United States v. Diaz-Lugo

United States Court of Appeals
For the First Circuit

No. 19-1284

UNITED STATES OF AMERICA,

Appellee,

v.

ALEXIS O. DÍAZ-LUGO,

Defendant, Appellant.

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

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

Before

Howard, Chief Judge,
Selya and Kayatta, Circuit Judges.

José Agustin Arce-Díaz on brief for appellant.
W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-
Almonte, Assistant United States Attorney, Chief, Appellate
Division, and Julia M. Meconiates, Assistant United States
Attorney, on brief for appellee.

June 24, 2020
 SELYA, Circuit Judge. Defendant-appellant Alexis O.

Díaz-Lugo complains that he cooperated fulsomely with federal

authorities after the time of his arrest, yet his cooperation was

given no tangible recognition by the sentencing court. He also

complains about a number of other alleged sentencing errors.

Because all of the appellant's claims run headlong into impassible

roadblocks, we affirm his upwardly variant sixty-month sentence.

I. BACKGROUND

We start by sketching the facts and the travel of the

case. In November of 2017, Puerto Rico police officers, conducting

a carjacking investigation, stopped a motor vehicle in which the

appellant and two other men were riding. In the car, the officers

found two firearms that were altered to fire automatically and

four high-capacity (extended) magazines.

The appellant was no stranger to law enforcement.

Approximately five years earlier, he had pleaded guilty in a local

court to illegal appropriation of a vehicle and had been sentenced

under a diversionary program. Placed on probation, he lost little

time in violating the conditions of his release by absconding from

supervision in March of 2013. That same year, he was charged

federally with being a felon in possession of a firearm. See 18

U.S.C. § 922(g)(1). He pleaded guilty to the federal charge, and

the district court sentenced him to a twenty-seven-month term of

immurement, followed by three years of supervised release.

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 Once he served his federal prison sentence, he was

remitted to the custody of the Puerto Rico authorities to face an

abscondment-from-probation charge. He served time for that

probation violation and, following his release from local custody,

the district court sentenced him to serve an additional ten months

in prison for a supervised release violation. At the same time,

the court imposed an additional two-year term of supervised

release. The appellant began serving this new term of supervised

release in August of 2017 (approximately three months before he

was arrested in the course of the carjacking investigation).

On December 7, 2017, a federal grand jury sitting in the

District of Puerto Rico returned an indictment naming the appellant

and two codefendants. As relevant here, the grand jury charged

the appellant with being a prohibited person (specifically, a

previously convicted felon) in possession of firearms and

ammunition, see id., and being in possession of a machine gun, see

id. § 922(o)(1). The appellant initially maintained his innocence

but — after informing the court that he was considering cooperating

— he indicated a desire to change his plea. His case was then

transferred to the judge who was considering the probation office's

motion to revoke his existing term of supervised release. He

proceeded to enter a straight guilty plea to both counts of the

indictment.

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 Once the appellant had pleaded guilty, the probation

office prepared a presentence investigation report (the PSI

Report), which made a series of recommended calculations and

suggested a guideline sentencing range (GSR) of thirty to thirty-

seven months. Neither side objected to the proposed GSR. At the

disposition hearing, the appellant sought a twenty-four-month

sentence, and the government advocated a thirty-month sentence.

The sentencing court spurned both recommendations and sentenced

the appellant to serve a sixty-month term of immurement on each

count, concurrent with each other, but consecutive to any sentence

to be imposed for revocation of the appellant's existing term of

supervised release. This timely appeal followed.

II. ANALYSIS

In this venue, the appellant does not challenge the

sentencing court's guideline calculations but, even so, attacks

his sentence as both procedurally flawed and substantively

unreasonable. Appellate review of claims of sentencing error

"involves a two-step pavane." United States v. Miranda-Díaz,

942 F.3d 33, 39 (1st Cir. 2019). Under this bifurcated approach,

we first examine any claims of procedural error. See United

States v. Matos-de-Jesús, 856 F.3d 174, 177 (1st Cir. 2017). If

the challenged sentence passes procedural muster, we then

proceed to examine any claim of substantive unreasonableness.

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See United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir.

2015).

At both steps of this pavane, our review of preserved

claims of error is for abuse of discretion. See Gall v. United

States, 552 U.S. 38, 46 (2007); United States v. Flores-

Machicote, 706 F.3d 16, 20 (1st Cir. 2013). For simplicity's

sake, we assume — favorably to the appellant — that his various

claims of error are preserved. The abuse-of-discretion standard

is multifaceted. When that standard obtains, we review the

district court's factual findings for clear error and examine

its answers to questions of law (including questions involving

the "interpretation and application of the sentencing

guidelines") de novo. See United States v. Ilarraza, __ F.3d

__, __ (1st Cir. 2020) [No. 19-1395, slip op. at 8]; Flores-

Machicote, 706 F.3d at 20.

With this brief preface, we turn first to the

appellant's fleet of procedural claims. Once that fleet has

sailed, we appraise his claim that his sentence is not

substantively reasonable.

A. Claims of Procedural Error.

1. Cooperation. The flagship of the appellant's fleet

of procedural claims is his claim that the sentencing court

failed to appreciate its discretion to consider his cooperation

with the government and impose a downwardly variant sentence on

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that ground. He argues that such discretion exists under 18

U.S.C. § 3553(a) notwithstanding the government's decision not

to file a motion for a "substantial assistance" departure under

USSG §5K1.1. In the appellant's view, his participation in

three proffer sessions, during which he gave what he labels as

"valuable truthful information" to the government, demonstrated

"a reduced likelihood of recidivism" and was "a beneficial part

of his . . . history and character."

We agree with the appellant's premise: a sentencing

court ordinarily has discretion to consider a defendant's

cooperation with the government as a mitigating factor. See

United States v. Landrón-Class, 696 F.3d 62, 77 (1st Cir. 2012).

In an appropriate case, such cooperation may persuade the

sentencing court to impose a downwardly variant sentence. See

United States v. Jiménez, 946 F.3d 8, 16 (1st Cir. 2019) ("Our

precedent is clear that sentencing courts are permitted to hand

down shorter sentences to those who cooperate and show

remorse."). This praxis is consistent with our interpretation

of 18 U.S.C. § 3553(a)(1) as broadly instructing sentencing

courts to consider a defendant's history and characteristics,

which (as we have said) "includes the history of . . .

cooperation and characteristics evidenced by cooperation."

Landrón-Class, 696 F.3d at 77 (quoting United States v.

Fernandez, 443 F.3d 19, 33 (2d Cir. 2006)). The fact that the

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government abstains from moving for a section 5K1.1 departure

based on substantial assistance in investigating or prosecuting

another does not divest the sentencing court of its statutory

discretion to consider a defendant's cooperation and impose a

downwardly variant sentence predicated on such cooperation. See

id.

Although we agree with the appellant's premise, we

disagree with his conclusion that the court below was unaware

of its discretion to consider cooperation as a relevant factor

in the section 3553(a) sentencing calculus. Nothing in the

record so much as hints that the court thought that its

sentencing calculus under 18 U.S.C. § 3553(a) was constrained

by the government's decision to eschew a downward-departure

motion under USSG §5K1.1. The appellant's contrary suggestion

is woven out of whole cloth.

The record makes manifest that the appellant's

cooperation was a live issue at sentencing. During the

disposition hearing, the government forthrightly explained that

the appellant sat for several proffer sessions, answered the

government's questions, and was willing to cooperate generally.

The government went on to state, though, that because the

information furnished "was not actionable," it believed that a

substantial assistance departure was not justified. In the

course of this discussion, the government never suggested that

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the appellant's cooperation should not be weighed in the balance

when the court determined whether to impose a sentence below,

within, or above the GSR. Instead, the government took the

position that fairness demanded that the court "be made aware

of [the appellant's] willingness to cooperate."

For his part, the appellant's counsel called the

court's attention to his sentencing memorandum, which lauded the

appellant's cooperation with the government. Counsel urged the

court to consider this cooperation in imposing sentence.

Discounting the government's description of the fruits of the

cooperation, counsel declared that the appellant had supplied

"very valuable information." The government interposed no

objection either to this line of argument or, more generally,

to the sentencing court's consideration of the appellant's

cooperation. Where, as here, a sentencing court entertains

proffered facts and arguments at the disposition hearing without

giving any indication that it will refuse to consider those

facts and arguments in constructing its sentencing calculus,

there is usually no reason to think that the court failed to

consider those facts and arguments in fashioning the sentence.

See Landrón-Class, 696 F.3d at 78.

To be sure, the sentencing court — as the appellant

points out — never specifically addressed his cooperation. It

is common ground, though, that a sentencing court need not speak

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to a defendant's arguments one by one and expressly dispose of

each of them. See United States v. Cortés-Medina, 819 F.3d 566,

571 (1st Cir. 2016) ("[W]e discern no abuse of discretion in the

sentencing court's failure to acknowledge explicitly that it had

mulled the defendant's arguments."); see also United States v.

Clogston, 662 F.3d 588, 592 (1st Cir. 2011). When a defendant

has identified potentially mitigating sentencing factors and

those factors are thoroughly debated at sentencing, the fact

that the court "did not explicitly mention them during the

sentencing hearing suggests they were unconvincing, not

ignored." United States v. Lozada-Aponte, 689 F.3d 791, 793

(1st Cir. 2012).

That ends this aspect of the matter. Viewing the

record as a whole, we reject as speculative the appellant's

claim that the district court did not appreciate its discretion

to consider his cooperation in fashioning his sentence.

Relatedly, the appellant argues that even if the

sentencing court considered his cooperation sub silentio, that

cooperation demanded a downward variance. This argument is

easily dispatched. Although the appellant may have tried his

best to cooperate by engaging in several proffer sessions, the

information that he provided proved to be (in the government's

view) "not actionable." As a result, the government was "unable

to build a case around it."

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 Although a defendant's full-throated cooperation is

generally a mitigating factor deserving of weight in the

sentencing calculus, see United States v. Doe, 398 F.3d 1254,

1259 (10th Cir. 2005), such cooperation may be entitled to more

weight in some cases than in others, see Fernandez, 443 F.3d at

34. Weighing the value of an individual sentencing factor,

whether mitigating or aggravating, is a function that, for the

most part, falls within the sentencing court's informed

discretion. See United States v. Santiago-Rivera, 744 F.3d 229,

232 (1st Cir. 2014).

Here, the court apparently recognized that even though

the appellant's cooperation with the government was commendable,

not every instance of cooperation is fruitful enough to justify

a reduced sentence. The court implicitly applied this reasoning

in declining to vary downward. We discern no abuse of

discretion: when a defendant's cooperation, though earnest,

leads only to a dry hole, a sentencing court does not abuse its

discretion by failing to vary downward on account of that

cooperation. See Fernandez, 443 F.3d at 34 (upholding denial

of downward variance when "cooperation was 'fitful'").

2. Drug Arrest. The appellant submits that the

sentencing court improperly gave weight to his past arrest for

a drug charge. Consideration of the drug arrest was problematic,

he says, because he was never convicted of the underlying

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offense. As we explain below, the appellant is fishing in an

empty sea.

It is true that the district court, when reviewing the

appellant's criminal history, mentioned that he had been

"arrested for possession of controlled substances at the [s]tate

[c]ourt . . . but these charges were dismissed" on procedural

grounds. This reference, the appellant suggests, violated USSG

§4A1.3(a)(3), which prohibits consideration of a prior arrest

record for the purpose of imposing an upward departure. Even

though the guideline provision upon which the appellant's

argument rests is inapposite,1 the appellant's claim of error

gives us pause. Arrest records differ materially from

convictions, and their place, if any, in sentencing proceedings

is not open and shut.

One limitation on the use of an arrest record at

sentencing is potentially relevant here: when an arrest has not

ripened into a conviction, a sentencing court may not rely on that

1 The appellant is obviously incorrect in suggesting that the
district court violated USSG §4A1.3(a)(3). That guideline
provision applies only to departures, and we have made it
luminously clear that departures and variances are not of the same
genre. See Miranda-Díaz, 942 F.3d at 40 (explaining that departure
is term of art referring only to non-GSR sentences imposed under
guidelines framework whereas variance is based on court's
consideration of section 3553(a) factors); United States v.
Santini-Santiago, 846 F.3d 487, 490 (1st Cir. 2017) (similar).
The case at hand involves a variant sentence, not a departure
sentence.

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arrest in a manner that equates the arrest with guilt. See United

States v. Díaz-Rivera, 957 F.3d 20, 26-27 (1st Cir. 2020). Nor

may a sentencing court rely on an arrest record as evidence of a

defendant's conduct in the absence of some reliable indication

that the underlying conduct actually occurred. See id.

These proscriptions do not mean, however, that the mere

mention of an arrest record is forbidden to a sentencing court.

For example, a sentencing court does not abuse its discretion

merely by reciting a defendant's arrest record. See United States

v. Rodríguez-Reyes, 925 F.3d 558, 563 (1st Cir.), cert. denied,

140 S. Ct. 193 (2019).

In this instance, the district court mentioned the

appellant's drug arrest only while constructing a chronology of

the appellant's criminal history. As quickly as the court referred

to the arrest, it completed its recital of the appellant's criminal

record and then moved on to a detailed discussion of the section

3553(a) factors — a discussion that did not include any mention of

the drug arrest. What is more, the court made clear that the

appellant's criminal history score was derived solely from his

prior convictions and his commission of the charged offenses while

on supervised release.

On this antiseptic record, it is nose-on-the-face plain

that the district court's passing reference to the appellant's

drug arrest played no role in the sentencing calculus. We hold,

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therefore, that the sentencing court's mere mention of the drug

arrest, solely as a matter of historical fact, was not an abuse of

discretion.

The appellant tries a variation on this theme. He

maintains that, when chronicling the drug arrest, the sentencing

court impermissibly injected "the perceived leniency of Puerto

Rico's courts" into the sentencing equation. This occurred, he

says, when the court noted that the dismissed drug charge had,

"[a]s usual," not been refiled.

Let us be perfectly clear. This observation had no place

in the sentencing proceeding and would have been better left

unsaid. After all, a perceived systemic deficiency in the local

judicial system would not normally be an appropriate sentencing

factor, see Flores-Machicote, 706 F.3d at 21, and it was not an

appropriate sentencing factor in this case.

For purposes of this appeal, though, the district

court's disparagement is a non-issue. A sentencing court's mere

grousing about a perceived shortcoming in a local judicial system,

without more, does not taint a sentence. And here, there is no

"more": the record offers no support at all for the suggestion

that the district court, in fashioning the appellant's sentence,

gave any weight to the perceived habitual leniency of the Puerto

Rico courts. Although it is regrettable that the court muddied

the waters by commenting negatively on how the local justice system

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handles criminal cases, we detect nothing that calls into question

the validity of the appellant's sentence. See, e.g., United States

v. Milán-Rodríguez, 819 F.3d 535, 540 (1st Cir. 2016) (finding no

abuse of discretion when sentencing court expressed frustration

with perceived leniency of Puerto Rico courts while discussing

defendant's criminal history); United States v. Rivera-González,

776 F.3d 45, 50-51 (1st Cir. 2015) (finding no abuse of discretion

even though sentencing court mentioned leniency of local courts in

connection with need for deterrence).

3. Nullification. We pivot next to the appellant's

contention that the sentencing court effectively nullified his

three-level reduction for acceptance of responsibility, see USSG

§3E1.1, by imposing an above-the-range sentence. This

contention is hopeless.

The court below found that the appellant had accepted

responsibility by pleading guilty early in the proceedings and

saving the government the expense of a trial. It therefore

awarded him a three-level reduction in his total offense level.

The court separately determined that an upward variance was

appropriate due to the seriousness of the offenses, the need to

promote respect for the law, the necessity of protecting the

public, and considerations of deterrence and condign punishment.

These were distinct sentencing determinations, resting on

different factual predicates, and the appellant offers no

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principled reason why we should consider the latter

determination as a negation of the former determination. To

hold that one nullified the other would effectively hamstring a

sentencing court by precluding an upward variance whenever a

defendant has accepted responsibility.

We add, moreover, that the appellant's nullification

theory is plucked out of thin air, unanchored to any developed

argumentation. He cites no authority for so radical a proposition,

and we are aware of none. And as a practical matter, it seems

self-evident that the appellant's upwardly variant sentence

might have been even stiffer had he not garnered the acceptance-

of-responsibility credit.

4. Heartland. Battling on, the appellant attacks the

sentencing court's rationale for his upwardly variant sentence

on the ground that the GSR fully accounted for the aggravating

nature of the firearm he possessed and his commission of the

charged crimes while on supervised release. This attack is not

entirely without force. We have cautioned that "when a

sentencing court relies on a factor already accounted for by the

sentencing guidelines to impose a variant sentence, [it] must

indicate what makes that factor worthy of extra weight." United

States v. Fields, 858 F.3d 24, 32 (1st Cir. 2017) (citing United

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

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 Even so, a deeper dive into the record allays any such

concern. The court below acknowledged with approval the

probation officer's guideline calculations and her rendition of

the nature and circumstances of the offenses. The court then

explained in some detail why certain of the factors embedded in

the guideline calculation were deserving of extra weight in this

case. To this end, the court was especially troubled by the

appellant's possession not only of a machine gun but of two

machine guns and four extended magazines. It also worried that

machine guns are among the most dangerous of modern weapons

based on their ability "to kill dozens of people within seconds"

and reflected that such weapons "are not typically possessed by

law-abiding citizens for lawful purposes." Similarly, the court

elaborated upon the appellant's commission of the charged crimes

while on supervised release, expressing concern about the

repetitive nature of the appellant's violations of both

probationary terms and supervised release conditions.

The relevant guideline provision, see USSG

§2K2.1(a)(4)(B), contemplates only a single machine gun. Thus,

the guideline calculation did not account for the possession of

two machine guns, nor did it account for the possession of four

high-capacity magazines. By the same token, the relevant

guideline provision, see id. §4A1.1(d), (and, thus, the

guideline calculation) does not account for multiple violations

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of probationary terms and supervised release conditions.

Because these facts remove this case from the heartland of the

applicable guideline provisions, we discern no abuse of

discretion in the sentencing court's use of them in constructing

an upwardly variant sentence. See Fields, 858 F.3d at 32-33.

5. Variance: Justification and Extent. The

appellant's last claim of procedural error likewise focuses on

the upward variance. He asserts that the sentencing court failed

"to justify the extent of the variance." This assertion

collapses two distinct claims of error: that the sentencing

court failed to explain why an upwardly variant sentence was

necessary and that the extent of the variance imposed was

excessive. We deal with these two facets of the claim

separately.

With respect to justification, we acknowledge that a

sentencing court is obligated to explicate the basis for a

variant sentence. See 18 U.S.C. § 3553(c). This does not mean,

though, that the court's explication must "be precise to the

point of pedantry." United States v. Fernández-Cabrera, 625

F.3d 48, 53 (1st Cir. 2010). On appeal, a reviewing court must

assess the sentencing court's explanation of an upwardly variant

sentence in a practical, common-sense manner. To this end, we

ask whether the district court reasonably explained the sentence

in a manner that relies on factors not adequately accounted for in

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the GSR. Such a factor may, for example, be one that simply was

not considered in constructing the GSR, see United States v.

García-Mojica, 955 F.3d 187, 193 & n.7 (1st Cir. 2020), or one

that was considered in constructing the GSR but not in a way that

sufficiently accounts for the idiosyncrasies of a particular case,

see Fields, 858 F.3d at 32. In each such instance, the sentencing

court must identify the factor and explain why the factor calls

for an upward variance. See, e.g., United States v. Rivera-

Morales, __ F.3d __, __ (1st Cir. 2020) [No. 17-1258, slip op.

at 37-38]; Fields, 858 F.3d at 32; Zapete-Garcia, 447 F.3d at 60.

The extent of the explanation must be commensurate with the extent

of the variance. See Fields, 858 F.3d at 31.

Here, the sentencing court limned four distinct

reasons for the steep upward variance. It specifically found

that the GSR did not "reflect[] the seriousness of the offense,

promote[] respect for the law, protect[] the public from further

crimes by [the appellant], or address[] the issues of deterrence

and punishment." In explaining its conclusions, the court

expressed particular concern about the troubling nature of two

machine guns, noting their efficient lethality and the paucity

of lawful uses for them. For sentencing purposes, such well-

grounded concerns may influence a sentencing court's appraisal

of the gravity of a defendant's offense conduct. See United

States v. Gallardo-Ortiz, 666 F.3d 808, 816, 818 (1st Cir. 2012).

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 So, too, the sentencing court leaned heavily on the

appellant's criminal history, commenting upon his generalized

(and well-documented) "disregard for the law." See 18 U.S.C.

§ 3553(a)(1), (2)(A); Flores-Machicote, 706 F.3d at 23-24.

Specifically, the court observed that the appellant committed

the offenses of conviction "despite having a previous [f]ederal

conviction, and a revocation" of his supervised release term.

Exacerbating the situation, the appellant "continuous[ly]

violat[ed]" his supervised release conditions and maintained

"negative associations" while on probation and supervised

release.

Collectively, these considerations took the

appellant's case well outside the heartland of the relevant

guideline calculation. See supra Part II(A)(4). They

appropriately informed the sentencing court's evaluation of the

gravity of the offenses of conviction; the appellant's likely

recidivism; his lack of respect for the law; and the risks that

the appellant posed to society.

In evaluating the explanation for this upward

variance, we do not write on a pristine page. As we stated on

an earlier occasion, "[w]here the record permits a reviewing

court to identify both a discrete aspect of an offender's conduct

and a connection between that behavior and the aims of

sentencing, the sentence is sufficiently explained to pass

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muster." United States v. Sepúlveda-Hernández, 817 F.3d 30, 33

(1st Cir. 2016) (alteration in original) (quoting Fernández-

Cabrera, 625 F.3d at 54); see Rivera-Morales, __ F.3d at __ [slip

op. at 36]. So it is here. "Because the court made pellucid

. . . the driving force[s] in its sentencing calculus, its

explanation was sufficient to satisfy the statutory mandate."

Rivera-Morales, __ F.3d at __ [slip op. at 37].

This brings us to the portion of the appellant's claim

that challenges the extent of the variance and posits that it

was excessive. This assignment of error need not detain us. To

begin, we question whether a claim of excessiveness is a claim

of procedural error at all. In any event, the extent of the

variance and the "defensible result" prong of substantive

reasonableness, see United States v. Martin, 520 F.3d 87, 96 (1st

Cir. 2008), are simply two sides of the same coin. They are

alternative (and interchangeable) ways of saying that in the

appellant's view the length of his sentence is beyond the pale.

See United States v. Fernández-Garay, 788 F.3d 1, 6 (1st Cir.

2015). To avoid redundancy, we treat this claim of error as

part and parcel of the appellant's claim of substantive

unreasonableness, to which we repair forthwith.

B. Claim of Substantive Unreasonableness.

The appellant's last stand consists of a claim that

his sixty-month sentence is substantively unreasonable. He

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trains his fire on the sentencing court's upward variance. And

we do not gainsay that the upward variance is steep: twenty-

three months (nearly two full years) over the top of the GSR.

We review this claim for abuse of discretion. See

Holguin-Hernandez v. United States, 140 S. Ct. 762, 766 (2020);

United States v. Arce-Calderon, 954 F.3d 379, 382 (1st Cir. 2020).

"In the sentencing context, 'reasonableness is a protean

concept.'" Clogston, 662 F.3d at 592 (quoting Martin, 520 F.3d

at 92). Thus, there is not a single reasonable sentence in any

given case but, rather, an expansive "universe of reasonable

sentencing outcomes." Id.; see United States v. de Jesús, 831

F.3d 39, 43 (1st Cir. 2016). Accordingly, we must determine

whether the challenged sentence falls within that expansive

universe. In making this determination, we look for the

hallmarks of a substantively reasonable sentence: "a plausible

sentencing rationale and a defensible result." Martin, 520 F.3d

at 96.

Typically, a sentencing court has a more intimate

knowledge of a particular case than does an appellate court.

See Gall, 552 U.S. at 51-52. Recognizing the sentencing court's

unique coign of vantage, we have regularly declined simply to

substitute our judgment for that of the sentencing court. See,

e.g., Miranda-Díaz, 942 F.3d at 42; United States v. Vargas-

García, 794 F.3d 162, 167 (1st Cir. 2015). For similar reasons,

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a claim of substantive unreasonableness will fail if it comprises

nothing more than "a thinly disguised attempt . . . 'to

substitute [the appellant's] judgment for that of the sentencing

court.'" Vargas-García, 794 F.3d at 167 (quoting Clogston, 662

F.3d at 593). And as long as the sentencing court has mulled

all the relevant factors, an appellant cannot prevail merely by

carping about the court's relative weighing of those factors.

See United States v. Coombs, 857 F.3d 439, 452 (1st Cir. 2017).

Here, the sentencing court indicated that it had

considered all the section 3553(a) factors and discussed a

handful of them. In the process, it focused on the seriousness

of the offense conduct, the appellant's checkered past and

likelihood of recidivism, and the need to promote respect for

the law. On balance, we think that the court articulated a

plausible sentencing rationale (albeit one with which the

appellant disagrees).

In our view, the sentencing court also reached a

defensible result. The mere fact that a district court imposes

an upwardly variant sentence does not render the sentence

substantively unreasonable — and this remains true even where,

as here, the upward variance is steep. See Miranda-Díaz, 942

F.3d at 43; Flores-Machicote, 706 F.3d at 25; Gallardo-Ortiz,

666 F.3d at 811. Context matters, and the offense conduct in

this case was egregious; as we have said, it involved the

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possession of two machine guns and four extended magazines on

the heels of a previous felon-in-possession conviction. As if

to rub salt in an open wound, the appellant committed the

offenses of conviction while he was serving a supervised release

term incident to that federal felon-in-possession conviction.

And, finally, the appellant committed these new offenses against

a backdrop of repeated probation violations.

Facts are stubborn things, and a sentencing court is

free to draw reasonable inferences from them. See United States

v. Montañez-Quiñones, 911 F.3d 59, 67 (1st Cir. 2018), cert.

denied, 139 S. Ct. 1388 (2019). Viewed through this lens, we

deem fully supportable the findings of the court below that the

appellant's offenses were serious; that the prospect of the

appellant's recidivism was real; that the need to protect the

public was apparent; and that the appellant's earlier

interactions with the judicial system seem to have taught him

no lessons. Given these supportable findings, we cannot say

that a sixty-month sentence was substantively unreasonable. See

Flores-Machicote, 706 F.3d at 25; Gallardo-Ortiz, 666 F.3d at

818. Consequently, the district court's imposition of such a

sentence was within the encincture of its discretion.

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III. CONCLUSION

We need go no further. For the reasons elucidated

above, the appellant's sentence is

Affirmed.

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