United States v. Crespo-Rios

United States Court of Appeals
For the First Circuit

No. 13-2216

UNITED STATES OF AMERICA,

Appellant,

v.

FERNANDO CRESPO-RÍOS,

Defendant, Appellee.

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

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Thompson, Circuit Judges.

Jenifer Yois Hernández-Vega, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellant.
Rachel Brill for appellee.

May 22, 2015
 LYNCH, Chief Judge. This is a sentencing appeal by the

government. On January 11, 2012, defendant Fernando Crespo-Ríos,

then aged 46, pled guilty to two crimes: (1) transferring obscene

material to a minor, and (2) possessing child pornography. The

Probation Office calculated a guideline sentencing range between 70

and 87 months, and a term of supervised release between 5 years and

life. On August 15, 2013, the district court sentenced the

defendant to imprisonment for the time that he had already served

-- which amounted to 13 days -- and 15 years of supervised release.

The government appeals this sentence as substantively unreasonable.

Because the district court failed to provide an adequate

explanation as required by law for this extraordinary variance, we

vacate the sentence and remand the matter for resentencing. Of

course, in remanding, we do not express any opinion as to what the

sentence should be.

I.

From August 2007 to April 2008, the defendant

communicated online with a Special Agent of the FBI, who was posing

as a twelve-year-old Puerto Rican girl. Despite being informed of

her age, the defendant's conversations were explicitly sexual in

nature. The defendant "used a web camera to transmit to the

'minor' on several occasions apparently live images of his genital

area and his erect penis." He also "repeatedly encourage[d] the

'minor' to engage in sexual activities with him or for him." He

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suggested that the minor "masturbate, model a g-string for him,

exchange underwear with him, bathe him, engage in sex or oral sex

with him, watch pornographic films before having sex, and have his

child." He asked the minor to meet him, or to transmit images of

herself.

Based on information learned from these chats, federal

agents secured a search warrant for the defendant's home and

computer. During their search, the FBI found between 300 and 600

images of child pornography. "[T]he images contained bondage, oral

sex with ejaculation, adults penetrating children and children

performing sex with other children." In addition, the FBI found a

video that "shows a girl of approximately thirteen (13) years old,

that has been tied by her neck, ankles and wrists, while an adult

performed oral, vaginal and anal sex."

The defendant was indicted on May 29, 2008, for knowingly

possessing both still images and movie files of minors engaged in

sexually explicit conduct, and knowingly attempting to transfer

obscene material to someone who was under the age of 16. He was

arrested the next day, and remained in jail until he posted a

secured bond of $100,000 on June 13, 2008, when he was released to

home incarceration. On September 16, 2008, the magistrate judge

modified the conditions of the defendant's release from home

incarceration to home detention with electronic monitoring. On

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August 3, 2010, the magistrate judge eliminated home detention and

electronic monitoring, and imposed a curfew.

On January 11, 2012, Crespo-Ríos entered a straight plea

to both counts of the indictment.1 The district court held a

sentencing hearing over a year later, on January 30, 2013. In the

Presentence Investigation Report ("PSR"), the Probation Office had

calculated a guideline sentencing range between 70 and 87 months

imprisonment, and identified no bases for a departure or a

variance. Crespo-Ríos requested a downward variant sentence of

time served, arguing that he had a low risk of recidivism, that

registering as a sex offender is a significant additional

punishment, and that U.S.S.G. § 2G2.2 is an "extremely flawed

Guideline." In response, the government asked the court to

sentence the defendant in accordance with the applicable sentencing

guidelines, between 70 and 87 months.

At the sentencing hearing, the defendant introduced a

psychological evaluation from Dr. José Méndez, dated August 22,

2009. The district court ordered an updated psychosexual report

1
The three and a half years that elapsed between the
defendant's indictment and plea is due in part to litigation
concerning his motion to suppress. On February 23, 2009, the
defendant filed a motion to suppress the evidence of child
pornography found at his home. On April 13, 2009, the magistrate
judge recommended denying the motion. On June 5, 2009, the
district court rejected the magistrate's recommendation, and
granted the motion to suppress. On June 8, 2011, we reversed the
district court's order and remanded with instructions to deny the
motion to suppress. United States v. Crespo-Ríos, 645 F.3d 37 (1st
Cir. 2011). The defendant pled guilty seven months later.

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"[b]ecause the only way that I'm going to be able to either depart

or go to a variance in this case is for me to be satisfied at this

time that defendant does not pose a threat to society in the sense

of coming forward and doing anything to children." The sentencing

hearing was rescheduled as a result.

The second sentencing hearing was held on August 15,

2013. Dr. Vanessa Berríos Méndez, who completed the requested

psychosexual report, testified about her findings. When the court

asked about the defendant's risk of recidivism, Dr. Berríos

responded: "I believe that the risk is low as long as he goes to

treatment . . . . [a]nd if he controls his substance abuse." The

defendant re-iterated his arguments for a sentence of time served,

particularly emphasizing the evidence of his low risk of

recidivism. The government asked the district court to consider

the other factors in 18 U.S.C. § 3553(a), including the need to

consider the seriousness of the offenses, to promote respect for

the law, to provide just punishment, and to avoid sentencing

disparities among similarly situated individuals.

Ultimately, the district court granted the requested

variance and sentenced the defendant to the time that he had

already served -- 13 days. The defendant was also sentenced to 15

years of supervised release with, among other conditions, no access

to the internet, a requirement that he register as a sex offender,

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and a requirement that he participate in sex offender treatment.2

By way of explanation, the district court stated:

[T]he Court considers that there are some
factors in this case that are salient, and
those are the personal history and
characteristics of the defendant as well as
the potential for rehabilitation. And in view
of this conclusion of the psychosexual
assessment report, the Court in this case will
enter into or grant a variance in this case.

The court's exclusive focus was on the personal history and

characteristics of the defendant. Although the court later

mentioned that the "offense" was "very serious," it did not explain

how it had factored that into its § 3553(a) analysis. And the

court offered no explanation about its ultimate view on the need

for general deterrence or the potential for sentencing disparities.

When the government objected, the district court explained that it

"ha[d] taken into consideration all the evidence that is really on

the record, and it consider[ed] that in this particular case and

taking into account the individualization of this defendant, the

sentence [was] justified." Although district courts must provide

a written statement of reasons for any sentence outside the

recommended guideline range, see 18 U.S.C. § 3553(c)(2), the

district court did not do so here. The government now appeals,

arguing that the defendant's sentence is substantively

unreasonable.

2
The defendant has made no objection to the conditions of
supervised release imposed in this case.

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 II.

We review the substantive reasonableness of the sentence

imposed for abuse of discretion. Gall v. United States, 552 U.S.

38, 51 (2007). "There is rarely, if ever, a single correct

sentence in any specific case." United States v. Santiago-Rivera,

744 F.3d 229, 234 (1st Cir. 2014). Instead, we ask "whether the

sentence, in light of the totality of the circumstances, resides

within the expansive universe of reasonable sentences." United

States v. King, 741 F.3d 305, 308 (1st Cir. 2014). Generally

speaking, a sentencing court must explain the reasoning behind the

sentence it chooses.3 See United States v. Fernández-Cabrera, 625

F.3d 48, 53 (1st Cir. 2010). And, we will find no abuse of

discretion if "the court has provided a plausible explanation, and

the overall result is defensible." United States v. Torres-

Landrúa, 783 F.3d 58, 68 (1st Cir. 2015) (citation and internal

quotation marks omitted).

3
The lack of an adequate explanation can be characterized as
either a procedural error or a challenge to the substantive
reasonableness of the sentence. Compare United States v.
Rodríguez-Castro, 492 F. App'x 137, 142 (1st Cir. 2012) (analyzing
the adequacy of the explanation as a procedural claim), with United
States v. Madera-Ortiz, 637 F.3d 26, 30-31 (1st Cir. 2011)
(analyzing the same under substantive reasonableness). Although
procedurally required, the explanation is also relevant to the
substantive reasonableness inquiry. Cf. United States v.
McDonough, 727 F.3d 143, 165 n.15 (1st Cir. 2013) (considering
nominally procedural issue "to the extent that it bears on the
reasonableness of [the defendant's] sentence").

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 There is no dispute that a district court can vary, even

dramatically, from a guideline sentencing range based on the

factors enumerated in § 3553(a). See Gall, 552 U.S. at 49-50.

Nevertheless, "the fact that a sentencing court possesses the raw

power to deviate from the guidelines does not mean that it can (or

should) do so casually." United States v. Martin, 520 F.3d 87, 91

(1st Cir. 2008).

Importantly, if the district court "decides that an

outside-Guidelines sentence is warranted, [it] must consider the

extent of the deviation and ensure that the justification is

sufficiently compelling to support the degree of the variance."

Gall, 552 U.S. at 50. The justification presented should be

commensurate with the degree of the variance such that "a major

departure should be supported by a more significant justification

than a minor one." Id.; see also Martin, 520 F.3d at 91 (noting "a

certain 'sliding scale' effect . . . in the penumbra of modern

federal sentencing law"); cf. United States v. Ofray-Campos, 534

F.3d 1, 42-44 (1st Cir. 2008) (vacating and remanding for

resentencing because the district court's explanation -- while

sufficient to warrant a variance -- "was not sufficiently

compelling to support" a sentence more than 24 years above the

guideline range). When faced with an inadequate explanation, "it

is incumbent upon us to vacate, though not necessarily to

reverse[,] the decision below to provide the district court an

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opportunity to explain its reasoning at resentencing." United

States v. Gilman, 478 F.3d 440, 446-47 (1st Cir. 2007) (citations

and internal quotation marks omitted).

In this case, the district court varied from 70 months

(the low end of the guideline range) to 13 days (the time already

served) for two serious crimes. When explaining its decision to

impose an extreme variance to an essentially non-incarcerative

sentence, the district court focused exclusively on the defendant's

potential for rehabilitation and low risk of recidivism. The

district court did not explain how it had weighed the other factors

laid out in § 3553(a), or why this particular sentence was

appropriate in light of these factors. Critically, there is no

explanation of how this sentence reflects the seriousness of the

crimes committed, avoids sentencing disparities, promotes general

deterrence, or promotes respect for the law.

These factors cannot be left out of the sentencing

calculus in cases like this. In United States v. Milo, 506 F.3d 71

(1st Cir. 2007), for example, we explained:

Full contrition and even a zero risk of re-
offense engage major concerns of sentencing;
incarceration is then perhaps not needed to
reform that individual, to protect the
community from him and to deter him from
committing new offenses. But punishment is
also meant to deter others, affirming the
seriousness of the crime and the penalties
that others will likely face and the
difficulty of avoiding punishment.

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Id. at 76. There, we held that the weight given to contrition, an

indicator for rehabilitation, could not justify the district

court's decision to sentence the defendant to time served (18 days)

when the PSR calculated a guideline sentencing range of 151 to 188

months for a drug trafficking offense. Id. at 72-73, 76-77; see

also Martin, 520 F.3d at 94 (citing Milo as an example of the

limits on a district court's reliance on rehabilitation).

To be clear, we do not decide whether the sentence

imposed in this case is substantively unreasonable. We reach only

the antecedent question of whether the district court provided an

adequate explanation for such a large variance. It did not.4 The

court's explanation focused on the defendant's own potential for

rehabilitation to the exclusion of other important sentencing

factors. The district court's explanation is incomplete, and hence

inadequate, to justify the extent of the variance imposed.

In other circumstances, we have filled in the gaps in a

district court's reasoning by looking to the arguments made by the

parties or laid out in the PSR. See United States v. Turbides-

Leonardo, 468 F.3d 34, 40-41 (1st Cir. 2006); see also United

States v. Dávila-González, 595 F.3d 42, 48-49 (1st Cir. 2010).

4
For the same reason, this is not a case in which the
district court simply gave more weight to some sentencing factors
over others. Cf. United States v. Clogston, 662 F.3d 588, 592-93
(1st Cir. 2011). We cannot defer to the district court's decision
concerning the relative weight of relevant factors when these
factors are left unexplained.

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Nevertheless, "there are limits." Gilman, 478 F.3d at 446; see

also United States v. Perazza-Mercado, 553 F.3d 65, 75 (1st Cir.

2009). We are unwilling to infer that the court adequately

considered the other § 3553(a) sentencing factors from the record

in this case for two reasons.

First, and consistent with Supreme Court precedent in

this area, the extent of the variance requires a more significant

justification that must be made explicit. See Gall, 552 U.S. at

50. We note that there is no "mathematical formulation" to apply

in this analysis. See id. at 49. Nor is there a presumption that

such variances are unreasonable. See id. at 47. Rather, we hold,

as did the Supreme Court, that major variances in either direction

must be accompanied by an adequate explanation of the reasoning.

See id. at 50; see also Peugh v. United States, 133 S. Ct. 2072,

2084 (2013) (citing Gall, 552 U.S. at 51).

Accordingly, we have repeatedly advised sentencing courts

that "[t]he level of detail required varies depending on the

circumstances." United States v. Madera-Ortiz, 637 F.3d 26, 31

(1st Cir. 2011) (citation and internal quotation marks omitted).

A "sentence[] that fall[s] inside a properly calculated guideline

sentencing range require[s] a lesser degree of explanation than

those that fall outside the guideline sentencing range." Turbides-

Leonardo, 468 F.3d at 41. The greater explanation required for a

greater variance must be made on the record "to allow for

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meaningful appellate review and to promote the perception of fair

sentencing." See Gall, 552 U.S. at 50; see also United States v.

Arango, 508 F.3d 34, 47 (1st Cir. 2007) (stating that "[a]n

explanation in open court also furthers the weighty goals of

transparency and credibility for the justice system").

This explanation requirement applies regardless of the

direction of the variance -- up or down. See Turbides-Leonardo,

468 F.3d at 41. In this case, a more thorough explanation was

required since the district court varied so dramatically to a non-

incarcerative sentence without explicitly articulating its

evaluation of factors other than rehabilitation. The same would

hold true if, for example, a district court varied upwards despite

a much lower guideline sentencing range without an adequate

explanation of its consideration of all relevant factors. See,

e.g., United States v. Franquiz-Ortiz, 607 F.3d 280 (1st Cir. 2010)

(per curiam). Indeed, in United States v. Medina, 779 F.3d 55 (1st

Cir. 2015), we have just vacated two of a defendant's conditions of

supervised release and remanded for resentencing since the

conditions of release were inadequately justified. See id. at 62-

64, 71-73.

Second, the district court's consideration of the

neglected factors is far from self-evident from the record here.

Indeed, at the second sentencing hearing, the government argued

that "the focus should not only be rehabilitation," and asked that

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the sentence imposed "be one that also promotes respect for the

law, takes into consideration the seriousness of this offense, and

considers what is the just punishment that should be provided for

the offense." The district court did not conduct an on-the-record

evaluation of these factors, which are explicitly set forth in

§ 3553(a). Rather, it agreed only that "you have to take into

account the personal history and characteristics of the defendant,"

and did not repeat the other factors. It erroneously stated that

it was "not so sure that [the message sent to society] is one of

the criteria." Yet, "public confidence in enforcement of the law

is itself a value" recognized in § 3553(a). See Milo, 506 F.3d at

76; see also 18 U.S.C. § 3553(a)(2) (requiring sentences "to

promote respect for the law" and "to afford adequate deterrence to

criminal conduct"). Indeed, when discussing general deterrence,

the Sentencing Guidelines expressly refer to the need for "a clear

message [to] be sent to society." U.S.S.G. ch. 4, pt. A,

introductory cmt.

In addition, the government argued that the sentence

should "avoid potential sentencing disparities among similarly

situated individuals." The government advocated comparing the

defendant to others who had pled guilty to possession of child

pornography pursuant to a plea agreement. The government added

that relevant sentences in the District of Puerto Rico had ranged

from 30 months to 120 months. In response, the district court

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noted that it had "done variances and . . . given long supervised

release terms and no incarceration" in similar cases. Moreover,

the district court expressed its belief that, "when there is a plea

agreement, the issue of sentencing disparity is not as great as

when you have trials." Although defendants who plead guilty are

not similarly situated to those who do not, see United States v.

Rodríguez-Lozada, 558 F.3d 29, 45 (1st Cir. 2009), sentencing

disparities among only defendants who plead guilty are still

important. In this analysis, "consideration of sentencing

disparity primarily targets disparities among defendants

nationally." United States v. Ayala-Vázquez, 751 F.3d 1, 32 (1st

Cir. 2014) (citation and internal quotation marks omitted).

Finally, the district court mentioned the seriousness of

"the offense" once, in boilerplate fashion, after announcing the

sentence. The seriousness of these two crimes cannot be

understated. The possession of child pornography is far from a

"victimless crime." See Paroline v. United States, 134 S. Ct.

1710, 1727 (2014). Children are subjected to abuse, degradation,

and rape for the prurient perusal of those who keep purveyors of

these images in business. And, this defendant was also convicted

of transferring obscene material to a minor. Specifically, he

attempted to lure an apparent 12-year-old female victim into a

sexual relationship over the course of eight months. Beyond the

serious harm inherent in the possession of child pornography, this

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particular crime bore the potential to directly destroy a young

victim's normal life. Yet, the district court provided no

explanation as to how any of this weighed in its sentencing

decision.

In sum, there is an inadequate justification for the

extreme variance imposed since the district court did not explain

its consideration, if any, of several critical sentencing factors.

These include the need for the sentence imposed to reflect the

seriousness of the crimes committed, to promote respect for the

law, to deter others, and to avoid sentencing disparities

nationwide. We cannot and will not infer the district court's

reasoning on these factors based on the record in this case and the

degree of the variance imposed. We do not decide whether the

sentence imposed would be reasonable if supported by a fuller

explanation. We vacate the sentence and remand for resentencing

with instructions for the district court to consider, and explain,

all relevant sentencing factors for any sentence it imposes.

So ordered.

- Dissenting Opinion Follows -

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 TORRUELLA, Circuit Judge, Dissenting. With due respect

to the majority, I am forced to dissent because I cannot support

what, in my view, is a selective reading of the record. Applying

the highly deferential standard of review mandated, I find the

district court's explanation adequate. Thus, I would affirm

defendant's sentence.

The majority states that the "court's exclusive focus was

on the personal history and characteristics of the defendant" to

the exclusion of the other § 3553(a) factors, and that the district

court did not "explicitly articulat[e] its evaluation of factors

other than rehabilitation." Moreover, it concludes that the

district court's explanation of the sentence "focused exclusively

on the defendant's potential for rehabilitation and low risk of

recidivism." However, a careful review of the entire record

reveals that the district court considered all the § 3553(a)

factors, explicitly articulated its evaluation of these factors,

and, in adequately explaining its chosen sentence, emphasized the

factors that it considered salient.

The majority's reading of the record is selective even

regarding the importance given by the district court to defendant's

rehabilitation and low risk of recidivism. In this regard, the

majority nowhere mentions other considerations to which the

district court gave substantial weight, as is evident from its

explanation, such as the defendant's mental health (his severe

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depression) and his high suicidal risk, defendant's progressive

recovery from these conditions, and the extent to which future

imprisonment may have a detrimental effect in this recovery

process. For example, the majority mentions that Dr. Vanessa

Berríos testified at the second sentencing hearing about the

defendant's low risk of recidivism. Yet, Dr. Berríos's psychosexual

assessment report, as well as her testimony, was far more

comprehensive than that. It covered defendant's battle with

depression since a young age, his high suicidal risk, his remorse,

and the lack of evidence suggesting sexual attraction to minors or

pedophile tendencies. Also, Dr. Berríos testified that the mental

health treatment the defendant would receive while incarcerated

would be inadequate as it would not be sex-offender treatment. Nor

does the majority mention that a Forensic Polygraph Report provided

to the court concluded that defendant had not engaged in deception

during his examination when he answered that he had never chatted

with any other minor about sex and that he had never violated any

court condition.

As recognized by the majority, the court stated that it

"ha[d] taken into consideration all the evidence that is really on

the record." This inevitably included the two psychosexual

assessment reports, the Forensic Polygraph Report, the testimony of

Dr. Berríos, and the sentencing memoranda from the parties, which

included a discussion of all the sentencing factors. This

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statement should be given "significant weight." See United States

v. Torres-Landrúa, 783 F.3d 58, 69 n.12 (1st Cir. 2015) (quoting

United States v. Santiago Rivera, 744 F.3d 229, 233 (1st Cir.

2014)).

Also, contrary to what the majority states, the district

court did consider and articulate its evaluation of the seriousness

of the offense in this case. The district judge clearly stated

that he was "not going to belittle the offense. It's a very

serious offense." He further stated that "given the offense

conduct, the court is at a crossroads as to the potential for this

defendant to replicate this kind of conduct in the future. I read

this offense conduct, and I was somewhat shocked." In addition,

the district judge also stated that he wanted to be sure "that the

defendant [did] not pose a threat to society in the sense of coming

forward and doing anything to children." The court's consideration

of the seriousness of the offense is also supported by the fact

that it correctly calculated and carefully reviewed the Guidelines

range, inasmuch as the seriousness of the offense "was clearly

considered by the Sentencing Commission when setting the Guidelines

ranges." See United States v. Gall, 552 U.S. 38, 54 (2007).

The district court also considered and articulated its

evaluation of the need to avoid potential sentencing disparities.

In fact, the majority's recounting of what was argued at the

sentencing hearing regarding the need to avoid sentencing

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disparities, and the district court's response to these arguments

belie the statement that it did not consider this factor. In

response to the government's argument that the need to avoid

potential sentencing disparities warranted a within-the-Guidelines

sentence, the district judge responded that "in cases similar to

this for possession of child pornography . . . I have done

variances and I have given long supervised release terms and no

incarceration." He also noted that the defendant had pled guilty,

instead of going to trial, and that "the issue of sentencing

disparity is not as great as when you have trials." This leads to

the inevitable conclusion that the district court did in fact

consider the need to avoid potential sentencing disparities.

Furthermore, the Supreme Court has stated that when a district

court correctly calculates and carefully reviews the Guidelines

range, as it did here, it necessarily gives significant weight and

consideration to the need to avoid unwarranted disparities. See

Gall, 552 U.S. at 54 ("As with the seriousness of the offense

conduct, avoidance of unwarranted disparities was clearly

considered by the Sentencing Commission when setting the Guidelines

ranges. Since the District Judge correctly calculated and

carefully reviewed the Guidelines range, he necessarily gave

significant weight and consideration to the need to avoid

unwarranted disparities.").

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 The record also shows that the district court considered

the need for deterrence and to promote respect for the law.

Regarding these factors, the district judge stated that defendant

was extremely remorseful and that he was convinced that defendant

will never engage in the same kind of conduct. The court was of

the view that "a sentence of imprisonment may work to promote not

respect, but derision, of the law if the law is viewed as merely a

means to dispense harsh punishment without taking into account the

real conduct and circumstances involved in sentencing." Gall, 552

U.S. at 54.

From the discussion above, it is evident that the court

did not focus on "the personal history and characteristics of the

defendant" to the "exclusion of other important sentencing factors"

in giving a variant sentence, as the majority mistakenly concludes.

In this case, the record makes manifest that the court pondered all

the sentencing factors and decided, within its discretion, to give

more weight to the history and characteristics of the defendant,

which it considered a salient factor, and for which it even relied

on expert testimony, as it explained at the sentencing hearings.

"While a sentencing court must consider all of the applicable

section 3553(a) factors, it is not required to address those

factors, one by one, in some sort of rote incantation when

explicating its sentencing decision." United States v. Dixon, 449

F.3d 194, 205 (1st Cir. 2006); see also United States v. Zapata-

-20-
Vázquez, 778 F.3d 21, 23 (1st Cir. 2015) ("Parsing through the

section 3553(a) factors mechanically is not required." (alterations

omitted) (internal quotation marks and citation omitted)). "Nor is

there any requirement that a district court afford each of the

section 3553(a) factors equal prominence. The relative weight of

each factor will vary with the idiosyncratic circumstances of each

case, and the sentencing court is free to adapt the calculus

accordingly." Dixon, 449 F.3d at 205 (internal citation omitted).

The same is true even when variant sentences are at issue. See

United States v. Del Valle-Rodríguez, 761 F.3d 171, 177 (1st Cir.

2014) (holding that "a sentencing court's obligation to explain a

variance requires the court to offer a plausible and coherent

rationale -- but it does not require the court to be precise to the

point of pedantry"); United States v. Aponte-Vellón, 754 F.3d 89,

94 (1st Cir. 2014) (affirming variant sentence and holding that

"[a]dmittedly, the district court did not go through each of the

§ 3553(a) factors one by one, but our caselaw does not demand such

an exhaustive approach"); Santiago-Rivera, 744 F.3d at 233

(affirming variant sentence and holding that "the court below may

not have waxed longiloquent but 'brevity is not to be confused with

inattention'" (quoting United States v. Turbides-Leonardo, 468 F.3d

34, 42 (1st Cir. 2006))).

Furthermore, this court has held that when the sentence

is outside of the Guidelines range, "[t]he court's reasons for

-21-
deviation should typically be rooted either in the nature and

circumstances of the offense or the characteristics of the

offender." United States v. Martin, 520 F.3d 87, 91 (1st Cir.

2008) (emphasis added); see also Santiago-Rivera, 744 F.3d at 234.

That is precisely the case here, and the district court acted

within its discretion in following that principle.

The majority also states that this court will not fill in

"the gaps in [the] district court's reasoning by looking to the

arguments made by the parties or laid out in the PSR" because of

"the extent of the variance," its conclusion that the court failed

to articulate its evaluation of factors other than rehabilitation,

and its belief that it is not self-evident from the record that the

district court considered said factors. My disagreement with these

statements is two-fold. First, as previously discussed, it is

clear from the record that the court did evaluate (and articulate

its evaluation of) factors other than rehabilitation. Second, this

court has previously emphasized the importance of the appellate

court reviewing "the record as a whole to gauge the sentencing

judge's thought process." United States v. Gallardo-Ortiz, 666

F.3d 808, 813 (1st Cir. 2012) (internal quotation marks omitted)

(quoting United States v. Clogston, 662 F.3d 588, 592 (1st Cir.

2011)). To that effect, this court has been willing to fill in the

gaps in order to affirm upwardly variant sentences. See, e.g.,

Santiago-Rivera, 744 F.3d at 233 (affirming upwardly variant

-22-
sentence and holding that "any gaps in the court's reasoning can

easily be filled by 'comparing what was argued by the parties or

contained in the pre-sentence report with what the judge did'"

(quoting United States v. Jiménez-Beltre, 440 F.3d 514, 519 (1st

Cir. 2006))). Clearly, this must cut both ways and not only in

cases involving upwardly variant sentences.

In sum, we "must review all sentences -- whether inside,

just outside, or significantly outside the Guidelines range --

under a deferential abuse-of-discretion standard." United States

v. Prosperi, 686 F.3d 32, 50 (1st Cir. 2012) (quoting Gall, 552

U.S. at 41). "Gall teaches that it is error to allow the dramatic

nature of variance to unduly influence our review for substantive

reasonableness." Id. (quoting United States v. Thurston, 544 F.3d

22, 25 (1st Cir. 2008)). "We have acknowledged that even when we

believe that a § 3553(a) goal is not met by a sentence, we must

consider the totality of the circumstances, and in particular

whether the sentence sacrifices that goal to satisfy other

legitimate competing interests of the sentencing regime." Id.

Applying these principles to the instant case, I am convinced that

the defendant's sentence must be affirmed. While the district

court's explanation for the sentence imposed focused on the factors

it considered more salient and did not explain some of the

government's contended § 3553(a) factors at the same length as

others, "[t]hat the sentencing court chose not to attach to certain

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. . . factors the significance that the appellant thinks they

deserved does not make the sentence unreasonable." Clogston, 662

F.3d at 592 (citing United States v. Anonymous Defendant, 629 F.3d

68, 78 (1st Cir. 2010)). Because the district court considered all

the relevant § 3553(a) factors to some degree, gave serious

consideration to the extent of the departure from the Guidelines,

and sufficiently explained the basis for its chosen sentence,

deference should be given to the sentencing court. Gall, 552 U.S.

at 51. Since the majority fails to do so, I respectfully dissent.

Finally, I want to emphasize that, on remand, the

district court should not be dissuaded from imposing the sentence

of its choosing. The district court may very well, within its

discretion, impose the same sentence of time served on defendant.

If it decides to do so, I strongly encourage it to explain its

chosen sentence in more detail, so that we may finally put an end

to this case.

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