United States v. Tanco-Pizarro

United States Court of Appeals
For the First Circuit

No. 15-2388

UNITED STATES,

Appellee,

v.

RAFAEL TANCO-PIZARRO,

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, Stahl, and Thompson,
Circuit Judges.

Gail M. Latouf for appellant.
John A. Mathews II, with whom Rosa Emilia Rodríguez-Vélez,
United States Attorney, Mariana E. Bauzá-Almonte, Assistant United
States Attorney, Chief, Appellate Division, and Tiffany V.
Monrose, Assistant United States Attorney, were on brief, for
appellee.

June 13, 2018
 THOMPSON, Circuit Judge. Rafael Tanco-Pizarro mounts a

multi-dimensional challenge — on both procedural and substantive

grounds — to the 60-month sentence he received following the

revocation of his supervised release. After giving his arguments

full and fair consideration, we affirm.

Revocation Primer

To help the reader better understand what happened

below, we begin with some general observations about revocation

sentencing.

By statute, a court may revoke a person's supervised

release if it finds the government proved a release-condition

violation by a preponderance of the evidence, see 18 U.S.C.

§ 3583(e)(3), which is a more-likely-than-not standard, see United

States v. Edwards, 857 F.3d 420, 421 (1st Cir. 2017). Shifting to

sentencing, the court starts its analysis by calculating the

suggested prison range under the federal sentencing guidelines —

a range that is based on the offender's criminal history at the

time of his original sentence and the grade of his violation.

U.S.S.G. § 7B1.4(a). There are three violation grades, running

from grade A (the most serious) to grade C (the least serious).

See id. §§ 7B1.1, 7B1.3. The violation's grade is determined by

the "conduct constituting" any "federal, state, or local offense

punishable by" various "term[s] of imprisonment." See id.

§ 7B1.1(a). Armed with the relevant info, the court turns to the

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guidelines' "Revocation Table." And by plotting the offender's

violation grade along the table's vertical axis and his criminal

history along the table's horizontal axis, the court ends up with

the advisory-prison range. See id. § 7B1.4.

The word "advisory" is a dead giveaway that the table's

ranges are nonbinding. See United States v. Márquez-García, 862

F.3d 143, 147 n.2 (1st Cir. 2017). A court has discretion, but

not carte blanche. A statute caps the stiffest possible sentences.

And the statutory cap depends "on the severity of 'the offense

that resulted in the term of supervised release.'" United States

v. Fontanez, 845 F.3d 439, 445 (1st Cir. 2017) (quoting 18 U.S.C.

§ 3583(e)(3)). "For that purpose," § 3583(e) groups offenses "in

various categories." Id. And these "groupings have real-world

consequences," as we recently wrote: "upon revocation of

supervised release" a

[c]lass C or D felony bears a maximum sentence . . . of
two years; a [c]lass B felony bears a maximum sentence
. . . of three years; a [c]lass A felony bears a maximum
sentence . . . of five years; and all other offenses
bear a maximum sentence . . . of one year.

Id. at 445-46 (citing § 3583(e)(3)). A court can sentence the

offender to a prison stint within the applicable statutory maximum,

after considering the relevant sentencing factors that help guide

the court's discretion, see, e.g., United States v. Vargas-Dávila,

649 F.3d 129, 131-32 (1st Cir. 2011) — and we will say more about

that later.

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 With this short primer in place, we turn to Tanco-

Pizarro's case.

Violations and Fallout

The key facts are simple and undisputed. Almost eight

years ago, in December 2010, Tanco-Pizarro finished a prison

sentence for possessing a gun and ammo in furtherance of a drug-

trafficking crime and began a five-year term of supervised release.

And things went swimmingly, apparently — at least for a while.

In December 2014 and again in September 2015, probation

notified the district court that Tanco-Pizarro had broken several

conditions of supervised release. Only three are relevant here.

The first one arose from probation's claim that it had tried

without success to contact him "numerous times" (by phone and in

person), that he had not updated his contact info as required, and

that he had failed to report to the probation office as requested

— all of which, probation alleged, violated a supervised-release

term requiring him to "answer truthfully all inquiries by the

probation officer and follow the instructions of the probation

officer." The next two stem from probation's claim that while

police officers in San Juan were helping Tanco-Pizarro get out of

a BMW overturned on a road, they found an "AK rifle," a "Glock

pistol," and a collection of magazines and ammunition in the auto

— all of which, according to probation, violated supervised-

release terms forbidding him from committing another "federal,

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state[,] or local crime" and banning him from possessing "a

firearm" or "ammunition" (excess capitalization omitted).

Matters went from bad to worse for Tanco-Pizarro, when

in October 2015 a federal grand jury — relying on what the police

had recovered from the flipped-over Beemer — indicted him for being

a felon in possession of a firearm. Skipping over details not

relevant to this appeal, we see that hard on the heels of this

indictment, Tanco-Pizarro moved for a continuance of the final-

revocation hearing and moved for discovery: filed 7 days before

the hearing, the continuance motion argued that "the outcome" of

the felon-in-possession case "may have an effect in the disposition

of the instant case"; filed 2 days before the hearing, the

discovery motion asked that the court order the government to turn

over certain documents related to the felon-in-possession matter.

The court denied his motions. And following a hearing, the court

revoked his supervised release. To avoid consuming too many pages

of the Federal Reporter, we cover only the highlights from that

proceeding.

Starting with the felon-in-possession charge first,

Tanco-Pizarro (through his lawyer) disputed whether the seized

firearm was an automatic — in this instance (the parties agreed)

an automatic firearm would support a grade A violation, while a

non-automatic firearm would support a grade B violation. And he

moved orally for the court to hear the testimony of the probation

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officer on this point. But the court denied the motion. He then

conceded that the court could rely on the indictment to determine

whether he had violated his supervised release by possessing a

firearm. Tackling the failure-to-report violation, he

"accept[ed]" that infraction, conceding (in the words of his

lawyer) that "after November of 2014," his "whereabouts . . . were

unknown until the time that he was arrested" following the

overturned-BMW incident — a "grade C violation." No surprise,

then, that the court found that he violated his supervised release

by "not reporting to the probation officer." But the court found,

too, that his "new criminal behavior" also infracted his supervised

release — a "grade B violation," not a grade A violation.

Using the higher-found grade and a criminal history

category of II, the court calculated Tanco-Pizarro's advisory-

prison range to be 6 to 12 months. See U.S.S.G. §§ 7B1.1(a)(2),

7B1.4(a). And because his original crime was a "class A felony,"

the court said that it could put him back behind bars for up to 60

months, the maximum penalty provided by statute.

The government pushed for a 60-month sentence. For his

part, Tanco-Pizarro's counsel did not request a specific sentence.

But he did ask the court to keep in mind that his client faced a

sentencing range of 37 to 46 months for the felon-in-possession

charge and that any sentence on that charge would probably "run[]

consecutively to" any revocation sentence.

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 Concluding Tanco-Pizarro had shown he would not comply

with the law or with the conditions of supervision, the court

sentenced him to 60 months in prison — with no further supervised

release. That sentence, the court added, "reflect[s] the

seriousness of the offense, promote[s] respect for the law, . . .

provide[s] just punishment for the offense, . . . afford[s]

adequate deterrence, and protect[s] the public from further

crimes" — and thus was "sufficient but not greater than necessary

in this case." Significantly, neither Tanco-Pizarro nor his lawyer

objected to the sentence.

Five days later, however, Tanco-Pizarro moved for

reconsideration, arguing as relevant here that the district court

did not adequately explain its sentencing rationale and wrongly

factored "the seriousness" of the felon-in-possession crime, "the

promotion of respect for the law, and punishment for" the felon-

in-possession "offense" into its sentencing analysis.1 The

1 We pause to remind the bar that "[t]here is simply no such
thing as a 'motion to reconsider' an otherwise final sentence
. . . ." United States v. Ortiz, 741 F.3d 288, 292 n.2 (1st Cir.
2014) (second alteration in original) (quoting United States v.
Dotz, 455 F.3d 644, 648 (6th Cir. 2006)); accord United States v.
Gonzalez-Rodriguez, 777 F.3d 37, 41 (1st Cir. 2015). A "court may
not modify a term of imprisonment once it has been imposed," see
18 U.S.C. § 3582(c), subject only (so far as pertinent here) to an
exception allowing a court to "correct" an "arithmetical,
technical, or other clear error" within "14 days after sentencing,"
see Fed. R. Crim. P. 35(a) — for other exceptions, check out Fed.
R. Crim. P. 35(b) (dealing with a situation where a defendant
provides substantial assistance after the sentence is imposed) and
§ 3582(c)(2) (dealing with a situation where the Sentencing

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government opposed the motion. And the court denied it, ruling —

in an electronic order — that Tanco-Pizarro's "lack of compliance

with the reporting requirement of his supervised release and the

fact that he was arrested while heavily armed . . . are strong

reasons for the [c]ourt to impose" a 60-month sentence.2

Commission has made a retroactive change in a guidelines range).
The advisory notes to Rule 35 make clear that
[t]he authority to correct a sentence under [Rule 35(a)]
is intended to be very narrow and to extend only to those
cases in which an obvious error or mistake has occurred
in the sentence, that is, errors which would almost
certainly result in a remand of the case to the trial
court for further action under Rule 35(a). The
subdivision is not intended to afford the court the
opportunity to reconsider the application or
interpretation of the sentencing guidelines or for the
court simply to change its mind about the
appropriateness of the sentence.
Fed. R. Crim. P. 35 advisory committee's note to 1991 amendment.
Tanco-Pizarro's motion conspicuously did not cite any authority
authorizing his reconsideration bid. But that issue is not before
us. So we have nothing more to say about it.
2 We take judicial notice that after the revocation sentencing
but before the reconsideration ruling, Tanco-Pizarro pled guilty
— under a written plea agreement — to the felon-in-possession
charge. See United States v. Tanco-Pizarro, 873 F.3d 61, 63 (1st
Cir. 2017); see generally White v. Gittens, 121 F.3d 803, 805 n.1
(1st Cir. 1997) (discussing judicial notice). And one day after
losing his reconsideration bid, the court (acting through a
different judge) sentenced him to a 57-month prison term on the
felon-in-possession charge, to run consecutive to his 60-month
revocation sentence. See Tanco-Pizarro, 873 F.3d at 64. He later
appealed his felon-in-possession conviction and sentence, arguing
that his plea was not knowing and voluntary, that the government
breached the plea agreement, and that the court violated his right
to allocute before sentencing him. See id. at 63. But we affirmed.
Id.

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 That brings us to today's appeal, which, as we said,

centers around Tanco-Pizarro's claim that the 60-month sentence is

both procedurally unsound and substantively unreasonable.

Procedural Reasonableness

Issues

Tanco-Pizarro offers a number of arguments in support of

his procedural-reasonableness attack. Focusing on the district

court's rulings denying his motions for continuance, discovery,

and the probation officer's in-court testimony, he charges that

these edicts violated Fed. R. Crim. P. 32.1 and the Constitution's

due-process guarantees. To his mind, these denials deprived him

of the "opportunity to obtain evidence that would be available in

the parallel criminal prosecution" and to "present testimony that

would demonstrate the nature of the firearm" that triggered

revocation. He also insists that the court wrongly considered a

bunch of factors — the seriousness of, and providing just

punishment for, the felon-in-possession offense, plus the need to

promote respect for the law — in settling on the revocation

sentence. For ease of reference we will sometimes refer to these

as the "contested factors." Shifting gears, he accuses the court

of not adequately considering a "mitigating factor" — i.e., that

he had complied with his supervised-release conditions "for four

years until he failed to report" in December 2014. He then

complains that the court gave no weight to the § 7B1.4 recommended

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range of 6 to 12 months. And finally, he faults the court for not

sufficiently explaining the reasons for the sentence.

It probably goes without saying — but we say it anyway

— that the government believes Tanco-Pizarro is wrong about

everything.

Standard of Review

We usually review procedural-reasonableness claims for

abuse of discretion. See, e.g., United States v. Alejandro-Rosado,

878 F.3d 435, 438-39 (1st Cir. 2017). But Tanco-Pizarro failed to

preserve a procedural-reasonableness objection at sentencing. So,

with one exception discussed shortly, we review only for plain

error. See id. at 439. And for him to prevail under that standard,

he "must show (1) error, (2) plainness, (3) prejudice, and (4) an

outcome that is a miscarriage of justice or akin to it," see United

States v. Edelkind, 467 F.3d 791, 797 (1st Cir. 2006) — a tall

order, indeed, see United States v. Garay-Sierra, 885 F.3d 7, 12

(1st Cir. 2018).

But wait a minute, says Tanco-Pizarro — surely the motion

for reconsideration preserved the procedural-reasonableness claim

— or so he protests. The problem for him is that arguments unveiled

for the first time in a reconsideration motion are not preserved

for appeal. See, e.g., United States v. McNicol, 829 F.3d 77, 83

n.2 (1st Cir. 2016); United States v. Almonte-Reyes, 814 F.3d 24,

27 n.4 (1st Cir. 2016). Enough said on that.

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 Now on to Tanco-Pizarro's procedural-reasonableness

arguments.

Due-Process and Rule-32.1 Concerns

To hear Tanco-Pizarro tell it, the district court's

rejection of his motions for a continuance, discovery, and in-

court testimony offended his "right to Due Process" that he says

is "embodied in" Rule 32.1.3 But unfortunately for him, we see

nothing approaching plain error here.

Take first his beef with the court's denial of his

continuance and discovery motions. His basic theory is that by

doing what it did, the court robbed him of the chance "to defend

himself and offer potentially mitigating or exculpatory evidence."

One problem for him is that the defense conceded below that since

"the grand jury [found] probable cause to indict" him for the

felon-in-possession crime, the court could "rely on the

indictment" to determine if he violated his supervised-release

conditions. Another problem for him is that he never so much as

hinted what mitigating or exculpatory evidence he hoped to come up

with — not in his motions or at the revocation hearing (or for

3 Under the heading "Revocation Hearing," Rule 32.1
pertinently provides that "[u]nless waived by the person, the court
must hold [a] revocation hearing," at which he can "present
evidence"; "question any adverse witness unless the court
determines that the interest of justice does not require the
witness to appear"; and offer "any information in mitigation."
Fed. R. Crim. P. 32.1(b)(2)(C), (E).

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that matter in his appellate papers). Indeed, he never used any

combination of the words "mitigating" or "exculpatory" below.

Given this concatenation of circumstances, we think it too much to

expect the court to second-guess his silence on this matter and

intuit what possible mitigating or exculpatory evidence there

might be — which is why this is not the stuff of plain error. See

United States v. Frady, 456 U.S. 152, 163 (1982) (noting that plain

error assumes an error so clear-cut that the court should have

avoided it, "even absent the defendant's timely assistance in

detecting it").

The same is true for the court's handling of Tanco-

Pizarro's in-court testimony request. To his way of thinking, in-

court testimony would have shown that "the firearm was not fully

automatic" — which, as he argued below, would have meant that he

had committed a grade-B violation rather than a grade-A violation.

But even a cursory glance at the sentencing transcript shows the

court gave the firearm violation a B grade, just as Tanco-Pizarro

had wanted. Consequently, his argument here has no oomph.

Consideration of the Contested Factors

We are similarly unpersuaded by Tanco-Pizarro's claim

that the court erred by integrating the contested factors — the

seriousness of the offense, respect for the law, and just

punishment — into its sentencing calculus. As we said above, 18

U.S.C. § 3583(e) lets a district court revoke supervised release

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after the court considers a collection of sentencing factors listed

in 18 U.S.C. § 3553(a). Vargas-Dávila, 649 F.3d at 131-32. These

factors — which guide the lower court's sentencing discretion —

include

the nature and circumstances of the offense, . . .
§ 3553(a)(1); the history and characteristics of the
offender, id.; the need for adequate deterrence, id.
§ 3553(a)(2)(B); the need to protect the public, id.
§ 3553(a)(2)(C); and the penological needs of the
offender, such as the need for special care or treatment,
id. § 3553(a)(2)(D).

Id. at 131. Missing from § 3583(e)'s list is § 3553(a)(2)(A),

which talks about "the need for the sentence imposed . . . to

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

law, and to provide just punishment for the offense."

Given subsection (a)(2)(A)'s omission, Tanco-Pizarro

thinks the court had no business focusing on "the severity of the"

felon-in-possession offense, "respect [for] the law[,] and

punishment." As he sees things, these contested factors are taboo

here because they mimic subsection (a)(2)(A). Also, quoting the

sentencing guidelines, he reminds us that unlike original

sentencing, supervised-release revocation rests on a notion of

"sanction[ing] primarily the defendant's breach of trust" and

"taking into account, to a limited degree, the seriousness of the

underlying violation and the criminal history of the violator."

See U.S.S.G. ch. 7, pt. A, intro. cmt. 3(b). And by focusing on

the contested factors, his theory continues, the court "punished

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[him] for the new criminal conduct" and not for the breach of

trust.

None of our cases requires us to accept his theory,

however. And several stand in his way, two of which the parties

fight about — Vargas-Dávila, 649 F.3d at 131-32, and United States

v. Bohan, 496 F. App'x 95, 96 (1st Cir. 2012).

Vargas-Dávila rejected an argument similar to Tanco-

Pizarro's, explaining that "[a]lthough section 3583(e)(3)

incorporates by reference, and thus encourages, consideration of

certain enumerated subsections of section 3553(a), it does not

forbid consideration of other pertinent section 3553(a) factors."

See 649 F.3d at 131-32 (emphasis added) (rejecting defendant's

claim that "the district court improperly considered the

government's statement at the revocation hearing that he had

'demonstrate[d] a lack of respect for the Court's order[s],'" which

"overlap[s] with section 3553(a)(2)(A)'s instruction 'to promote

respect for the law' — an instruction not incorporated . . . by

reference in section 3583(e)"). Vargas-Dávila cited for support

United States v. Williams, where the Second Circuit held that

§ 3583(e) "does not state that any particular factor cannot be

considered, and we interpret § 3583(e) simply as requiring

consideration of the enumerated subsections of § 3553(a), without

forbidding consideration of other pertinent factors." 443 F.3d

35, 47 (2d Cir. 2006) (emphasis added). Tanco-Pizarro tries to

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distinguish Vargas-Dávila on the grounds that there, unlike here,

"the revocation sentence was appellant's second revocation, and

the violation occurred shortly after appellant's release from

serving the first revocation sentence." But he gives us no

convincing explanation (and we at present can think of none) for

why the issue should turn on the number of supervised-release

revocations involved or the timing of those revocations — which

dooms his bid to escape Vargas-Dávila's grasp.

Echoing Vargas-Dávila, Bohan flatly "reject[ed]" the

argument that a court errs by "rely[ing] on § 3553(a)(2)(A)

factors." See 496 F. App'x at 96 n.1; see also id. at 96 (spurning

defendant's contention "that the sentencing court impermissibly

considered § 3553(a)(2)(A) factors, including the need for the

sentence imposed to 'reflect the seriousness of the offense' and

to 'provide just punishment for the offense'"). Tanco-Pizarro

pooh-poohs Bohan, principally because it is an unpublished

decision. But we know of no authority holding that a district

court plainly errs by doing what an unpublished opinion of ours

permits and no binding/published opinion prohibits. See generally

United States v. Knox, 593 F. App'x 536, 537-38 (6th Cir. 2015)

(holding that the fact that a Sixth-Circuit opinion "is unpublished

does not matter to the plain-error analysis: [b]ecause there was

no Supreme Court or published Sixth Circuit case law to the

contrary, the district court did not plainly err in following 'the

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law, albeit unpublished, of this circuit'" (quoting United States

v. Crouch, 288 F.3d 907, 910 (6th Cir. 2002))); United States v.

Guerrero-Robledo, 565 F.3d 940, 946 (5th Cir. 2009) (explaining

that "[i]t certainly is not plain error for the district court to

rely on an unpublished opinion that is squarely on point").

If more were needed (and we do not think that it is),

there is United States v. Soto-Soto, 855 F.3d 445 (1st Cir. 2017).

A supervised-release-revocation case, Soto-Soto said that "the

seriousness of the offense, promoting respect for the law, [and]

providing just punishment" were "proper . . . sentencing factors."

Id. at 451. And we see no reason why Tanco-Pizarro's case falls

outside Soto-Soto's reach.

As for Tanco-Pizarro's claim that the district court

punished him for his new criminal conduct, not for his breach of

trust, the record shows otherwise. Among other things, the court

noted that Tanco-Pizarro has shown zero ability to comply with the

law and with his supervised-release conditions. To back up its

point, the court stressed that he possessed "a firearm" while

"being a convicted felon"; that he "did not visit the probation

office as requested"; and that "his whereabouts were unknown" for

a significant stretch. And, devastating to his position, these

"reasons fall within the Guidelines 'breach of trust' approach" —

an approach that lets courts "consider[] . . . 'the nature of the

conduct leading to the revocation . . . in measuring the extent of

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the breach of trust,' and impos[e] . . . a sentence 'intended to

sanction the violator for failing to abide by the conditions of

the court-ordered supervision.'" Bohan, 496 F. App'x at 96-97

(quoting U.S.S.G. ch. 7, pt. A (3)(b), intro. cmt.).4

The bottom line is that none of this sinks to the level

of plain error.5

Consideration of the Mitigating Factor

We can make quick work of Tanco-Pizarro's claim that the

district court did not consider as mitigation that he had complied

with his supervised-release conditions "for four years" before

going off the grid. Tanco-Pizarro did not allude to, let alone

discuss, this mitigating factor at his revocation hearing — he

limited his argument for a lighter revocation sentence only to his

claim that the advisory-guideline range would likely be 37 to 46

months for the felon-in-possession charge, and his revocation

sentence and his felon-in-possession sentence would probably run

consecutive to one another. Under these circumstances, he "waived"

4 We quote this passage from Bohan to counter Tanco-Pizarro's
suggestion that Bohan actually helps his cause.
5 Tucked in this section of Tanco-Pizarro's brief is this
additional argument on the felon-in-possession matter: "although
the court did not hear evidence on the question whether the firearm
was automatic, the record supports the inference that the court
did factor that unsupportable allegation into the revocation."
But again, the record shows with absolute clarity that the court
treated the gun as a non-automatic weapon — hence this aspect of
Tanco-Pizarro's argument is a no-go as well.

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the claim he makes now — so not even plain-error review is

possible. See United States v. Mayes, 332 F.3d 34, 37 n.4 (1st

Cir. 2003); see also United States v. Burks, 191 F. App'x 4, 5-6

(1st Cir. 2006).

Weight Given to § 7B1.4's Recommended Sentence

Also going nowhere is Tanco-Pizarro's argument that the

district court gave zero weight to the 6 to 12 months range

recommended by the sentencing table in § 7B1.4. "[T]his table is

an 'advisory' policy statement rather than a formal guideline."

United States v. Tapia-Escalera, 356 F.3d 181, 182 (1st Cir. 2004)

(quoting U.S.S.G. ch. 7, pt. A, intro. cmt. 3). The lower court

must "consider" that policy statement. United States v. Daoust,

888 F.3d 571, 576 (1st Cir. 2018). And the court here did just

that. But the court was not bound to follow the table's

recommendation. See, e.g., United States v. Hernández-Ferrer, 599

F.3d 63, 66 (1st Cir. 2010); Tapia-Escalera, 356 F.3d at 182;

United States v. O'Neil, 11 F.3d 292, 301 n.11 (1st Cir. 1993).

So the court's treatment of § 7B1.4's recommended sentence does

not come anywhere close to plain error.

Adequacy of the Explanation

We train our sights then on Tanco-Pizarro's claim that

the district court offered no credible explanation to justify

imposing a 60-month sentence that exceeded the top of the

applicable advisory-sentencing range (12 months) by a factor of

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five — i.e., a 500% upward variance. Compounding matters, he

writes, "the district court knew [he] was being prosecuted in a

parallel case for the criminal conduct that was the basis of

revocation." Once again, though, he cannot show plain error.

True, a court must adequately explain "in open court"

why it chose a particular sentence. 18 U.S.C. § 3553(c). And

that burden certainly increases the more the court drifts away

from the advisory-sentencing range. United States v. Montero-

Montero, 817 F.3d 35, 37 (1st Cir. 2016). But "a variant sentence"

is often "'based on a complex of factors whose interplay and

precise weight cannot . . . be precisely described.'" United

States v. Matos-de-Jesús, 856 F.3d 174, 179 (1st Cir. 2017)

(quoting United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008)).

Such is the case here. So the court's explanation did not have to

be detailed to the point of obsession — all the court had to do

was "identif[y] the primary reasons underpinning its decision."

Id.

By our lights, the court met its burden, offering a

coherent justification for the 60-month sentence. The court

discussed each violation, for example — remember, per the court,

Tanco-Pizarro violated not one, but two supervised-release

conditions: failing to report for months on end and committing

the crime of possessing firearms as a felon. And the court walked

through the key factors that drove its decision, including the

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need to protect the public from, and to deter further criminal

activity by, an offender who got hit with a felon-in-possession

charge while on supervised release for an earlier gun-related

offense. All of this led the court to conclude that Tanco-Pizarro

had shown a history of not following the criminal law or his

conditions of supervised release.6

As for Tanco-Pizarro's suggestion that the court should

have gone easier on him because it knew he "would be punished again

for the same conduct in the parallel criminal prosecution," the

revocation sentence is the only sentence that punished him for the

violations, and implicit in the court's analysis is its judgment

that he should get serious prison time for those flagrant

violations. Also, he cites no authority limiting the court's

ability to give him the statutory maximum even though he faced

punishment in the "parallel criminal" case. Perhaps that is

because we have clear authority cutting against his theory — United

States v. Coombs, 857 F.3d 439, 451 (1st Cir. 2017). Coombs

contains two holdings relevant here. The first is that when a

supervised releasee "transgresses the criminal law as well as the

conditions of supervision, there is no legal impediment in

6
Montero-Montero — on which Tanco-Pizarro heavily relies —
is easily distinguishable from today's case because there, unlike
here, the "sentencing transcript" revealed "nothing that remotely
resemble[d] an adequate explanation of the sharply variant
sentence." See 817 F.3d at 37.

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sentencing [him] both as a criminal and as a supervised release

violator" — if the rule were "otherwise," he "would effectively

escape meaningful punishment for violating his supervised release

conditions." Id. The second is that "there is no legal impediment

to imposing the sentences to run consecutively" — actually, a

guideline provision "envision[s] precisely such a scenario," what

with it saying that "'[a]ny term of imprisonment imposed'" after

"'the revocation of . . . supervised release shall be ordered to

be served consecutively to any sentence of imprisonment that the

defendant is serving,'" regardless of "'whether . . . the sentence

of imprisonment being served resulted from the conduct that is the

basis of the revocation of . . . supervised release.'" Id.

(quoting U.S.S.G. § 7B1.3(f)).

We thus have no trouble concluding that the court's

explanation, brief as it is, suffices to withstand plain-error

review.7 See Alejandro-Rosado, 878 F.3d at 440.

7 One final matter before we leave the explanation issue.
Tanco-Pizarro says that probation "did not prepare a Revocation
Report or an Amended Presentence Report," and "[t]he district court
did not prepare a written Statement of Reasons for the revocation
sentence." But he develops no legal argument directed to these
points and so waived any argument that he might have had. See,
e.g., United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
(describing the "settled appellate rule that issues adverted to in
a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived").

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 Substantive Reasonableness

Even less need be said about Tanco-Pizarro's

substantive-reasonableness challenge. Made only in passing, the

entirety of his argument — which basically recycles something we

just rejected — is this: "[t]he sentence in this case, 500% upward

variance where the court [knew] the defendant [would] be punished

again for the same conduct in the parallel criminal prosecution,

is not defensible; nor is the explanation offered by the court

plausible." Despite débuting this claim here, we will "assume,

favorably to [him], that the abuse-of-discretion standard of

review applies." See Márquez-García, 862 F.3d at 147 (noting that

"[t]he standard of review for [unpreserved] claims of substantive

unreasonableness is 'somewhat blurred,'" and choosing "to skirt

this murky area" by "assum[ing]" for argument's sake that the more

favorable "abuse-of-discretion" test controls (quoting United

States v. Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir. 2015))).

As Tanco-Pizarro alluded to in his brief, a sentence is

substantively reasonable if the court's reasoning is plausible and

the result is defensible. See, e.g., United States v. Rodríguez-

Adorno, 852 F.3d 168, 177 (1st Cir. 2017). Know too that because

it is an inherently flexible concept, "[r]easonableness" in this

context "entails a range of potential sentences," rather than "a

single" definite outcome. United States v. Dixon, 449 F.3d 194,

204 (1st Cir. 2006).

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 With that in mind, we cut directly to the chase. Nothing

in Tanco-Pizarro's arguments convinces us the sentence is

implausible or indefensible. As we were at pains to show in the

last section, the court — after considering the proper sentencing

factors — plainly justified the incarcerative term. And while

stiff, the sentence's length — 60 months, well above the nonbinding

range of 6 to 12 months, and right at the statutory maximum — is

defensible. After all, even a stiff sentence may come "within the

universe of reasonable sentences." United States v. de Jesús, 831

F.3d 39, 43 (1st Cir. 2016). Yes, "the greater the extent of a

variance, 'the more compelling the sentencing court's

justification must be.'" Id. (quoting United States v. Del Valle–

Rodríguez, 761 F.3d 171, 177 (1st Cir. 2014)). But, for the

reasons recorded above, the court's explanation satisfies that

metric, reflecting (as it does) the realities of Tanco-Pizarro's

situation. And his final salvo — that his sentence is

substantively infirm because the court knew he would be "punished

again for the same conduct in the parallel criminal prosecution"

— also misfires, thanks to Coombs. See 857 F.3d at 451.

Conclusion

Our work over, we affirm Tanco-Pizarro's 60-month

revocation sentence.

-Concurring Opinion Follows-

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 THOMPSON, Circuit Judge, concurring. I agree (obviously)

with everything the court has said but write separately (and

briefly) only to make one additional point.

The law books are full of our opinions saying that when

a defendant raises a substantive-reasonableness challenge for the

first time here, "it is arguable whether our review is for abuse

of discretion or for plain error" — though we assume favorably to

the defendant that the abuse-of-discretion standard holds sway.

See, e.g., United States v. Demers, 842 F.3d 8, 14 (1st Cir. 2016).

Now, when it comes to alleged trial errors, a defendant "who deems

himself aggrieved . . . ordinarily must object then and there, or

forfeit any right to complain at a later time" — the reason being

that "calling a looming error to the trial court's attention

affords an opportunity to correct the problem before irreparable

harm occurs," and if the defendant holds his tongue below, he must

run the gauntlet of plain-error review. United States v. Taylor,

54 F.3d 967, 972 (1st Cir. 1995). But since we are dealing here

with a supposed sentencing error, I wonder whether and how Tanco-

Pizarro could have preserved a substantive-reasonableness

argument. I say this because a sentence is generally deemed

imposed when the judge announces it in open court. See Fed. R.

Crim. P. 35(c). So — as of now — it seems to me that once the

court imposed sentence, Tanco-Pizarro could only request a

modification through a Rule-35 motion (see footnote 1 of the lead

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opinion), even if he had voiced an objection at that point in the

hearing.

Neither party presses this issue, however. Consequently

there is no need to explore the matter today.

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