United States v. Aponte-Vellón, 754 F.3d 89

Aponte pleaded guilty to Hobbs Act robbery (18 U.S.C. § 1951) and brandishing a firearm during a robbery (18 U.S.C. § 924(c)).
PSR produced an advisory Guidelines range of 24–30 months for Count One and a consecutive statutory minimum of 84 months for Count Two; parties had agreed to a 108-month total.
District court rejected the joint recommendation, citing Aponte's extensive record of arrests and pending/dismissed state charges and the need to protect the public.
Court imposed consecutive sentences of 72 months (Count One) and 84 months (Count Two), totaling 156 months; court described the sentence as a "variance."
Aponte appealed, arguing the sentence was an improper upward departure (triggering Rule 32(h) and Guidelines §4A1.3 requirements) and, alternatively, that the variance was procedurally unreasonable for relying on arrests and failing to weigh §3553(a) factors.

Issue	Aponte's Argument	Government's Argument	Held
Whether sentence was an upward Guidelines departure requiring Rule 32(h) notice and §4A1.3 procedures	District court departed upward under U.S.S.G. §4A1.3; thus Rule 32(h) and departure procedures applied	Court characterized and applied the sentence as a non-Guidelines variance under §3553(a)	Held: Sentence was a variance, not a Guidelines departure; Rule 32(h) and §4A1.3 departure formalities do not apply
Whether Rule 32(h) requires advance notice for a variance	Rule 32(h) protections should apply	Rule 32(h) does not extend to variances post-Booker	Held: Rule 32(h) does not require notice for variances (Irizarry controls)
Whether the district court procedurally erred by failing to adequately consider §3553(a) factors	Court mechanically relied on arrests and did not meaningfully weigh §3553(a) factors	Court expressly considered §3553(a) factors (seriousness, respect for law, protection of public) and discussed history/characteristics	Held: No plain procedural error; court adequately considered §3553(a) factors
Whether it was improper to rely on arrests/dismissed charges to infer a pattern of unlawful behavior	Use of arrests/dismissals improperly overweights unproven conduct	Prior arrests and dismissed charges may properly inform sentencing and indicate pattern	Held: Not plainly erroneous to infer a pattern from multiple arrests/dismissed charges close in time

Irizarry v. United States, 553 U.S. 708 (2008) (distinguishes Guidelines "departures" from Booker-era "variances" and limits Rule 32(h) notice to departures)
United States v. Booker, 543 U.S. 220 (2005) (invalidated mandatory Guidelines and authorized post-Booker discretionary variances under §3553(a))
United States v. Flores-Machicote, 706 F.3d 16 (1st Cir. 2013) (courts may consider whether criminal history score underrepresents defendant in §3553(a) inquiry)
United States v. Marsh, 561 F.3d 81 (1st Cir. 2009) (harmlessness review where alleged Guidelines error would not have changed sentence)
Gall v. United States, 552 U.S. 38 (2007) (district courts must consider all §3553(a) factors and make individualized assessment)
United States v. Vixamar, 679 F.3d 22 (1st Cir. 2012) (discusses variances under §3553(a))
United States v. Grams, 566 F.3d 683 (6th Cir. 2009) (distinguishes departures from variances post-Booker)
United States v. Fernández-Cabrera, 625 F.3d 48 (1st Cir. 2010) (discusses limits of Rule 32(h) after Booker and Irizarry)
United States v. Dávila-González, 595 F.3d 42 (1st Cir. 2010) (plain-error review where sentencing objections not preserved)
United States v. Ocasio-Cancel, 727 F.3d 85 (1st Cir. 2013) (recognizing arrests/dismissed charges can indicate pattern of unlawful behavior)