          United States Court of Appeals
                        For the First Circuit


No. 17-1340

                       UNITED STATES OF AMERICA,

                               Appellee,

                                  v.

                              PRIMO TOSI,

                         Defendant, Appellant.


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

              [Hon. D. Brock Hornby, U.S. District Judge]


                                Before

                     Thompson, Boudin, and Barron,
                            Circuit Judges.


     Clifford B. Strike and Strike, Gonzales & Butler Bailey on
brief for appellant.
     Halsey B. Frank, United States Attorney, and Julia M. Lipez,
Assistant United States Attorney, on brief for appellee.




                             July 24, 2018
            BOUDIN, Circuit Judge.           Primo Tosi was convicted of

possessing a firearm while subject to a qualifying court order.

18 U.S.C. § 922(g)(8).        After pleading guilty, the only issue on

appeal is Tosi's sentence.

            On May 16, 2016, officers of the Scarborough, Maine

Police Department received a call from a woman who said that, the

night before, Tosi put a pillow over her face, pressed a firearm

up against the pillow, and said "bang, bang."

            During a search of Tosi's residence, police found a

Remington 12-gauge shotgun.        At the time of the incident, Tosi was

subject to a state court order aimed at protecting his child and

his child's mother.        Tosi pled guilty to a one-count information,

charging him with violating 18 U.S.C. § 922(g)(8) based on his

possession of the shotgun.

            The   Probation     Office's     pre-sentence    report    ("PSR")

proposed    a   total   offense    level     of   twelve--which   included   a

two-level       decrease     for     the     defendant's     acceptance      of

responsibility--and a criminal history category ("CHC") of III,

resulting in an initial guideline range of fifteen to twenty-one

months.    U.S.S.G. §§ 2K2.1(a)(6)(A), 3E1.1(a); id. ch. 5, pt. A.

            In its sentencing memorandum, the government argued for

an upward departure as to Tosi's CHC--urging the court to adopt a

CHC   of   V.     The   government    also    sought   an   upward   variance,

ultimately requesting a term of sixty months' imprisonment.


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            Tosi, by contrast, sought a sentence below the PSR's

recommended      guideline   range     of   fifteen    to    twenty-one    months'

imprisonment,      downplaying      his     criminal    past   and    citing     his

difficult     family   background,        personal     medical    problems,      and

history of substance abuse.            At the sentencing hearing, defense

counsel repeated these arguments before suggesting that a sentence

"within   the     [guideline   range],       or   slightly     below"    would    be

appropriate.

            The district court at sentencing adopted one of the

government's proposals when it departed and assigned Tosi a CHC of

V.   The court refused, however, to vary upwards and instead

sentenced Tosi to thirty-three months' imprisonment--a term at the

top of, but still within, the range set by a final total offense

level of twelve and CHC of V.           Id. at ch. 5, pt. A.

            On    appeal,    Tosi      challenges      his   sentence     on    both

substantive and procedural grounds, categories themselves somewhat

elastic and defined in terms that can depart from common usage.

See, e.g., United States v. Crespo-Ríos, 787 F.3d 34, 37 n.3 (1st

Cir. 2015).

            It    simplifies     the      discussion    without      changing    the

outcome to assume that the alleged errors were all preserved and

all subject to review under a deferential standard, see United

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

for certain specific issues raised for the first time in Tosi's


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reply brief, which are barred, United States v. Carbajal-Váldez,

874 F.3d 778, 785 n.2 (1st Cir. 2017).      Such deference does not

protect legal rulings, but no such legal errors are asserted here.

See Flores-Machicote, 706 F.3d at 20.

          Tosi alleges that the district court "haphazardly tossed

aside" the 18 U.S.C. § 3553(a) factors without "due consideration"

and failed to give significant weight to his mitigating personal

characteristics.   But the district judge did address these factors

before discussing how some of them, such as the nature of the

offense--including the "domestic violence overlay"--and the need

to "protect[] the public" applied to Tosi's sentence.

          The court also took seriously the supposedly mitigating

factors pressed by the defense, including Tosi's family and medical

history, but concluded that while some of these factors explained

Tosi's past conduct, a "risk of future conduct" also had to be

given weight.   The defense says that the court should have more

heavily focused on Tosi's employment record, management of his

psychiatric issues, and alleged good relationship with his own

children (we note that one of Tosi's protective orders was issued

to protect his child and the child's mother).

          Here, the district court weighed the mitigating factors

carefully, concluding (to Tosi's benefit) that the threat Tosi

poses was not so far above the average as to require a variant

sentence above the guideline range.    Adopting the top of the fully


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justified range (with a total offense level of twelve and CHC of

V), but going scarcely over halfway to the government's goal,

represented a compromise between factors weighing for and against

Tosi.   Here this compromise worked largely in Tosi's favor.    This

also answers fully Tosi's claim that the judge should have adopted

a sentence below the guideline range.

           A sentencing court is obliged to focus on the uniqueness

of the individual person and case before it.       United States v.

Ayala-Vazquez, 751 F.3d 1, 31 (1st Cir. 2014) (citing Gall v.

United States, 522 U.S. 38, 52 (2007)).      The district judge did

just that--properly and carefully conducting an individualized

sentencing as required by case law.     The judge's focus throughout

was on Tosi's own conduct and history and was in no way abstract

or mechanical.

           Tosi attacks the choice of CHC V, claiming that the

district court did not sufficiently justify the departure.       The

guideline resulting in the PSR's calculation of CHC III held down

artificially Tosi's criminal history points by capping the count

of one-point crimes to four points.      U.S.S.G. § 4A1.1(c).   As a

result, Tosi's ten criminal history points, which would correspond

to CHC V, were capped at six.

           The Sentencing Guidelines state that an upward departure

may be warranted when a defendant's CHC "substantially under-

represents the seriousness of the defendant's criminal history or


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the likelihood that the defendant will commit other crimes."

Id. § 4A1.3(a)(1).    After describing Tosi's "reoccurring pattern

of convictions," the court found that a CHC of III indeed failed

to reflect both Tosi's full criminal history and the likelihood

that he would engage in future criminal conduct.       That history

included domestic violence incidents, violations of conditions of

release, drug possession, and various other offenses.

            Tosi raises some more specific procedural arguments in

his reply brief--e.g., he complains that the district court upped

his CHC to V without "cit[ing] reliable information indicating

that [his] criminal history or likelihood to recidivate most

closely resembles CHC V defendants rather than CHC IV or CHC III

defendants."     But, as already noted, arguments available at the

outset but raised for the first time in a reply brief need not be

considered.    Carbajal-Váldez, 874 F.3d at 785 n.2.

            Lastly, the sentence of thirty-three months falls easily

"within the expansive universe of reasonable sentences."     United

States v. King, 741 F.3d 305, 308 (1st Cir. 2014) (citation

omitted).     Nothing in Tosi's arguments (which essentially rehash

his already-rejected procedural-reasonableness claims) makes the

choice of this within-guidelines sentence vulnerable.

            Tosi was sentenced by a district judge who, buttressed

by much experience, provided here a model of how to sentence a

defendant, showing both skill and sensitivity in his conduct of


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the proceeding and the calibration of his judgments.   Tosi has

shown no error in his sentence.

          Affirmed.




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