              United States Court of Appeals
                     For the First Circuit

No. 10-1907

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                     RAYMOND VARGAS-DÁVILA,

                      Defendant, Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF PUERTO RICO
        [Hon. Juan M. Pérez-Giménez, U.S. District Judge]


                             Before

                    Boudin, Selya and Lipez,
                         Circuit Judges.



     Tamara A. Barney, by appointment of the court, on brief for
appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Chief, Appellate Division, and Julia M. Meconiates,
Assistant United States Attorney, on brief for appellee.




                         August 19, 2011
           SELYA, Circuit Judge.       Raymond Vargas-Dávila challenges

as substantively unreasonable a sentence imposed in connection with

the revocation of a term of supervised release.              After careful

consideration, we affirm.

           The facts are straightforward.        After the appellant pled

guilty to a single count of conspiracy to distribute narcotics, see

21 U.S.C. §§ 841(a)(1), 846, the district court sentenced him to

eighty-four months in prison and a four-year term of supervised

release.   The appellant began serving his supervised release term

on October 6, 2006.

           Less than halfway through that term, he violated the

conditions of his supervised release.           On January 13, 2009, the

district   court   revoked   the   grant   of   supervised      release   and

sentenced him to an additional eleven months in prison, to be

followed by a new two-year period of supervised release.                  The

appellant unsuccessfully appealed this disposition.          United States

v.   Vargas-Dávila,   No.    09-1303     (1st    Cir.   March    10,   2010)

(unpublished judgment).

           The appellant served the incarcerative portion of the

revocation sentence and began serving his new term of supervised

release.    On May 12, 2010, a probation officer notified the

district court by motion that the appellant had again violated

release conditions.    In this regard, the probation officer noted

the appellant's unauthorized departure from Puerto Rico and his


                                   -2-
failure to advise the probation department prior to changing his

place of residence.

          The district court issued an arrest warrant, and the

authorities detained the appellant in Chicago, Illinois, on May 14,

2010.   Ten days later, the probation officer, in a supplementary

filing, alleged that the appellant had committed yet another

violation by neglecting to notify the probation department of his

earlier May 7, 2010 arrest within the allotted time.

          At the revocation hearing, the appellant conceded the

violations.   He asked that, should his existing term of supervised

release be revoked, the court impose a sentence at the bottom of

the advisory guideline sentencing range (GSR).   The court rejected

this entreaty, revoked the period of supervision, and sentenced the

appellant to a fresh twenty-four months in prison.   In explaining

its rationale for eschewing the GSR (five to eleven months), the

court noted that the guidelines were merely advisory and, given the

appellant's "history of non-compliance," a sentence beyond the GSR

was appropriate.

          This timely appeal followed.      In it, the appellant

challenges his sentence as substantively unreasonable. Among other

things, he argues that the sentencing court improperly considered

certain information while failing to consider relevant sentencing




                                -3-
factors.       We review the sentence for abuse of discretion.1         United

States v. Santiago-Rivera, 594 F.3d 82, 84 (1st Cir. 2010); United

States v. McInnis, 429 F.3d 1, 4 (1st Cir. 2005).              The touchstone

of     abuse    of    discretion   review     in    federal    sentencing     is

reasonableness.       Gall v. United States, 552 U.S. 38, 46 (2007).          In

this       context,   "reasonableness    is   a    protean   concept,   not   an

absolute."       United States v. Martin, 520 F.3d 87, 92 (1st Cir.

2008).       Thus, any one of several sentences may be reasonable in a

particular case.        Id.   Consequently, we will set aside a sentence

only if the district court's determination falls outside the

"expansive boundaries" of the entire range of reasonable sentences.

Id.

               Typically, the first step in reviewing the reasonableness

of a sentence is an evaluation of its procedural orthodoxy.              Gall,

552 U.S. at 51; United States v. Madera-Ortiz, 637 F.3d 26, 30 (1st

Cir. 2011).       Here, however, the appellant makes no claim that the

district court either miscalculated the GSR or otherwise committed

a procedural error.           Accordingly, we proceed directly to the

substantive reasonableness of the sentence.

               An inquiry into the substantive reasonableness of a

sentence must "take into account the totality of the circumstances,

including the extent of any variance from the Guidelines range."


       1
      Of course, a material error of law invariably constitutes an
abuse of discretion. See United States v. Anon. Deft., 629 F.3d
68, 73 (1st Cir. 2010).

                                        -4-
Gall, 552 U.S. at 51.          We glean the sentencing court's rationale

from the transcript of the sentencing hearing, see 18 U.S.C.

§   3553(c),    the   court's       written     statement     of       reasons,   id.

§ 3553(c)(2), and an examination of the points argued by the

parties     (including      those      memorialized     in       the     presentence

investigation report).         See Martin, 520 F.3d at 93; United States

v. Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en banc).

            Congress enacted a specific statute, 18 U.S.C. § 3583(e),

to guide a sentencing court in the exercise of its discretion to

modify or revoke a term of supervised release.                     This provision

explicitly incorporates by reference some — but not all — of the

sentencing     factors   described       in    18   U.S.C.   §     3553(a).       The

enumerated factors include the nature and circumstances of the

offense, id. § 3553(a)(1); the history and characteristics of the

offender,      id.;   the       need    for     adequate      deterrence,         id.

§   3553(a)(2)(B);       the     need     to    protect      the       public,    id.

§ 3553(a)(2)(C); and the penological needs of the offender, such as

the need for special care or treatment, id. § 3553(a)(2)(D). While

the court must consider all of the incorporated section 3553(a)

factors, it need not do so mechanically.              United States v. Dixon,

449 F.3d 194, 205 (1st Cir. 2006).

            In the case at hand, the record makes manifest that the

district court sufficiently considered the relevant factors.                      The

hearing transcript reveals that the court assessed the nature and


                                        -5-
circumstances of the violations using the probation officer's

filings and the appellant's statements.              It also examined the

appellant's past history of substance abuse.                 Emphasizing the

appellant's   record      of   repeated      non-compliance     with    release

conditions, the court found a term of imprisonment justified. This

finding implicitly took into account the need to afford adequate

deterrence and the need to protect the public from further crimes.

           Against this background, the court mulled the GSR (five

to eleven months), which was based on a Grade C violation and a

criminal   history   category     of   three.2      It    concluded    that   the

appellant's checkered record of non-compliance called for a term of

immurement significantly beyond that contemplated by the GSR.                   It

settled upon a penalty of twenty-four months.

           Given that this was the appellant's second series of

supervised release violations, we think that this sentence is well

within the universe of reasonable sentences.             It is said that past

is prologue, William Shakespeare, The Tempest act 2, sc. 1 (1611),

and a sentencing court is entitled to give considerable weight to

a defendant's failure to abide by the conditions of previous

sentences.    The length of an increased sentence is necessarily a

judgment call and, within wide limits, deference is due to the

trier's on-the-spot perceptions.          Here, we are confident that the



     2
       The    appellant    does   not     dispute   the    accuracy    of     this
taxonomy.

                                       -6-
lower court appropriately tailored the twenty-four month sentence

to reflect both the past behavior of the offender and the other

realities of the situation.

           Contrary to the appellant's protestations, the sentence

imposed does not offend section 3583(e)(3).               The appellant's

underlying criminal conviction was for a Class B felony.             See 18

U.S.C. § 3559(a)(2).         Thus, section 3583(e)(3) permitted the

sentencing court to impose a prison sentence of up to three years.

See United States v. Eirby, 515 F.3d 31, 36 (1st Cir. 2008).              The

sentence actually imposed was comfortably below this maximum.

           The   appellant    also    contends    that   his   sentence   is

unreasonable because the district court improperly considered the

government's statement at the revocation hearing that he had

"demonstrate[d] a lack of respect for the Court's order[s]."

Relatedly, he calumnizes the court's observation that he had a

"history of non-compliance with the supervised release conditions."

In his view, these points are off-limits because they substantially

overlap   with   section   3553(a)(2)(A)'s       instruction   "to   promote

respect for the law" — an instruction not incorporated into the

compendium of factors specifically incorporated by reference in

section 3583(e).

           This argument is unavailing. Although section 3583(e)(3)

incorporates by reference, and thus encourages, consideration of

certain enumerated subsections of section 3553(a), it does not


                                     -7-
forbid consideration of other pertinent section 3553(a) factors.

See United States v. Williams, 443 F.3d 35, 47 (2d Cir. 2006).

Moreover, one of the incorporated provisions — the command that a

sentencing   court    must    consider         the   need    "to    afford   adequate

deterrence," 18 U.S.C. § 3553(a)(2)(B) — leads inexorably to the

conclusion    that    a    sentencing      court      properly      may   consider    a

defendant's history of non-compliance with conditions of supervised

release.    See Williams, 443 F.3d at 48.

            In a last-ditch argument, the appellant relies on United

States v.    Franquiz-Ortiz,       607     F.3d      280    (1st Cir.      2010)    (per

curiam).    This reliance is mislaid.             There, we vacated a sentence

because the scant record provided no explanation for the district

court's decision to impose the maximum sentence permitted.                     Id. at

282.    Here, by contrast, the record satisfactorily reveals the

basis for the sentence imposed and the court sufficiently explained

its sentencing rationale.

            We need go no further.              "Sentencing under an advisory

guidelines regime is more art than science."                       United States v.

Anon. Deft., 629 F.3d 68, 78 (1st Cir. 2010).                      In this instance,

the    district    court   used    its    superior         coign   of    vantage,    its

familiarity with the appellant's case, and its experience in

sentencing    to    arrive    at   a     sentence      within      the    universe    of

acceptable outcomes. Grounding its sentencing determination in the

totality of the circumstances at hand, the court articulated a


                                         -8-
plausible rationale and arrived at a sensible result.   No more is

exigible.   See, e.g., id.; United States v. Carrasco-De-Jesús, 589

F.3d 22, 30 (1st Cir. 2009).



Affirmed.




                                -9-
