                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit

No. 16-1706

                     UNITED STATES OF AMERICA,

                                Appellee,

                                     v.

                    JONATHAN JAVIER CARMONA,
              a/k/a Samuel Carrasquillo Rodriguez,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. William G. Young, U.S. District Judge]


                                  Before

                     Lynch, Lipez, and Kayatta,
                           Circuit Judges.


     Joshua L. Solomon and Pollack Solomon Duffy LLP on brief for
appellant.
     Craig Estes, Assistant United States Attorney, and William D.
Weinreb, Acting United States Attorney, on brief for appellee.


                             April 14, 2017
              LYNCH, Circuit Judge.          Jonathan Javier Carmona pled

guilty to unlawfully reentering the United States as a deported

alien and was sentenced to 36 months' imprisonment.                     In this

sentencing appeal, he argues that the district court procedurally

erred in its Criminal History Category ("CHC") determination and

that    his    sentence   was   also      procedurally    and      substantively

unreasonable.      We affirm.

                                       I.

              We recount only the background necessary to understand

the issues, drawing the facts from the Presentence Investigation

Report ("PSR") and the transcript of the sentencing hearing.                 See

United States v. King, 741 F.3d 305, 306 (1st Cir. 2014).

              Carmona, a native and citizen of the Dominican Republic,

was convicted twice in Massachusetts courts on drug-trafficking

charges.      On May 24, 2012, he was released from state prison, and

a one-year probation term began.              He had been ordered removed

during his incarceration and was deported on July 19, 2012.                  See

8   U.S.C.    §   1182(a)(2)(C),    (a)(6)(A)(i).        Because      the   state

probation office knew nothing about Carmona's immigration status

or the reason for his disappearance, a violation of probation

("VOP") warrant issued on September 7, 2012.

              Carmona   reentered   the     United   States   in    2013,   still

without lawful status.       On March 3, 2015, he was arrested on the

VOP    warrant.     The   warrant   was     withdrawn    on   March    4,   2015,


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apparently because the state probation office realized why Carmona

had disappeared, and the state court found no probation violation

on March 12, 2015.

             On April 9, 2015, a federal grand jury indicted Carmona

for unlawful reentry as a deported alien.            See id. § 1326(a).

Carmona pled guilty on November 23, 2015, without a plea agreement.

             Carmona's   PSR,   using   the   then-effective     2015   U.S.

Sentencing     Guidelines   Manual,     calculated   Carmona's    criminal

history score as eight, resulting in a CHC of IV.        The calculation

included two points because Carmona had committed the federal

reentry offense in 2013 while subject to the state VOP warrant.

See U.S.S.G. § 4A1.1(d).        Carmona's Guidelines Sentencing Range

("GSR") was 57 to 71 months.

             On May 23, 2016, at the sentencing hearing, Carmona's

counsel acknowledged that the GSR was correct, at least "as a

matter of calculation."         The government recommended a 57-month

sentence.    Carmona's counsel recommended a 24-month sentence.          She

urged the court both to depart downward from a CHC of IV to a CHC

of III and to take heed of a proposed amendment to U.S.S.G. § 2L1.2,

not scheduled to take effect until November 1, 2016, which would,

if applied when it became effective, reduce Carmona's adjusted

offense level and thus produce a lower GSR.          The district court

properly responded that it would consider the proposed amendment




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but could not itself formally "adopt" the revised § 2L1.2 until

Congress had first approved it.

             The district court chose to impose a 36-month sentence,

declining to depart downward under the Guidelines but granting a

21-month downward variance.       There were no objections to the

sentence.

                                  II.

A.   Criminal History Category

             Carmona's argument as to his CHC is twofold.   First, he

claims that the district court erred by applying the two-point

§ 4A1.1(d) enhancement.     In the alternative, he asserts that the

court abused its discretion by rejecting his request for a downward

departure.

             Because Carmona did not object at sentencing to the

§ 4A1.1(d) enhancement, plain error review applies, and Carmona

"must prove not only a clear error but also that the error

'affected [his] substantial rights [and] seriously impaired the

fairness,     integrity,   or    public   reputation   of    judicial

proceedings.'"    United States v. Delgado-López, 837 F.3d 131, 134

(1st Cir. 2016) (alterations in original) (quoting United States

v. Ramos-Mejía, 721 F.3d 12, 14 (1st Cir. 2013)).1




     1    We bypass whether Carmona affirmatively waived this
argument by conceding at sentencing that his CHC and GSR had been
properly calculated. See Delgado-López, 837 F.3d at 135 n.2.


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          Whether or not any error occurred, the CHC calculation

was not the basis for Carmona's sentence.     See United States v.

Ortiz, 741 F.3d 288, 293–94 (1st Cir. 2014) ("[T]he plain error

standard imposes upon the appealing defendant the burden of showing

a reasonable likelihood 'that, but for the error, the district

court would have imposed a different, more favorable sentence.'"

(quoting United States v. Turbides-Leonardo, 468 F.3d 34, 39 (1st

Cir. 2006))).   The district court explicitly identified Carmona's

"two not insignificant drug offenses" as the portion of Carmona's

criminal history that "ha[d] impact with the [c]ourt" and further

stated that it was "less troubled by [the] two points" added under

§ 4A1.1(d).   Those statements and the court's significant downward

variance leave us certain that the court's choice of sentence did

not depend on whether Carmona's GSR was calculated with or without

the § 4A1.1(d) enhancement.2    See United States v. Tavares, 705

F.3d 4, 24–28 (1st Cir. 2013) (finding harmless any error in CHC

calculation, because it was clear that the district court would

have chosen the same sentence regardless of the CHC used).




     2    Although "an incorrect [GSR]" is often independently
"sufficient to show a reasonable probability of a different outcome
absent the error," United States v. Hudson, 823 F.3d 11, 19 (1st
Cir. 2016) (quoting Molina-Martinez v. United States, 136 S. Ct.
1338, 1345 (2016)), that is not the case here. The record makes
clear "that the district court thought the sentence it chose was
appropriate irrespective of the [GSR]." Molina-Martinez, 136 S.
Ct. at 1346.


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           Finally, there was no abuse of discretion in the district

court's decision not to depart downward, as urged by defense

counsel.   See United States v. Almeida, 748 F.3d 41, 53 (1st Cir.

2014) (explaining that a district court's "disagree[ment] with [a

defendant] about the seriousness of his criminal history . . .

does not approach an abuse of discretion").          Carmona maintains

that a CHC of IV was not commensurate with the seriousness of his

criminal history, but the record contradicts his claim: he was

arrested   for   a   second   drug-trafficking   crime   while   still   on

probation for the first, and he then reentered the United States

illegally just eight months after being deported.

B.   Procedural and Substantive Reasonableness

           Carmona's procedural reasonableness challenge, which we

review only for plain error, amounts to a claim that the district

court inadequately explained its choice of sentence and its reasons

for rejecting Carmona's argument that a shorter sentence better

fit the true nature of his criminal history.       The record, however,

makes the court's reasoning clear: the court gave consideration to

the proposed § 2L1.2 amendment, which was helpful to Carmona, but

also to the seriousness of Carmona's earlier crimes.        "Although it

is true that the district court did not explicitly address each of

the appellant's arguments . . . , the court was not required to

offer that level of elucidation."           United States v. Dávila-

González, 595 F.3d 42, 48 (1st Cir. 2010).        And the court stated


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explicitly that it had considered the factors set forth in 18

U.S.C. § 3553(a) -- a statement "entitled to some weight" in our

procedural reasonableness review.     Id. at 49.   We see no error,

much less plain error.

          Carmona's substantive reasonableness challenge fares no

better.   It is the "rare below-the-[GSR] sentence that [is]

vulnerable" to such a challenge.   King, 741 F.3d at 310.   As often,

"[t]hat the sentencing court chose not to attach to certain of the

mitigating factors the significance that [Carmona] thinks they

deserved does not make the sentence unreasonable."    United States

v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011).

                               III.

          We affirm Carmona's sentence.




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