for plain error if the defendant

shows a reasonable probability that but for an obvious error the

court would have imposed a more favorable sentence."        Ortíz-

Mercado, 919 F.3d at 690.      Rodríguez never argued, much less

demonstrated, that he was so prejudiced.

     4.   There Was No Plain Error in the District Court Varying
          from the Government's Sentencing Recommendation

          Rodríguez argues in passing that the district court

should have followed the government's sentencing recommendation,

because "the government ha[d] all the evidence . . . to consider

an adequate plea agreement."   This argument is waived for lack of

developed argumentation.   See United States v. Zannino, 895 F.2d

1, 17 (1st Cir. 1990).

          In any event, a Rule 11(c)(1)(b) plea does not bind a

district court to the recommendation in a plea agreement.   Fed. R.


     11   In discussing "protect[ing] the public from further
crimes" and Rodríguez's "recidivism," the district court made no
further reference to any of the arrests not leading to convictions,
and so may well have been referring just to Rodríguez's multiple
drug convictions and bank and wire fraud conviction.


                               - 24 -
Crim. P. 11(c)(1)(b); see United States v. Ubiles-Rosario, 867

F.3d 277, 294 (1st Cir. 2017) ("[T]he district court was not bound

by the parties' recommendations."); United States v. Garcia-Pupo,

845 F.2d 8, 10 (1st Cir. 1988) ("[J]udges cannot be bound by a

prosecutor's sentencing recommendation.").            This was made clear to

Rodríguez by a magistrate judge at the change-of-plea hearing,

held about two months before the sentencing hearing.                  The choice

by the district court of a sentence other than one recommended by

the parties is not, in itself, error.

B.   Substantive Reasonableness

            The standard of review for challenges to substantive

reasonableness raised for the first time on appeal, between abuse

of discretion and plain error, remains an open question in this

circuit.   See Ruiz-Huertas, 792 F.3d at 228.          This question can be

bypassed here because Rodríguez does not prevail even assuming, in

his favor, that abuse of discretion applies.

            To   some   extent    blurring      substantive    and    procedural

reasonableness, Rodríguez argues that the district court failed to

consider    potentially    mitigating       factors   (though    he    does   not

clearly delineate what these factors were) and failed to consider

reasons for the government's request of twenty-one months.                    This

means, he argues, that the district court failed "to weigh the

Section    3353(a)   factors     and    various   mitigating    circumstances




                                       - 25 -
properly."     He also asserts that the sentence was longer than

necessary for the purposes of sentencing.

             There is no "requirement that a district court afford

each of the section 3553(a) factors equal prominence," as "[t]he

relative weight of each factor will vary with the idiosyncratic

circumstances of each case."           United States v. Dixon, 449 F.3d

194, 205 (1st Cir. 2006).          Rodríguez does not even state what are

the "various mitigating circumstances" that the district court

allegedly ignored, so his argument fails on waiver.                Regardless,

that Rodríguez disagrees with how the court weighed the factors

"does not make the sentence unreasonable."            Clogston, 662 F.3d at

593.

             Finally,    as   to   Rodríguez's    general    contention    that

"[t]he sentence imposed was longer than necessary to comply with

the purposes of sentencing," this argument also fails.                     The

district   court   offered     a    plausible    rationale   for   the   upward

variance based substantially on Section 3553(a) factors.                   The

sentence imposed, thirty-six months' imprisonment, was "within the

wide universe of reasonable sentencing outcomes" and that ends the

matter.    Ruiz-Huertas, 792 F.3d at 229.

                                      III.

             Affirmed.




                                     - 26 -
