United States Court of Appeals
                     For the First Circuit


No. 22-1207

                         UNITED STATES,

                            Appellee,

                               V.

      BERNARDITO CARVAJAL, a/k/a Christian Mendez-Acevedo,

                      Defendant, Appellant.


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

       [Hon. George A. O'Toole, Jr., U.S. District Judge]


                             Before

                  Kayatta, Lipez, and Rikelman,
                         Circuit Judges.


     Eduardo Masferrer, Masferrer & Associates, P.C., with whom
Danya F. Fullerton was on brief, for appellant.
     Randall E. Kromm, Assistant United States Attorney, with whom
Joshua S. Levy, Acting United States Attorney, and Hannah Sweeney
was on brief, for appellee.


                        October 26, 2023
              RIKELMAN,    Circuit    Judge.         After   a    jury   convicted

Bernardito Carvajal of possession with intent to distribute and

distribution of fentanyl, the district court sentenced him to 120

months in prison.         Carvajal appeals his sentence on two grounds.

First,   he    argues     the   district   court     considered     impermissible

evidence, including conduct of which the jury acquitted him, in

determining his sentence.          Second, Carvajal contends the district

court should have reduced his sentence based on his acceptance of

responsibility at trial.         Because controlling case law permits the

consideration of acquitted conduct at sentencing and the record

otherwise supports the district court's rulings, we affirm.

                                  I. Background

                                A. Relevant Facts1

              On June 13, 2019, police responded to a possible overdose

at a home in Andover, Massachusetts.                 Upon entering the home,

police discovered 26-year-old Richard Tonks unconscious in his

bed, with an uncapped hypodermic needle next to his arm.                  Attempts

to revive Tonks at the scene and later at a hospital failed.

              The   medical       examiner     for     the       Commonwealth   of

Massachusetts, Dr. Maria Del Mar Capo-Martinez, determined that

Tonks died from "acute intoxication due to the combined effects of


     1 Because Carvajal does not challenge the sufficiency of the
evidence supporting his conviction, we offer a "balanced"
treatment of the facts. See United States v. Cox, 

,
118 n.1 (1st Cir. 2017).


                                      - 2 -
cocaine and fentanyl."          Dr. Capo-Martinez performed an external

examination of the body and tested blood and urine samples, which

showed the presence of cocaine, fentanyl, and marijuana in Tonks's

system.    She did not conduct an internal examination or autopsy.

Police also did not preserve or test the substance in the needle

found next to Tonks.

           Following        Tonks's    death,   his   family      and   girlfriend

turned in to the police drug paraphernalia that they discovered in

Tonks's room.        This paraphernalia included two plastic bags, one

of which proved to contain cocaine, and the other fentanyl.

           They also turned in Tonks's cellphone, which contained

Facebook     and     text   messages    that    appeared    to     discuss   drug

transactions.       The Facebook messages were between Tonks and a user

named "Cmja MA," later identified as Carvajal.              Tonks and Carvajal

had been acquainted since at least 2018, when they were coworkers

at a local restaurant, and the Facebook and text messages between

them catalogued interactions from January to June of 2019.                      On

January 23, 2019, Carvajal contacted Tonks to offer to sell him

"white,"     which    Tonks    purchased.2       Later     that    day,   Tonks's

girlfriend took him to the hospital, concerned that Tonks may have

overdosed.         Although Tonks told his girlfriend he had taken




     2 As discussed infra, the parties contested at trial whether
"white" referred to cocaine or fentanyl.


                                       - 3 -
cocaine, test results revealed he had only fentanyl and marijuana

in his system.

             A few months later, in April, Carvajal reached out to

Tonks and offered to sell him more "white," but Tonks declined.

In May, Carvajal once again offered "white" to Tonks, but Tonks

did not respond until June 4, when he asked if Carvajal still had

"white" to sell.      Carvajal said he had "a little" and would get

more   the   next   day,   and   the    two    made   plans   to   complete   the

transaction.

             From June 5 to June 12, text messages show that Carvajal

sold Tonks drugs almost daily, with increasing frequency until

Tonks's death.      Carvajal sold Tonks "1g" (one gram) of "white"

twice on June 5, once on June 6, and once on June 9.                On June 10,

Tonks asked Carvajal to sell him a                "3.5"   "ball,"    apparently

referring to an eighth of an ounce.              On the morning of June 11,

Tonks asked for "2 [grams] more," and a few hours later, asked if

Carvajal was "around for another."                That same evening, Tonks

requested "one [gram] more for delivery," an amount he increased

to "2" before the delivery occurred.             On June 12, the day before

Tonks died, Tonks contacted Carvajal for another "3.5" ball, and

later added to the order "one brown."            Carvajal made the sale.

             On June 14, the day after Tonks was found dead, Carvajal

texted Tonks "Hi you ok[?]"       A few days later, Carvajal unfriended

Tonks and Tonks's girlfriend on Facebook.


                                       - 4 -
           Further examination of Tonks's cellphone revealed that

on June 9, 2019, four days before Tonks was found dead, Tonks

texted a coworker looking to purchase "yayo," slang for cocaine.

The coworker responded, "I'm not sure on that one, man."               There

were also phone calls between Tonks and the coworker on June 11

and 12.

           On July 31, 2019, an Andover undercover police officer,

aided by a Drug Enforcement Agency (DEA) task force, carried out

a "buy-bust" operation targeting Carvajal.          Via text message, the

undercover officer set up a "white" purchase with Carvajal and

arrested him once the transaction was complete. Subsequent testing

revealed that the "white" Carvajal sold to the undercover officer

was fentanyl.        An examination of Carvajal's cellphone showed

messages   documenting    transactions     with   other    individuals   for

purchases of both "white" and "brown."

                          B. Legal Proceedings
           On January 29, 2020, a federal grand jury indicted

Carvajal on two counts: distribution of fentanyl and cocaine on or

about   June   12,    2019,   resulting    in   death,    under   

(a)(1) & (b)(1)(c); and distribution of and possession with

intent to distribute fentanyl on or about July 31, 2019, under 21

U.S.C, § 841(a)(1).      Carvajal entered a plea of not guilty as to

both counts.




                                   - 5 -
          The government's theory at trial was that Tonks died

from an overdose of fentanyl and cocaine, and that Carvajal had

sold Tonks both of those drugs in the days before his death.

Accordingly, the government argued that Carvajal was responsible

for Tonks's death.

          As to the cause of death, the government offered the

expert testimony of Dr. Capo-Martinez, the medical examiner, and

Dr. Steven Bird, an emergency physician and medical toxicologist.

Although Carvajal raised objections to Dr. Bird's testimony under

Daubert v. Merrell Dow Pharmaceuticals, Inc., 

 (1993),

the district court overruled his objections.      Dr. Bird proceeded

to testify that, in his medical opinion, the amount of fentanyl in

Tonks's blood was sufficient to have caused Tonks's death, although

he acknowledged that the combination of fentanyl and cocaine was

"potentially lethal."

          The   government   also   introduced   multiple   forms   of

evidence to prove that Carvajal had sold Tonks both fentanyl and

cocaine in the days leading up to his death.       DEA Special Agent

Glen Coletti testified that "white" is street slang for cocaine,

and that the terms "ball," "eight ball," and "3.5" are slang for

3.5 grams of cocaine.    By contrast, he explained, "brown" refers

to heroin or fentanyl.   The government offered this testimony in

combination with the Facebook and text messages between Carvajal

and Tonks, which documented these sales of “white” and “brown.”


                               - 6 -
           Carvajal, for his part, acknowledged that he sold drugs

to Tonks (and to the undercover agent) but argued that the drugs

he sold did not cause Tonks's death.              He presented two main

theories to dispute the government's case: (i) that Tonks had

underlying health issues and died for reasons other than a drug

overdose; and (ii) even if a drug overdose led to Tonks's death,

Tonks died only because of the combination of cocaine and fentanyl

in his system, and Carvajal did not sell him any cocaine.                 To

support his arguments, Carvajal elicited testimony from Dr. Capo-

Martinez that, absent an autopsy, she was unable to rule out other

potential causes of death including heart attack, blood clot, or

stroke.    His expert witness at trial, Dr. Elizabeth Laposata,

similarly opined that without an autopsy, the cause of death could

not be conclusively determined.     Finally, Carvajal challenged the

testimony of Agent Coletti that "white" was slang for cocaine.            On

cross-examination,    Carvajal   secured    an    admission      from   Agent

Coletti that he had previously testified that "white" is street

slang for fentanyl, not cocaine.     Given the ambiguous reference to

"white" in the text messages, Carvajal contended, the jury could

not find beyond a reasonable doubt that he had caused Tonks's

death.

           At the conclusion of the trial, the jury convicted

Carvajal   of   distributing   fentanyl   under    the   first    count   but

acquitted him of both distributing cocaine and causing Tonks's


                                 - 7 -
death.   The jury also convicted Carvajal of distributing fentanyl

under the second count.      The statute under which Carvajal was

convicted, 

(a)(1), provided a maximum sentence of

20 years for each count.   See 

(b)(1)(C).

          The parties proposed substantially different sentences

at the sentencing hearing.     The probation office, in its pre-

sentence investigation report    ("PSR"),   recommended an offense

level of 24, with a criminal history category of I, resulting in

a Guidelines sentence range of 51 to 63 months.     The government

requested a sentence of 120 to 144 months' imprisonment and three

years' supervised release.    Carvajal argued for a sentence of 36

months' imprisonment.

          To support his proposed sentence, Carvajal contended

that pursuant to U.S.S.G. § 3E1.1, he was entitled to a base

offense reduction of two levels for acceptance of responsibility,

based on his opening statement at trial.    The two-level reduction

would have brought him to a base offense level of 22 with a

recommended Guidelines sentence of 41 to 51 months.        Carvajal

further argued for a downward variance from the lowest end of the

Guidelines range, to justify his request for a 36-month sentence.3


     3 Carvajal, who is not a United States citizen and will be
removed from the United States upon completion of his sentence,
requested a six-month downward variance to account for an
anticipated three to six months in immigration custody while his
removal is processed.



                               - 8 -
The district court rejected the two-level reduction for acceptance

of responsibility, however, relying on Section 3E1.1, Application

Note 2, which provides that the reduction is available only in

“rare situations” to defendants who proceed to trial.     U.S.S.G.

§ 3E1.1 cmt. (n. 2).   The court therefore adopted the base offense

level of 24 calculated in the PSR, resulting in a Guidelines

sentence range of 51 to 63 months.

          The court also heard the government's argument that it

should sentence Carvajal above the Guidelines range because a

preponderance of the evidence established that Carvajal caused

Tonks's death.   The government pointed to the trial testimony of

its witnesses and the text messages between Carvajal and Tonks to

meet its burden of proof.      Carvajal countered with his trial

evidence challenging the government's theory on the cause of death.

He also argued that the district court could not consider at

sentencing conduct of which the jury had explicitly acquitted him.

          The court ultimately held that the government had met

its burden to establish by a preponderance of the evidence that

the drugs Carvajal sold Tonks brought about Tonks's death.      In

particular, the court indicated that it found convincing Dr. Bird's

testimony about the cause of death.

          Having resolved the factual dispute about what caused

Tonks's death, the district court proceeded to sentence Carvajal

to 120 months' imprisonment and three years' supervised release.


                               - 9 -
The court began by discussing the 

(a) factors used

in determining a variance, and further noted that U.S.S.G. § 5K2.1,

the departure Guideline, also allowed it to impose a sentence above

the Guidelines range.     The district court concluded that an upward

variance or departure was "entirely appropriate" for an act that

"was not an intentional homicide, but . . . was an intentional

distribution of homicidal drugs."        The following day, the district

court issued its written Statement of Reasons and identified the

sentence as a variance under § 3553(a) as opposed to a departure

under Section 5K2.1.

          Carvajal filed a timely notice of appeal on March 22,

2022.   We have jurisdiction under 

.

                         II. Standard of Review

          In sentencing appeals, we conduct a bifurcated review.

United States v. Millán-Machuca, 

, 27 (1st Cir. 2021).

Initially,   we    consider    whether   the   sentence      is   procedurally

reasonable, "afford[ing] de novo review to the sentencing court's

interpretation     and   application     of   the    sentencing    Guidelines,

assay[ing]   the     court's    factfinding         for   clear   error,   and

evaluat[ing] its judgment calls for abuse of discretion."               United

States v. Ruiz-Huertas, 

 (1st Cir. 2015).               Carvajal's

argument that his sentence violates constitutional guarantees of

due process because it is based on acquitted conduct is also

subject to de novo review.      United States v. Sandoval, 

,


                                  - 10 -
115 (1st Cir. 2021).   Next, we turn to any arguments of substantive

unreasonableness "under the abuse of discretion rubric, taking

account of the totality of the circumstances."      

                          III. Discussion
       A. Procedural Reasonableness of Carvajal's Sentence

                  1. Acceptance of Responsibility

           Carvajal contends that his opening statement at trial,

in which he admitted that he sold drugs to Tonks and to an

undercover officer, entitled him to a reduction in his base offense

level for acceptance of responsibility.       Whether a defendant is

eligible for this reduction is a factual question reviewed for

clear error, and we will reverse the district court's ruling only

if we are "left with a definite and firm conviction that a mistake

has been committed."   United States v. McCarthy, 

, 62-

63 (1st Cir. 2022) (quoting Brown v. Plata, 

(2011)).

           United States Sentencing Guideline § 3E1.1(a) authorizes

a two-level reduction in a defendant's base offense level if the

defendant "clearly demonstrates acceptance of responsibility for

his offense."   U.S.S.G. § 3E1.1(a).    "Defendants are not, however,

automatically entitled to [the] reduction."         United States v.

Garrasteguy, 

 (1st Cir. 2009).         To qualify for

acceptance of responsibility, "a defendant must truthfully admit

or not falsely deny the conduct comprising the conviction, as well



                               - 11 -
as any additional relevant conduct for which he is accountable."

Id.; U.S.S.G. § 3E1.1, cmt. (n. 1(a)).             The defendant bears the

burden   of    proving     that   he    accepted        responsibility.       See

Garrasteguy, 

.

          "When    a     defendant     proceeds    to    trial   and   puts   the

government to its proof, a credit for acceptance of responsibility

normally will not be available."         United States v. Deppe, 

 (1st Cir. 2007).      However, "in rare situations" and relying

"primarily upon pre-trial statements and conduct," a reduction may

still be warranted in such circumstances.               Id.; U.S.S.G. § 3E1.1,

cmt. (n. 2).

          This is not one of those "rare situations."                  Carvajal

points to the admissions in his opening statement at trial to

support his argument regarding acceptance of responsibility.                   He

contends that he had to wait until trial to make even these

statements because, given the way he was charged, he could not

admit to selling drugs to Tonks without also admitting to Tonks's

death.

          We are not persuaded.               First, and most importantly,

Carvajal offers no pre-trial statement or conduct whatsoever to

support his acceptance of responsibility.                We have found no case

where a court upheld a reduction at sentencing based solely on

statements made by a defendant at trial.                And that is with good

reason. The sentencing reduction exists in large part to encourage


                                     - 12 -
defendants to plead guilty, when appropriate, to prevent the time

and expense of "put[ting] the government to its proof."                   Deppe,

; U.S.S.G. § 3E1.1, cmt. (n.2).                   At a minimum,

Carvajal could have narrowed the issues here by pleading guilty,

before trial, to the sale of drugs to the undercover officer and

to the sale of fentanyl to Tonks, all without accepting criminal

liability for Tonks's death.          He made the decision not to do so,

as was his constitutional right.         But he cannot then claim to have

demonstrated "full responsibility for his actions . . . candidly

and with genuine contrition."         United States v. Franky-Ortiz, 

 (1st Cir. 2000).

            The district court did not clearly err in determining

that Carvajal was not entitled to a              two-level reduction         for

acceptance of responsibility.

                   2. Death Resulting from Drug Sales

            We turn next to Carvajal's argument that the district

court’s erroneous consideration of acquitted conduct "drove" his

sentence.     As Carvajal forthrightly acknowledges, our current

precedent makes clear that acquitted conduct can be considered at

sentencing if the government proves it by a preponderance of the

evidence.    United States v. Meléndez-González, 

 (1st

Cir. 2018) ("A district court may rely on acquitted conduct in

sentencing   'so   long   as   that    conduct   ha[s]   been    proved    by   a

preponderance of the evidence.'") (quoting United States v. Martí-


                                  - 13 -
Lón, 

 (1st Cir. 2008)); United States v. González,

 (1st Cir. 2017) ("Indeed, a sentencing court may

consider relevant conduct that constitutes another offense, even

if the defendant has been acquitted of that offense, so long as it

can be proven by a preponderance of the evidence.").

            In   light   of     our    precedent,   Carvajal   advances    two

procedural arguments on this issue: (1) that consideration of the

acquitted   conduct      violates      constitutional   guarantees   of    due

process; and (2) that the district court clearly erred in finding

by a preponderance of the evidence that Carvajal caused Tonks's

death.   After careful review, we conclude that Carvajal cannot

prevail on either argument.

            First,   the      United    States   Supreme   Court   has    never

prohibited the use of acquitted conduct at sentencing and has

expressly upheld it in certain circumstances if the sentencing

judge finds that the government has proved that conduct by a

preponderance of the evidence.            See United States v. Watts, 

 (1997) (per curiam) (holding that use of acquitted

conduct at sentencing does not offend the Double Jeopardy Clause).

Carvajal is correct that numerous federal and state judges have

written that this practice violates both the Fifth Amendment's Due

Process Clause and the Sixth Amendment's right to a jury trial, as

well as similar provisions in state constitutions. See e.g., Jones

v. United States, 

, 948 (2014) (Scalia, J., joined by


                                       - 14 -
Thomas & Ginsberg, JJ., dissenting from denial of certiorari)

(arguing that the imposition of "sentences that, but for a judge-

found fact, would be reversed for substantive unreasonableness"

had "gone on long enough"); United States v. Magee, 

   (1st   Cir.    2016)   (Torruella,     J.,     concurring)      ("[I]t    is

constitutionally suspect to drastically increase a defendant's

sentence    based   on   conduct   that   was     neither   proven    beyond   a

reasonable doubt nor to which the defendant plead guilty.");

United States v. Bell, 

 (D.C. Cir. 2015) (Millett,

J., concurring in denial of rehearing en banc) ("[A]llowing a judge

to dramatically increase a defendant's sentence based on jury-

acquitted conduct is at war with the fundamental purpose of the

Sixth Amendment's jury-trial guarantee."); cf. State v. Cote, 

 (N.H. 1987) (explaining that criminal defendants are

entitled to "full benefit" of the presumption of innocence, a

benefit that "is denied when a sentencing court may have used

charges that have resulted in acquittals to punish the defendant").

            Indeed, the Supreme Court has indicated it may soon take

up this issue and re-examine its earlier precedent.            See McClinton

v. United States, 

, 2403 (2023) (Sotomayor, J.,

respecting the denial of certiorari) ("The Sentencing Commission,

which is responsible for the Sentencing Guidelines, has announced

that it will resolve questions around acquitted conduct sentencing

in the coming year.      If the Commission does not act expeditiously


                                   - 15 -
or chooses not to act, however, this Court may need to take up the

constitutional   issues    presented.").     But   unless    and   until    the

Supreme Court does so, or the Sentencing Commission revises the

Guidelines, we are bound to follow our controlling precedent and

must reject Carvajal's due process challenge.

          Second, a careful review of the record shows no clear

error in the district court's finding, by a preponderance of the

evidence, that Carvajal caused Tonks' death.          The relevant federal

sentencing    statute   compels   us   to   "accept   a   district      court's

findings of fact (unless clearly erroneous), but also to give due

deference to the district court's application of the Guidelines to

the facts."   United States v. Andino-Morales, 

, 43 (1st

Cir. 2023) (quoting Buford v. United States, 

(2001))   (internal     quotations     omitted);   see    also     

(e).    At sentencing, the district court has discretion to

"consider any evidence with sufficient indicia of reliability, and

can rely upon 'virtually any dependable information.'"                  United

States v. Ford, 

, 64 (1st Cir. 2023) (quoting United

States v. Berríos-Miranda, 

 (1st Cir. 2019)).

Moreover, it is the sentencing court's unique "responsibility to

make credibility determinations about witnesses."             United States

v. Nagell, 

 (1st Cir. 2018).                 Our clear error

standard is "demanding," and we reverse only if, viewing the record

in its entirety, we are left with "a strong, unyielding belief


                                  - 16 -
that a mistake has been made."               United States v. Nuñez, 

 (1st Cir. 2017).

                 Carvajal    argues   that    the   district    court   erred   by

improperly weighing the competing expert testimony.                  He disagrees

with       how   the   district   court      characterized     the   three   expert

witnesses: Dr. Bird as "the most reliable because he was more

exhaustive in his analysis"; Dr. Laposata as "not very helpful";

and Dr. Capo-Martinez as "helpful but cautious in not going beyond

what her evidence indicated to her."                In Carvajal's view, because

Dr. Bird is a medical toxicologist and not a medical examiner, the

district court should have discounted his testimony that fentanyl

alone could have caused Tonks’s death.               He further argues that Dr.

Bird's       testimony       improperly       relied    on     postmortem     blood

concentrations.4            However, weighing the credibility of expert

testimony is exactly the sort of factfinding that falls within the

purview of the district court.            Cf. United States v. Jones, 

 (1st Cir. 1999) ("Where evaluations of witnesses'

credibility are concerned, we are especially deferential to the

district court's judgment . . . .").



       Carvajal also suggests that the district court's comments
       4

may be the result of gender bias. Although discounting witness
testimony due to gender bias is inappropriate and could constitute
clear error, Carvajal's only evidence of gender bias is that both
Dr. Capo-Martinez and Dr. Laposata are women. This kind of bare
assertion cannot support a finding of clear error. See Nuñez, 

.


                                       - 17 -
               Carvajal also argues that the district court's reliance

on Dr. Bird's testimony is doubly erroneous given his Daubert

challenge to that testimony.             However, Carvajal has not briefed

the merits of his Daubert challenge on appeal and thus has waived

that argument.          United States v. Mayendía-Blanco, 

(1st Cir. 2018) ("[I]t is a well-settled principle that arguments

not raised by a party in its opening brief are waived.").5

               In any event, there is no indication that this expert

testimony was the sole basis for the district court's finding that

Tonks's      death   resulted    from    Carvajal's       conduct.    The    record

contains substantial evidence supporting the finding that Carvajal

supplied Tonks with both cocaine and fentanyl and thus caused his

death.        According to the testimony of Agent Coletti, the text

messages between Carvajal and Tonks show that Carvajal sold Tonks

"white," a "ball," and "3.5," which are all slang for cocaine, as

well as "brown," which is slang for fentanyl.                  Agent Coletti also

testified that the prices Carvajal quoted to Tonks for "white"

were       consistent    with   the   street     price    of   cocaine.     Tonks's

girlfriend       further    testified     that    Tonks    was   primarily    using

cocaine, and that Tonks initially thought that his January 2019

overdose, a few months before his death, was due to cocaine.


       Further, rulings on Daubert challenges are reviewed for
       5

abuse of discretion, and we see no abuse of discretion in allowing
Dr. Bird, who is trained and educated in emergency medicine and
medical toxicology, to testify about what caused Tonks’s death.


                                        - 18 -
Although the jury concluded that the government had failed to prove

beyond a reasonable doubt that Carvajal caused Tonks's death, at

sentencing the district court was evaluating this proof under the

less demanding preponderance of the evidence standard.          See Martí-

Lón, 

; see also Andino-Morales, 73 F.4th at 43

("'[T]he   argument   for   deference   peaks    when,'   as   here,   'the

sentencing judge has presided over a lengthy trial and is steeped

in the facts of the case.'") (quoting United States v. Sepulveda,

 (1st Cir. 1993)).

           The   record   plausibly   supports   the   district   court's

finding by a preponderance of the evidence that Carvajal caused

Tonks's death, and we therefore discern no clear error.6




     6 Carvajal also asserts that the district court improperly
applied the Section 5K2.1 Guideline departure, including by not
imposing a "but for" causation standard when it evaluated the
evidence about whether Carvajal's conduct caused Tonks's death.
As we explain in Section C, infra, the district court imposed a
variance pursuant to 

(a), and not a Guideline
departure under Section 5K2.1.


                                - 19 -
         B. Substantive Reasonableness of Carvajal's Sentence7

            We turn next to Carvajal's challenge to the substantive

reasonableness of his 120-month sentence.         See Gall v. United

States, 

 (2008).          "A sentence is substantively

unreasonable only if it lacks 'a plausible sentencing rationale'

or 'a defensible result.'"     United States v. Millán-Machuca, 

, 27 (1st Cir. 2021) (quoting United States v. Martin, 

 (1st Cir. 2008)).       There is no presumption that a

sentence outside of the Guidelines range is unreasonable, even

when the extent of the upward variance is substantial.           United

States v. Flores-Machicote, 

 (1st Cir. 2013).        We

"consider the substantive reasonableness of the sentence imposed

under an abuse-of-discretion standard," but must also afford "due

deference to the district court's decision that the § 3553(a)

factors, on a whole, justify the extent of the variance."        Gall,

.

            Carvajal argues that the extent of the variance here

functionally punishes him not for his offense of conviction,



     7 The government maintains that Carvajal waived his right to
advance these arguments by "including [them] as an afterthought in
a section addressing other issues, not as a freestanding claim."
We disagree. Carvajal developed these arguments over five pages
and supports them with legal authority. The in-circuit case cited
by the government, United States v. Sayer, is inapposite. 

 (1st Cir. 2014) (rejecting defendant's vagueness claim as
waived where it was addressed in only a few sentences, and given
no distinct legal analysis). We proceed to the merits.


                                - 20 -
selling fentanyl, but for his acquitted conduct, causing Tonks's

death.    In particular, relying on our decision in United States v.

Lombard, Carvajal argues that the upward variance imposed by the

district court is constitutionally suspect because the related

conduct represents such a grossly disproportionate share of his

total sentence that it violates his Fifth and Sixth Amendment

rights.    

 (1st Cir. 1995).

            We disagree.   Lombard was "an extreme case," even "an

unusual and perhaps singular case," that we held "was at the

boundaries of constitutional sentencing law."      

.   The

defendant in Lombard was convicted of a firearms offense that had

no statutory maximum sentence.     

.     In evaluating the

appropriate sentence, the district court considered it relevant

that the firearms in question were used in two murders, crimes of

which Lombard had been acquitted in state court.      

.

The district court applied a provision of the sentencing Guidelines

that required it to calculate the defendant's base offense level

"as if his offense of conviction had been murder."       

.

As a result, instead of 262 to 327 months' incarceration, the

Guidelines required a life sentence without parole.     

   We held

that "[g]iven the magnitude of the sentence 'enhancement,' the

seriousness of the 'enhancing' conduct in relation to the offense

of conviction, and the seemingly mandatory imposition of the life




                                - 21 -
sentence,"8 the Constitution demanded resentencing.        

.

However, we took pains to explain that "[a]bsent [these] special

circumstances . . . no comparable concerns would be raised by

cases involving even sizeable sentence increases" on the basis of

"uncharged or acquitted conduct."     

.    Indeed, we have

rejected challenges based on Lombard in less extreme factual

circumstances.    See e.g., González, 

 (rejecting an

argument under Lombard that a sentence at the statutory maximum

for the crime (120 months) implicated due process concerns); United

States v. Sandoval, 

, 115 (1st Cir. 2021) (rejecting a

Lombard argument for a sentence within the Guidelines range).

           The facts here are clearly distinguishable from those in

Lombard.   Far from being "the harshest penalty outside of capital

punishment," Lombard, 

, Carvajal's ten-year sentence

is still well below the statutory maximum of twenty years for his

crime of conviction, even though it falls outside the recommended

Guidelines range.      See   

(b)(1)(C).         Unlike in

Lombard, the district court did not sentence Carvajal "as if" his

offense    of   conviction   were   death   resulting   from    fentanyl

distribution.    If it had, the sentencing range would have been a


     8Lombard was decided before United States v. Booker, 

 (2005), clarified that the Sentencing Guidelines are
advisory. Indeed, the district court's failure to "recognize its
authority to consider whether a downward departure [from the life
sentence] would have been appropriate" was central to our analysis.
Lombard, 

.


                                - 22 -
minimum of twenty years to a maximum of life imprisonment. 

(b)(1)(C).       In sum, Carvajal's sentence does not

present the same extraordinary circumstances that so concerned us

in Lombard.

           Trying another tack, Carvajal argues that the district

court abused its discretion in citing the need for deterrence as

a reason for the upward variance because sentences within the

Guidelines range already account for appropriate deterrence.                In

support of this position, Carvajal cites United States v. Ofray-

Campos, 

 (1st Cir. 2008).          In the section of Ofray-

Campos that Carvajal relies on, we struck down a forty-year

sentence   that   was   twenty-four     years   longer   than   the    maximum

sentence   recommended    under   the   Guidelines.      

.    We

explained that in such a case, "the district court must offer an

especially compelling reason for its sentence."            

.       The

district court had based its variance, in part, on the defendant's

possession of "powerful weapons," which we explained "had already

been considered, and accounted for, in the two-level enhancement

applied in the calculation of Appellant's adjusted offense level."

Id.; see also United States v. Zapete-Garcia, 

 (1st

Cir. 2006) ("When a factor is already included in the calculation

of the Guidelines sentencing range, a judge who wishes to rely on

that same factor to impose a sentence above or below the range

must articulate specifically the reasons that this particular


                                  - 23 -
defendant's situation is different from the ordinary situation

covered by the Guidelines calculation.").

          Our reasoning in Ofray-Campos does not apply here.       The

district court accepted the offense level proposed in the PSR,

which explicitly did not treat Carvajal as responsible for Tonks’s

death.   Accordingly, there is no overlap between the variance

factors considered by the district court and the factors "included

in the calculation of the Guidelines sentencing range."        Zapete-

Garcia, 

.     Continuing to cite Ofray-Campos, Carvajal

further contends that his case poses no more need for deterrence

than does any other drug sale case.       Although there is a need for

deterrence in all drug cases, not all drug sales result in an

individual’s death from a drug overdose, as the district court

found by a preponderance of the evidence occurred here.

          Carvajal next asserts that his ten-year sentence is

"unreasonably high" given that we "found a sentence of 60 months

reasonable for selling fentanyl that caused a death," citing United

States v. Heindenstrom, 

, 64 (1st Cir. 2019).      Left out

of Carvajal's argument is that the Guidelines range, the starting

point of any departure or variance analysis, was significantly

lower in Heindenstrom, 8 to 14 months, compared to the 51 to 63

months here.   

.    Although on an absolute basis Carvajal's

sentence is twice as long as the sentence in Heindenstrom, on a

percentage basis Carvajal's variance is less extreme than the


                                 - 24 -
variance in Heindenstrom.             

   Specifically, in Heindenstrom, we

approved an upward variance that resulted in a sentence more than

four   times     the    maximum    recommended        by   the    Guidelines.        

Carvajal's sentence is less than double the maximum recommended by

the Guidelines.

           Concluding          that     Carvajal's         sentence    was       neither

implausible nor indefensible, we find that it is substantively

reasonable.      Millán-Machuca, 991 F.3d at 28.

                             C. Departure or Variance?

           Finally, we briefly discuss Carvajal's argument that the

district court improperly imposed an upward departure pursuant to

U.S.S.G. § 5K2.1. As we noted, initially at the sentencing hearing

"the   district     court      couched      its    sentence   both    as    an   upward

departure and as an upward variance."                  Heindenstrom, 946 F.3d at

61.    A "departure . . . is a term of art under the Guidelines and

refers    only    to     non-Guidelines           sentences      imposed    under   the

framework set out in the Guidelines."                  United States v. Aponte-

Vellón, 

 (1st Cir. 2014) (quoting Irizarry v. United

States, 

 (2008)).                     In contrast, a variance

"result[s]       from    a    court's       consideration        of   the    statutory

sentencing factors enumerated in 

(a)."                       

           We have held that when a district court discusses the

§ 3553(a) factors and "ultimately rest[s] its rationale on the

nomenclature of a § 3553(a) variance," the court has imposed a


                                         - 25 -
variance, even if it "previously used language that signaled an

intent to make a departure."          United States v. Santini-Santiago,

 (1st Cir. 2017).          Moreover, it is harmless error

for the district court to invoke a departure guideline if it "would

have    imposed    exactly     the   same     sentence   [as]    a   variance."

Heindenstrom, 946 F.3d at 62; see also United States v. Fletcher,

, 188 (1st Cir. 2022) (upholding a sentence enhancement

where   "[i]n     explaining   its   reasoning     for   the    departure,   the

district court effectively made clear that it would have issued

the same sentence under the rubric of a variance").

            Here, we are persuaded the district court imposed a

variance.   Although the court did discuss the departure guideline

during the sentencing hearing, it also discussed many of the

factors that underlie a variance, including the seriousness of the

offense, 

(a)(2)(A), the need to effectively deter

criminal conduct, 

 § 3553(a)(2)(B), and the impact on family

members, see id. § 3553(a)(1).              Moreover, the district court

explicitly indicated in its written Statement of Reasons that it

was imposing a variance rather than a departure.                "[S]entenc[ing]

in this manner is the hallmark of a variance."             Santini-Santiago,

.      Even if Carvajal were correct, and the district

court did impose a Section 5K2.1 departure, "we need not inquire

into the bona fides of the upward departure" when it is clear the




                                     - 26 -
court   would   have   imposed   the   same   sentence   as   a   variance.

Heindenstrom, 946 F.3d at 62.

                            IV. Conclusion

           For all these reasons, we affirm the district court.




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