          United States Court of Appeals
                      For the First Circuit


No. 16-2222

                     UNITED STATES OF AMERICA,

                             Appellee,

                                v.

                      LUIS ALEJANDRO-ROSADO,

                       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,
              Torruella and Thompson, Circuit Judges.


     Edgar L. Sanchez-Mercado and    ESM Law Office on brief for
appellant.
     B. Kathryn Debrason, Assistant United States Attorney, Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Mariana E.
Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate
Division, on brief for appellee.


                         December 23, 2017
           THOMPSON, Circuit Judge.         This appeal bores out of a

district court's imposition of a twenty-four month sentence (the

statutory maximum) on Luis Alejandro-Rosado for violating his

terms of supervised release. At the revocation hearing, Alejandro-

Rosado admitted to the multiple violations the government accused

him of committing and asked that the court sentence him within the

Guideline Sentencing Range (of four to ten months).         After hearing

lengthy arguments pertaining to both Alejandro-Rosado's violations

as well as the purported mitigating factors presented, the court

nonetheless decided the proper sentence was the statutory maximum.

Alejandro-Rosado    now   appeals    this   sentence   as   unreasonable.

Having reviewed the record, case law, and arguments, we find that

the district court exercised reasonable sentencing procedure and

arrived at a substantively reasonable result. We therefore affirm.

                   A. Getting Our Factual Bearings

           Alejandro-Rosado was originally convicted of receiving

a firearm as a person under indictment in violation of 18 U.S.C.

§§ 922(n), 924(a)(1)(D), a class D felony.         He was sentenced to

thirty-six months' imprisonment and three years of supervised

release.    His incarceration ended on January 15, 2015, and he

immediately began serving his term of supervised release.           On June

22, 2016, and July 7, 2016, the United States Probation Office

filed   motions   notifying   the   district   court   of   nine   separate




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violations of Alejandro-Rosado's supervised release terms that had

occurred between July 2015 and June 2016.

            The violations were as follows. In July 2015, Alejandro-

Rosado failed his first drug test.         He again failed drug tests on

August 14, 2015, August 21, 2015, and November 30, 2015.              On May

5, 2016, Alejandro-Rosado was observed handling a firearm and

changing the magazine.         That same day he was witnessed selling

cocaine.    On May 18, 2016, Alejandro-Rosado was arrested for being

in possession of synthetic marijuana and prescription pain pills

(and provided an admission to being the owner of the contraband).

Moreover,    canines   twice    alerted    officers    to   weapons   in   his

apartment. A June 28, 2016, search of his apartment by a probation

officer found more drugs and a notebook that contained the names

of   various   inmates,    their    register    numbers,     and   numerical

quantities of money.1     Next to one entry read: "transaction as soon

as possible so that he not be beheaded."              Alejandro-Rosado does

not dispute committing the violations.

            On September 14, 2016, the district court conducted a

revocation hearing to determine Alejandro-Rosado's sentence.               The

government asked that the defendant be sentenced to the statutory

maximum of twenty-four months.        Though Alejandro-Rosado admitted

to committing violations, he asked that the court, in consideration


     1 As an example, these notebook entries had the following
format: "Antonio Hernandez-Vilar, 97440-020 $100."


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of mitigating factors, impose a sentence of four to ten months

pursuant      to   the    sentencing        guidelines.2          Among     the    factors

Alejandro-Rosado          raised       were     his        poor    physical        health,

psychological well-being, misunderstanding of release terms, and

full acceptance of responsibility for his violations.                         Though the

district court acknowledged that the guidelines recommended a four

to ten month sentence, it reasoned that the twenty-four month

sentence was nonetheless sufficient but not greater than necessary

to   comply    with      18   U.S.C.    §     3553(a).      In    deviating       from   the

guidelines,        the   court     explained        that    a    higher   sentence       was

necessary     in    order     to   "(1)      reflect       the    seriousness      of    the

violations,        (2)   promote     respect        for    law,    (3)    provide        just

punishment for the offenses, (4) afford adequate deterrence, and

(5) protect the public from future crimes" by Alejandro-Rosado.

Alejandro-Rosado concedes that the district court had discretion

to impose this sentence, but now appeals it as unreasonable.

                                     B. Analysis

                          1. Procedural Reasonableness

              Alejandro-Rosado          first        challenges       the     procedural

reasonableness of his sentence.                     While we generally review a



      2Under U.S.S.G. § 7B1.1(a), the violations committed by
Alejandro-Rosado were determined to be grade B violations because
he was in possession of a firearm. Based on a criminal history
category of I, the sentencing range for grade B violations is four
to ten months. U.S.S.G. § 7B1.4(a).


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sentence following revocation of supervised release for abuse of

discretion, see United States v. Butler-Acevedo, 656 F.3d 97, 99

(1st Cir. 2011), Alejandro-Rosado did not object to the procedural

reasonableness      of    his       sentence    below   and   it    is    therefore

unpreserved.      We review an unpreserved procedural challenge for

plain error, a steep climb for defendants on appeal.                     See United

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

States v. Rodríguez-Meléndez, 828 F.3d 35, 38 (1st Cir. 2016).                   To

prevail under plain error review, a defendant must show "(1) that

an error occurred (2) which was clear and obvious and which not

only (3) affected his or her substantial rights, but also (4)

seriously impaired the fairness, integrity, or public reputation

of judicial proceedings."              Rodríguez-Meléndez, 828 F.3d at 38

(quoting United States v. Roy, 506 F.3d 28, 30 (1st Cir. 2007)).

            Under Gall v. United States, 552 U.S. 38, 49-50 (2007),

the Supreme Court outlined the procedural framework that district

courts should use in determining a sentence.                  In particular, it

explained    that   (1)    the       court   must   calculate      the   applicable

guidelines sentencing range, (2) it must allow both sides to argue

for the sentence they feel is appropriate, and (3) it must then

consider    the   relevant      §    3553(a)    factors   before     imposing   its

ultimate sentence.        Id.    Here, Alejandro-Rosado contends that the

district court procedurally erred when (1) it failed to consider

certain mitigating factors and (2) it varied beyond the recommended


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range.   The government disagrees, arguing that the district court

specifically    addressed      the    mitigating    factors    and   adequately

justified the upward variance.           We agree with the government on

both of these procedural challenges.

             Alejandro-Rosado's contention that the court did not

adequately    consider   mitigating       factors    does   not   hold   water.

Indeed, while the district court must consider all § 3553(a)

factors, it need not do so in "some sort of rote incantation when

explicating its sentencing decision."         United States v. Dixon, 449

F.3d 194, 205 (1st Cir. 2006).           A defendant is entitled to raise

mitigating factors but "[m]erely raising potentially mitigating

factors does not guarantee a lesser sentence."                United States v.

Dávila-González, 595 F.3d 42, 49 (1st Cir. 2010).                     Here, the

district court heard vigorous arguments on Alejandro-Rosado's

mitigating factors. The court acknowledged these arguments and

then stated the § 3553(a) factors it considered before ruling.

This procedure evidences adequate consideration of the factors.

See United States v. Ruiz-Huertas, 792 F.3d 223, 227 (1st Cir.

2015) (finding no plain error when counsel vigorously argued the

mitigating    factors    and    the    district     court   acknowledged    the

arguments); see also United States v. Clogston, 662 F.3d 588, 592

(1st Cir. 2011) (explicit statements that the court considers

certain factors are "entitled to some weight").                      Though the

district court's consideration was unfavorable to the defendant,


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the fact that it weighed some factors more heavily than others

does not amount to procedural error.          See United States v. Vargas-

García, 794 F.3d 162, 167 (1st Cir. 2015) ("While the defendant

points to some mitigating considerations, a sentencing court is

entitled to conduct an appropriate triage and weigh some factors

more heavily than others.").

             Alejandro-Rosado's second procedural challenge is also

easily put to rest.      Alejandro-Rosado submits that the court erred

when it upwardly varied from the guideline standard, but this

argument     misconceives     the   court's   obligation.       While   upward

variants should be justified, all that's required is that the

district court offer a "plausible and coherent rationale" for its

variance.     United States v. Guzman-Fernandez, 824 F.3d 173, 178

(1st Cir. 2016) (quoting United States v. Del Valle–Rodríguez, 761

F.3d 171, 177 (1st Cir. 2014)).               Moreover, under plain error

review, the district court need only "touch[] upon each of factors

that it supportably found significant."          United States v. Márquez-

García, 862 F.3d 143, 147 (1st Cir. 2017).              Here, the district

court articulated a plausible and coherent rationale for its

determination     when   it   listed   each    violation,     emphasized   the

severity of each, and observed that Alejandro-Rosado is "unable to

comply with the law or the conditions" of release.                Though not

long winded, we do not require an exhaustive justification, and

thus   the   district    court's    articulation   of   its    reasoning   was


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procedurally reasonable.      See id. (finding even an "admittedly

terse" justification sufficient under plain error review).

                     2. Substantive Reasonableness

            Alejandro-Rosado also seems to argue that the district

court's sentence was substantively unreasonable. The government,

again,   disagrees   and   argues   that    the   sentence   was   plausibly

reasoned and resulted in a defensible outcome.          We agree with the

government.

            The standard of review for substantive reasonableness is

"somewhat blurred" when it comes to unpreserved challenges to the

substantive reasonableness of a federal sentence.                  See Ruiz-

Huertas, 792 F.3d at 228.     As we have done numerous times before,

we "skirt this murky area" and assume, favorably for Alejandro-

Rosado, that the standard of review is abuse of discretion.

Márquez-García, 862 F.3d at 147; see also Ruiz-Huertas, 792 F.3d

at 228 (making similar assumption).         As both parties concede, the

inquiry for substantive reasonableness is whether the sentencing

rationale is plausibly reasoned and resulted in a defensible

outcome.    See United States v. Martin, 520 F.3d 87, 96 (1st Cir.

2008).     Because "in most cases there is not a single appropriate

sentence, but rather a universe of reasonable sentences," United

States v. Rivera-González, 776 F.3d 45, 52 (1st Cir. 2015),

sentencing often becomes "a judgment call."           Martin, 520 F.3d at

92.   We will reverse only where the sentence is either outside the


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"universe of reasonable sentences" or was implausibly reasoned.

Rivera-González, 776 F.3d at 52.           We turn first to the inquiry of

whether the sentence was within the universe of reasonableness.

              We need not go far to determine that it was because one

of our recent decisions is directly on point.               In United States v.

Márquez-Garcia,       a   twenty-four     month    sentence      was       determined

reasonable on a four to ten month guideline recommendation (the

same upward variant as we have before us).                862 F.3d at 147-48.

The court reasoned that because the severe violations occurred

less   than   a    year   after   the    release    date,      the    sentence     was

substantively reasonable for deterrence purposes.                    Id.    Similarly

here, not only did the violations follow quickly on the heels of

Alejandro-Rosado's release, but they were numerous and severe.                     He

was found racking a pistol.              Canines twice alerted police to

weapons in his apartment.         He was reported to be selling drugs,

and was found with a notebook full of inmate names, register

numbers, and dollar amounts.              Specifically, one entry had the

rather ominous notation: "transaction soon as possible so that he

not be beheaded."          And these are just some of his numerous

violations.       In light of these facts, Alejandro-Rosado's sentence

was clearly within the universe of reasonableness.                   See Soto-Soto,

855    F.3d   at    450-51   (statutory         maximum   of     two       years   was

substantively reasonable where the guideline recommended a five to




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eleven month sentence but the violations were repetitive and

severe).

           Alejandro-Rosado nevertheless argues that the guidelines

recommended a sentence of four to ten months and the district court

improperly exceeded this recommendation.          But these guidelines are

"merely advisory."    See Soto-Soto, 855 F.3d at 451.          Regardless of

whether we agree that this was the appropriate sentence, merely

deciding on appellate review that "some lesser sentence [is]

appropriate is not, in itself, a sufficient reason to disturb the

district court's exercise of discretion."            Del Valle-Rodríquez,

761 F.3d at 177 (1st Cir. 2014).

           Turning   next   to   the    inquiry   reviewing    the     district

court's rationale, we determine that it was plausibly reasoned.

Where district courts stress the factors that lead to its sentence

and explain the purposes for the sentence, we have upheld its

reasoning.   See, e.g., Rivera-González, 776 F.3d at 52 (district

court's sentence was plausibly reasoned because it stressed the

seriousness of the crime and need for the sentence).                  Here, the

district   court   did   both.     It    highlighted    the    frequency      of

Alejandro-Rosado's   violations,       the   severity   of    them,    and   his

refusal to follow the probation officer's instructions. See United

States v. O'Brien, 870 F.3d 11, 21 (1st Cir. 2017) (reasoning was

clear when it emphasized the severity of the conduct).                 Next, it

plausibly explained that in light of these factors, the sentence


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was necessary to "provide just punishment for the offense, afford

adequate deterrence, and to protect the public from further crimes"

by the defendant.   In light of these justifications, we find that

the district court's reasoning was entirely plausible.

                            C. Conclusion

           For the reasons made clear above, we uphold the sentence

imposed   on   Alejandro-Rosado    for     violation   of   his   terms   of

supervised release.

           Affirmed.




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