             United States Court of Appeals
                        For the First Circuit
                       _____________________

No. 10-2487

                      UNITED STATES OF AMERICA,

                              Appellee,

                                  v.

                        JOSEPH LOZADA-APONTE,

                         Defendant-Appellant.
                        _____________________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF PUERTO RICO
               [Hon. José A. Fusté, U.S. District Judge]
                        _______________________

                                Before
                     Boudin, Hawkins,* and Dyk,**
                           Circuit Judges.
                       ______________________

     Hector L. Ramos-Vega, Assistant Federal Public Defender, with
whom Hector E. Guzman, Jr., Federal Public Defender, was on brief
for Appellant.
     Brian K. Kidd, Assistant United States Attorney. Rosa Emilia
Rodriguez-Velez, United States Attorney, Nelson Pérez-Sosa, Chief,
Appellate Section, United States Attorney’s Office, and Luke Cass,
Assistant United States Attorney, were on brief for Appellee.


     *
          Of the Ninth Circuit, sitting by designation.

     **
          Of the Federal Circuit, sitting by designation.
______________________

    August 24, 2012
______________________
          HAWKINS, Circuit Judge.        Joseph Lozada-Aponte (“Lozada”)

appeals the 46-month sentence imposed following his guilty-plea

conviction for being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g) in connection with his shipping an

assault rifle and pistol from Florida to Puerto Rico.           We have

jurisdiction under 28 U.S.C. § 1291 and, applying this court’s

deferential abuse-of-discretion standard of review,1 affirm.

I.   Upward Departure for Underrepresentation of Criminal History

          In   calculating   the   appropriate    guideline   sentencing

range, the district court applied a two-category upward departure

under U.S.S.G. § 4A1.3(a)(1), moving Lozada from criminal history

Category I to Category III.        Central to the district court’s

decision to depart upward were Lozada’s three prior convictions,

including a 1988 conviction for attempted murder and armed violence

that resulted in a six-year prison sentence, and his long string of




     1
        The reasonableness of a sentence is reviewed “‘under a
deferential abuse-of-discretion standard.’” United States v.
Battle, 637 F.3d 44, 50 (1st Cir. 2011) (quoting Gall v. United
States, 552 U.S. 38, 41 (2007)).

                                   -3-
arrests and criminal charges in multiple jurisdictions since.2

Although the age of the three prior convictions resulted in zero

criminal history points under the default Sentencing Guidelines

formula, district courts have discretion to depart upward if

reliable   information   shows   that   a   criminal   history   level

substantially underrepresents the seriousness of a defendant’s

criminal history or the likelihood that he would commit other

crimes in the future.    U.S.S.G. § 4A1.3(a)(1).

           While “a mere arrest, especially a lone arrest, is not

evidence that the person arrested actually committed any criminal

conduct,” we have previously suggested that an upward departure

from the guideline range may be appropriate for “a series of past


     2
       In addition to noting the three prior criminal convictions,
the district court observed that “[Lozada’s prior arrests] show a
pattern of human before me that for the past 20 years has been
involved in firearms illegally,” clearly referencing the arrest
record detailed in the presentence report (“PSR”). The PSR lists
1980s convictions for criminal damage to property, theft, and
attempted murder, and a series of arrests (usually nolle prosequied
or dismissed with leave to reinstate) for unlawful use of a weapon;
disorderly conduct; battery and aggravated assault; unlawful use of
a firearm by a felon, carry/possess firearm, and carry/possess
firearm in public; two more aggravated assault charges; and
stalking.   A separate charge for attempted murder and weapons
offenses in 1999 resulted in a trial and acquittal.

                                 -4-
arrests” which “might legitimately suggest a pattern of unlawful

behavior even in the absence of any convictions.” United States v.

Zapete-Garcia, 447 F.3d 57, 60 (1st Cir. 2006).             We see no reason

why a series of arrests could not also be considered as a basis for

departure due to underrepresentation of criminal history.

      Here,    Lozada’s   frequent   run-ins   with   law    enforcement   in

Florida, Illinois, and Puerto Rico, some of which apparently

involved      firearms,   were   adequately    suggestive      of   unlawful

misbehavior for the district court to determine that his 1988

conviction for a serious and violent crime should be viewed not as

a thing of the past but as indicative of a penchant for dangerous

criminality not typically associated with a Category I criminal

history.      An upward departure was therefore reasonable.

II.   Gun Violence in Puerto Rico and the Nature of the Weapons at
      Issue



      Unlike in United States v. Wallace, 461 F.3d 15, 42-43 (1st

Cir. 2006), the district court here, considering the entirety of

the sentencing colloquy, offered an adequate explanation why the

departure should be by two categories rather than one, noting the


                                     -5-
serious and violent nature of the 1988 conviction, the lengthy

sentence that followed, and the series of arrests that led right up

to shortly before the instant offense.            In explaining the two-

category departure, the district judge mentioned as well the nature

of the weapons and the incidence of crime in Puerto Rico; and

although both are permissible considerations in varying from the

guidelines,   neither,   strictly     speaking,    reflects   understated

criminal history.3   But the trial judge was pretty clearly using

the extent of departure as a loose way of identifying the range in

which he proposed to sentence the defendant after considering all

of the factors; and a remand to frame the matter using the rhetoric

of the guidelines would not alter the resulting sentence.

     As for the choice of how far to enhance the sentence, we

explained in United States v. Politano, 522 F.3d 69, 74 (1st Cir.

2008), that “post-[United States v. Booker, 543 U.S. 220 (2005)],




     3
       See United States v. Gallardo-Ortiz, 666 F.3d 808, 815-16
(1st Cir. 2012) (affirming upward departure from guidelines
sentence resting in part on the high-power nature of the firearm);
United States v. Landry, 631 F.3d 597, 607 (1st Cir. 2011)
(affirming high-end-of-guidelines-range sentence resting in part on
a finding that identity fraud is a growing problem in Maine).

                                    -6-
it is now apparent that the district court has the discretion to

take into    account   all    of   the   circumstances under    which   [the

defendant]    committed      the   offense,   including   the   particular

community in which the offense arose.”

III. Consideration of Mitigating Factors

            Nor did the district court fail to balance the relevant

18 U.S.C. § 3553(a) mitigating factors, such as Lozada’s stable

family life.    Though we require consideration of the § 3553(a)

factors, we do not require an express weighing of mitigating and

aggravating factors or that each factor be individually mentioned.

See United States v. Arango, 508 F.3d 34, 46 (1st Cir. 2007).           The

potentially mitigating factors Lozada identifies on appeal were

thoroughly discussed in the presentence report; that the district

court did not explicitly mention them during the sentencing hearing

suggests they were unconvincing, not ignored. See United States v.

Martins, 413 F.3d 139, 154 (1st Cir. 2005) (“Nearly all the factors

to which the [defendant-appellant] alludes were limned in the

presentence investigation report, yet the district court chose not

to speak to them at sentencing.          The inference is that the court


                                     -7-
was unimpressed.”).

                           CONCLUSION

          For the foregoing reasons, the district court’s sentence

was reasonable and is affirmed.




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