United States Court of Appeals For the First Circuit

No. 19-1488

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

GILBERTO LABOY-NADAL,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

Howard, Chief Judge, Boudin and Barron, Circuit Judges.

Marie L. Cortés-Cortés on brief for appellant. W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá- Almonte, Assistant United States Attorney, Chief, Appellate Division, and Gregory B. Conner, Assistant United States Attorney, on brief for appellee.

March 30, 2021 BOUDIN, Circuit Judge. Officers of the Puerto Rico

Police Department arrested Gilberto Laboy-Nadal ("Laboy") after

watching him toss a bag containing a loaded machinegun, an

ammunition magazine, and ammunition onto a patio in Ponce, Puerto

Rico. He was charged with unlawfully possessing a machinegun,

(o), and being a felon in possession of a firearm,

(g)(1). He pled guilty to both counts.

Laboy's Guidelines Sentencing Range ("GSR") was sixty-

three to seventy-eight months, but the district judge sentenced

him to 100 months in prison and two years of supervised release.

He now appeals his sentence. Based on the issues raised, our

review is for abuse of discretion. United States v. Santiago-

Rivera,

(1st Cir. 2014).1

Laboy argues that his sentence was unreasonable because

the judge relied on a Guideline provision that authorizes a

departure when "the defendant's criminal history category

substantially under-represents the seriousness of the defendant's

criminal history or the likelihood that the defendant will commit

other crimes," U.S.S.G. §4A1.3(a)(1), but in deciding that Laboy's

criminal history was underrepresented, the judge impermissibly

1 The government argues Laboy did not preserve his procedural objections below, which would entitle him to only plain error review. See United States v. Arroyo-Maldonado,

(1st Cir. 2015). However, his claims fail even under the less deferential abuse of discretion standard. - 2 - focused on Laboy's number of prior convictions rather than the

nature of each prior offense, see U.S.S.G. §4A1.3 cmt. n.2(B).

His second claim is that the judge failed to "structure the

departure" as the Guidelines require, by "moving incrementally

down the sentencing table to the next higher offense level in

Criminal History Category VI until it finds a guideline range

appropriate to the case." U.S.S.G. §4A1.3(a)(4)(B).

The government's answer is that the district judge

imposed a variance, not a departure, because the analysis at

sentencing tracked the statutory factors relevant when imposing a

variance. See

(a). Although this court has

sometimes characterized above-Guidelines sentences as variances

despite the sentencing court's "stray" use of the word "depart,"

those cases involved judges who said they were "departing" from

the Guidelines but then corrected themselves, or who used

"variance" and "departure" alternately. E.g., United States v.

Ríos-Rivera,

(1st Cir. 2019); United

States v. Nelson,

(1st Cir. 2015).

Here, the judge noted that "the Court considers an upward

departure pursuant to the provisions of United States Guidelines

4A1.3(a)(1)," immediately before announcing Laboy's sentence. And

despite repeated invocation and analysis of the

(a)

factors, the judge never uttered the words "variance" or "vary"

- 3 - during sentencing. It is therefore at least ambiguous whether the

district court was imposing a variance or a departure.

Ultimately, though, it does not matter: "any error in a

departure is harmless where the district court would have imposed

the same sentence as a variance in any event." United States v.

Aponte-Vellón,

(1st Cir. 2014). Even if the

district court imposed a departure rather than a variance, its

analysis tracked the § 3553(a) factors (including, contrary to

Laboy's argument, by examining the nature and circumstances of his

past convictions in addition to their number).

Laboy points out that the court cited a departure

provision, U.S.S.G. §4A1.3(a)(1), that depended on his criminal

history and likelihood of recidivism. But those considerations

are among the § 3553(a) factors, see

(a)(1),

(2)(C), and a variance analysis may "echo" a departure

consideration, United States v. Acevedo-López,

(1st Cir. 2017) (quoting Aponte-Vellón,

). Because

it analyzed the § 3553(a) factors, which this court has called

"the hallmark of a variance," United States v. Santini-Santiago,

(1st Cir. 2017), we are confident that the court

would have arrived at the same sentence had it done so under the

name of a variance.

Finally, Laboy argues that his sentence was unreasonably

long because the court overstated his criminal history and failed

- 4 - to consider his drug addiction as a mitigating factor. The

sentence will stand if the court put forth a "plausible sentencing

rationale and a defensible result." United States v. Martin,

(1st Cir. 2008).

The court's focus on Laboy's past convictions does not

take this sentence out of the broad universe of reasonable

sentences -- Laboy had twenty-three criminal history points at the

time of sentencing, easily surpassing the thirteen points that

would put him in the highest criminal history category under the

Guidelines. A court is entitled to rely on the "history and

characteristics of the defendant" as well as the need for the

sentence to promote respect for the law, deter future criminal

conduct, and protect the public.

(a)(1)-(2).

Laboy's extensive criminal history bears on all those

considerations. Similarly, the court did consider Laboy's history

of drug use, and it did not err merely by giving that potentially

mitigating factor less weight than Laboy argues it should have.

See United States v. Clogston,

(1st Cir. 2011).

Affirmed.

- 5 -