          United States Court of Appeals
                     For the First Circuit


No. 17-1212

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                    EZEQUIEL RIVERA-BERRÍOS,

                      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 Barron,
                         Circuit Judges.


     Andrew S. Crouch for appellant.
     Thomas F. Klumper, Assistant United States Attorney, Senior
Appellate Counsel, with whom Rosa Emilia Rodríguez-Vélez, United
States Attorney, and Mariana E. Bauzá-Almonte, Assistant United
States Attorney, Chief, Appellate Division, were on brief, for
appellee.


                         August 24, 2018
             SELYA, Circuit Judge.        This appeal presents a question

of first impression in this circuit: may a sentencing court assess

criminal history points for a prison sentence imposed following

revocation of probation when the revocation-triggering conduct

also constitutes the gravamen of the federal offense of conviction?

Concluding, as we do, that the court below correctly factored the

revocation sentence into the appellant's criminal history score

and proceeded to fashion a substantively reasonable sentence for

the offense of conviction, we affirm.

I. BACKGROUND

             Because this appeal follows in the wake of a guilty plea,

we take the facts from the change-of-plea colloquy, the uncontested

portions of the presentence investigation report (PSI Report), and

the transcript of the sentencing hearing.             See United States v.

Rentas-Muñiz, 887 F.3d 1, 2 (1st Cir. 2018); United States v.

Blodgett, 872 F.3d 66, 68 (1st Cir. 2017).

             In    December   of   2013,    defendant-appellant       Ezequiel

Rivera-Berríos was convicted in a Puerto Rico court on one count

of aggravated illegal appropriation and one count of illegal

possession    of    a   firearm.    The     court   sentenced   him    to   two

consecutive three-year terms of probation.           We fast-forward to May

of 2016, when local police officers conducted a search of the

appellant's residence in Cataño, Puerto Rico. They found a massive

cache of weapons, including an AK-47-type rifle loaded with 74


                                    - 2 -
rounds   of    ammunition.         They    also     discovered     a     ziplock    bag

containing      three     face    masks,     a    black     ski   hat,    and     other

paraphernalia often associated with criminal activity.

              A federal grand jury sitting in the district of Puerto

Rico subsequently charged the appellant with being a felon in

possession of firearms and ammunition.               See 18 U.S.C. § 922(g)(1).

After initially maintaining his innocence, the appellant pleaded

guilty on September 27, 2016.            About five weeks later — subsequent

to the appellant's guilty plea but before his federal sentencing

— a Puerto Rico court revoked the appellant's terms of probation

for the 2013 offenses and sentenced him instead to two consecutive

three-year prison terms (the revocation sentence).                       Although the

record   contains       very     few   details     concerning      the     revocation

proceeding, the parties agree that the revocation was triggered,

at least in part, by the same unlawful weapons possession that

formed the basis of the appellant's federal conviction under

section 922(g)(1).

              In the PSI Report, the probation office recommended that

the appellant be held responsible for a total offense level of 17

and   slotted     him    into     criminal       history    category      (CHC)    III,

generating a guideline sentencing range of 30 to 37 months.                         See

USSG Ch. 5, Pt. A (Sentencing Table).                The appellant objected to

his placement in CHC III, but the district court overruled his

objection      and      adopted    all     of     the      recommended      guideline


                                         - 3 -
calculations.       At the disposition hearing, the court weighed the

factors limned in 18 U.S.C. § 3553(a) and imposed an upwardly

variant    sentence       —    48   months'       imprisonment     —   to    be   served

consecutively to the revocation sentence.                      This timely appeal

followed.

II. ANALYSIS

            As a general matter, we review the imposition of a

sentence for abuse of discretion.                 See Gall v. United States, 552

U.S. 38, 51 (2007); United States v. Martin, 520 F.3d 87, 92 (1st

Cir. 2008).       This process "is characterized by a frank recognition

of the substantial discretion vested in a sentencing court."

United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).

            Judicial          review   of    a    challenged   sentence       typically

entails "a two-step pavane."                Id.   At the first step, we consider

claims of procedural error, which include "failing to calculate

(or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the § 3553(a) factors,

selecting a sentence based on clearly erroneous facts, or failing

to   adequately      explain        the     chosen      sentence   —   including     an

explanation for any deviation from the Guidelines range."                         Gall,

552 U.S. at 51. If this step is successfully navigated, we proceed

to   the   next    step       and   appraise      the   sentence   for      substantive

reasonableness.        See id.         This latter inquiry necessitates an

evaluation of "the totality of the circumstances."                     Id.


                                            - 4 -
                                        A

             We begin with the appellant's claim of procedural error.

Understanding the anatomy of a sentence helps to lend perspective.

             A sentencing court's first task is to establish the

proper guideline sentencing range.              See id. at 49; Martin, 520

F.3d at 91.       Two factors combine to produce this range in a

particular case:      the defendant's total offense level and his CHC.

See United States v. Pinkham, 896 F.3d 133, 139 (1st Cir. 2018).

The   appellant    does   not   quarrel       with     the   district   court's

calculation of his total offense level but, rather, trains his

fire on the court's CHC determination.

             A defendant's CHC is derived from his criminal history

score.   See id.; United States v. Sanchez, 354 F.3d 70, 81 (1st

Cir. 2004).     By way of example, a defendant who has a criminal

history score of four to six is placed in CHC III, whereas a

defendant who has a score of two or three is placed in CHC II.

See USSG Ch. 5, Pt. A (Sentencing Table).            The lower a defendant's

CHC, the lower his guideline sentencing range is apt to be.                See

Pinkham, 896 F.3d at 139.

             To arrive at a defendant's criminal history score, the

sentencing    court    must   first    review    any    sentences   previously

imposed on the defendant and determine whether to add zero, one,

two, or three points for each such sentence.                 See USSG §§4A1.1,

4A1.2.   A prior sentence of imprisonment exceeding one year and


                                      - 5 -
one month ordinarily requires the assessment of three points.                        See

id. §4A1.1(a).        By contrast, a sentence of probation or of fewer

than sixty days' imprisonment ordinarily adds one point to the

defendant's score.       See id. §4A1.1(c).              Relatedly, the guidelines

require that two more points be added if the defendant committed

the offense of conviction (that is, the offense for which he is

being   sentenced)      "while       under   any    criminal      justice    sentence,

including probation, parole, supervised release, imprisonment,

work release, or escape status."               Id. §4A1.1(d).

              Here, the district court assessed three points for the

revocation sentence of six years.                  See id. §4A1.1(a).        It added

two more points because the appellant committed the offense of

conviction while on probation.               See id. §4A1.1(d).          The appellant

challenges the first of these assessments, insisting that only one

point   should    have       been    awarded     since    the    Puerto    Rico   court

originally imposed a straight probationary sentence.                      Because this

preserved     claim     of    error     implicates        the    interpretation      and

application of the guidelines, it engenders de novo review.                          See

United States v. McCormick, 773 F.3d 357, 359 (1st Cir. 2014).

              Despite    its        superficial      appeal,       the     appellant's

challenge lacks force.              When imposing a sentence in a subsequent

case,   the    sentencing       court     must     "add    the    original    term    of

imprisonment to any term of imprisonment imposed upon revocation

[of probation]" in tabulating the defendant's criminal history


                                         - 6 -
score.   USSG §4A1.2(k)(1).     Where, as here, "the language of the

[applicable] guideline is plain and unambiguous, that is the end

of the matter."     United States v. Suárez-González, 760 F.3d 96, 99

(1st Cir. 2014).     Under the luminously clear language of section

4A1.2(k)(1), any term of imprisonment imposed upon revocation of

probation must be added to the original probationary term for the

purpose of determining the defendant's criminal history score.

See United States v. Van Anh, 523 F.3d 43, 61 (1st Cir. 2008).

          The Sentencing Commission's commentary fully supports

this construction.     It admonishes a sentencing court not to "count

the original sentence and the resentence after revocation as

separate sentences."     USSG §4A1.2, cmt. n.11.    Instead, the court

is directed to add "the sentence given upon revocation . . . to

the original sentence of imprisonment, if any," so that "the total

should be counted as if it were one sentence."      Id.   We treat such

commentary as authoritative unless it conflicts with federal law,

see Stinson v. United States, 508 U.S. 36, 38 (1993); United States

v. Cates, 897 F.3d 349, __ (1st Cir. 2018) [No. 17-1423, slip op.

at 7], and the appellant has not identified any such conflict with

respect to the quoted commentary.

          Given the explicit language of the applicable sentencing

guideline and the reinforcement supplied by the commentary, we

conclude that the court below was correct in looking to the term

of   imprisonment    imposed   upon   revocation   of   probation   when


                                 - 7 -
computing the appellant's criminal history score for the offense

of conviction.     Because that sentence exceeded one year and one

month — indeed, it aggregated six years — the court appropriately

attributed    three   criminal   history   points   to   it.   See   USSG

§4A1.1(a).

             The appellant resists this straightforward conclusion.

He argues that the district court should not have factored the

revocation sentence into his criminal history score because the

conduct that triggered the revocation was essentially the same

conduct that formed the basis for the offense of conviction.          He

predicates this argument on the theory that a court may not count

a prior sentence toward a defendant's criminal history score if

that prior sentence was imposed for conduct that is "part of the

instant offense."     USSG §4A1.2(a)(1); see United States v. Cyr,

337 F.3d 96, 99 n.1 (1st Cir. 2003).       In the appellant's view, the

district court impermissibly double-counted the conduct underlying

his 2016 felon-in-possession offense by factoring that conduct

into both his total offense level and his criminal history score.

We do not agree.

             We acknowledge, of course, that the rule forbidding a

court from counting a prior sentence toward a defendant's criminal

history score if that prior sentence was imposed for conduct that

is part of the offense of conviction is designed to avoid double-




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counting.1     See United States v. Nance, 611 F.3d 409, 413 (7th Cir.

2010); see also USSG §4A1.2, cmt. n.1 (excluding sentences imposed

for conduct qualifying as relevant conduct under USSG §1B1.3 from

criminal history score).      But that is not what happened here.   The

salient distinction arises out of "the relation-back aspect of the

law."       United States v. Dozier, 555 F.3d 1136, 1140 (10th Cir.

2009).      As we explained in an analogous context, a post-revocation

sanction "is treated as part of the penalty for the initial

offense."      United States v. McInnis, 429 F.3d 1, 5 (1st Cir. 2005)

(citing Johnson v. United States, 529 U.S. 694, 699-700 (2000)).

In other words, revocation of probation is "a modification of the

terms of the original sentence," which "implicates solely the

punishment initially imposed for the offense conduct underlying

that sentence."      United States v. Coast, 602 F.3d 1222, 1223 (11th

Cir. 2010) (quoting United States v. Woods, 127 F.3d 990, 992-93

(11th Cir. 1997) (per curiam)).      Even when — as in this case — the

revocation conduct itself constitutes a crime, "the sanction is




        1
       We hasten to add that double-counting is not entirely
forbidden in the sentencing context — a context in which "double
counting is a phenomenon that is less sinister than the name
implies." United States v. Zapata, 1 F.3d 46, 47 (1st Cir. 1993).
Such a conclusion flows logically from a recognition of the fact
that sentencing factors "do not come in hermetically sealed
packages, neatly wrapped and segregated one from another." United
States v. Lilly, 13 F.3d 15, 19 (1st Cir. 1994). Thus, multiple
sentencing factors may quite properly "draw upon the same nucleus
of operative facts while nonetheless responding to discrete
concerns." Id.


                                  - 9 -
independent of — and potentially in addition to — regular criminal

prosecution for [that] crime."          United States v. Brennick, 337

F.3d 107, 109 (1st Cir. 2003) (per curiam).

             These principles are dispositive here.         The revocation

of the appellant's probation was, at bottom, a penalty for the

conduct underlying the 2013 sentence (the local-law crimes of

aggravated    illegal   appropriation    and   illegal    possession     of   a

firearm).      The fact that Puerto Rico authorities revoked the

appellant's    probation    for   the   same   firearms   possession     that

triggered his federal conviction under section 922(g)(1) "does

not, for criminal history purposes, sever the conduct from the

original . . . sentence attributable to his [2013 conviction]."

Dozier, 555 F.3d at 1140 (quoting United States v. Wheeler, 330

F.3d 407, 412 (6th Cir. 2003)).            We hold, therefore, that a

sentencing court may assess criminal history points for a prison

sentence      imposed      following     revocation       of      probation,

notwithstanding     that   the    revocation-triggering        conduct   also

constitutes the gravamen of the federal offense of conviction.

             Even though this is a matter of first impression in this

circuit, we do not write on a pristine page.          No fewer than four

other courts of appeals have concluded — as do we — that post-

revocation penalties are "part of the sentence for the original

crime of conviction, even where the facts underlying the revocation

are precisely the same as those providing the basis for conviction


                                  - 10 -
in the instant case."       Wheeler, 330 F.3d at 412; accord United

States v. Heath, 624 F.3d 884, 888 (8th Cir. 2010); Dozier, 555

F.3d at 1140; United States v. Franklin, 148 F.3d 451, 461-62 (5th

Cir. 1998).

            That ends this aspect of the matter.              Because the

incarcerative terms imposed upon the revocation of the appellant's

probation are treated as part of his 2013 sentence, the court below

properly    attributed    three     criminal    history   points   to   that

sentence.     See USSG §4A1.1(a).         And since it is undisputed that

the appellant was on probation at the time he committed the instant

offense, the district court's assessment of the two additional

points in computing his criminal history score was also correct.

See id. §4A1.1(d).    It follows inexorably that neither the court's

assessment of a total of five criminal history points nor its

placement of the appellant in CHC III can seriously be questioned.

                                      B

            This brings us to the appellant's plaint — voiced for

the first time on appeal — that his upwardly variant 48-month

sentence was substantively unreasonable.           Our standard of review

for   unpreserved    claims    of    substantive     unreasonableness     is

"somewhat blurred."      United States v. Ruiz-Huertas, 792 F.3d 223,

228 (1st Cir. 2015).     No attempt at clarification is needed here;

whatever the standard, the appellant's plaint is unavailing.




                                    - 11 -
          Appellate review for substantive reasonableness "focuses

on the duration of the sentence in light of the totality of the

circumstances."    United States v. Vega-Salgado, 769 F.3d 100, 105

(1st Cir. 2014) (quoting United States v. Del Valle-Rodríguez, 761

F.3d 171, 176 (1st Cir. 2014)).       To pass muster, a sentence must

be "supported by a 'plausible sentencing rationale' and achieve[]

a 'defensible result.'"      United States v. Daoust, 888 F.3d 571,

577 (1st Cir. 2018) (quoting Martin, 520 F.3d at 96).            We have

emphasized that "there can be a wide universe of reasonable

sentences in any single case."       Id.; see United States v. Walker,

665 F.3d 212, 234 (1st Cir. 2011).          As long as the sentence is

"within the universe of acceptable outcomes," we must uphold it.

United States v. Vargas-Dávila, 649 F.3d 129, 132 (1st Cir. 2011).

The fact that a sentence exceeds the advisory guideline range is

not dispositive, but "the greater the extent of a variance, 'the

more compelling the sentencing court's justification must be.'"

United States v. de Jesús, 831 F.3d 39, 43 (1st Cir. 2016) (quoting

Del Valle-Rodríguez, 761 F.3d at 177).

          When    viewed   against   this   backdrop,   the   appellant's

sentence withstands scrutiny. After stating that it had considered

the relevant section 3553(a) factors — a statement that is entitled

to "some weight," United States v. Rodríguez-Adorno, 852 F.3d 168,

176 (1st Cir.), cert. denied, 138 S. Ct. 163 (2017) — the district

court explained why the case at hand was not a run-of-the-mill


                                - 12 -
felon-in-possession case.        The court noted that the appellant,

while serving a probationary term, possessed a massive cache of

weapons and ammunition, three face masks, a black ski hat, and

other paraphernalia indicative of an intent to commit other crimes.

Mindful of these striking facts, the court reasonably concluded,

consistent with section 3553(a), that an above-the-range sentence

was   necessary   to   reflect   the    crime's      "seriousness,"   "promote

respect for the law," safeguard the public from future mischief at

the hands of the appellant, and further the goals of "deterrence

and   punishment."      Weighing       these   considerations,     the    court

determined that a 48-month term of immurement was sufficient — but

not greater than necessary — to serve the ends of justice.

            The appellant demurs — but his demurrer is weak.                 He

chiefly faults the court for undervaluing certain factors (such as

his   history   of   gainful   employment      and    his   acknowledgment   of

wrongdoing).      But the appellant's argument overlooks that the

choice as to which sentencing factor or factors should be stressed

in any specific case is largely a matter for the sentencing court.

See id.    After all, a sentencing court is not required to "afford

each of the section 3553(a) factors equal prominence."                   United

States v. Dixon, 449 F.3d 194, 205 (1st Cir. 2006).               Rather, the

court has broad discretion in determining how best to weigh those

factors.    See de Jesús, 831 F.3d at 44.              In this instance, the




                                   - 13 -
sentencing     court   acted    well   within   the   encincture    of     that

discretion.

             The   appellant    also   faults   the   district     court    for

ignoring the parties' joint recommendation that the court impose

a within-guidelines sentence — a sentence that would not have

exceeded 37 months.        We agree that when the prosecution and the

defense agree upon a sentencing recommendation, the sentencing

court should pay careful attention to that recommendation. Careful

attention, though, is not to be confused with blind allegiance.

In the end, judicial review of a sentence focuses "on the sentence

actually imposed, not on the relative merit of that sentence as

contrasted with a different sentence mutually agreed to by the

parties."     Id. at 43.       Here, the decisive consideration is that

the 48-month sentence imposed by the court below falls within the

wide universe of reasonable sentences.

             To say more would be to paint the lily.        In this case,

the district court articulated an entirely plausible rationale for

the sentence imposed and achieved a readily defensible result.

The challenged sentence is, therefore, substantively reasonable.

III. CONCLUSION

             We need go no further. For the reasons elucidated above,

the sentence is



Affirmed.


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