United States v. Martinez-Armestica

United States Court of Appeals
For the First Circuit

No. 14-1674

UNITED STATES OF AMERICA,

Appellee,

v.

JOSEPH MARTINEZ-ARMESTICA,

Defendant, Appellant.

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

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Lynch, Selya, and Lipez,
Circuit Judges.

John E. Mudd, with whom Law Offices of John E. Mudd were on
brief, for appellant.
Susan Jorgensen, Assistant United States Attorney, with whom
Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson
Jose Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.

January 20, 2017
 LIPEZ, Circuit Judge. Joseph Martinez-Armestica

("Martinez") was charged with two counts of carjacking, one count

of using, carrying, and brandishing a firearm during a crime of

violence, and four counts of illegal possession of firearms seen

in photographs on Martinez's cell phone. He pled guilty to the

carjacking counts and not guilty to the others. After a three-

day jury trial, Martinez was convicted on all five remaining counts

and sentenced to 180 months in prison. He appeals his convictions

and sentence, arguing that there was insufficient evidence for the

jury to find that he brandished a real gun during the carjacking,

that the trial judge erred in admitting testimony from the

government's firearms expert related to the illegal possession

counts, and that his sentence was unreasonable.1 Following a

careful review of his claims, we affirm.

1Martinez also submitted a pro se letter, purportedly
pursuant to Federal Rule of Appellate Procedure 28(j), arguing,
based upon Johnson v. United States, 135 S. Ct. 2551 (2015) and
Welch v. United States, 136 S. Ct. 1257 (2016), that his carjacking
conviction is not a crime of violence under 18 U.S.C. § 924(c)(3).
Because this is a new argument, rather than a citation of
supplemental authorities, it is not properly raised through a Rule
28(j) letter. Moreover, Welch did not answer any question
currently applicable to this case, and Johnson had already been
decided when appellant submitted his opening brief. Consequently,
Martinez has waived this argument by not raising it in a timely
manner. See Young v. Wells Fargo Bank, N.A., 828 F.3d 26, 32 (1st
Cir. 2016).

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 I.

Because Martinez challenges the sufficiency of the

evidence against him on the brandishing count, we state the facts

in the light most favorable to the jury's verdict. United States

v. Cruz-Rodriguez, 541 F.3d 19, 25 (1st Cir. 2008).

On September 25, 2012, at approximately 10:15 p.m.,

Zuleyka Arroyo-Melendez ("Arroyo") drove her 22-year-old niece,

Stephanie Ramirez, to the Martinez Nadal train station in Puerto

Rico. Ramirez had left her own SUV in the train station parking

lot earlier in the day and had asked her aunt to drive her there

after work so she could pick it up. Arroyo parked next to her

niece's SUV, and Ramirez switched cars. Ramirez had turned her

car on and was preparing to back out of her parking space when a

white Toyota pulled up in the parking lot behind the two women.

Two men, aged between 19 and 23 years old, also appeared behind

them. One of the men, later identified as Martinez, approached

Ramirez's SUV holding what the women described as a small, black

pistol. He yelled at Ramirez to get out of her car and held the

pistol to her head. Ramirez complied. Martinez got into Ramirez's

SUV and, after heeding her pleas to throw her bag of college books

to her, drove away.

Meanwhile, the second man approached Arroyo and stood

approximately two feet away from her, pointing at her what was

described as a second black pistol. After Martinez left, the

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second man got into Arroyo's SUV but, finding himself unable to

turn off the emergency brake, called Arroyo over to the car.

Pushing the muzzle of his pistol against her abdomen, he demanded

that she lower the emergency brake handle. Arroyo later described

the pistol as feeling hard and "a bit cold." She complied, but

pleaded with him not to take the car and leave her stranded in the

parking lot with her niece. He responded by saying that he needed

the car, but he agreed to give Arroyo her house keys. He then

drove away in Arroyo's SUV.

Arroyo later recognized Martinez and his accomplice in

a photo she saw posted on Facebook and identified the two men to

the police. When Martinez was taken into custody the police seized

a cell phone from him, which was later found to contain at least

four photos of Martinez with guns.

In July 2013, a grand jury returned a superseding

indictment charging Martinez with two counts of carjacking and one

count of brandishing a firearm during and in relation to a crime

of violence. Martinez was also indicted on four counts of unlawful

possession of a firearm by a convicted felon based on the photos

discovered on his phone. As noted, he pled guilty to the two

counts of carjacking but elected to go to trial on the other five

counts. He was found guilty on all counts.

Martinez was subsequently sentenced to 71 months for

each of the carjacking and illegal possession offenses, to be

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served concurrently. The district court also imposed a consecutive

sentence of 109 months for brandishing a firearm during a crime of

violence, which included a 25-month variance over the Guidelines-

recommended sentence. This appeal followed.

II.

A. Sufficiency of the Evidence for Brandishing a Firearm During a
Crime of Violence

Martinez argues that the evidence presented at trial was

insufficient for the jury to find that he brandished a firearm

during the carjacking. A conviction under 18 U.S.C. § 924(c)

requires proof that the defendant wielded a "firearm," which is

defined as

(A) any weapon (including a starter gun) which will or
is designed to or may readily be converted to expel a
projectile by the action of an explosive; (B) the frame
or receiver of any such weapon; (C) any firearm muffler
or firearm silencer; or (D) any destructive device. Such
term does not include an antique firearm.

18 U.S.C. § 921(a)(3). The firearm must be "real," rather than a

toy or replica, but it "need not be prove[d] to be loaded or

operable." United States v. Taylor, 54 F.3d 967, 975 (1st Cir.

1995) (quoting United States v. Kirvan, 997 F.2d 963, 966 (1st

Cir. 1993)).

Martinez contends that the government failed to

establish that the object in his hand was a real gun. Sufficiency

of the evidence claims are reviewed de novo when, as here, they

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have been preserved for appeal. United States v. De León-Quiñones,

588 F.3d 748, 751 (1st Cir. 2009). We give deference to the jury's

determination, however, viewing the evidence in the light most

favorable to the government and asking "whether any rational trier

of fact could have found the essential elements of the crime beyond

a reasonable doubt." United States v. Roberson, 459 F.3d 39, 47

(1st Cir. 2006) (quoting United States v. Bailey, 405 F.3d 102,

111 (1st Cir. 2005)).

At trial, both Arroyo and Ramirez testified about

Martinez's use of a gun during the carjacking. Martinez argues

that because neither woman actually stated that the gun was real,

their testimony about the gun was not specific enough to support

a jury finding to that effect. He also attempts to cast doubt on

their ability to adequately see the object in his hand, asserting

that the parking lot was not well lit and that Ramirez could see

only part of the gun.

Martinez's attempt to discredit the evidence before the

jury is unavailing. Both women described the object as a "black

pistol." Arroyo also testified that she knew the difference

between a pistol and a revolver, permitting the jury to infer that

she had some familiarity with firearms.2 Neither woman referred

2 As explained in greater detail by Agent Douglas J.
Halepaska, Jr., a firearms and tool marks examiner called at trial
as a witness by the government, both pistols and revolvers are
handguns. A revolver has a cylinder containing a number of

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to the gun in Martinez's hand in any way that would indicate that

it was not real. See United States v. Cruz-Diaz, 550 F.3d 169,

173 (1st Cir. 2008) (finding that the totality of evidence,

including the lack of an indication in the witness testimony that

the "pistol" described by the witnesses was fake, supported an

inference by the jury that the defendant used a real gun).

Moreover, the two witnesses' reactions to the gun provide further

circumstantial evidence that they believed it to be real: both

women gave up their cars and keys in response to the threats of

Martinez and his accomplice, and Arroyo testified that she thought

Martinez was going to kill her niece. See De León-Quiñones, 588

F.3d at 752 (finding sufficient evidence for a § 924(c) conviction

based, in part, upon evidence of the victims' reaction indicating

that they believed the defendant's gun was real).

Nor is there any reason to doubt the witnesses' testimony

that they could see the gun. Both Arroyo and Ramirez pointed out

that the parking lot was lit, and Arroyo noted that she had parked

her SUV directly next to a lamp post. Ramirez also testified that

she could see clearly during the episode. Moreover, Arroyo, who

observed the gun from only 2 to 3 feet away while Martinez pointed

separate chambers that rotate around a central axis. When a unit
of ammunition is discharged, it moves from one of those chambers
into the barrel of the gun. In a pistol, by contrast, the chamber
and the barrel are integrated as one unit.

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it at her niece, testified that she was paying close attention

because "I thought he was going to kill her."

Martinez also attempts a more general challenge to

Arroyo and Ramirez's testimony, arguing that the testimony of a

lay witness who lacks experience with guns is categorically

insufficient to prove that an object is a real gun. Instead, he

argues, the testimony of an expert witness is required, or, as in

Roberson, at least the testimony of a witness who handled the

object at issue and has some familiarity with firearms. See 459

F.3d at 47. Along with other circuits, we have squarely rejected

the argument that such expert testimony is necessary. See Taylor,

54 F.3d at 975 ("lay opinion testimony may be employed to propel

a finding that an object is in fact a real gun"); see also, e.g.,

United States v. Lawson, 810 F.3d 1032, 1040 (7th Cir. 2016);

United States v. Stenger, 605 F.3d 492, 504 (8th Cir. 2010).

Furthermore, a witness need not be familiar with firearms, nor

have held the weapon to testify that it was real. See United

States v. Jones, 16 F.3d 487, 490-91 (2d Cir. 1994) (finding

testimony of eyewitnesses who were "not familiar with weapons"

sufficient to sustain conviction under § 924(c)); Parker v. United

States, 801 F.2d 1382, 1383-85 (D.C. Cir. 1986) (rejecting the

contention that eyewitness testimony will not suffice to establish

that an object is a gun unless "it [was] given by persons

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knowledgeable about firearms who had an opportunity to examine the

weapon closely").

Martinez argues that these precedents should be

reevaluated in light of the 2000 amendments to Rule 701 of the

Federal Rules of Evidence, which he claims were intended to "mak[e]

it much more difficult for laypersons to testify as to issues

better left for experts." That argument, which was limited to one

sentence of appellant's brief, was raised in such a perfunctory

manner that we deem it waived. See United States v. Zannino, 895

F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory

manner, unaccompanied by some effort at developed argumentation,

are deemed waived. . . . '[A] litigant has an obligation "to spell

out its arguments squarely and distinctly," or else forever hold

its peace.'" (quoting Rivera-Gomez v. de Castro, 843 F.2d 631, 635

(1st Cir. 1988))). Even so, this circuit's post-2000 decisions

clearly reaffirm that the testimony of a person with specialized

knowledge is not required to sustain a jury finding that a gun was

real. See, e.g., Cruz-Diaz, 550 F.3d at 173 (affirming conviction

based on the testimony of four bank employees, none of whom held

the gun or had specialized expertise); De León-Quiñones, 588 F.3d

at 752 (affirming conviction based on the testimony of three bank

employees, none of whom held the gun or had specialized expertise).

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 We therefore reject Martinez's contention that the

evidence was insufficient to support his conviction for

brandishing a firearm during a crime of violence.

B. Admission of Expert Testimony

At trial the government called Agent Douglas J.

Halepaska, Jr., a firearms and tool marks examiner for the

laboratory division of the Federal Bureau of Investigation

("FBI"), to testify in support of the charges of illegal possession

of a firearm. Halepaska analyzed photos found on Martinez's phone

showing Martinez in possession of guns, which served as the basis

for the illegal possession charges.

The government presented Halepaska's conclusions as

expert testimony. Pursuant to Federal Rule of Evidence 702,

Halepaska first testified about his qualifications and methods.

He described in detail the "lengthy and extensive training program"

he had undergone at the FBI before being certified as a firearms

and tool mark examiner. He then explained the various kinds of

forensic analyses he performs on firearms evidence. For

photographs such as those on Martinez's phone, he performs an

"association examination," or more specifically a "photograph

analysis," in which he examines specific physical characteristics

of the gun in a photo and determines which manufacturers and models

of guns are consistent with those features. After making an

initial assessment, he obtains firearms from the FBI's collection

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of over 7,000 reference firearms to compare directly with the

photos. He then creates an illustration that mimics the photo by

placing the reference firearm in a similar position to that of the

unknown gun. This positioning allows him to make a direct

comparison of features so that he can narrow the subset of

potential firearms that are consistent with the pictured gun.

Upon questioning by defense counsel, Halepaska admitted

that his examination in this case was only the third association

analysis he had conducted since being certified, and that this was

the first time he had testified in court about an association

examination. At that point defense counsel objected to his

qualification as an expert. The judge overruled the objection and

declared Halepaska an expert in determining whether an object in

a photograph is consistent with a specific brand or model of gun.

Halepaska then testified that he had conducted a

"photograph analysis" of three of the photos found on Martinez's

phone, each of which featured Martinez with an object that appeared

to be a gun.3 Halepaska concluded that the item in each of the

three photos was consistent with a pistol manufactured by Glock.

On cross examination, however, he admitted that he could not

determine whether the guns in the photos were functional firearms,

3 Halepaska's analysis addressed only the photos dated June
17, 2012, June 22, 2012 and August 26, 2012. The fourth photo,
dated September 24, 2012, was not provided to him and he did not
testify about its contents.

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replica firearms, or toy firearms. He explained that, in order to

determine whether a gun was real, he would need to examine it in

person.

Martinez claims that Halepaska's testimony failed to

meet the requirements of Federal Rule of Evidence 702. That rule

"imposes a gate-keeping role on the trial judge to ensure that an

expert's testimony 'both rests on a reliable foundation and is

relevant to the task at hand.'" United States v. Vargas, 471 F.3d

255, 261 (1st Cir. 2006) (quoting Daubert v. Merrell Dow Pharms.,

Inc., 509 U.S. 579, 597 (1993)). It states:

A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify
in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles
and methods; and
(d) the expert has reliably applied the principles and
methods to the facts of the case.

Fed. R. Evid. 702.

Appellant argues that the district court abused its

discretion by admitting Halepaska's testimony, alleging defects

relating to all but the last of the rule's requirements. He

contends that Halepaska was unqualified to offer expert testimony

to the jury because he had not been trained to distinguish replica

and toy guns from real guns, that Halepaska's testimony was not

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helpful to the jury, that it was not based on sufficient data, and

that the government did not establish that Halepaska had used

reliable principles and methods to reach his conclusions.

Although Martinez objected generally to Halepaska's

qualification as an expert witness at trial, none of these specific

critiques of Halepaska's qualifications as an expert was raised

before the district court. Consequently, none of these arguments

was preserved for appeal, suggesting the applicability of plain

error review. See United States v. Mercado, 412 F.3d 243, 247

(1st Cir. 2005) ("It is well established that an objection on one

ground does not preserve appellate review of a different ground."

(quoting Negron v. Caleb Brett U.S.A., Inc., 212 F.3d 666, 672

(1st Cir. 2000))); United States v. Diaz, 300 F.3d 66, 75-76 (1st

Cir. 2002) (applying plain error review after concluding that an

objection to an expert's qualifications was insufficient to

preserve a challenge to the reliability of the expert's methods).

Oddly, the government ignores the plain error issue and

asserts that the trial judge's ruling should be reviewed for abuse

of discretion. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141

(1997) (stating that a district court's decision to admit or

exclude expert testimony is generally reviewed under an abuse of

discretion standard). Because of the government's failure to

request plain error review, we will apply the standard of review

applicable to a properly preserved claim. United States v.

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Paulino-Guzman, 807 F.3d 447, 450 n.5 (1st Cir. 2015) ("'[w]hen

the government fails to request plain error review,' we may 'review

the claim under the standard of review that is applied when the

issue is properly preserved below.'" (alteration in original)

(quoting United States v. Encarnación-Ruiz, 787 F.3d 581, 586 (1st

Cir. 2015))). Accordingly, we review the district court's decision

to admit Halepaska's testimony for abuse of discretion, keeping in

mind that trial judges are afforded "substantial latitude in the

admission or exclusion of opinion evidence." First Marblehead

Corp. v. House, 541 F.3d 36, 40 (1st Cir. 2008) (quoting Crowe v.

Marchand, 506 F.3d 13, 16 (1st Cir. 2007)).

Turning to Martinez's arguments, we note that two of

them miss the mark because they are based on the same false

premise. First, Martinez argues that Halepaska was unqualified to

offer expert testimony to the jury because he had not been trained

to distinguish replica and toy guns from real guns. Second, he

asserts that Halepaska did not have a sufficient factual basis to

determine whether the guns in the photos were real or replicas

because he was unable to examine the actual firearms pictured in

the photos. Both arguments are based on the incorrect assertion

that Halepaska offered testimony that the guns in the photos were

real.

Instead, Halepaska's testimony was limited to opining on

the consistency of features he observed on the pictured guns with

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features of Glock-manufactured pistols. Indeed, Halepaska himself

stated that he would need to physically examine the gun to

determine whether it was real, a replica, or a toy. Recognizing

that he lacked such a factual basis, Halepaska declined to offer

any opinion on whether the pictured guns were real. Moreover, the

district judge's qualification of Halepaska as an expert was

limited in scope to the comparison of features of the pictured and

reference guns. Specifically, the judge stated: "I believe that

from preliminary questions submitted by counsel to Mr. Halepaska,

that he is qualified as an expert to testify concerning the

association between an object on a photograph and a real pistol

and the association as to the characteristics, if they are

consistent with the other."4

Martinez also argues that Halepaska failed to offer

technical or specialized knowledge that would assist the jury in

determining a fact in issue and, hence, his testimony was not

relevant. See Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co., 161

F.3d 77, 81 (1st Cir. 1998) ("To be admissible, expert testimony

must be relevant not only in the sense that all evidence must be

relevant, but also in the incremental sense that the expert's

proposed opinion, if admitted, likely would assist the trier of

4Given the context of Halepaska's testimony, we take "real
pistol" to refer to Halepaska's use of reference firearms in his
analysis rather than his ability to determine whether a gun in a
photo is real.

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fact to understand or determine a fact in issue." (citations

omitted)). Martinez insists that the jurors could have done what

Halepaska did -- compare the photos to real firearms -- and reached

the same conclusions. This argument misconstrues the way in which

Halepaska's testimony was helpful to the jury.

Halepaska did not simply compare the photographs to real

firearms. Instead, he first had to determine which, if any, of

the 7,000 guns in the FBI's reference firearms collection had

features consistent with the items in the photos. This analysis

required knowledge of the characteristics of thousands of guns, as

well as the expertise to know which characteristics are relevant

for distinguishing among different brands and models of guns. A

lay person generally would not possess such knowledge. See United

States v. Corey, 207 F.3d 84, 96 (1st Cir. 2000) ("[T]estimony

identifying the manufacturer of a firearm will usually constitute

technical or specialized knowledge that will assist the trier of

fact."). His testimony that the guns in the photographs were

consistent with Glock pistols, then, was not based simply upon the

comparison of guns in photographs with a real gun, but also upon

expertise which allowed him to determine the most apt comparator

gun.

Martinez also faults the government for failing to

elicit explicit testimony from Halepaska about the reliability of

his methods. Two features of Halepaska's analysis provide a fair

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proxy for such explicit testimony, however. Halepaska's analysis

consisted of two steps: first, using his specialized knowledge to

pick out the most apt comparator gun, and second, assessing the

consistency of the pictured gun with the comparator gun. As

explained below, the reliability of the former process is supported

by Halepaska's extensive training, and the reliability of the

latter process is supported by the simplicity of that task.

The first step of Halepaska's analysis required him to

use his specialized knowledge of the features of various brands

and models of firearms to choose a gun that was similar to one

featured in a photo. The accuracy of this determination depended

largely on the quality of the specialized knowledge he applied to

the task. Consequently, the reliability of this step could be

ascertained by examining the strength of the background from which

he derived his expertise. Often in fields based upon specialized

knowledge rather than scientific expertise, the "expert's

experience and training bear a strong correlation to the

reliability of the expert's testimony." United States v. Jones,

107 F.3d 1147, 1155 (6th Cir. 1997). Indeed, the Advisory

Committee on the 2000 amendments to the Federal Rules of Evidence

noted that "[i]n certain fields, experience is the predominant, if

not sole, basis for a great deal of reliable expert testimony."

Fed. R. Evid. 702 advisory committee's note to 2000 amendments.

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 Halepaska's training and experience support the

reliability of his testimony. Before the district court qualified

Halepaska as an expert witness, the agent testified in detail about

his training and experience with firearms. He stated that he had

undergone "a lengthy and extensive training program" during his

four years working in the FBI's laboratory division. That

preparation included touring firearms manufacturing facilities,

reading articles and books about "the discipline of firearms and

tool marks examinations," and hands-on instruction. In this on-

the-job training, under the "direct supervision of a qualified and

experienced firearms and tool mark examiner," he worked with sample

weapons, on which he conducted "hundreds of examinations,

thousands of observations." At the end of this training, he passed

oral and written examinations to become certified as a firearms

and tool mark examiner. He examined at least one hundred firearms

for the FBI after completing his training. Moreover, even before

beginning his training with the FBI, he had gained experience with

firearms by serving as an infantryman in the Marine Corps for five

years. In short, his experience with firearms was both

considerable and wide-ranging. This specialized knowledge formed

the basis for the first step of the "association examination" upon

which Halepaska based his expert opinion.

The second step of Halepaska's analysis required him to

determine whether the features of the chosen reference gun were

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consistent with those of the pictured gun. In essence, this was

a simple task, requiring a visual comparison of two photographs,

one of the chosen reference gun, the other of the pictured gun.

Because of this simplicity, the district court did not have to

consider technical data, such as the method's error rate or whether

it had been subjected to peer review, in order to make its

reliability determination. See Kumho Tire Co. v. Carmichael, 526

U.S. 137, 150-52 (1999) ("[T]he factors identified in Daubert may

or may not be pertinent to assessing reliability, depending on the

nature of the issue, the expert's particular expertise, and the

subject of his testimony. . . . Otherwise, the trial judge would

lack the discretionary authority needed . . . to avoid unnecessary

'reliability' proceedings in ordinary cases where the reliability

of an expert's methods is properly taken for granted . . . ."

(internal quotation omitted)). Instead, the district court could

reasonably have determined, based upon an explanation of

Halepaska's technique, that his visual comparison of objects was

a reliable method of determining the consistency of their physical

features.

Taken together, Halepaska's extensive experience and the

simplicity of his technique establish a fair proxy for explicit

testimony about the reliability of his methods.5 The district

5 In arguing that the expert testimony was improperly
admitted, appellant also suggests that the evidence presented in

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court did not abuse its discretion by qualifying Halepaska as an

expert witness.

C. Reasonableness of the Sentence

Martinez challenges the substantive reasonableness of

his sentence, targeting the upward variance applied by the district

court when sentencing him for brandishing a firearm during the

commission of a crime of violence. See 18 U.S.C.

§ 924(c)(1)(A)(ii) and (3). Claiming that the court based the

increase on a consideration already factored into the Guidelines-

recommended sentence -- i.e. his use of weapons -- Martinez argues

that it was unreasonable for the sentencing judge to rely on such

a factor. The government responds that there was no abuse of

discretion in the district court's choice of sentence. See Gall

v. United States, 552 U.S. 38, 41 (2007) (holding that substantive

support of the illegal possession charges was insufficient to
support the verdict. In doing so, however, he incorrectly
describes what took place at trial, asserting that "simply showing
firearms to the jury to compare with photographs would not be
sufficient to find a violation of §§ 922 and 924." Because the
jury was not provided with firearms to compare with the
photographs, the question of the sufficiency of that kind of
evidence is not before us in this case. Beyond this erroneous
characterization of the trial evidence, appellant's sufficiency
argument is so undeveloped that it is inadequate to raise such a
claim on appeal. See Zannino, 895 F.2d at 17. In fact, the
government does not even address the sufficiency of the evidence
in its brief. This lack of response does not control our
determination that the issue was inadequately raised; we simply
note it as further evidence of the inadequacy of appellant's
briefing. The sufficiency of the evidence claim was preserved
below by trial counsel, thereby permitting a developed argument if
one had been made.

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reasonableness is generally reviewed under the abuse of discretion

standard).

The district court found that, taken together, the two

carjacking charges and four illegal possession charges produced a

Guidelines sentencing range ("GSR") of 57-71 months. Martinez

does not challenge that calculation. The court also noted that

the Guidelines sentence for the charge of brandishing a firearm

during a crime of violence is the minimum term of imprisonment

required by the statute, or 84 months. See U.S.S.G. § 2K2.4(b).

Defense counsel acknowledged that this term was to be served

consecutively with the sentence for the other charges, yielding an

overall sentencing range of 141 to 155 months.6

Before announcing the sentence, the district court

addressed the factors set forth in 18 U.S.C. § 3553(a), noting the

particularly violent and dangerous manner in which Martinez

committed the carjacking and brandishing crimes here as well as a

prior crime which had also involved a firearm. Based on those

factors, the district court concluded that Martinez was "prone to

using firearms" and that he was "possibly [a] very dangerous person

6 Citing a statement made by trial counsel at the sentencing,
appellant's brief states that the Guidelines range is 135 to 147
months. Appellant does not provide any support for this assertion,
however; nor does he argue that the district court's calculation
of the Guidelines range is incorrect. We do not, therefore, take
this to be an attempt to dispute the district court's calculation
of the GSR.

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to the community." It sentenced Martinez to 71-month terms of

imprisonment for each of the carjacking and illegal possession

offenses, to be served concurrently, and imposed a consecutive

term of 109 months for brandishing a firearm during a crime of

violence, a variance of 25 months over the 84-month Guideline

sentence.

Appellant relies on United States v. Ofray-Campos in

asserting that the variance constitutes an abuse of discretion

because the district court considered a factor that was already

accounted for in the Guidelines-recommended sentence, specifically

his use of weapons. See 534 F.3d 1, 43 (1st Cir. 2008). Because

he was convicted of offenses based on his possession and

brandishing of guns, he argues, the district court could not base

an upward departure on those same incidents of weapon usage.

We did not hold in Ofray-Campos, however, that the

consideration of such factors was unreasonable. Instead, we stated

that when imposing a variance based on factors that overlap with

considerations included in the Guidelines sentence, the district

court "must articulate specifically the reasons that this

particular defendant's situation is different from the ordinary

situation covered by the [G]uidelines calculation." Id. (quoting

United States v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir. 2006)).

In this case, the district court articulated several

factors demonstrating that Martinez's conduct went beyond the

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ordinary conduct proscribed by the statute. It pointed to

Martinez's repeated, threatening use of firearms in finding that

he was "prone to using firearms" and "possibly very dangerous . . .

to the community." Rather than simply brandishing a weapon,

Martinez pointed the gun directly at one of the carjacking victims,

holding it against her head. Moreover, he brandished the gun in

the parking lot of a public train station.

The district court also considered factors related to

Martinez's criminal history and personal characteristics.

Martinez had previously been convicted for violation of a Puerto

Rico weapons law. That conviction was based upon a prior armed

robbery, during which he had aimed a firearm at a victim. He had

also shot the gun into the air twice, once again in a public place.

Combined with Martinez's continued possession of firearms, as

demonstrated by the photos found on his phone, the district court

could reasonably attribute to Martinez an ongoing and unremitting

proclivity toward the use and possession of dangerous weapons.

This substantial history of firearms abuse supports the district

court's decision to exceed the Guidelines sentence that would apply

to a first time offender who had committed the minimum offense

conduct.

Martinez also argues that the size of the variance

renders his sentence unreasonable. Here, the 180-month sentence

imposed by the district court constitutes a 16% increase over the

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high end of the Guidelines range.7 As an initial matter, the

Supreme Court has rejected "the use of a rigid mathematical formula

that uses the percentage of a departure as the standard for

determining the strength of the justifications required for a

specific sentence." Gall, 552 U.S. at 47. Where the sentence is

outside the Guidelines term, we "may consider the extent of the

deviation, but must give due deference to the district court's

decision that the § 3553(a) factors, on a whole, justify the extent

of the variance." Id. at 51.

The roughly two-year variance in Martinez's sentence is

"modest," and "not unreasonable in light of the totality of the

circumstances" surrounding Martinez's repeated use of firearms in

a manner dangerous to the public. See United States v. Guzman-

Fernandez, 824 F.3d 173, 178 (1st Cir. 2016). Indeed, the 84-

month Guidelines sentence is the statutory minimum, reflecting

Congress's expectation that it is merely the starting point for

determining the appropriate term of imprisonment for a defendant

convicted of violating § 924(c)(1)(A)(ii). The district court's

upward variance must be viewed in the context of the entire

statutory sentencing range, which begins at 84 months and has an

upper bound of life imprisonment.

7 Appellant suggests that the variance constitutes a 22.4%
increase over the upper end of the Guidelines range. As noted
above, he bases his argument on an incorrect Guidelines range
referenced by trial counsel during the sentencing.

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 We thus reject Martinez's contention that his sentence

was unreasonable.

Affirmed.

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