United States Court of Appeals For the First Circuit

Nos. 16-2141, 16-2142

UNITED STATES OF AMERICA,

Appellee,

v.

VÍCTOR VARGAS-MARTÍNEZ,

Defendant, Appellant.

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

[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]

Before

Howard, Chief Judge, Thompson and Kayatta, Circuit Judges.

Mary A. Davis and Tisdale & Davis, P.A., on brief for appellant. W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá- Almonte, Assistant United States Attorney, Chief, Appellate Division, and Francisco A. Besosa-Martínez, Assistant United States Attorney, on brief for appellee.

October 1, 2021 HOWARD, Chief Judge. While on bail pending trial for

charges of possession with intent to distribute marihuana, in

violation of

(a)(1), (b)(1)(B), and possession of

a firearm in furtherance of a drug trafficking offense, in

violation of

(c)(1)(A)(i), defendant-appellant

Víctor Vargas-Martínez ("Vargas") was once again arrested and

charged in a separate case with receipt of a firearm while under

indictment for a felony, in violation of

(n),

924(a)(2). Vargas eventually pleaded guilty to the firearm

offenses in both cases pursuant to separate plea agreements.

Following his request to be sentenced for both counts of conviction

in a single proceeding, the district court held a sentencing

hearing in which it sentenced Vargas to consecutive upwardly

variant sentences. Vargas now challenges the procedural

reasonableness of both sentences and the substantive

reasonableness of one of them. We affirm both sentences.

I. BACKGROUND1

On February 16, 2015, Puerto Rico Police Department

officers observed Vargas reach under a stairwell in a public

housing project, retrieve a drum magazine, and hand it to another

1 Because Vargas pleaded guilty, we draw the facts from the change-of-plea colloquies, the unchallenged portions of the Presentence Investigation Reports, and the sentencing hearing transcript. See United States v. De La Cruz-Gutiérrez,

(1st Cir. 2018). - 2 - individual who placed it in a bag. The officers detained Vargas

and the other individual. Inside the bag, the officers found the

drum magazine, which contained forty rounds of .40 caliber

ammunition, and a .40 caliber Kel Tec rifle with an obliterated

serial number, loaded with twenty-two rounds of ammunition. Under

the stairwell, the officers found a lunch box that had fifty-four

bags of marihuana identified with an "under armour" logo and two

Ziploc bags each containing seven baggies of marihuana. The

officers found twelve additional baggies of marihuana and two decks

of heroin in Vargas's jacket, and $369 in his pocket.

On February 18, 2015, a grand jury sitting in the

District of Puerto Rico returned an indictment charging Vargas

with possession with intent to distribute marihuana, in violation

of

(a)(1), (b)(1)(B), and possession of a firearm

in furtherance of a drug trafficking offense, in violation of

(c)(1)(A)(i) (Case No. 15-125).2 On February 23,

2015, Vargas was granted bail pending trial. As part of his

conditions of release, he had to wear an electronic monitoring

device and was placed in home detention, under the custody of his

mother.

Vargas, however, did not comply with his conditions of

release. At 7:27 p.m. on July 21, 2015, he left his home without

2 Vargas's confederate, later identified as Christopher Nieves-Pérez, was also charged in the same indictment. - 3 - authorization to do so. Vargas returned home, but he left again

later that night. At around 9:50 p.m., Puerto Rico Police officers

monitoring surveillance cameras saw Vargas acting suspiciously in

the parking lot of a Puma gas station in Bayamón, Puerto Rico.

They saw him reaching for his waistband for what seemed to be a

firearm. Police officers were dispatched to the area to take a

closer look. When they arrived at the area, the officers found

Vargas in the parking lot of a Bonanza restaurant, next to the

Puma gas station. He had a hammer, a loaded .40 caliber Ruger

pistol, a loaded magazine, a lighter, a flashlight, and $689 on

him. The officers arrested him.

Vargas asked the officers to inform his mother of his

arrest. The officers went to Vargas's home, informed Vargas's

mother of his situation and obtained her consent to search Vargas's

room. In his room, the officers found an additional loaded

firearm, a radio scanner, and a blade.

As a result of the events of July 21, 2015, Vargas was

charged in a new case (Case No. 15-485) with receiving a firearm

while being under indictment for a crime punishable by imprisonment

for a term exceeding one year, in violation of

(n),

924(a)(2). This new case was assigned to a different judge than

the one presiding over Case No. 15-125.

In March 2016, Vargas pleaded guilty to the sole count

in Case No. 15-485 pursuant to a plea agreement. In the plea

- 4 - agreement, the parties calculated a base offense level of twelve

under United States Sentencing Guidelines ("U.S.S.G.")

§ 2K2.1(a)(7), and a two-level reduction under § 3E1.1 for

Vargas's timely acceptance of responsibility, for a total offense

level of ten. The parties agreed to recommend a sentence at the

lower end of the resulting applicable Guidelines Sentencing Range

("GSR") when combining the total offense level of ten with the

criminal history category to be determined by the court. If

Vargas's criminal history category turned out to be I, the

resulting GSR would be six to twelve months and the parties would

recommend six months of imprisonment.

The following month, Vargas pleaded guilty to the

firearm count in Case No. 15-125 pursuant to another plea

agreement. In that plea agreement, the parties noted that the

guideline sentence for the offense of conviction was sixty months

of imprisonment, the statutory mandatory minimum. The parties

agreed to recommend that sentence to the court.

The Presentence Investigation Report ("PSR") in each

case tracked the plea agreements' calculations of the GSRs. Vargas

then requested that the court conduct a single sentencing hearing

in which he would be sentenced for both counts of conviction. The

court granted his request.

At the sentencing hearing, the court clarified that,

although Vargas was being sentenced simultaneously in both cases,

- 5 - he was being sentenced for "separate crimes," thus the cases were

"not consolidated for purposes of relevant conduct" and the

sentences would not be "concurrent." The court then calculated

the Guidelines' recommended sentence for each count of conviction.

In Case No. 15-485, it calculated a total offense level of ten,

which resulted from a base offense level of twelve pursuant to

U.S.S.G. § 2K2.1 and a two-level reduction pursuant to U.S.S.G.

§ 3E1.1(a) for Vargas's timely acceptance of responsibility. The

total offense level of ten, combined with a criminal history

category of I, yielded a GSR of six to twelve months of

imprisonment. As to Case No. 15-125, the court noted that the

statute allowed for an imprisonment term between sixty months and

life, and that the recommended guideline sentence was the

statutory-minimum term of sixty months' imprisonment.

The court stated that it had reviewed the plea

agreements, the PSRs, the parties' sentencing memoranda, had heard

counsels' arguments, and had considered the

(a)

sentencing factors. The court referenced Vargas's history and

characteristics, including his age, education, and prospects for

rehabilitation, as well as the "need to promote respect for the

law, provide just punishment, and protect the community from

further crimes [by Vargas]." It recounted the facts leading to

the two counts of conviction and commented that it was "troubling"

that while Vargas was on bail, he was "not obeying the conditions

- 6 - of release"; rather, he was "absconding from his residence" and

committing another firearm offense similar to the one for which he

was already facing trial. It was "extremely troubling" to the

court that Vargas "simply [did] not abide by the law."

Furthermore, the court mentioned that firearm offenses such as

those committed by Vargas are serious offenses not to be taken

lightly, especially in light of Puerto Rico's alarming crime rate.

Prior to sentencing Vargas, the court inquired from the

government whether it would move to dismiss the drug trafficking

count pending in Case No. 15-125 as part of the plea agreement in

that case, to which the government responded in the affirmative.

The court also noted that Vargas's criminal history category of I

in Case No. 15-485 was "a little bit deceiving" because, although

he had a conviction in Case No. 15-125, the fact that he had not

yet been sentenced translated into a lower criminal history

category and, consequently, a lower GSR.

The court then acknowledged the parties' recommended

sentence of sixty months in Case No. 15-125 but rejected it and

imposed an upwardly variant sentence of seventy-five months'

imprisonment, to be followed by five years of supervised release.

In the court's view, the parties' 60-month "recommendation

underrepresent[ed] the severity of the criminal conduct in [that]

case and more so the lack of utter respect for the [c]ourt's

conditions of release [on bail]." The court also highlighted that

- 7 - the firearm in Case No. 15-125 was loaded with twenty-two rounds

of ammunition and that, in addition, Vargas had a drum magazine

with forty additional rounds of ammunition, which could have killed

"a lot of people."

As to Case No. 15-485, the court also rejected the

parties' recommended sentence of six months' imprisonment and

imposed an upwardly variant sentence of eighteen months, to be

served consecutively to the sentence in Case No. 15-125, and to be

followed by three years of supervised release. The court noted

the "severity of the conduct," the fact that this was "repeated

conduct" as the offense was similar to that which gave rise to

Case No. 15-125, and underscored that "this [second] case [was]

way too soon" after the first one. In the court's view, that

Vargas committed this offense just a couple of months after being

released on bond in Case No. 15-125 showed his blatant disrespect

for the law.

The government then requested that the drug trafficking

count in Case No. 15-125 be dismissed pursuant to the plea

agreement. The court granted the request. After sentencing

Vargas, the court mentioned that it had considered a higher

sentence because of the "troubl[ing]" nature of Vargas's conduct,

but decided against it because of Vargas's "prospects for

rehabilitation" due to his young age. It also explained that if

the government had not dismissed the drug trafficking count in

- 8 - Case No. 15-125, he would have faced "another consecutive sentence"

so, in the court's opinion, Vargas "benefit[ed]" from the plea

deal and the court's sentence. Vargas did not object to the

sentences imposed. These consolidated appeals followed.3

II. ANALYSIS

On appeal, Vargas challenges the procedural

reasonableness of both sentences and the substantive

reasonableness of his sentence in Case No. 15-485. We review

sentencing decisions for "reasonableness, regardless of whether

they fall inside or outside the applicable GSR." United States v.

Turbides-Leonardo,

(1st Cir. 2006). Our review is

bifurcated. We first ensure that the district court has committed

no significant procedural error, such as "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."

United States v. Díaz-Rivera,

(1st Cir. 2020)

(quoting United States v. Bermúdez-Meléndez,

, 163

3 Because Vargas was not sentenced in accordance with the parties' sentencing recommendations, the waiver-of-appellate- rights provisions in his plea agreements do not bar his appeals. See United States v. Fernández–Cabrera,

(1st Cir. 2010). - 9 - (1st Cir. 2016)). "[I]f the sentence is procedurally sound, we

then ask whether the sentence is substantively reasonable." United

States v. Rossignol,

(1st Cir. 2015). A sentence

is substantively reasonable so long as the sentencing court has

provided a "plausible sentencing rationale" and reached a

"defensible result." United States v. Martin,

(1st Cir. 2008) (citing United States v. Jiménez-Beltre,

, 519 (1st Cir. 2006)).

We generally apply the deferential abuse-of-discretion

standard to preserved challenges to the procedural reasonableness

of a sentence.4 United States v. Del Valle-Rodríguez,

(1st Cir. 2014). However, when, as here, the defendant

failed to preserve an objection to the procedural reasonableness

below, the plain error standard supplants that customary standard

of review. United States v. Rondón-García,

(1st Cir. 2018). Under the plain error standard, the defendant

must show: "(1) that an error occurred (2) which was clear or

obvious and which not only (3) affected the defendant's

substantial rights, but also (4) seriously impaired the fairness,

integrity, or public reputation of judicial proceedings."

4 Under this standard, "we afford de novo review to the sentencing court's interpretation and application of the sentencing guidelines, assay the court's factfinding for clear error, and evaluate its judgment calls for abuse of discretion." United States v. Ruiz-Huertas,

(1st Cir. 2015). - 10 - United States v. Medina-Villegas,

(1st Cir. 2012)

(quoting United States v. Duarte,

(1st Cir. 2001)).

Vargas first argues that his 75-month sentence in Case

No. 15-125 was the result of the district court's "misapplication"

of the Guidelines. According to Vargas, because the guideline

sentence for a § 924(c) conviction is sixty months, "[his] sentence

should have been capped at the 60-month mandatory minimum" and the

court could not consider "other adjustments" and enhancements,

including "[e]nhancements for relevant conduct" in determining his

sentence. In his view, because the court relied on the facts of

Case No. 15-485 to "enhance his sentence beyond the called for

60 months," it misapplied the Guidelines and the sentence in

Case No. 15-125 was procedurally unreasonable.

Vargas's argument is based on faulty foundations. For

starters, we note that Vargas conceded both below and on appeal

that the court's Guidelines calculations were correct.

Furthermore, the record shows that, contrary to Vargas's

contentions, the court did not apply any adjustments or

enhancements (based on relevant conduct5 or otherwise) under the

Guidelines in determining the sentence for his § 924(c) conviction.

Instead, the court varied upwardly from the guideline sentence

5 The court clarified that it was sentencing Vargas for "separate crimes" and that the facts leading to Case No. 15-485 were not considered "relevant conduct" to the offense of conviction in Case No. 15-125. - 11 - merely based on the § 3553(a) sentencing factors. And despite

Vargas's claim to the contrary, nothing prohibited the court from

doing so. That the guideline sentence for a § 924(c) conviction

is "the minimum term of imprisonment required by the statute"

(sixty months), see U.S.S.G. § 2K2.4(b), does not mean that the

court is required to impose that sentence. See United States v.

Booker,

(2005) (holding that the Guidelines are

no longer mandatory, but rather advisory). The court is free to

select a sentence within the range allowed by the statute. Here,

the penalty range for Vargas's § 924(c) conviction was between

five years (or sixty months) and life imprisonment pursuant to

(c)(1)(A)(i). See United States v. Ortiz-García,

(1st Cir. 2011). Hence, the court could select

a sentence from that range based on its weighing of the different

sentencing factors, as long as the sentence was "not greater than

necessary[] to achieve the purpose of sentencing." United States

v. Pupo,

, 30 n.6 (1st Cir. 2021).

Vargas next argues that, under the Guidelines, any

§ 924(c) sentence over the statutory mandatory minimum constitutes

a "departure" governed by the Guidelines rather than a "variance"

and that such a departure was unwarranted here since this was a

"run-of-the-mill possession in furtherance case" and "there were

no factors that took the offense [of conviction] out of the

heartland." According to Vargas, the court based its alleged

- 12 - departure on Case No. 15-485, in which he had a firearm "merely

stuck in his waistband . . . . for protection as he had been

threatened."

We have observed that, post-United States v. Booker,

(2005), the distinction between departures and

variances is one of form rather than substance. United States v.

Santini-Santiago,

(1st Cir. 2017). In any event,

we have repeatedly rejected Vargas's contention that any § 924(c)

sentence over the statutory mandatory minimum constitutes a

departure. See United States v. Oquendo–García,

(1st Cir. 2015) (explaining that "[w]e will treat a sentence above

a statutory mandatory minimum under section 924(c) as an upward

variance, absent some indication in the sentencing record which

persuades us that the district court intended to or in fact applied

an upward departure") (internal quotation marks, brackets, and

citations omitted); see also United States v. Rivera-Gonzalez,

(1st Cir. 2016) (rejecting same argument as

contrary to our case law). Here, nothing in the record indicates

that the court was applying an upward departure. To the contrary,

the record reveals the court's intention to impose an upward

variance based on the § 3553(a) sentencing factors. And although

Vargas diminishes the seriousness of his conduct claiming that

this was a "run-of-the-mill possession," the district court's

different view on the seriousness of Vargas's conduct and its

- 13 - pondering of the remaining § 3553(a) sentencing factors is not

clearly or obviously erroneous. The record reflects that the

court's decision to impose an above-guideline sentence in

Case No. 15-125 was not just because Vargas had a firearm "merely

stuck in his waistband." Rather, it reflects that the driving

force behind the upward variance was Vargas's evident lack of

respect for the law, the court, and his conditions of release.

The court explained that it was "deeply troubled" by the fact that,

shortly after being granted bail pending trial, Vargas absconded

from home detention and armed himself with another loaded firearm

and forty additional rounds of ammunition, which, in the court's

view, spoke volumes about Vargas's characteristics and showed his

utter lack of respect for the court and his conditions of release.

Furthermore, mindful of Vargas's characteristics, the court also

considered that the offense for which Vargas was being sentenced

was a serious one, which could have gotten many people killed and

thus should not be taken lightly, especially in light of Puerto

Rico's alarming crime rate. See United States v. Carrasquillo-

Sánchez,

(1st Cir. 2021) (explaining that courts

may consider community-based concerns, such as the high incidence

of gun violence in Puerto Rico, provided that such consideration

is tied to the "individual characteristics of either the offender

or the offense of conviction"). Moreover, the court noted that

Vargas was benefiting from the dismissal of the drug trafficking

- 14 - charge, which would have resulted in "another consecutive

sentence." See Díaz-Rivera,

(validating the

district court's consideration of the nature of the charges that

were dismissed pursuant to the plea agreement in imposing an

upwardly variant sentence). The district court's explanation as

to why a 15-month upward variance was necessary to accomplish the

goals of sentencing, including to promote respect for the law,

provide just punishment to Vargas, and protect the community from

further crimes by him, was not error, plain or otherwise.

Vargas next argues that the court improperly imposed

multiple punishments for the same act, i.e., his possession of the

Ruger pistol. According to Vargas, the court impermissibly "double

counted th[e] same Ruger possession" and imposed three different

sentences for his possession of that firearm: a 12-month sentence

"under [U.S.S.G.] § 2K2.1" in Case No. 15-485, an additional

6-month sentence in that same case, and an enhancement by fifteen

months for the sentence in Case No. 15-125. His argument lacks

merit.

Vargas did not receive three sentences for the same

offense. He received two sentences, each for different offenses

committed on different dates: he received a 75-month sentence in

Case No. 15-125 for his possession of the Kel Tec rifle in

furtherance of a drug trafficking offense on February 16, 2015,

and an 18-month sentence in Case No. 15-485 for possessing the

- 15 - Ruger pistol while under indictment for a felony on July 21, 2015.6

Although both sentences were imposed in the same proceeding, the

court clearly stated that the two sentences were being imposed for

"different offenses" in separate cases.

In sentencing Vargas for his possession of a firearm in

furtherance of drug trafficking in Case No. 15-125, the court took

into consideration, among other factors indicative of Vargas's

characteristics, that he had violated his release conditions by

possessing another firearm -- the Ruger pistol. This, however,

did not constitute impermissible double counting. "Double

counting concerns usually involve the use of a single factor more

than once to calculate the [applicable GSR.]" United States v.

Maisonet-González,

(1st Cir. 2015) (citing

United States v. Fiume,

(1st Cir. 2013)). Here,

the court did not use the Ruger possession even once in determining

the guideline sentence.

Likewise, the court did not engage in double counting

when sentencing Vargas in Case No. 15-485 as it did not use

Vargas's possession of the Ruger pistol twice in calculating the

applicable GSR. Although the court did consider the nature and

circumstances of the offense in fashioning the sentence after

6 Nor did Vargas receive two sentences in Case No. 15-485. He received a single sentence that varied upwardly (by six months) from the high end of the applicable GSR (which was twelve months). - 16 - calculating the GSR, this does not constitute double counting.

See id. at 764 (explaining that an "overlap between the Guidelines

and other sentencing factors enumerated in

(a)"

-- such as when the court "factor[s] [a] defendant's prior criminal

history into his base offense level and then consider[s] their

particular gravity as a factor in determining how stringent his

sentence should be" -- "d[oes] not constitute double counting and

is neither surprising nor impermissible" (citation omitted));

see also United States v. Cruzado–Laureano,

(1st Cir. 2008) ("The court's consideration of appellant's

attitude toward the crime, as well as the serious nature of the

offense, was appropriate under both the Guidelines and

(a) . . . . "). And to the extent that Vargas's plaint can

be construed as challenging the court's consideration of the same

§ 3553(a) sentencing factors in fashioning both sentences, it fares

no better. Here, the court imposed two separate sentences for two

different offenses in two separate cases. The court had the duty

to consider all the § 3553(a) sentencing factors in determining

each of the sentences. See Díaz-Rivera,

(explaining

that failing to consider the § 3553(a) sentencing factors is a

procedural error).

Building on his previous argument, Vargas argues that

the district court erred in imposing consecutive sentences. He

acknowledges that

(c)(1)(D)(ii) requires that his

- 17 - sentence for his § 924(c) conviction in Case No. 15-125 be

consecutive to any other term of imprisonment imposed on him but

argues that such requirement only applies to the "60-month

mandatory minimum." He insists that "the 15-month bump beyond

that mandatory consecutive 60 months should have been concurrent

to the [sentence in Case No. 15-485] because it was for the same

exact conduct."

Although Vargas conveniently breaks up his 75-month

sentence for his § 924(c) conviction into "60-month mandatory

minimum" plus "15-month bump," the truth is he received a single

75-month sentence for his conviction. The statute requires that

the entire sentence imposed for his § 924(c) conviction run

consecutive to any other term of imprisonment imposed on him.

See

(c)(1)(D)(ii) (stating that "no term of

imprisonment imposed on a person under this subsection shall run

concurrently with any other term of imprisonment imposed on the

person"). There is nothing unreasonable about imposing a

consecutive sentence when the consecutive nature is required by

law. Furthermore, we reiterate that this sentence was imposed for

his possession of a Kel Tec rifle in furtherance of a drug

trafficking offense (Case No. 15-125), which was a different

offense than his possession of a Ruger pistol while under

indictment (Case No. 15-485).

- 18 - Finally, Vargas contends that his sentence in

Case No. 15-485 is substantively unreasonable because the district

court relied exclusively on the elements of the offense to justify

a sentence above the GSR. According to Vargas, "the court did not

provide any reason" for imposing a variant sentence other than "he

was on bond [and] should not be carrying another firearm," which

were the elements of the offense. Because the guideline sentence

already accounted for those facts, his argument goes, the court

could not use them to justify a variance absent an explanation as

to why his situation was different from the ordinary situation

covered by the Guidelines.7

7 In his brief, Vargas refers to this argument about the adequacy of the court's explanation for its chosen sentence as both procedural and substantive. In the past, we have characterized similar arguments under our precedent "as either a [claim of] procedural error or a challenge to the substantive reasonableness of the sentence." United States v. García-Pérez,

, 52 n.1 (1st Cir. 2021) (alteration in original) (quoting United States v. Crespo-Ríos,

, 37 n.3 (1st Cir. 2015)). Vargas's claim of procedural error is not preserved. And although it is clear that his argument for a 6-month sentence preserved his claim on appeal that his 18-month sentence was unreasonably long, see Holguin-Hernandez v. United States, ___ U.S. ___,

(2020), it is much less clear whether it was sufficient to preserve any other substantive-reasonableness argument, see

(Alito, J., concurring) (clarifying that the Court was not deciding "what is sufficient to preserve any 'particular' substantive-reasonableness argument"). Nevertheless, because his challenge fails even if we adopt the substantive framing and assume favorably to him that his claim was preserved, we need not conclusively decide the proper framing or whether his claim was preserved. - 19 - Preserved challenges to the substantive reasonableness

of criminal sentences engender abuse-of-discretion review.

See Holguin-Hernandez v. United States, ___ U.S. ___,

(2020); United States v. Bruno-Campos,

(1st Cir. 2020). We approach such challenges mindful that "[t]here

is no one reasonable sentence in any given case but, rather, a

universe of reasonable sentencing outcomes." United States v.

Clogston,

(1st Cir. 2011) (citing Martin,

). Our task is "to determine whether the

[challenged] sentence falls within this broad universe."

United States v. Rivera-Morales,

(1st Cir. 2020).

The hallmarks of a substantively reasonable sentence are

a plausible sentencing rationale and a defensible result.

Clogston,

. Where, as here, a variant sentence is

imposed, the district court's explanation for the deviation

"should typically be rooted either in the nature and circumstances

of the offense or the characteristics of the offender," and "must

justify a variance of the magnitude in question." Martin,

. This requirement, however, "does not require the court to

be precise to the point of pedantry." Del Valle-Rodríguez,

. It is against this backdrop that we turn to the

defendant's contention.

Vargas is right that a sentencing court may not

exclusively rely on the elements of the offense to support an

- 20 - upward variance. See United States v. García-Pérez,

(1st Cir. 2021) (explaining that the court's reliance on the

defendant's "possession of a machinegun cannot suffice as an

adequate explanation for its [upwardly] varian[t]" sentence for

his

(o) conviction); see also United States v.

Rivera-Santiago,

(1st Cir. 2019) (explaining that

"[w]hen a § 3553(a) consideration is already accounted for in the

guideline range, a sentencing court 'must articulate specifically

the reasons that this particular defendant's situation is

different from the ordinary situation covered by the guidelines

calculation'" (quoting United States v. Guzman-Fernandez,

(1st Cir. 2016))). However, contrary to Vargas's

contentions, the district court did not rely exclusively on the

elements of Vargas's offense of conviction in imposing an upwardly

variant sentence. The record makes manifest that the court

premised Vargas's sentence on a panoply of facts to which it

alluded in open court immediately before imposing the sentence,

and which were relevant to the nature and circumstances of the

offense and to Vargas's characteristics. The court emphasized not

only the severity of Vargas's conduct and that such conduct was

similar to the one for which he was awaiting trial in

Case No. 15-125, but also the closeness in time between his release

on bail in Case No. 15-125 and his new criminal conduct. The court

expressed its concern that "this [second] case [was] way too soon"

- 21 - after the first one. Furthermore, the court noted that, in

addition to the loaded firearm and multiple rounds of ammunitions

seized from Vargas when he was arrested near the Bonanza

restaurant, the officers had found an additional loaded firearm,

a radio scanner, and a blade when they searched his bedroom on the

day of his arrest. In the court's view, this showed Vargas's

blatant disrespect for the law and that he was "an individual who

simply does not abide by the law." In addition, the court

considered that Vargas's criminal history category of I was "a

little bit deceiving" because, although he had already been

convicted in Case No. 15-125, the fact that he had not yet been

sentenced translated into a lower criminal history category and,

thus, a lower GSR. See Del Valle-Rodríguez,

("[A]n

upward variance may be justified by . . . a finding that the

defendant's criminal history score underrepresents the gravity of

his past conduct . . . ."). Upon considering these circumstances,

as well as the remaining § 3553(a) sentencing factors, the court

determined that the GSR did not properly reflect the seriousness

of the offense, did not necessarily promote respect for the law or

protect the community from further crimes by Vargas. The

explanation provided by the court was adequate to support its

variant sentence. Because the district court gave a plausible

explanation and reached a defensible result in light of the

- 22 - § 3553(a) sentencing factors, Vargas's sentence in Case No. 15-458

is substantively reasonable.

III. CONCLUSION

For the foregoing reasons, Vargas's sentences are

affirmed.

- 23 -