United States Court of Appeals For the First Circuit

No. 22-1231

UNITED STATES OF AMERICA,

Appellee,

v.

RICARDO PEREZ-DELGADO, a/k/a Bam Bam,

Defendant, Appellant.

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

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

Before

Barron, Chief Judge, Thompson and Montecalvo, Circuit Judges.

Ralph A. Jacobs for appellant. Brendan B. Gants, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Julia M. Meconiates, Assistant United States Attorney, were on brief, for appellee.

April 18, 2024 THOMPSON, Circuit Judge. Here are the basic

need-to-knows of today's sentencing appeal: Ricardo Perez-Delgado

("Perez") received a forty-year prison sentence, even though the

applicable guideline sentencing range ("GSR") only went up to a

ceiling of thirty years and five months of imprisonment. For his

part, relying upon the Sentencing-Law-101 fundamental that a court

must adequately explain the reasons for its chosen sentence, he

argues the district court didn't adequately lay out its rationale

for imposing a sentence nine years and seven months (essentially

a decade) over the top of the GSR. For the government's part, it

claims there's nothing to see here: The district court's

explanation was perfectly fine and it more than adequately

justified the upwardly variant sentence. For our part, after

taking the time to mull it all over, we conclude that Perez's

arguments carry the day. We, unsurprisingly then, vacate and

remand for resentencing.

THE BACKDROP

Before getting to the merits of today's sentencing

appeal, we start off with a summary of the facts and of how the

case got to us. And since we're here on a sentencing appeal

following a guilty plea, we lift the facts from the undisputed

portions of the probation office's presentence investigation

report ("PSR"), the plea agreement, and the transcript of the

- 2 - sentencing hearing. See United States v. Vaquerano Canas,

(1st Cir. 2023).

The Crime

In the late-night hours of March 31, 2019 and continuing

through the early-morning hours of April 1, Perez, along with Angel

David López-Zayas ("López") and Freddie Ramos-Ortiz ("Ramos"),

planned to rob a businessman ("the victim"), who owned gas stations

and commercial properties in Puerto Rico. After scoping the

victim's home, they left to acquire some supplies and to speak

with Jadiel Joaquin Torres-Rijos ("Torres"), who decided to join

their plan to rob the victim. The four of them returned to the

victim's home, pepper sprayed his dogs, and broke the fence to his

home. They entered the home through the kitchen window, but the

noise woke the victim from his slumber. To avoid being caught,

the four robbers exited the home and waited outside. The victim

then exited the home too, to see what all the ruckus was about.

Outside the home, López rushed towards the victim

swinging a baseball bat, but missed the victim because it was dark.

In an effort to defend himself, the victim then retrieved a gun

from his car and shot at the robbers. Avoiding the gunfire, López,

Ramos, and Torres ran into the home. Still outside himself, the

victim stumbled upon Perez and a struggle between them ensued,

during which the victim bit Perez on the face. Later on, López

heard screaming and ran back outside to find the victim being held

- 3 - with his arms behind his back and being beaten with a baseball bat

and the butt of a rifle.1 All four robbers ultimately took part

in the beating. Perez then shot the victim six times with the

victim's own gun and killed him.2

1 The PSR does not specify which co-defendant or co-defendants were holding the victim down and beating the victim when López ran outside. 2 In the parties' briefing to us, there was a bit of a squabble between them because the fact that Perez was the shooter is not included anywhere in the PSR's Offense Conduct section as a fact found by the probation office during their investigation or as a fact stipulated to by the parties. Rather, this fact appears in the PSR's Victim Impact section, which describes the probation office's interview of the victim's children, who indicated in that interview that Perez was the shooter. On appeal, Perez seemed to have been challenging the evidentiary basis for this fact (one cited by the district court when delivering its sentence) as no evidence was presented at sentencing to corroborate his role as the shooter, explaining that the victim's children's statement was the only piece of evidence and it was merely "a belief" that included no "suggestion of the basis for that belief." At oral argument, though, defense counsel made it clear as day that Perez is not challenging that fact and Perez was, indeed, the shooter. We, therefore, take Perez and defense counsel at their word and include that tidbit of information here. While we do not wish to spill more ink on a tangent that everyone agrees on (i.e., Perez's role as the shooter), we must quickly emphasize before moving on that "[f]actual findings made at sentencing must be supported by a preponderance of the evidence" and "findings based solely on unreliable evidence cannot be established by a preponderance." United States v. Castillo-Torres,

(1st Cir. 2021). As we've done before, "[w]e . . . warn[] district courts not to base sentencing determinations upon mere charges unsupported by any admission or some other evidence, even when the defendant offers no rebuttal evidence."

(citation and internal quotation marks omitted); see also

at 72–73 (vacating sentence because relevant factual finding was not supported by preponderance of the evidence, where in the PSR the probation office merely "pass[ed] along allegations made by someone else . . . without vouching for them").

- 4 - With the victim dead, the robbery could now proceed as

originally planned. To sum it up, the four robbers stole two

safes, multiple firearms, two cars, and over $20,000 in cash.

Later on, they divvied up the loot amongst themselves and went on

their own way.

The Sentencing Proceedings

As might be expected, Perez was eventually found,

arrested, and indicted for these actions. And on August 18, 2021,

he agreed to plead guilty pursuant to a plea agreement to the use

and carry of a firearm during and in relation to a crime of violence

resulting in death. Also pursuant to that plea agreement, the

government agreed to dismiss other counts against Perez arising

from his conduct and agreed to a three-level reduction for

acceptance of responsibility, resulting in a total offense level

("TOL") of forty. The parties also agreed to jointly recommend a

sentence of imprisonment of 300 months.3

In anticipation of sentencing, the probation office

filed its PSR with the district court. The PSR calculated a TOL

of forty (which the parties also agreed to) and a Criminal History

Category ("CHC") of I (as Perez had no criminal priors). These

We take a beat here to note that the plea agreement also 3

included a waiver-of-appeal provision, but as that provision was conditioned upon the district court sentencing Perez to 300 months or less (which emphatically did not occur here), it serves as no bar to today's appeal. See United States v. Ruiz-Huertas,

, 226 n.2 (1st Cir. 2015).

- 5 - calculations yielded a GSR of 292-365 months' imprisonment.4

Before closing out, the PSR indicated that the probation officer

who prepared the report did not eye any factors that would warrant

a sentence outside the GSR.

The sentencing hearing took place on March 4, 2022.

Business started as usual with the district court first noting

that it had read Perez's sentencing memorandum, which discussed

his background and upbringing. Both parties then voiced their

joint recommendation of 300 months' imprisonment. Thereafter, the

victim's son and Perez addressed the district court.

At the end of these preliminaries, attention turned back

to the district court to give its sentencing colloquy, which went

a little like this: First, the district court ran the numbers

itself (i.e., the TOL, CHC, and GSR) and ultimately adopted the

probation office's GSR calculation -- namely, 292-365 months'

imprisonment.5 Second, the district court stated that it, in

deciding Perez's sentence, had considered the relevant statutory

factors outlined in

(a), the PSR, Perez's

sentencing memorandum, counsels' arguments, and the victim's son's

4 Although the PSR indicates that the GSR's minimum term of imprisonment was 290 months, not 292 months, that appears upon inspection to be just a typo and this two-month difference is not ultimately relevant to the issues on appeal today. 5 Just as the probation office did, the district court mistakenly indicated that the GSR's minimum term of imprisonment was 290 months, not 292 months.

- 6 - and Perez's in-court statements. Third, the district court briefly

recounted Perez's age, educational background, employment and

health status, and marijuana use. Fourth, the district court

summarized the nature and circumstances of the offense. This

factual summary was largely consistent with the facts found in the

Offense Conduct section of the PSR, with two notable exceptions.

The district court added in that "[o]ver 50 percent of [the

victim's] bones were broken" and "[the victim] was then released

and shot with his own firearm approximately six times by Mr.

Perez." Fifth, and finally, the district court meted out a variant

sentence of 480 months' imprisonment (i.e., forty years total, and

115 months above the GSR's 365-month top). The district court's

explanation for its variant sentence amounted to one sentence:

The Court finds that the sentence recommended by the parties does not reflect the seriousness of Mr. Perez'[s] offense, does not promote respect for the law, does not protect the public from additional crimes by Mr. Perez, and does not address the issues of deterrence and punishment. Accordingly, it is the judgment of the Court that [Perez] is committed to the custody of the Bureau of Prisons to be imprisoned for a term of 480 months.

And that was it. The district court did not otherwise address its

basis for the upward variance or even acknowledge that its chosen

sentence had strayed from the GSR at all.

Once the district court was done speaking, defense

counsel offered the following objection:

- 7 - Your Honor, as to appeal purposes, we need to object to the sentence that has been handed down today for being substantive[ly] and procedurally unreasonable, and the term of imprisonment specifically being over what -- the Plea Agreement and the recommended guidelines in the PSR.

To this objection, the district court said not a word.

Following the end of the sentencing hearing, the

district court filed a statement of reasons ("SOR"), in which it

checked off the following three boxes as reasons for its variant

sentence: Perez's "[r]ole in the [o]ffense"; the need "[t]o

reflect the seriousness of the offense, to promote respect for the

law, and to provide just punishment for the offense"; and the need

"[t]o afford adequate deterrence to criminal conduct."

Unhappy with his variant sentence, Perez then asked us

to weigh in through a timely notice of appeal.

THE MERITS

Against this factual and procedural backdrop, we turn

our attention to Perez's sentencing appeal, which follows our

now-familiar "two-step framework" for sentencing appeals. United

States v. Colón-Cordero,

(1st Cir. 2024).

Step one involves determining whether the sentence was

procedurally reasonable. See United States v. Melendez-Hiraldo,

(1st Cir. 2023). Examples of errors that might

require us to label a sentence procedurally unreasonable include

the district court "failing to calculate (or improperly

- 8 - 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 all is procedurally a-okay, we then proceed to

step two, which involves determining whether the sentence was

substantively reasonable. See Melendez-Hiraldo,

.

We stamp a sentence as substantively reasonable "if its rationale

is plausible and resulted in a defensible outcome." United States

v. De La Cruz,

(1st Cir. 2024).

With our two-step framework in place, we lay out Perez's

arguments on appeal. Essentially, he has three arrows in his

quiver: First, he argues that his sentence was procedurally and

substantively unreasonable because the district court did not

adequately explain the reasons for its upwardly variant sentence.

Second, he argues that his sentence was procedurally and

substantively unreasonable because the district court created a

sentencing disparity with his co-defendants and did not adequately

explain the basis for that disparity.6 And third, he argues that

6 López was sentenced to 240 months, Ramos was sentenced to 282 months, and Torres was sentenced to 360 months. All of these sentences were ten or more years less than Perez's sentence of 480 months and no co-defendant received an upwardly variant sentence.

- 9 - his sentence was procedurally unreasonable because the district

court did not put him on notice that his role in the offense was

going to be an issue at sentencing.

Of those three arrows, Perez's first

inadequate-variance-explanation argument clearly hits the

bull's-eye for reasons we'll explain in due course. Our

discussion, therefore, will be limited to this winning argument.

See, e.g., Colón-Cordero, 91 F.4th at 48 ("[W]e need train our

focus on only some of those claims, not all, to reach our

outcome."); United States v. Torres-Meléndez,

(1st Cir. 2022) (focusing discussion of sentencing appeal on only

one procedural-reasonableness argument, as "the simplest way to

handle a case is often the best way" (citation and internal

quotation marks omitted)). And even though Perez makes his

inadequate-variance-explanation argument on both procedural and

substantive unreasonableness terms,7 our discussion of this

particular argument will be limited to procedural reasonableness

because, as we mentioned above, we don't reach step two of our

framework unless all the procedural i's are dotted and t's are

crossed. See United States v. Reyes-Santiago,

(1st Cir. 2015).

7 We've explained before that "[t]he lack of an adequate explanation can be characterized as either a procedural error or a challenge to the substantive reasonableness of the sentence." United States v. Crespo-Ríos,

, 37 n.3 (1st Cir. 2015).

- 10 - But before getting into the weeds of why Perez's argument

is a winner, we pause first to address our standard of review and

second to walk through some of the A, B, C's of sentencing that

guide our coming analysis.

Standard of Review

At either step in the two-step framework, we review

preserved claims of error for abuse of discretion and, "[w]ithin

the abuse-of-discretion rubric, we review the sentencing court's

findings of fact for clear error and questions of law (including

the court's interpretation and application of the sentencing

guidelines) de novo." United States v. Carrasquillo-Vilches,

(1st Cir. 2022) (citation and internal quotation marks

omitted). If the defendant failed to preserve their claim of

error, however, they are left saddled with plain-error review.

See United States v. Montero-Montero,

(1st Cir.

2016).

Here, the government requests that we review Perez's

inadequate-variance-explanation argument for plain error, because

he supposedly failed to preserve this error before the district

court. That's a request we cannot grant for the following reasons.

It is true (as the government points out) that in general "[t]o

preserve a claim of error for appellate review, an objection must

be sufficiently specific to call the district court's attention to

the asserted error." United States v. Soto-Soto,

,

- 11 - 448 n.1 (1st Cir. 2017). But "our preservation policy" is not

ironclad either; it simply requires "putting the district court on

notice of the error." Colón-Cordero, 91 F.4th at 50. To that

end, we have emphasized that, "[t]o 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).

Applying our preservation policy here, we deem defense

counsel's objection sufficiently specific to call the district

court's attention to its failure to adequately explain the variance

from the GSR. To recap, once the district court finished its

sentencing colloquy, defense counsel objected "to the sentence

that has been handed down today for being . . . procedurally

unreasonable, and the term of imprisonment specifically being over

. . . the recommended guidelines in the PSR." Accordingly, defense

counsel specified that he was objecting to the sentence on

procedural-reasonableness grounds and then "supplied more specific

reasons for objecting -- among them" that the sentence was above

the applicable GSR. United States v. García-Pérez,

(1st Cir. 2021). We find that "[s]ubsumed within th[at]

objection[] is the clearly implicit charge that the district

court's explanation" did not sufficiently explain why Perez's

sentence was above the GSR. United States v. Serrano-Berríos,

, 250 n.1 (1st Cir. 2022).

- 12 - To be sure, we concede that defense counsel could have

offered some greater specificity in his objection. But "exquisite

precision" has never been required, Rivera-Berríos,

, and we have explained before that "[t]he lack of an adequate

explanation can be characterized as . . . procedural error,"

Crespo-Ríos,

n.3. Furthermore, we think the broader

context of this particular sentencing hearing makes it

"contextually clear" that defense counsel's objection and specific

reference to the sentence being above the GSR put the district

court sufficiently on notice that defense counsel believed its

explanation to be wanting. Colón-Cordero,

. The

broader context here involves (1) an extraordinary variance (just

shy of a decade); (2) a sentencing hearing at which both the

government and defense counsel advocated for a within-the-GSR

sentence; (3) a PSR in which the probation office indicated it

thought there was no reason to vary; (4) a sentencing memorandum

from defense counsel explaining that the within-the-GSR joint

recommendation more than satisfied all the goals of sentencing;

(5) three other co-defendants who did not receive upwardly variant

sentences; and (6) a sentencing colloquy during which (as we will

explain in just a minute) the district court did not explain why

- 13 - it opted for such a significantly outside-the-GSR sentence. To

require more in this context would be to gild the lily.8

On this record, therefore, we keep our

abuse-of-discretion review and file plain-error review away for

another day. With that, we move on to the aforementioned A, B,

C's of sentencing necessary to understand our analysis and ultimate

decision.

A, B, C's of Adequate Sentencing Explanations

A sentencing court is obligated to "state in open court

the reasons for its imposition of the particular sentence."

(c). This obligation serves multiple purposes: it

not only gives the defendant (and the public) an understanding of

why the defendant is receiving a particular sentence, but it also

"allow[s] for meaningful appellate review" and "promote[s] the

perception of fair sentencing." Gall,

.

Nevertheless, explaining the reasons for a particular

sentence is more of an art than a science. On the one hand, the

explanation must highlight "the primary factors driving the

imposed sentence," but on the other hand, it need not be "precise

to the point of pedantry." Rivera-Berríos,

(citations omitted). Basically, context is the name of the game

here, because "[t]he appropriateness of brevity or length,

8 We by no means suggest that only in these specific contextual

circumstances would such an objection be considered preserved.

- 14 - conciseness or detail, when to write, what to say, depends on the

circumstances." Rita v. United States,

(2007);

see also Colón-Cordero, 91 F.4th at 50-51 ("Just what kind of

explanation is needed depends on the context of each individual

case."). For example, a sentence that sits comfortably within the

GSR "requires a less elaborate explanation." United States v.

Murphy-Cordero,

(1st Cir. 2013).

Conversely (and relevantly for our purposes here today),

an outside-the-GSR sentence (whether above or below) requires

more. See

Just how much more depends on the degree of the

variance. The more the sentencing court decides to vary, the more

it needs to explain. See United States v. Reyes-Correa,

(1st Cir. 2023). And while "we have not mandated that a

sentencing court follow any particular format in explaining an

upwardly variant sentence," United States v. Flores-Nater,

(1st Cir. 2023), part of its explanation must

include why the defendant's case "differ[s] from the norm" or "the

mine-run of" cases covered by the applicable GSR. Serrano-Berríos,

(citations and internal quotation marks omitted).

Whatever explanation the sentencing court decides to give must

also be case-specific. Boilerplate or generic explanations that

are one-size-fits-all-defendants (particularly in the context of

variant sentences) will not do. See, e.g., Colón-Cordero, 91 F.4th

at 52-53; Reyes-Correa, 81 F.4th at 10–11; United States v.

- 15 - Carrasquillo-Sánchez,

(1st Cir. 2021);

Rivera-Berríos,

.

All that said, "a sentencing court's rationale need not

always be explicit even when the court imposes an upwardly variant

sentence." Flores-Nater,

. In such instances, "if

the explanation can be gleaned 'by fair inference' from the

sentencing record," we'll deem that sufficient.

(quoting

United States v. Ortiz-Pérez,

(1st Cir. 2022)).

Nevertheless, our willingness to infer a sentencing rationale has

its limits. See Carrasquillo-Sánchez, 9 F.4th at 62 ("[W]hile 'a

court's reasoning can often be inferred by comparing what was

argued by the parties or contained in the pre-sentence report with

what the judge did,' such inferences must be anchored in 'what the

judge did.'" (quoting United States v. Jiménez-Beltre,

, 519 (1st Cir. 2006) (en banc))).

With those sentencing-explanation basics squared away,

all that's left is our take on today's sentencing appeal.

Our Take

Perez argues the district court's explanation was too

threadbare to make the cut on appeal. More specifically, he

explains that the district court offered only a generic,

one-sentence explanation for a sentence that varied upwardly by

nearly a decade. Besides that one sentence, the district court

offered only a factual summary of the crime, which doesn't amount

- 16 - to a sentencing explanation (according to Perez). Seemingly

ignoring the generic, one-sentence explanation, the government

counters that the district court's explanation can be inferred by

its references to Perez's privileged history and upbringing, the

brutal nature of the crime, and his role as the shooter. In our

view, Perez has the better of the arguments.

To kick things off, we agree that the district court's

explanation was limited to one generic sentence: "The Court finds

that the sentence recommended by the parties does not reflect the

seriousness of Mr. Perez'[s] offense, does not promote respect for

the law, does not protect the public from additional crimes by Mr.

Perez, and does not address the issues of deterrence and

punishment." Nothing in this one sentence is specific to Perez's

case, highlights which aspects of the crime were particularly

troubling to the district court, or explains why an extra ten years

in prison is the magic number. Rather, this explanation is

boilerplate. And we use the term "boilerplate" literally because

the explanation the district court gave here tracks almost

word-for-word the same explanations we have deemed inadequate in

many other cases. See, e.g., Colón-Cordero, 91 F.4th at 52-53;

Reyes-Correa,

; Flores-Nater,

;

Serrano-Berríos,

; United States v.

Muñoz-Fontanez,

(1st Cir. 2023). As we've

indicated before and repeat today, this explanation "simply

- 17 - rehearses -- but does not apply -- certain of the factors that

Congress has instructed courts to consider in imposing sentences."

Reyes-Correa,

(quoting Flores-Nater,

, which in turn is citing

(a)(2)).

Of course, this doesn't end our analysis because, as we

mentioned above, an adequate sentencing explanation can, at times,

be fairly inferred "from the sentencing colloquy and the parties'

arguments (oral or written) in connection with sentencing."

Montero-Montero,

. And the government beseeches us

to look at the district court's sentencing colloquy because, in

the government's view, all the answers as to why the district court

gave Perez an extra decade in prison are right there. So, let's

take another look at that sentencing colloquy to see if we find

the answers the government assures us are there (they aren't).

To refresh the memory, after adopting the probation

office's GSR tabulations, the district court acknowledged that it

had considered the § 3553(a) factors, the PSR, Perez's sentencing

memorandum, counsels' arguments, and the victim's son's and

Perez's in-court statements. Then, the district court laid out

some basic biographical details about Perez: twenty-six years

old, associate's degree, pre-arrest employment in maintenance,

prior marijuana use, and physical and mental health intact. Next,

the district court ran through the facts of the crime. Once

finished with its factual recap, the district court gave the

- 18 - aforementioned, one-sentence explanation and meted out its

forty-year sentence. Having reviewed the sentencing colloquy, we

find nothing that comes close to an adequate explanation for a

sentence with a variance of this magnitude (nearly a decade over

the top-line of the GSR).

The government responds by urging us to review the

colloquy more carefully and read in-between the lines. First, it

argues that the district court referred to "Perez's privileged

history and characteristics" in the colloquy, which suggests that

"his decision to participate in the senseless brutality was

especially troubling" to the district court. But the sum total of

the district court's reference to Perez's background was the

following: "Mr. Perez is 26 years old, has an Associate[']s Degree

in education, was employed in maintenance prior to his arrest for

his offense, and has a history of using marijuana. He is

physically healthy, and mentally stable." To state the obvious,

this is not an explanation for a variant sentence; it doesn't even

acknowledge that there is a variance and, unlike the government's

spin on what it believes animated the district court's thinking,

the district court itself doesn't even use the word "privileged."

No matter, says the government, because it has other

winning arguments on deck. It contends next that, in the detailed

factual summary the district court gave at sentencing, the district

court included that (1) this was "a violent crime during which the

- 19 - victim was brutally murdered" and "[o]ver 50 percent of [the

victim's] bones were broken," and that (2) "[the victim] was . . .

shot with his own firearm approximately six times by Mr. Perez."

By including these facts in its summary, the government believes

that the brutal nature of the crime and Perez's role as the shooter

were the driving forces behind the district court's upwardly

variant sentence. Put simply, color us unconvinced.

As an initial matter, we take issue with an underlying

assumption of this argument. A simple recitation of the facts

underlying the crime -- with no emphasis on any particular

fact -- is not a justification for a sentence with an extraordinary

variance. See Reyes-Correa,

("A summary of the

events that preceded the [sentencing] hearing -- without more -- is

an impermissible basis for a large upward variance.");

Muñoz-Fontanez,

("But the court's mere listing

of the facts of the arrest, without emphasis on any particular

circumstance, makes it impossible to tell whether it was the

automatic weapon or something else that motivated its decision.").

Rather, "[w]hen imposing a significant variance, a sentencing

court must make clear which specific facts of the case motivated

its decision and why those facts led to its decision."

Muñoz-Fontanez,

.

Even if we declined to view these statements as a factual

recap and instead, take the government's arguments head on, they

- 20 - are still wanting. While the district court did indeed describe

the crime as "violent" and "brutal[]," and noted that the victim

was left with fifty percent of his bones broken, a passing

reference to the brutal nature of the crime is hardly an

individualized explanation specific to Perez, especially where the

beating was inflicted equally by four co-defendants.9 Moreover,

the district court did not place particular "emphasis" on this

aspect of the crime, thus making it "impossible to tell" if this

was the driving force behind the sentence.

.

The district court's references to Perez's role as the

shooter and the fact that he shot the victim six times fare no

better. Although the district court mentioned these facts, it

gave no indication that it was these facts that justified the

district court's imposition of a variant sentence -- which, given

the magnitude of the variance, it was required to do. See

. And to the extent the facts that the victim died and that a

firearm was used during the commission of the crime were at the

forefront of the district court's mind when imposing its sentence,

the GSR clearly already took into account both those facts; the

crime to which Perez pleaded guilty, after all, was the "use and

carry of a firearm during, and in relation to crimes of violence

resulting in death," (emphases ours). And "[i]t is settled beyond

As we earlier noted, each co-defendant received a lesser 9

sentence and from the same sentencing court.

- 21 - hope of contradiction that when a sentencing court relies on a

factor already accounted for by the sentencing guidelines to impose

a variant sentence, [it] must indicate what makes that factor

worthy of extra weight." Rivera-Berríos,

(second

alteration in original) (citation and internal quotation marks

omitted). Here, the district court provided no such indication.

The government retorts that "[w]hile the victim's death was

considered in the advisory guideline calculus because the murder

cross reference was applied, . . . the senselessness of shooting

the victim six times after the torture was not." Fair enough, but

the government's retort is citation-free to any aspect of the

record where the district court explains that it upwardly varied

because of this "senselessness." So, we are again left to resort

to guesswork as to why the district court imposed its upwardly

variant sentence. All told, we find nothing in the sentencing

colloquy from which we can infer the district court's reasoning.

Having concluded then that there's nothing in the

district court's sentencing colloquy from which we can infer an

explanation, we ask: is there anything else in the record that

could clear this up? Perez answers "no" and the government answers

"yes," pointing us to the SOR. The government argues that the

district court checked off the "[r]ole in the [o]ffense" box in

its SOR, "illustrat[ing] that P[e]rez's role as the shooter was

important to the [district] court." But this argument fails for

- 22 - the reasons just discussed. The district court gave no explicit

indication during its colloquy that Perez's role as the shooter

was anchoring its upward variance. And the facts that the victim

died and that a firearm was used were accounted for by the GSR,

and the district court never explained why these aspects of the

crime should be given greater weight here. Accordingly, there's

nothing in the sentencing record as a whole from which we can infer

an adequate explanation.10

In sum, what we have here is a one-sentence, generic

explanation, a factual summary of the crime, and a sentencing

record from which we cannot infer an adequate rationale. That's

plainly insufficient to justify a nearly ten-year upward variance

because recall that the greater the variance, the greater the

explanation must be. See Reyes-Correa,

. Here,

Perez was sentenced to an additional nine years and seven months

10 In a last-ditch effort, the government makes a passing argument that the district court's sentence was reasonable and its explanation was sufficient because, while the GSR only went up to a maximum 365 months' imprisonment, the criminal statute at issue here allowed the district court to sentence Perez to life imprisonment if it so chose. The logic of this argument appears to be that, since the district court could have sentenced Perez to life, forty years has got to be reasonable. It is true that we have, at times, relied in part on the statutory possibility of life imprisonment to deem an upwardly variant sentence reasonable. See, e.g., United States v. Díaz-Bermúdez,

(1st Cir. 2015). But we have never even so much as suggested that a crime punishable by a statutory maximum of life imprisonment would make an upwardly variant sentence irreversible on appeal. A sentencing court must always explain its sentences, regardless of any statutory maximum on the books.

- 23 - in prison. Any way you slice it, that is an extraordinary

variance. See, e.g., Colón-Cordero, 91 F.4th at 53 (noting an

upwardly variant sentence by nine months represents a "significant

time period by any reasonable measure"); Reyes-Correa,

(describing upward variance by twenty-seven months as

"massive"); United States v. Vélez-Andino,

, 116 (1st

Cir. 2021) (characterizing an upward variance by fourteen months

as "substantial"). So, we decline to bend over backwards trying

to piece together an explanation, "[g]iven that the strength of

the justification must increase proportionally with the length of

an upwardly variant sentence." Reyes-Correa,

.

Therefore, the district court's explanation (or more accurately,

lack thereof) was an abuse of discretion.11

THE WRAP-UP

Convinced that the district court didn't adequately

explain its sentence, we vacate Perez's sentence and remand to the

district court for resentencing consistent with this opinion. The

district court should base its sentence on the existing factual

record, supplemented by any facts that occurred after the prior

date of sentencing, to the extent those facts are offered and

11 We highlight, before we part, that nothing we have said should be taken to mean that an upwardly variant sentence is inappropriate here. That is a matter purely in the district court's discretion. But should the district court on remand decide to upwardly vary again, the explanation must be individualized and proportional to the length of the variance.

- 24 - admissible. And as we stated above, we do not reach any of Perez's

other appellate arguments against his sentence. To the extent any

of the issues raised in either party's briefing remain relevant on

remand, they are free to pursue them before the district court.

- 25 -