United States Court of Appeals
                       For the First Circuit


No. 21-1863

                      UNITED STATES OF AMERICA,

                              Appellee,

                                 v.

            ROBERTO M. MELENDEZ-HIRALDO, A/K/A COCODRILO,

                        Defendant, Appellant.


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

           [Hon. Francisco A. Besosa, U.S. District Judge]


                               Before

                Lipez and Montecalvo, Circuit Judges,
                     Burroughs,* District Judge.


     Jose Luis Novas-Debien on brief for appellant.
     W. Stephen Muldrow, United States Attorney; Mariana E.
Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate
Division; and Maarja T. Luhtaru, Assistant United States Attorney,
on brief for appellee.


                         September 21, 2023




     *   Of the District of Massachusetts, sitting by designation.
          MONTECALVO, Circuit Judge.    Roberto M. Melendez-Hiraldo

("Melendez") appeals from a 194-month sentence imposed after he

pled guilty to using, carrying, brandishing, and discharging a

firearm in furtherance of a crime of violence in violation of

(c)(1)(A)(iii) and (2).        Melendez challenges the

procedural and substantive reasonableness of his sentence.     Having

discerned no error, we affirm.

                         I.     Background1

          On June 8, 2018, Melendez was involved in the kidnapping

and murder of a rival gang member, referred to by the parties as

"WGE."   WGE had been threatening members of Melendez's gang, so

Melendez, with four other members of his gang, participated in the

killing of WGE to support the gang.

          On the day of the murder, Melendez traveled with members

of his gang to the public housing complex where WGE lived.      Armed

with guns, Melendez and his codefendants forced WGE out of his

home and into a Toyota Camry.    WGE was transported in the Camry to

Barraza's Ward by a codefendant.     Other codefendants, along with

Melendez, traveled in a separate vehicle to Barraza's Ward.     While

he remained in the car, Melendez watched two codefendants take WGE


     1    Because this sentencing appeal follows a guilty plea, we
draw the relevant facts from the plea agreement, the undisputed
portions   of   the-change-of-plea   colloquy,   the   presentence
investigation report ("PSR"), and the sentencing record.       See
United States v. Spinks, 

 (1st Cir. 2023).



                                - 2 -
out of the Camry and saw them shoot WGE multiple times.        Although

Melendez did not shoot WGE, a cooperating witness alleged that

Melendez and another codefendant gave a revolver to the person who

first shot WGE.2

           On August 19, 2020, Melendez and four codefendants were

charged   in   a   three-count   second   superseding   indictment   (the

"indictment") for the kidnapping and murder of WGE. The indictment

charged Melendez with kidnapping resulting in death, in violation

of 

(a)(1) and (2); using, carrying, brandishing,

and discharging a firearm during and in relation to a crime of

violence, in violation of 

(c)(1)(A)(iii) and (2);

and using, carrying, and discharging a firearm during and in

relation to a crime of violence causing murder, in violation of 

(j)(1) and (2).

           On June 21, 2021, Melendez pled guilty to count two of

the indictment, and in exchange the government agreed to dismiss

the remaining counts.     Pursuant to the plea agreement, the parties

stipulated that Melendez's guidelines sentence was 120 months, the

minimum term of imprisonment required by statute.           The parties

also agreed to jointly recommend a sentence of 164 months, to be



     2    Melendez did not file formal objections to the PSR, but,
at sentencing, he challenged this statement. The sentencing court
rejected his objection and relied on the cooperating witness's
statement at sentencing. On appeal, Melendez does not challenge
the district court's finding.


                                  - 3 -
served consecutively with a previously imposed 46-month sentence

Melendez had received in an unrelated federal case.3                 Finally,

Melendez stipulated to the statement of facts incorporated into

the plea agreement.          The court accepted Melendez's change of plea.

                 Melendez's sentencing followed. Pursuant to the plea

agreement,        Melendez   and   the   government   jointly   recommended   a

164-month sentence for the firearms offense.                At the hearing,

Melendez defended the recommendation before the court, arguing

that       164     months    was   "more    than   sufficient    punishment,"

particularly given certain mitigating factors discussed in his

sentencing memorandum, including "his family background, or lack

thereof, . . . [the fact that] he's the first to plead guilty,

[and data showing] people age out of crime."

                 The district court stated twice that the applicable

guidelines sentence for the single count was 10 years, or 120

months, and acknowledged that the parties had agreed to a variant

sentence of 164 months.              It also     referenced Melendez's age,

employment history, ninth grade education, and history of drug use

as factors relevant to his sentencing.

                 Before weighing in on the appropriate sentence, the

court summarized the offense and detailed Melendez's criminal



       3  In criminal case No. 18-581, Melendez pled guilty to
violating 

(g)(1) by illegally possessing a firearm
three months after the killing of WGE.


                                         - 4 -
history. Along the way, the court calculated the applicable number

of criminal history points that Melendez would have accrued for

each conviction, noting that Melendez scored additional points for

the instant conviction because he committed it while on escape

status.   In the end, the court concluded that Melendez "could have

scored eight criminal history points, establishing a criminal

history category of four," but added that "criminal history points

. . . do not apply for this firearm conviction."

           Next, having heard from the parties and considered the

relevant sentencing factors, the district court announced that it

would not be adopting the joint recommendation because it "agree[d]

with the probation officer" that a 164-month sentence did not

adequately "reflect the seriousness of the offense, does not

promote respect for the law, does not protect the public from

further crimes by . . . Melendez, and does not address the issues

of deterrence and punishment."4

           A detailed description of the offense followed.   After

describing the kidnapping, the court focused on the brutality of



     4    During this colloquy, the court stated: "[t]he parties
agreed to recommend a varian[t] sentence . . . well, actually it's
not a varian[t] sentence. It's within -- it's 10 months to life."
We treat this as a misstatement where earlier in the hearing the
court properly noted that "[t]he guideline sentence is the minimum
term of imprisonment required by statute, which, in this case, is
a minimum term of imprisonment of 10 years," or 120 months. We
therefore proceed with the understanding that the court understood
it was imposing an upwardly variant sentence.


                               - 5 -
the murder, noting that "the victim received 10 shots to the head

and 12 to his upper body," and that even after he was "shot to the

head and dropped to the floor," he "receiv[ed] multiple shots."

The court also noted that just before WGE was murdered, the

codefendant who fired the first shot said, "Llego tu dia" ("[y]our

day had arrived").    The court added that "Melendez and [another]

codefendant" were responsible for "giv[ing] a revolver" to the

first shooter.

          When it finished detailing the kidnapping and murder,

the court remarked:

          Accordingly -- again, the [c]ourt agrees with
          the   probation  officer   [that   the   joint
          recommendation   is   inadequate].   .   .   .
          Accordingly, it is the judgment of the
          [c]ourt, [that] . . . Melendez . . . is
          committed to the custody of the Bureau of
          Prisons to be imprisoned for a term of 194
          months to be served consecutively to the
          46-month sentence imposed on him in Criminal
          [Case] No. 18-581, for a total sentence of 240
          months of imprisonment. . . . Upon release .
          . . Melendez shall be placed on supervised
          release for a term of five years.

Melendez objected and this timely appeal followed.5




     5    Pursuant to Melendez's plea agreement, the government
asked the court to dismiss all remaining counts in this case and
the companion criminal case, 18-cr-0451 (FAB), against him. The
court granted the government's request and dismissed the remaining
counts.


                               - 6 -
                             II.   Discussion

            We ordinarily review preserved claims of sentencing

error for abuse of discretion.      United States v. Montero-Montero,

 (1st Cir. 2016).           "That review typically starts

with claims of procedural error."               

   Such errors 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 v. United States, 

 (2007).

            Assuming the sentence is procedurally sound, we then

consider the substantive reasonableness of the sentence under an

abuse of discretion rubric.        

         A sentence is substantively

reasonable if it "reflects 'a plausible sentencing rationale and

a defensible result.'"      United States v. Rossignol, 

 (1st Cir. 2015) (quoting United States v. Martin, 

 (1st Cir. 2008)).        "[O]ur review is limited to determining

whether [the district court's] sentence, 'in light of the totality

of the circumstances, resides within the expansive universe of

reasonable sentences.'"      

 (quoting United States v. King, 

 (1st Cir. 2014)).

            But when a defendant fails to preserve a claim of

procedural or substantive error below, we review for plain error.


                                   - 7 -
Montero-Montero, 

.               "To succeed under plain error

review, an appellant must show '(1) that an error occurred (2)

which was clear or obvious and which not only (3) affected the

[appellant's] substantial rights, but also (4) seriously impaired

the     fairness,      integrity,    or     public     reputation    of    judicial

proceedings.'"          

   (alteration     in     original)   (quoting    United

States v. Duarte, 

 (1st Cir. 2001)).

                        A.    Procedural Reasonableness

            Melendez lodges several challenges to the procedural

reasonableness of his sentence.               He contends that the district

court    erred    by    (1)   making      conflicting    statements       about   his

applicable guidelines sentence; (2) failing to consider relevant

mitigating       factors;     (3)   not    providing     specific    reasons       for

upwardly varying beyond the parties' recommended sentence; (4)

failing to identify its reasons for imposing an upwardly variant

sentence; and (5) not stating clearly whether it was departing or

varying from the applicable guidelines sentence.

            As    a    threshold    matter,     the    government    argues       that

Melendez waived his procedural challenges because he failed to

preserve his claims below and did not address the plain error

standard in his opening brief.             "To preserve a claim of procedural

sentencing error for appellate review, a defendant's objection

need not be framed with exquisite precision."                    United States v.

Rivera-Berríos, 

 (1st Cir. 2020) (citing United


                                       - 8 -
States v. Soto-Soto, 

, 448 n.1 (1st Cir. 2017)).          It

must, however, be "sufficiently specific to call the district

court's attention to the asserted error."         

 (quoting Soto-Soto,

 n.1).

           Here, after the court handed down the sentence, Melendez

made the following objection:

           We object to, first of all, the recitation of
           facts. My client only accepts the stipulation
           of facts as entered into the plea agreement
           . . . . There are no proper reasons for the
           excessively upward variance in the [c]ourt's
           sentence.   As the [c]ourt noted, the proper
           guideline for the charge is 120 months. The
           parties came up with an already-included
           variance as a recommendation of 44 months,
           which is a total of 164 months.        924(c)
           convicts have a lower risk[] of recidivism as
           per US Sentencing Commission studies.

           And for those reasons . . . we object to the
           sentence[] and will entertain the possibility
           of appealing the variance that was handed down
           of 30 months on top of the recommended
           sentence.

Because Melendez alerted the court to a perceived deficiency in

its justification for varying upward, he preserved the two related

claims: (1) that the district court failed to provide specific

reasons   for   varying   upward   beyond   the    parties'   recommended

sentence and (2) that the district court did not identify its

reasons for the upward variance.       See Rivera-Berríos, 

 (concluding that defendant preserved his procedural claim

where "appellant's counsel made clear that he believed that the



                                   - 9 -
sentence was 'excessive' and that the court had not articulated

any cognizable grounds that would support an upward variance").

            Because the objection does not reach the subject matter

of Melendez's three remaining procedural challenges,6 those claims

are subject to plain error review.   But Melendez "does not attempt

to satisfy that standard of review" in his opening brief. United

States v. Rodriguez-Monserrate, 

 (1st Cir. 2021).

And even in the face of the government raising this deficiency,

Melendez forewent the opportunity to explain by opting not to

reply.   Melendez has therefore waived his unpreserved claims. 

            We review the two surviving procedural claims for abuse

of discretion.    Soto-Soto, 

 ("Preserved claims of

sentencing error are typically reviewed for reasonableness, under

an abuse of discretion rubric.").    This is a multifaceted standard

whereby "we apply clear error review to factual findings, de novo

review to interpretations and applications of the guidelines, and

abuse of discretion review to judgment calls." United States v.

Nieves-Mercado, 

 (1st Cir. 2017).

            Melendez argues that the court erred in imposing an

upwardly variant sentence without stating the specific reasons for

doing so.    And that likewise, the court failed to explain why it


     6    The remaining claims are: (1) improper understanding of
the guidelines range, (2) failure to address mitigating factors,
and (3) lack of clarity on whether the court was departing or
varying.


                               - 10 -
imposed a sentence exceeding the parties' already upwardly variant

joint recommendation of 164 months of incarceration.

          A   court       commits    "significant       procedural    error"    by

"failing to adequately explain the chosen sentence -- including an

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

 -- but has no independent obligation to explain its

decision not to adopt a joint recommendation, United States v.

Flores-Nater, 

 (1st Cir. 2023) ("[T]he court was

not required to explain why it rejected the . . . upwardly variant

sentence recommended by the parties.").           Accordingly, we need only

address whether the court adequately explained the variance.

          Melendez was sentenced to 194 months in prison, 74 months

over the 120-month statutory minimum sentence -- which is also the

guidelines sentence -- and 30 months over the parties' 164-month

joint recommendation.

          When a sentence exceeds the applicable guidelines range,

as it did here, "[the court] must justify the upward variance" by

"articulat[ing]     why    it   believe[s]      that    the     appellant's    case

differ[s] from the norm."           United States v. Del Valle-Rodríguez,

 (1st Cir. 2014).                The exact parameters of

this requirement fluctuate because "the greater a deviation from

the   [guidelines     sentencing      range],    the     more    compelling    the

sentencing court's justification must be."                 

 at 177 (citing




                                     - 11 -
United States v. Smith, 

 (1st Cir. 2006)).           Here, the

court provided an adequate explanation for the level of variance.

          Typically, we look for an express justification.           And to

be sure, here, the court's express explanation consisted of the

type of boilerplate explanation that we have deemed insufficient

before:

          [T]he [upwardly variant] sentence recommended
          by   the  parties   does   not  reflect   the
          seriousness of the offense, . . . promote
          respect for the law, . . . protect the public
          from further crimes by . . . Melendez, and
          . . . address the issues of deterrence and
          punishment.

Generic explanations like this that "simply rehearse[] -- but d[o]

not apply -- certain of the factors that Congress has instructed

courts to consider in imposing sentences" are inadequate because

they do not satisfy "the requirement that an upward variance

be '[]moored     [to]     individual   characteristics   of     either   the

offender or the offense of conviction.'"          Flores-Nater, 

 (alterations in original) (quoting Rivera-Berríos, 

); see also United States v. Franquiz-Ortiz, 

 (1st Cir. 2010) (providing defendant-specific reasons for

sentencing decision is necessary to produce "a record that provides

a basis for evaluating the district court's exercise of its broad

authority").    But if the court's rationale can be "teased from the

sentencing     record,"    we   consider    the   requirement    satisfied.

Flores-Nater, 

.


                                   - 12 -
             Here, the court's rationale for imposing the 194-month

sentence is apparent from the record. After rejecting the parties'

recommended sentence, the court recounted the horrific details of

the murder and emphasized Melendez's participation by noting he

"had given a revolver to the person who first shot the victim."

The court signaled that these details weighed heavily in its

decision to impose a harsher sentence than the one recommended by

the parties, and also referenced its agreement with the probation

officer's    position       that     the    jointly       recommended        sentence   was

inadequate,    before         concluding      that    a    164-month         sentence   was

insufficient to achieve the goals of sentencing.                             From this, we

draw the fair inference that the upwardly variant sentence was

predicated     on     the       court's       belief       that        the     recommended

sentence -- and thus the guidelines -- failed to account for the

gravity of the offense conduct.

             The court's rationale was also adequate.                        The rationale

passes     muster   if    it     identifies         "idiosyncratic           facts   [that]

'remove[] th[e] case from the heartland of the applicable guideline

provisions.'"       United States v. Bruno-Campos, 

(1st Cir. 2020) (quoting United States v. Díaz-Lugo, 

 (1st Cir. 2020)).              Here, the applicable guideline sets the

sentence for defendants "convicted of violating section 924(c)" as

"the minimum term of imprisonment required by statute" regardless

of   the   severity      of    the    underlying       crime      or    the     individual


                                           - 13 -
characteristics of the defendant.             U.S.S.G. § 2K.2.4(b). Indeed,

unless exempted, the guidelines sentence applies so long as the

defendant was convicted of "us[ing] or carr[ying] a firearm"

"during and in relation to any crime of violence." 

(c)(1)(A). In this case, the crime of violence was "kidnapping

resulting    in    death."    But   to   be    convicted   under   

(c)(1)(A)(iii), a death need not result from the crime of

violence.     And the fact that the crime of violence resulted in

death here was not accounted for anywhere in the guidelines

calculation       because,   pursuant    to    U.S.S.G.    § 2K.2.4(b),    the

guidelines sentence was the minimum term of imprisonment required

by statute.7        Accordingly, because "[Melendez]'s situation is

different from the ordinary situation covered by the guidelines

calculation," Bruno-Campos, 

 (quoting United States

v. Zapete-Garcia, 

 (1st Cir. 2006)), a variance was

proper.     Nor can we fault the district court for concluding that

a roughly six-year variance was warranted in light of the severity




     7    To be sure, Melendez was also initially charged with a
separate count of brandishing a firearm during or in relation to
a "[c]rime of [v]iolence [c]ausing [m]urder." But that charge was
dismissed pursuant to the plea agreement and Melendez ultimately
pled to the single, lessor count requiring only a "crime of
violence." "A sentencing court may take into account relevant
conduct underlying counts dismissed as part of a plea negotiation
as long as that conduct was not used in constructing the
defendant's guideline range." United States v. Fernández-Garay,

 (1st Cir. 2015).


                                    - 14 -
of the crime, which resulted in a death.                       We therefore discern no

error.

                       B.    Substantive Reasonableness

               Melendez also challenges the substantive reasonableness

of his sentence.       Echoing his claims of procedural error, Melendez

contends his sentence was substantively unreasonable because it

was "unmoored from any particular factor."

                The government again argues that Melendez failed to

preserve this challenge.              This time, the government argues that

the    broad    objection        below    could        not    preserve        the    specific

substantive reasonableness arguments Melendez makes in his opening

brief.      We disagree.     Here, Melendez objected to the "excessive[]

upward variance" before reiterating his support for the shorter

jointly recommended sentence, and we have consistently held that

by arguing for a shorter sentence before the district court, a

defendant preserves a challenge to the substantive reasonableness

of    his   sentence    on       appeal.         See,        e.g.,    United        States   v.

Bruzón-Velázquez,           

        (1st       Cir.      2022);

Rodriguez-Monserrate,            

;     United     States       v.

Ramos-David, 

 (1st Cir. 2021).                               We therefore

review for abuse of discretion. See Rodriguez-Monserrate, 

.

               There are a broad range of reasonable outcomes in the

sentencing context and our task is simply "to determine whether


                                          - 15 -
the   sentence        falls     within       [that   permissible       range]."

Flores-Nater,    

     (quoting   United     States    v.

Rivera-Morales, 

 (1st Cir. 2020)).                 The components

of a substantively reasonable sentence are a plausible rationale

and a defensible result.         United States v. Díaz-Rivera, 

 (1st Cir. 2020).

          We have already established that the court properly

predicated Melendez's upwardly variant sentence on the fact that

the "crime of violence" required for conviction was a premediated

murder, a fact unaccounted for by the guidelines.                    See supra

Section II(A). "[A]n adequate explanation for an upward variance

and a plausible rationale for that variance are almost always two

sides of the same coin."         United States v. Valle-Colón, 

 (1st Cir. 2021).         And this is such a case.         Having already

concluded that the court provided a sufficient justification for

imposing the upwardly variant sentence, we need look no further to

find that the rationale here was plausible.

          Likewise, for all the reasons we found the variant

sentence justified, we also find it defensible.                  In addition to

the serious nature of the offense and Melendez's contribution to

it, other sentencing factors contribute to the defensibility of

Melendez's   194-month        sentence.        Factors    that     bolster    the

defensibility    of    the    sentence    include    Melendez's     history    of




                                      - 16 -
committing crimes while on "escape status," his history of firearms

offenses, and his lengthy criminal record.8

            Having    found   that    the     court     provided     a    plausible

sentencing    rationale    and   arrived      at   a    defensible       result,   we

conclude that Melendez's 194-month sentence was substantively

reasonable.       Accordingly, we discern no error.

                              III. Conclusion

            For    the   foregoing    reasons,         Melendez's    sentence      is

affirmed.




     8    As the court noted at sentencing, had Melendez's
criminal history been calculated and factored into his guidelines
sentence, Melendez would have been placed in criminal history
category IV.   Because criminal history was not a factor in his
guidelines sentence, the court's rationale for upwardly varying
could have properly rested on Melendez's past convictions.


                                     - 17 -