Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 20-1132

UNITED STATES,

Appellee,

v.

CHARLIE D. VICK,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before

Thompson, Boudin, and Barron, Circuit Judges.

Edward J. Romano, Esq., on brief for appellant. Aaron L. Weisman, United States Attorney, and Lauren S. Zurier, Assistant United States Attorney, on brief for appellee.

April 13, 2021 BOUDIN, Circuit Judge. Charlie Vick pled guilty to

possessing ammunition, being a convicted felon,1

(g)(1), and now appeals his sentence. Vick's Guidelines

Sentencing Range ("GSR") was twenty-one to twenty-seven months,

and the district court varied upward to impose a sentence of

thirty-six months in prison followed by three years of supervised

release. Vick's unpreserved complaints are reviewed for plain

error, United States v. Ortíz-Mercado,

(1st Cir.

2019), and his preserved complaints for abuse of discretion, see

United States v. García-Mojica,

(1st Cir.

2020).

Vick first argues the sentencing judge gave too much

weight to his previous arrests that did not result in convictions.

Although a sentencing court may not rely on a defendant's mere

arrest record, United States v. Santa-Soler,

(1st

Cir. 2021) (citing United States v. Marrero-Pérez,

(1st Cir. 2019)), "[i]n certain perhaps rare cases [not present

here], a reasonable person might in particular circumstances

assign some weight to a collection of arrests." Marrero,

. At bottom, a sentencing court must not "equate arrest with

1 Vick had prior adult convictions for forgery of a check and related charges, carrying a dangerous weapon, attempting to commit a crime (breaking and entering), threatening to commit a crime (kill), unlicensed operation of a motor vehicle, possession of a large capacity weapon, and knowingly receiving stolen property.

- 2 - guilt."

; see also United States v. Díaz-Rivera,

(1st Cir. 2020).

The district court noted all "three parts" of Vick's

long criminal history: convictions, arrests, and civil abuse

prevention orders. As of sentencing, Vick had at least seven

convictions, had been arrested twenty-eight times, had three

pending criminal cases, and had eight civil abuse prevention orders

issued against him. When discussing Vick's prior arrests, the

district court properly emphasized that "a lot" of arrests resulted

in dismissals and, unlike convictions, the arrests "can't count .

. . as criminal history" and "don't get points." Thus, the

district court made clear it "can't treat [arrests] like

convictions." Instead, the district court properly compared

Vick's arrest record to other sections of his presentence report

("PSR"), such as his employment history and family situation,

noting that each such aspect of Vick's circumstances helped "paint

a picture of the defendant." The district court concluded that

while arrests "are worth paying some attention to," it did not

"put the same weight on those that [it] put[s] on to the criminal

history where you receive convictions" because convictions "get a

lot more weight and . . . certain criminal history points."

While the district court's last statement regarding the

relative weight afforded to arrests would have been better left

unsaid, the court's reference does not show that it equated arrests

- 3 - with guilt. In ultimately announcing the decision to vary upwards,

the court focused on two aspects of Vick's conduct: "threatening,

assaultive, violent behavior" and "an obsession of some sort, with

firearms," which, in turn, motivated concerns for public safety

and recidivism. These insights were properly gleaned from the

full complement of reliable information available to the court,

including Vick's previous convictions and the circumstances of the

instant arrest. See Díaz-Rivera,

.

Vick says that the sentencing judge gave too much weight

to his alleged involvement in a shootout the morning of his arrest.

Initially, Vick's PSR included a sentencing enhancement based on

the government's argument that Vick had been involved in a shooting

the morning he bought the ammunition. Later, the government

requested a sentencing enhancement because Vick had gone to a

shooting range after purchasing the ammunition and used a gun

there.2 The judge refused to apply an enhancement but concluded

that Vick likely bought the ammunition for violent purposes, saying

that "[s]omething's going on, and we don't know exactly what it

2 Both possessing ammunition and possessing a firearm are criminal offenses if the possessor is a convicted felon. See

(g)(1). The government's argument under both theories relied on U.S.S.G § 2K2.1(b)(6)(B), which requires a sentencing enhancement if the ammunition Vick bought was possessed in connection with another offense. As Vick was a convicted felon, possessing a firearm would violate

(g)(1) and thus would constitute another offense.

- 4 - is, but it says to me that there's a serious public safety risk

here with what you're up to."

The judge's inference was that when Vick bought

ammunition, he planned to use it to shoot a gun. This was a

reasonable inference based on Vick's history. See United States

v. Montañez-Quiñones,

(1st Cir. 2018).

Vick next argues that the district court's mention of

his previous convictions during the explanation of his sentence

was error because the convictions were already accounted for in

his GSR. See United States v. Zapete-Garcia,

(1st

Cir. 2006). Vick's convictions were indeed accounted for in his

GSR through the criminal history calculation, but the criminal

history calculation did not account for the pattern of violent

behavior and the "obsession" with firearms revealed by his

convictions.

Vick also argues the criminal history calculation

overrepresented the seriousness of his previous convictions

because he believes he received too many points for minor offenses.

Vick cites no authority for this attack, nor could he; there is no

error in using a correctly calculated GSR in sentencing. To the

extent Vick argues his criminal history was incorrectly

calculated, he waived this argument by failing to present any

support for his assertion. See, e.g., United States v. Tanco-

Pizarro,

, 483 n.7 (1st Cir. 2018).

- 5 - Vick additionally argues his sentence was unreasonably

long, but the sentence rested on a "plausible rationale" and

produced a "defensible result." United States v. Flores-

Machicote,

(1st Cir. 2013) (quoting United States

v. Martin,

(1st Cir. 2008)); see also

(a)(1), (a)(2)(A)-(C).

Finally, Vick argues the district court "gave short

shrift" to other relevant sentencing factors such as his age,

physical health, substance abuse, social and family history,

education, and employment. But the weighing of relevant sentencing

factors "is largely within the court's informed discretion."

United States v. Santiago-Rivera,

(1st Cir. 2014)

(internal quotation marks and citation omitted). The record shows

the district court properly considered all the relevant sentencing

factors. See

(a). It specifically emphasized the

nature and circumstances of the offense, Vick's history and

characteristics, deterrence, and public protection. The court's

decision to focus on these factors over others "does not undermine

the 'significant weight' we afford a court's statements regarding

the factors and information it considered at sentencing." United

States v. Frederickson, No. 20-1033,

, at *11 (1st

Cir. Feb. 16, 2021) (quoting United States v. Márquez-García,

(1st Cir. 2017)).

Affirmed.

- 6 -