United States v. Gallardo-Ortiz

United States Court of Appeals
For the First Circuit

No. 08-2292

UNITED STATES OF AMERICA,

Appellee,

v.

JORGE LUIS GALLARDO-ORTIZ, a/k/a Legend,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Aida M. Delgado-Colón, U. S. District Judge]

Before

Howard, Selya and Thompson,
Circuit Judges.

Chauncey B. Wood, with whom Wood & Nathanson, LLP was on
brief, for appellant.
Thomas F. Klumper, Assistant United States Attorney, with whom
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, was on brief, for appellee.

January 24, 2012
 HOWARD, Circuit Judge. By plea agreement, defendant-

appellant Jorge Luis Gallardo-Ortiz pled guilty to two criminal

counts involving his unlawful possession of ammunition and a

firearm, a Glock Model 27, which is .40 caliber handgun capable of

operating as a fully automatic machine gun. See 18 U.S.C. §§

922(g)(1), 922(o); see also 18 U.S.C. § 921(23) (incorporating

definition of "machinegun" firearm under 26 U.S.C. § 5845(b)). The

parties recommended a sentence of 33 months of incarceration, which

the district court rejected. Instead, after considering the

particulars of the case in light of the statutory sentencing

factors, 18 U.S.C. § 3553(a), the court imposed a sixty-month

sentence of incarceration -- nineteen months beyond the top of the

guidelines sentencing range (GSR) of 33-41 months -- and three

years of supervised release. Gallardo appeals, arguing that the

stringent sentence is tainted by procedural error and is

substantively unreasonable.1 We disagree and affirm the sentence.

I. Background

In the early morning hours of April 16, 2007, police in

San Juan, Puerto Rico received a call that an armed male was seen

in the vicinity of the Manuel A. Perez housing project. Two

responding officers promptly arrived at the scene around 1:45 a.m.

1
The government agrees with the appellant's contention that
the "waiver of appeal" clause in his plea agreement does not
preclude this appeal because the sentencing judge did not impose
the recommended sentence.

-2-
and saw Gallardo holding a firearm. Catching sight of the

officers, Gallardo fled on foot. The officers quickly captured him

and recovered his Glock .40 caliber pistol.

The loaded gun was equipped with a conversion clip

allowing it to operate as a fully automatic machine gun and accept

extended ammunition magazines. Gallardo also had on his person two

extended magazines, loaded with twenty-three and twenty-seven

rounds, respectively.

A federal grand jury later returned a three-count

indictment charging Gallardo with (1) possession of ammunition and

a firearm by a convicted felon, see 18 U.S.C. § 922(g), (2) knowing

and intentional possession of ammunition and a machine gun, see 18

U.S.C. § 922(o), and (3) knowing possession of ammunition and a

firearm within 1,000 feet of a school zone, see 18 U.S.C. §

922(q)(2)(A). Gallardo pleaded guilty to the first two charges,

and the government agreed to dismiss the third. The parties also

agreed to recommend a sentence of 33 months of incarceration, the

bottom of the advisory GSR calculation of 33-41 months. See United

States v. Booker, 543 U.S. 220, 259-60 (2005) (declaring the

sentencing guidelines advisory).

At the sentencing hearing, the district court informed

the parties that it had carefully considered the indictment, the

charges filed within the indictment, and the plea agreement. It

also had reviewed the pre-sentence investigation report (PSR) in

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detail with the probation officer. The court informed Gallardo of

its intent to depart upward from the recommended sentence.

Gallardo then presented his allocution, expressing his regret and

his desire to serve minimal incarceration so that he could continue

to financially support his family. After requesting two changes to

the PSR, which the court largely obliged, Gallardo assented to the

contents of the report.

Ultimately, the district court rejected components of

Gallardo's allocution and concluded that a sentence within the GSR2

would not constitute an appropriate sentence. Instead, after

considering the section 3553(a) factors, the judge imposed a

sentence outside the guideline range in order to reflect both the

seriousness of the offense and its nature and circumstances, to

promote respect for the law, to protect the public from further

crimes by the appellant and to otherwise address the issues of

deterrence and punishment. As noted earlier, the sentencing judge

imposed a sixty-month sentence of imprisonment, as well as three

years of supervised release. This timely appeal followed.

II. Discussion

On appeal, Gallardo argues that his sentence is

constitutionally unreasonable because the district court committed

numerous procedural and substantive errors when devising the

2
The record reflects that the district court reviewed and
accepted the GSR calculation in the PSR, and no one disputes its
accuracy.

-4-
sentence. Before turning to the specifics of his arguments, we

frame the governing law.

Sentencing "is much more an art than a science," United

States v. Clogstron, 662 F.3d 588, 593 (1st Cir. 2011), and

"appellate review of sentencing decisions is limited to determining

whether they are reasonable," Gall v. United States, 552 U.S. 38,

46 (2007) (internal quotation marks omitted). Reasonableness

correlates with the abuse of discretion standard and incorporates

two review components -- discerning whether the challenged sentence

is procedurally sound and substantively reasonable. See id. at 51;

United States v. Thurston, 544 F.3d 22, 24-25 (1st Cir. 2008).

Procedural soundness requires that the district court must not have

committed "a procedural error in arriving at the sentence." United

States v. Rivera-Moreno, 613 F.3d 1, 8 (1st Cir. 2010); see Gall,

522 U.S. at 51 (providing examples of procedural errors, including

a sentencing judge "selecting a sentence based on clearly erroneous

facts"). For substantive reasonableness, the linchpin is "a

plausible sentencing rationale and a defensible result." United

States v. Pol-Flores, 644 F.3d 1, 4-5 (1st Cir. 2011) (internal

quotation marks omitted).

An established roadmap exists to guide sentencing courts

when discerning a reasonable sentence, which begins with assessing

the GSR. See Gall, 552 U.S. at 49-50; United States v.

Madera-Ortiz, 637 F.3d 26, 29-30 (1st Cir. 2011); United States v.

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Martin, 520 F.3d 87, 91-92 (1st Cir. 2008). The sentencing court

must also consider a number of relevant factors, see 18 U.S.C. §

3553(a), but "the weighting of those factors is largely within the

court's informed discretion." Clogston, 662 F.3d at 593; see Gall,

552 U.S. at 49-50 (holding that while the GSR is a valuable

starting point, the sentencing judge must make an "individualized

assessment based on the facts presented"). Indeed, "[t]here is no

single reasonable sentence in any particular case but, rather, a

universe of reasonable outcomes," United States v. Walker, No. 10-

1092, 2011 WL 5865652, at *15 (1st Cir. Nov. 23, 2011), and

sentencing decisions are entitled to great deference given the

superior judicial vantage point of sentencing judges, see Gall, 552

U.S. at 51-52. Our task is to determine whether the district

court's informed decision falls within that universe, not to

supplant its judgment. See Walker, 2011 WL 5865652, at *15;

Clogston, 662 F.3d at 593.

We note two additional principles before turning to the

details of the sentencing in this case. First, we are mindful that

the sentencing judge may consider all relevant information that has

"sufficient indicia of reliability to support its probable

accuracy"; the usual rules of evidence do not pertain at

sentencing. See United States v. Cintrón-Echautegui, 604 F.3d 1,

6 (1st Cir. 2010) (internal quotations omitted). Further, the

sentencing court "has wide discretion to decide whether particular

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evidence is sufficiently reliable to be used at sentencing." Id.;

see United States v. Marsh, 561 F.3d 81, 87 (1st Cir. 2009)

(determining that the district court is free to credit the

descriptions contained in the PSR when the defendant does not

contest the reliability of the information in the report).

Second, our appellate review includes consideration of

the extent of any variance from the GSR in the context of the

totality of the circumstances. See Gall, 552 U.S. at 51. A

dramatic variance, however, cannot unduly influence our review of

substantive reasonableness. Thurston, 552 F.3d at 25; see Gall,

552 U.S. at 47 (rejecting an appellate rule that requires

"extraordinary" circumstances to justify a sentence outside of the

GSR calculation). Nevertheless, the sentencing court's reasons for

its deviation "should typically be rooted either in the nature and

circumstances of the offense or the characteristics of the

offender; must add up to a plausible rationale; and must justify a

variance of the magnitude in question." Martin, 520 F.3d at 91.

In the end, the standard of reasonableness applies regardless of

whether the challenged sentence falls inside or outside of the GSR.

United States v. Jimenez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006)

(en banc); see also Martin, 520 F.3d at 92 (noting that once the

court has duly calculated the GSR, sentencing "becomes a judgment

call, and a variant sentence may be constructed based on a complex

of factors whose interplay and precise weight cannot even be

-7-
precisely described" (internal quotation marks omitted)). Against

this backdrop, we review the sentencing decision before us.

The sentencing judge provided several reasons for

imposing a sentence in excess of the GSR. See Clogston, 662 F.3d

at 592 (noting that the appellate court "must assay the record as

a whole to gauge the sentencing judge's thought process"). First,

she focused on the seriousness of the offense, emphasizing

Gallardo's in-hand possession of a loaded high-capacity fully

automatic machine gun while publicly arguing with a family member

in a protected school zone. Second, the sentencing judge noted

Gallardo's violent character, displayed in part by his criminal

history and post-arrest admissions to law enforcement.

Third, the judge underscored her concern for public

safety and for fostering respect for the law, as well as Gallardo's

need for a strong deterrent. In this context, the judge noted the

minimal accountability Gallardo had faced in his life and his

continued failure to refrain from illegal activity. The court also

remarked on Gallardo's lack of maturity and consistent exercise of

poor judgment, noting especially Gallardo's use of his limited

financial resources to support his illegal conduct. Finally, the

court noted Gallardo's misapplication of his intelligence for

manipulative purposes, his conduct in lying to the police after his

arrest, and his efforts to minimize his culpability to the

probation officer. The appellant challenges several aspects of the

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sentencing decision on both procedural and substantive grounds,

which we address in turn.3

A. Claimed Procedural Error

The appellant claims that the sentencing decision is

procedurally flawed because it rests on a "series of errors" and

"speculative factual assertions." He avers that the significance

of these errors is "magnified here because the district court

imposed a sentence far outside the GSR" and "nearly double the

parties' recommendation." He specifically targets the manner in

which the district court relied on his employment history, his

criminal record, the circumstances of his offense, and his post-

arrest interaction with law enforcement. His plaints, however,

rest on an overly myopic focus and a slanted recasting of portions

of the court's sentencing decision. Our review of the targeted

court findings and conclusions, in the context of the whole fabric,

reveals no district court error. See Clogston, 662 F.3d at 592

(emphasizing the importance of appellate court reviewing "the

3
The parties skirmish over the appropriate standard of review.
The government argues that plain error should apply because
Gallardo failed to make timely objections below. The appellant
contends, at least with respect to the alleged procedural flaws,
that any error should result in automatic remand for re-sentencing.
We strongly doubt the viability of the appellant's position, see,
e.g., United States v. Davila-Gonzalez, 595 F.3d 42, 47 (1st Cir.
2010), but we need not rule on its merits because he has not, in
all events, established any district court error, see, e.g., United
States v. Southern Union Co., 630 F.3d 17, 38 (1st Cir. 2010).

-9-
record as a whole to gauge the sentencing judge's thought

process"). We take up each criticism.

1. Employment History

The appellant first claims that the district court

erroneously concluded that his employment history illustrates that

he had generated his income by illicit means, and that he was not

able to meet his financial obligations to his family. Gallardo

focuses on the following statements by the judge: "Throughout your

life, you have had no steady record of employment, no steady

salary, even though questionable how you obtain or provide income,

or even $1,500 to purchase a weapon converted to a machine gun, is

questionable"; and "[Your] way of supporting [your children] and

gaining economic support is highly questionable in as much as there

is no steady record of employment or steady record of income."

According to the appellant, the district court's conclusions are

directly undermined by the PSR's recitation of his extensive

legitimate work history. He, however, fails to account for the

context of the court's statements and misconstrues their nature.

The court made the above-quoted statements in the context

of considering the veracity of Gallardo's allocution and when

concluding that he lacked maturity in exercising judgment about how

to properly prioritize his limited income. The court plainly

doubted Gallardo's self-portrayal as a responsible family man who

had been financially supporting his family, including his ten

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children, his current wife, and his mother. In so doing, the court

juxtaposed his spotty employment history and lack of a consistent

income against his history of spending money on himself rather than

on his family. The judge pointedly noted Gallardo's $1,500 machine

gun purchase and his financial investment in his persistent drug

use. She also noted that the record seemed to contradict

Gallardo's claim that he had been helping provide for his mother's

financial needs. In short, the court was convinced that Gallardo's

skewed allocution and lack of maturity, as a 37-year-old grown man

and father of ten, was pertinent to assessing his character in full

when rendering its sentencing decision. In sum, the record belies

the appellant's characterization of the court's statements as

displaying a belief that Gallardo earned money illicitly or that he

was unable to support his family financially.

2. Criminal History

The appellant next challenges several aspects of the

manner in which the district court considered his criminal history.

None is availing. We outline his history, and the court's

corresponding analysis of it, to frame his specific claims of

error.

The appellant's record includes a 1991 conviction for

drug possession, and 1991 and 1993 convictions for domestic

violence related conduct. A two-year prison sentence was imposed

for the drug conviction, but the district court noted that he

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actually served seven months of incarceration. Fines were assessed

for both convictions involving domestic violence. The district

court emphasized the circumstances of the 1993 conviction, in which

Gallardo entered the home of the mother of three of his children --

despite the existence of a protective order -- and beat her in the

children's presence. From 2000 to 2006, Gallardo faced several

charges alleging weapons violations, a drug violation and domestic

violence conduct; all or most were dismissed for speedy trial

violations. The district court referred to this criminal history

in assessing different aspects of Gallardo's character, and the

appellant challenges two particular conclusions drawn by the court

about the minimal repercussions that he had faced in the past and

about his violent nature.

He first points to the court's statement that he "never

[had] been able or been placed in a situation to confront

consequences of [his] actions." He contends that this finding is

erroneous because the court failed to account for his prior two-

year sentence imposed for his 1991 drug conviction. A view through

a wider lens, however, reveals that the sentencing judge

specifically considered that conviction and corresponding sentence

when expressing concern that his past encounters with the legal

system resulted in relatively minimal consequences. The court

underscored: "[e]ven for those charges in which you were convicted

it seems you served a very short period of imprisonment, ranging

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from 7 months before you were paroled"; this was a direct reference

to his punishment for the 1991 drug conviction. Thus, his prior

punishment did not go unnoticed by the district court.

The appellant also contends that the court's "no

consequences" statement reflects an improper engagement in "rank

speculation" based on his "bare arrest record" to conclude that he

actually committed the charged criminal conduct underlying the

dismissed charges. He characterizes the court's statement as

meaning that he "should have had to face consequences" for his

conduct underlying the dismissed charges, and that he "avoided the

consequences of these alleged actions." According to the

appellant, because the charged conduct was never proven true and

there was no reliable evidence establishing that it occurred, the

dismissed charges were of no probative value in assessing his

"history and characteristics." The argument lacks merit.

When devising the appellant's sentence, the court took

into account the fact that numerous charges had been lodged against

Gallardo from 2000 to 2006 but he never had to face prosecution for

them due to dismissal on speedy trial grounds. Indeed, in looking

at the totality of Gallardo's history, the sentencing judge found:

"from prior brushes with the law and encounters with the legal

system, [Gallardo] has not learned to exercise good judgment or

refrain from engaging in illegal conduct." In the context of the

sentencing decision, we do not understand the court's "no

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consequences" statement as either explicitly or implicitly

rendering a value judgment on the legitimacy of the dismissed

charges themselves or casting a nefarious shadow on Gallardo

avoiding prosecution. Rather, the judge was remarking that the

nature of the dismissals negated any legal compulsion for Gallardo

to contend with the legal system and face whether the allegations

actually held weight. We explain further.

The court viewed the numerous dismissed charges, which

lodged serious allegations and spanned over half a decade, as

couched between his 1990s convictions for drug possession and

domestic violence on one hand, and his self-professed persistent

drug habit and present serious gun crimes on the other hand.

Remarking on this panoply, the court noted several details: (1)

Gallardo's flagrant disregard of the law displayed by his violation

of a protective order during his 1993 crime; (2) the relatively

minimal consequences he had faced for his early convictions; and

(3) the fact that he continued to choose a path of unlawful conduct

in spite of the fortuity of about a half dozen criminal charges

being dismissed on speedy trial grounds from 2000 to 2006. There

was no abuse of discretion in the court remarking on the dismissed

charges in this context, when determining the stringency of the

sentence necessary for purposes of deterrence, public safety, and

fostering respect for the law.

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 Next, the appellant seems to challenge the district

court's reliance on the dismissed charges when concluding that he

displayed a violent character. Specifically, after it considered

the nature of his criminal convictions, the court commented that

Gallardo's arrest record also reflected "similar violent conduct in

as much it was domestic violence, two weapons possession, also

dismissed and a drug case also dismissed." We have cautioned

against district courts relying on mere arrests as indicative of a

defendant's character to justify an upward departure from the GSR

since a criminal charge alone does not equate with criminal guilt

of the charged conduct. See United States v. Zapete-Garcia, 447

F.3d 57, 60-61 (1st Cir. 2006); see also United States v. Berry,

553 F.3d 273, 281-85 (3d Cir. 2009) (discussing proper reliance on

prior arrests for rendering sentencing decisions). This premise,

however, does not advance Gallardo's cause because the court's

emphasis on his violent character, as one part of its sentencing

reasoning, is supported by reliable evidence. See

Cintrón-Echautegui, 604 F.3d at 6 (noting the district court's

discretion to rely on reliable evidence for sentencing purposes).

Gallardo's own incriminating statements made after his

arrest for the present conviction are indicative of his current

violent propensity and supplement the violence displayed by his

earlier criminal convictions. Specifically, the appellant does not

dispute the PSR's account of his explanation to the police that he

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took flight from them because he thought that his current wife had

called them and they were going to arrest him for domestic

violence. This self-chosen excuse supports the court's finding

that violence remained a part of Gallardo's character. Indeed, the

district court was troubled by his further admission to law

enforcement that he purchased the Glock pistol for his own

"protection." Again, the appellant's own words support the court's

conclusion about his violent character, because the weapon he

selected had been converted into a fully automatic machine gun, a

firearm with destructive power disproportionate to owning a gun for

purely self-defense purposes under ordinary circumstances. Under

the circumstances of this case, we reject the appellant's attempt

to undermine the district court's finding that his violent

character properly served as one among several reasons under

section 3553(a) for enhancing his sentence. Cf. United States v.

Politano, 522 F.3d 69, 75 n.3 (1st Cir. 2008) (noting that in a

case where a sentence variance is due solely to a prior arrest or

outstanding charge, more explanation for the variance may be

required (citing Zapete-García, 447 F.3d at 60)).

3. The Circumstances of the Offense

The appellant next challenges the manner in which the

district court relied on the circumstances of the offense to

enhance his sentence. He first contends that the court erroneously

relied upon Guideline §5K2.17 to conclude that the offense

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warranted an upward adjustment from the GSR. See United States v.

Anonymous Defendant, 629 F.3d 68, 73 (1st Cir. 2010) (noting that

a sentencing judge's "material error of law constitutes a per se

abuse of discretion"). This guideline provides in part: "If the

defendant possessed a semiautomatic firearm capable of accepting a

large capacity magazine in connection with a crime of violence or

controlled substance offense, an upward departure may be

warranted." (Emphasis added). While the government agrees that

§5K2.17 does not apply to this case, it points out that the

district court did not actually rely on that section to render its

sentencing decision. We agree with the government, and again we

consider the sentencing court's actions in context.

The district court first reviewed the proper GSR

calculation, then set forth the factors that it considered when

deciding to deviate from the resulting range, including "the

seriousness of the offense." The remark challenged by the

appellant appears in the court's review of the gravity of

Gallardo's crime:

there exists grounds that would have warranted
a departure, for example under 5K2.17, use of
a high capacity semi-automatic, it is clear in
[this] case there were two large capacity
magazines with a capacity of 30 rounds and two
were in the possession of this defendant with
23 and 27 rounds respectively.

(Emphasis added.) The court also depicted the crime as serious due

to its occurrence in a "protected location that being a school or

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public housing project and that count [three] would have provided

for double the statutory penalty, which is 20 years . . . ." While

the court ultimately considered a variety of factors when deciding

to impose an increased sentence, it never revisited section 5K2.17

nor did it otherwise gauge the propriety of the sentence in terms

of Gallardo's use of the firearm "in connection with a crime of

violence or controlled substance offense."

Thus, although it mentioned section 5K2.17, the court

actually relied upon Gallardo's use of a high power loaded firearm

and his possession of an abundance of ammunition within a protected

location to illustrate the seriousness of his crime. Indeed, the

court emphasized the "very serious" nature of the offense as

follows: "We are talking here not about a regular semi-automatic

but his pistol was converted to work as a fully automatic weapon

capable of using large magazines, two of which were found in the

defendant[']s possession." In short, the record shows, at most,

that the court may have mistakenly referenced guideline section

5K2.17 as a guidepost for the seriousness of high-capacity gun

offenses; it did not, however, rely on the actual substance of that

guideline section to justify an increase in the appellant's

sentence.

The appellant next challenges the court's depiction of

the offense as a "very serious one" based on its factual rendition

of the crime as "occur[ing] at a time in which he was questioning

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and yelling in a public street at 1:45 a.m., in a quarrel with his

brother-in-law." According to Gallardo, "there was no evidence

that [he] had been speaking to anyone much less yelling or arguing

at any point," and the government's "description of the offense"

did not include any mention of a quarrel with a family member. The

appellant, however, does not dispute that the PSR itself documents

that he told the police that he had began arguing with his brother-

in-law at or around the time that they spotted him holding the

loaded Glock pistol. See United States v. Davila-Gonzalez, 595

F.3d 42, 45 (1st Cir. 2010) (noting that when sentencing appeal

follows a guilty plea, reviewing court may glean facts from

unchallenged portions of the PSR). Whether or not he was actually

yelling makes no difference to the valid concern the district court

expressed about the obvious dangerousness of the volatile

situation.

4. Post-Arrest Interaction with Law Enforcement

Finally, the appellant contends that the district court

procedurally erred by taking into consideration that he initially

lied to law enforcement about where he had obtained the gun,

because he eventually told the truth and received a three-level GSR

reduction for accepting responsibility. We fail to discern how his

decision to accept a plea bargain and take responsibility for his

illegal conduct, while commendable, negates the obvious impropriety

of spinning a tale for the police in an attempt to avoid

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prosecution. Indeed, the district court also underscored his

attempt to minimize and conceal his responsibility during his

discussions with the probation officer. We give this argument no

further attention.

B. Claim of Substantive Unreasonableness

In challenging his sentence as substantively

unreasonable, Gallardo first argues that the procedural errors

"without more" demonstrate "the ultimate sentence imposed was

substantively unreasonable." This argument is a nonstarter, in

view of the fact that the appellant has not established any

procedural error. He goes a step beyond, however, and argues that

"there were other factors relied upon by the court which fell short

of clear error, but which nevertheless contributed to the

substantive unreasonableness of the sentence." We are unpersuaded.

The "other factors" that the appellant identifies consist

of plaints that the sentencing judge failed duly to consider (1)

the age of his 1991 conviction and corresponding prison sentence,

(2) the de minimus risk that his criminal conduct in a school zone

actually presented to children given the time of the crime (1:45 in

the morning) and (3) the so-called "parsimony" principle. The

first two claims amount to little more than disagreeing with the

weight that the sentencing judge afforded to certain aspects of the

sentencing factors. This exercise, however, is peculiarly within

the sentencing court's discretion, and Gallardo offers no

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meritorious reason to interfere with that judgment. See Gall, 552

U.S. at 51-52 (noting that sentencing judge has a judicial vantage

point superior to that of the reviewing appellate court); United

States v. Madera-Ortiz, 637 F.3d 26, 31 (1st Cir. 2011) (holding

that "judgment calls" on the weight to be given various relevant

factors "are for the sentencing court, not for this court"); see

also Davila-Gonzalez, 595 F.3d at 49 (concluding that the district

court's silence about a sentencing angle advocated by a party did

not undercut the sentencing decision where the record "evinc[ed] a

sufficient weighing of the section 3553(a) factors").

As his final tack, the appellant contends that the

sentencing judge failed to abide by the parsimony principle as

illustrated by the disproportion between his only prior term of

incarceration of seven months for his 1991 offense and the

challenged sixty-month term. See 18 U.S.C. § 3553(a) (requiring

judicial temperance such that the sentence imposed must be

"sufficient, but not greater than necessary, to comply with" the

purposes of sentencing); see United States v. Rodriguez, 527 F.3d

221, 228-29 (1st Cir. 2008) (discussing Supreme Court's decision in

Kimbrough v. United States, 552 U.S. 85 (2007), as reflective of

the parsimony principle). He also emphasizes the time span between

his last conviction in 1993 and his 2007 criminal conduct. Again,

the challenge falls short of the target.4

4
We need not address the government's preservation attack
because we can resolve the merits of this argument rather quickly.

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 The sentencing court's reasoning for imposing an

increased sentence duly acknowledges the parsimony principle. The

judge provided a myriad of reasons, in accord with the § 3553(a)

sentencing factors, for imposing the enhanced sentence of sixty-

months' imprisonment on a convicted felon who possessed a machine

gun, who also possessed two extended magazines filled with an

abundance of ammunition, who brandished the high-capacity loaded

weapon in public amidst an argument with a family member, and who

fled from the police out of fear of being incarcerated for domestic

violence. As outlined earlier, the judge carefully considered both

the nature and circumstances of the crime, as well as Gallardo's

personal history and character -- including the minimal length of

his prior incarceration in the early 1990s and other criminal

history. Further, the judge expressed legitimate concern about

providing adequate deterrence and protecting public safety, finding

that Gallardo had "not learned to exercise good judgment or refrain

from engaging in illegal conduct." In short, the sentencing judge

was aware of the significant increase in incarceration that she was

imposing on the appellant and rooted that decision in the serious

nature of the particular offense and the characteristics of the

defendant.

Although determining whether and how far a sentencing

judge may exceed a GSR may not always be an easy task, we are

convinced that the judge's explanation in this case exhibits a

-22-
plausible rationale and that she reached a sensible sentence within

the range of reasonableness. See United States v. Scherrer, 444

F.3d 91, 95 (1st Cir. 2006) (affirming a sentence in excess of GSR

where judge relied on statutorily-approved purposes for sentencing

and provided reasonable basis for exceeding the guideline maximum);

see also Martin, 520 F.3d at 91 (noting that Gall made clear that

district courts have "wide latitude in making individualized

sentencing determinations, thus guarding against the

institutionalization of an impermissible presumption that

outside-the-range sentences are unreasonable"). This ends the

matter.

III. Conclusion

The district court in this case ably and conscientiously

sifted the myriad of considerations that go into a criminal

sentence and used sound judgment born of its experience and

superior vantage point. The appellant has failed to establish that

the district court committed either procedural or substantive error

in exercising its sentencing judgment. Accordingly, his sentence

is affirmed.

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