UNITED STATES OF AMERICA, Appellee, v. JEAN CARLOS APONTE-COLON, Defendant, Appellant.
No. 22-1422
United States Court of Appeals For the First Circuit
June 17, 2024
[Hon. Francisco A. Besosa, U.S. District Judge]
Before Montecalvo, Hamilton,* and Rikelman, Circuit Judges.
Jessica E. Earl, Assistant Federal Public Defender, with whom Eric Alexander Vos, Federal Public Defender, Rachel Brill, Federal Public Defender, and Franco L. Perez-Redondo, Assistant Federal Public Defender, Supervisor, Appeals Section, were on brief, for appellant.
Julia M. Meconiates, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauza-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
* Of the Seventh Circuit, sitting by designation.
A. The Relevant Facts1
In April 2021, Puerto Rico police officers responded to a report of a single-car accident in Humacao. When the officers discovered that the car in the accident had been “flagged as disappeared,” they arrested the driver, Aponte. From the car, the officers seized numerous items, including: four plastic containers and three zip lock bаgs, each containing marijuana; twenty-nine foil decks of heroin; fifty-one pills;2 five ledgers; one address book; two pocketknives; three cellphones; one digital scale; one plastic bag with drug paraphernalia; $1,146 in cash; one AK-style pistol with no visible serial number; 123 rounds of 7.62 caliber ammunition; two rifle magazines, each with an ammunition capacity of thirty rounds; two rifle drum magazines; three extended-capacity rifle magazines; and two .40 caliber pistol magazines with a total ammunition capacity of twenty-nine rounds.
Less than two weeks after his arrest, a grand jury indicted Aponte on six counts: possession of a machinegun in furtherance of a drug trafficking crime in violation of
In February 2022, Aponte pleaded guilty to counts two and four pursuant to a plea agreement with the government. The parties agreed that the following calculations would apply under the U.S.
As to Count Two, the parties agree that the parties will request a sentence of imprisonment of 84 months, which will run consecutive to all other counts. As to Count Four, after due consideration of the rеlevant factors enumerated in
18 U.S.C. § 3553(a) , the parties will jointly request a sentence of imprisonment within the applicable Guidelines range at a total offense level of 10 (i.e.,
defendant may request the lower end of the Guidelines, while the government may request the upper end of the Guidelines), when combined with the criminal history category as determined by the [district c]ourt.
The parties agree that any recommendation by either party for a term of imprisonment below or above the stipulated sentence recommendation will constitute a material breach of the Plea Agreement.
The government also agreed to dismiss the remaining counts (one, three, five, and six) at sentencing.
C. The Parties’ Sentencing Memoranda
In May 2022, the parties each filed a sentencing memorandum with the district court. Consistent with the plea agreement, both parties requested a sentence of eighty-four months’ imprisonment for the firearm charge (count two). As for the drug charge (count four), Aponte requested ten months, and the government requested sixteen months. (Thus, as an aggregate sentence, Aponte sought ninety-fоur months, and the government sought 100 months.) The parties also requested a supervised release term of five years.
In his memorandum, Aponte described his long struggle with substance abuse and how it fueled his drug trafficking; expressed remorse and a desire to rehabilitate himself, reconnect with his family, and continue his career as a chef; and noted that he had been sober for more than a year. He then turned to addressing the parties’ plea agreement and explaining his
The govеrnment, for its part, explained that its “memorandum [was] intended to fulfill [its] co-existing obligations, under which it must, on the one hand, fulfill the terms of a plea agreement and, on the other hand, provide all relevant information to a sentencing court to enable it to impose a just sentence.” In fulfilling such obligations, the government continued, it “need not ‘sugarcoat the facts.‘” (Quoting United States v. Almonte-Nunez, 771 F.3d 84, 91 (1st Cir. 2014).) Turning to the underlying offense conduct, the government summarized and (like Aponte) included a photo of some of the evidence seized from Aponte‘s car. The government then outlined Aponte‘s background, including his mental health history and two prior convictions for state “theft-related crimes,” the relevant guideline calculations,
The government then addressed how its requested sentence would serve the “need for adequate deterrence,” claiming that “[h]igher sentences for gun-related offenses have a deterren[t] effect.” (Citing United States v. Martinez, 184 F. Suрp. 3d 1209, 1238 (D.N.M. 2016) (“[R]esearch strongly indicates that increases
Finally, in addressing the “need to protect the public,” the government cited two studies by the U.S. Sentencing Commission, one that found firearms offenders recidivate “at a higher rate” and “more quickly” than non-firearms offenders7 and another that found “[v]iolent offenders recidivate[] at a higher rate than non-violent offenders.”8 The government concluded that “[t]he fact
Aponte moved to strike the government‘s sentencing memorandum, claiming that the government had breached the parties’ plea agreement. He argued that the government had “only pa[id] lip service to the agreed imprisonment range, while implicitly encouraging [the district c]ourt to impose an upward variance with ‘social context’ arguments” that were rife “with homicide and murder rates not connected to [him] or his conduct.” The district court denied the motion in a brief order: “DENIED. See U.S. v. Mojica-Ramos, No. 20-374, 2022 WL 374284 (D.P.R. Feb. 8, 2022) (Besosa, J.) (No breach of a plea agreement when the government identifies evidence that it indicates supports the sentence it endorses.).”
On May 9, 2022, Aponte appeared before the district court for sentencing and reiterated his request for a sentence of ninety-four months of imprisonment and five years of supervised release. In advocating for his requested sentence, Aponte acknowledged that the court “does not take lightly . . . the type of firearm[ and amount of] ammunition that was seized.” And in light of the firearm, ammunition, and controlled substances involved, Aponte continued, a ninety-four-month sentence would be “sufficient.” The government, for its part, stated that it stood “by the recommendation made in the plea agreement” and requested “a total of 100 months of imprisonment, plus [a] 5-year term of supervised release.” Moving on to the underlying facts of Aponte‘s offense conduct, the government noted that, when police searched Aponte‘s car after his accident, “they found marijuana, [an] AK-style pistol without a serial number, ammunition, several high-capacity magazines, drum magazines, ledgers, pocketknives, cellphones, drug paraphernalia, and U.S. currency, among other items.” The government then added: “And so after discussions with counsel and calculating the guidelines, [it] does stand by the recommendation made in the plea agreement and would respectfully request a sentence of imprisonment of 100 months for Counts 2 and 4, plus the 5-year term of supervised release . . . .”
The Court has considered that Mr. Aponte was in possession of one AK-style assault pistol, 123 rounds of 7.62 ammunition for assault weapons used by NATO country military forces, 2 high-capacity rifle magazines of 30 rounds each, 2 rifle high-capacity drum magazines, . . . 3 additional extended-capacity rifle magаzines, controlled substances and paraphernalia associated with distribution of controlled substances, including 3 Ziploc bags containing marijuana, 4 plastic oval containers containing marijuana, 29 red foil decks of heroin, 51 pills, 5 ledgers, 1 brown address book, 2 pocket knives, 1 black Samsung Galaxy
cellphone, 1 BLU cellphone, 1 Azumi cellphone, 1 Apple iPad, 1 digital scale, United States currency in the amount of $1,146, 1 bill of Columbian currency of 20 pesos.
Concluding that “neither sentence recommended reflect[ed] the seriousness of the offenses, promote[d] respect for the law, protect[ed] the public from additional crimes by Mr. Aponte, . . . [or] address[ed] the issues of deterrence and punishment,” the court sentenced Aponte to ninety-six months of imprisonment for the firearm charge and twenty-four months for the drug charge, to be served consecutively, for an aggregate sentence of 120 months. With respect to supervised release, the court sentenced Aponte to a term of five years for the firearm charge and three years for the drug charge, to be served concurrently.
After the court issued its sentence, Aponte objected “to the substantive and procedural unreasonableness of the sentence.” He reiterated that “the guideline range in this case” was an aggregate “70 to 76 months” and that, based on the guidelines and “the evidence that was seized, the ammunition and the drugs, the parties agreed already [to] an upward variance” of two years above the guideline sentence on the firearm charge. The court‘s addition of another year on the firearm charge and eight additional months on the drug charge, amounting to a total of about four years above the aggregate guideline range, Aponte continued, constituted “a drastic enhancement” that was unsupported by the record.
The Sentencing Commission‘s statistics bear that out. Higher sentences for gun-related offenses do have a deterrent effect. Increased sentences for gun-related offenses decrease gun violence. The Sentencing Commission statistics demonstrate that firearms offenders, of which Mr. Aponte is one, recidivate at a higher rate and more quickly than non-firearms offenders in every criminal history category. This high rate of recidivism among firearms offenders is another reason . . . [that] supports the imposition of . . . the sentence . . . imposed to protect the community from additional offenses by Mr. Aponte.
At the end of the hearing, and as the parties contemplated in the plea agreement, the court dismissed the remaining counts of the indictment. This timely appeal followed.
II. DISCUSSION
Aponte presents three arguments on appeal: (1) the government materially breached the plea agreement by supporting its sentencing recommendation with unreliable, irrelevant information about the pervasiveness of firearm violence in Puerto Rico; (2) the district court based its sentencing decision on Aponte‘s national origin (or, at least, a reasonable observer could infer the court did) and therefore violated proper sentencing
A. Whether the Government Breached the Plea Agreement
Aponte‘s first argument is that the government paid lip service to the plea agreement by requesting a 100-month aggregate sentence but then methodically undermined that recommendation in its sentencing memorandum. His breach argument focuses on the government‘s discussion of violent crime statistics, including those related to homicides, even though Aponte‘s charged conduct did not involve any violence, nor did his criminal history include a conviction for any violent crime. As part of this argument, Aponte faults the government for “suppl[ying] the [district] court with material [such as firеarm homicide statistics] that the court regularly uses to exceed prescribed guidelines ranges and parties’ stated recommendations.”
We briefly address the applicable standard of review before turning to the merits of Aponte‘s claim. When a defendant has preserved the claim that the government breached a plea agreement, our review is de novo. United States v. Davis, 923 F.3d 228, 236 (1st Cir. 2019). But when a defendant fails to raise such a claim at the sentencing hearing, our review is for plain
We begin by reviewing the principles that guide our evаluation of the terms and performance of a plea agreement. Because a defendant waives his “fundamental constitutional rights” by entering into a plea agreement with a prosecutor, we hold the prosecutor “to ‘the most meticulous standards of both promise and performance.‘” United States v. Lessard, 35 F.4th 37, 42 (1st Cir. 2022) (quoting United States v. Clark, 55 F.3d 9, 12 (1st Cir. 1995)). The prosecutor cannot satisfy such standards merely by paying lip service to, or technically complying with, the plea agreement. United States v. Ubiles-Rosario, 867 F.3d 277, 283 (1st Cir. 2017). “In addition to entitlement to the government‘s technical compliance with the agreement, [a defendant] is entitled to the ‘benefit of the bargain’ and the ‘good faith’ of the prosecutor.” United States v. Brown, 31 F.4th 39, 50 (1st Cir. 2022) (quoting Ubiles-Rosario, 867 F.3d at 283). Thus, “[w]e
After considering the totality of the circumstances, including the terms of the plea agreement here, we find no breach. Recall that the parties agreed to request an upwardly variant sentence on the firearm charge (seven years as compared to the five-year guideline sentence) and, if the court assigned Aponte to criminal history category III, between ten and sixteen months on the drug charge. The government in fact requested, in both its sentencing memorandum (several times) and at the sentencing hearing (twice), a sentence of seven years’ imprisonment on the firearm charge and sixteen months’ imprisonment on the drug charge. The record below demonstrates that “[t]he government did not lament the plea agreement‘s terms or otherwise suggest that it would seek a different sentence if free to do so.” United States v. Irizarry-Rosario, 903 F.3d 151, 154 (1st Cir. 2018); cf. United States v. Canada, 960 F.2d 263, 269 (1st Cir. 1992) (finding breach of plea agreement where prosecutor‘s “references to the agreement wеre grudging and apologetic“).
Nor did the government “gratuitously offer[] added detail garbed in implicit advocacy.” United States v. Miranda-Martinez, 790 F.3d 270, 275 (1st Cir. 2015); cf. Gonczy, 357 F.3d at 53-54 (finding breach of plea agreement where prosecutor first recommended sentence in accordance with the agreement but then stated “defendant was the brains behind [the] operation,” “his conduct ruined many lives,” he “basically laughed in the face of law enforcement,” and he “at a minimum deserves what the guidelines provide for and those are his just des[s]erts” (internal quotation marks omitted)). The government in no way denigrated Aponte in its memorandum when it recounted his personal background and criminal history. It described in neutral terms his “good upbringing,” struggle with substance abuse, and two previous state convictions for “theft-related crimes,” citing to the presentence investigation report for further details on those convictions.
Further, because the parties’ agreement envisioned that both sides would advocate for a substantial upward variance on the firearm charge, the government “was free to offer rеasons supporting its recommendation.” Ubiles-Rosario, 867 F.3d at 287
Aponte nevertheless objects that the government‘s decision to devote a third of its sentencing memorandum to statistical data on violent crime in Puerto Rico was an end-run around the plea agreement and an attempt to induce the district court to impose an even higher sentence. As Aponte correctly points out, his offense conduct in this case did not involve a violent crime, much less murder, and he had no previous convictions for violent crimes. But, critically for the outcome of this case, the government never suggested to the contrary before the district court. Instead, the government explained in its sentencing memorandum that the firearm violence in Puerto Rico, “when coupled with [Aponte]‘s criminal history and the nature of the crime (possession of a loaded firearm in furtherance of a drug
trafficking crime), justif[ied] a sentence of imprisonment of 100 months to deter [him] and others from committing similar offenses.” We find no support in this statement, or others made by the government, for Aponte‘s suggestion that the government implicitly urged the court to impose a higher variance than that contemplated by the parties.10 Put differently, the mere discussion by the government of gun violence given the facts here, which involved Aponte‘s driving under the influence with a loaded gun and an agreement by the parties to advocate for an upwardly variant sentence, was not enough to breach the plea agreement.11
Aponte also contends that the government “intense[ly] focus[ed] on [his] arrest and every last piece of contraband seizеd,” “call[ing] special attention to the ugliest aspects of [his] past to justify what is, in these circumstances, a routine recommendation.” (Quoting United States v. Heredia, 768 F.3d 1220, 1237 (9th Cir. 2014).) Again, given the facts here, we disagree.
Finally, we address and reject Aponte‘s argument that his case is just like United States v. Mojica-Ramos, Nos. 22-1204, 22-1205, 2024 WL 2858758 (1st Cir. June 6, 2024).12 In that case, Aponte suggests, the government submitted a similar sentencing memorandum to secure an upwardly variant sentence (and therefore committed a similar breach of a plea agreement).
In sum, we conclude that Aponte received the benefit of his bargain with the government and that “the government was permitted to marshal the facts and factors that, in its view, warranted the recommended sentence.” Ubiles-Rosario, 867 F.3d at 289. We therefore discern no breach of the plea agreement based on the record before us.
B. Whether the District Court Based Its Sentence on Aponte‘s National Origin
Aponte‘s second argument on appeal is that the court‘s focus on “the Puerto Rico community amounted to a sentence based on an invidious factor,” in violation of his constitutional rights and proper sentencing procedure, “or at the very least leaves the appearance of being based on an improper factor.” Although he further suggests that “[t]he court‘s sentence would leave a reasonable observer with the impression that it was based on... [his] membership in Puerto Rico society, ... ethnicity, national origin, race, and economic status,” Aponte develops an argument only on his “national origin” as the “invidious” or “improper” factor at issue. Thus, we focus our analysis on whether the district court based its sentence on Aponte‘s national origin.
Before we proceed to the merits of this claim, we note that the parties dispute the applicable standard of review. But we do not dwell on this dispute because we conclude that Aponte‘s claim fails even if we grant him the benefit of de novo review. See United States v. Albaadani, 863 F.3d 496, 504 (6th Cir. 2017) (“Whether a district court improperly considers a defendant‘s national origin is a question of law, and thus this aspect of a sentencing is reviewed de novo.” (quoting United States v. Carreto, 583 F.3d 152, 159 (2d Cir. 2009))); see also United States v. Madsen, 809 F.3d 712, 719 n.2 (1st Cir. 2016) (“bypass[ing]” government‘s argument “that some aspects of the defendant‘s claims of sentencing error should be reviewed only for plain error... because, regardless of the standard of review, the claims are bereft of merit“).
Because an individual‘s national origin is not a relevant sentencing factor, a district court may not base its sentеncing decision on it. See United States v. Heindenstrom, 946 F.3d 57, 63 (1st Cir. 2019); see also
We find no support in the record for Aponte‘s assertion that a reasonable observer could conclude that the district court sentenced him based on his national origin. The court never referred to, or even alluded to, Aponte‘s national origin at sentencing. Cf. Onwuemene, 933 F.2d at 651-52 (concluding that defendant‘s nationality was a factor in sentencing because the
C. Whether the District Court‘s Sentence Was Procedurally Unreasonable
Aponte‘s final argument is that the district court‘s 120-month sentence was procedurally unreasonable. His claim of procedural error rests on two premises: (1) the district court failed to adequately explain its decision to impose “a colossal 120-month term” that “so drastically shot past both the applicable range and the parties’ recommendations“; and (2) the district court based its sentencing decision on unreliable statistical data.
1. Standard of Review
We typically review a preserved challenge to the procedural reasonableness of a sentence under “a multifaceted abuse-of-discretion standard.”13 United States v. Sierra-Jiménez, 93 F.4th 565, 569 (1st Cir. 2024) (citation omitted). Under this umbrella standard, “we review the sentencing court‘s findings of fact for clear error and questions of law (including the court‘s interpretation and application of the sentencing guidelines) de novo.” United States v. Carrasquillo-Vilches, 33 F.4th 36, 41
Aponte suggests that this standard applies here, as he preserved his claim of procedural error. To be sure, he objected below “to the substantive and procedural unreasonableness of the sentence,” explaining at length that, although the district court had correctly calculated the guideline range, “the record... [did] not support such a drastic enhancement for this case” because the parties’ recommended sentences аlready had accounted for the nature and amount of the contraband seized. These statements are sufficient to preserve his procedural claim that the court inadequately justified its upward variance. See United States v. Perez-Delgado, 99 F.4th 13, 20 (1st Cir. 2024) (explaining that “‘our preservation policy‘... simply requires ‘putting the district court on notice of the error‘” and therefore a defendant need not frame an objection “with exquisite precision” to preserve it (citation omitted)); see also United States v. Melendez-Hiraldo, 82 F.4th 48, 54 (1st Cir. 2023) (concluding that defendant preserved inadequate-explanation claim when his counsel argued below that “[t]here [were] no proper reasons for the excessively upward variance” and that, despite “the proper guideline for the charge [being] 120 months,” “[t]he parties came up with an already-included variance“). Indeed, the record supports the conclusion that the district court was put on notice
However, there is nothing in the record suggesting that Aponte signaled to the district court that he was also challenging the sentence because it was based on unreliable statistical information. Our review of this specific procedural challenge is therefore for plain error.14 See United States v. Colón-De Jesús, 85 F.4th 15, 25 (1st Cir. 2023) (explaining that a general procedural reasonableness objection was insufficient “to give the district court notice of the specific issue raised on appeal” and therefore plain error review applied to that issue (citation omitted)). And because Aponte “fails to even mention plain error, let alone argue for its application here,” he “definitively waives th[is] argument[].” United States v. Morales-Veléz, 100 F.4th 334, 345 (1st Cir. 2024) (citation omitted). We therefore limit
2. The Adequacy of the Court‘s Explanation
Aponte argues that “the district court failed to articulate an adequate basis... for deviating so significantly” from the partiеs’ sentencing recommendations.15 He contends that the district court‘s concerns about the parties’ recommendations (i.e., that they did not “reflect[] the seriousness of the offenses, promote[] respect for the law, protect[] the public from additional crimes by Mr. Aponte, ... [or] address the issues of deterrence and punishment“) were “generic” and “[u]nmoored from any individual characteristics of” Aponte or his offenses. (Quoting United States v. Rivera-Berríos, 968 F.3d 130, 137 (1st Cir. 2020).) Additionally, he argues that the court‘s statement that it had “considered” the evidence seized was insufficient because the court did not explain “which specific facts of the case motivated its decision and why those facts led to its decision.” (Quoting United States v. Muñoz-Fontanez, 61 F.4th
Before we consider the merits of Aponte‘s procedural unreasonableness claim, we first lay out some guiding principles. It is well established that a sentencing court must “state in open court the reasons for its imposition of the particular sentence.”
To start, the record demonstrates that the court conducted an individualized assessment of Aponte‘s case. Acknowledging the parties’ requested sentences, the court explicitly stated that it had “identified factors... that warrant[ed] a [higher] variant sentence,” including Aponte‘s possеssion of an “AK-style assault pistol, 123 rounds of 7.62 ammunition for assault weapons used by NATO country military forces,” multiple high-capacity magazines, three bags and four containers of marijuana, and twenty-nine foil decks of heroin. Although the court could have provided more explanation about why these facts led to the particular upward variance it imposed, the court‘s attention to such details indicates that it “paid heed to the particulars of [Aponte‘s] case.” Rivera-González, 776 F.3d at 50;
Further, it was within the court‘s discretion to consider the type of firearm (a machinegun), significant amount of ammunition, and multiple high-capacity magazines that Aponte possessed as aggravating factors supporting an upward variance for the firearm charge. Recall that Aponte had in his car not only an AK-style pistol but also, among other items: 123 rounds of 7.62 caliber аmmunition; multiple high-capacity rifle magazines; and two .40 caliber pistol magazines. The relevant guideline provision here,
Relying on Rivera-Berríos and United States v. García-Pérez, 9 F.4th 48 (1st Cir. 2021), Aponte suggests that the high-capacity magazines and the quantity of the ammunition recovered from his car were consistent with a mine-run gun-possession offense and thus insufficient to justify an upward variance. See Rivera-Berríos, 968 F.3d at 133, 135; García-Pérez, 9 F.4th at 53. In making this argument, Aponte contradicts his own position below. Notably, in his sentencing memorandum to the district court, Aponte recognized that “the nature and quantity of [the] evidence seized,” including a “great quantity of extended magazines and ammunition,” justified an upward variance. At the sentencing hearing, he again acknowledged “the type of firearm[ and] ammunition that was seized” as reasons for an above-the-guideline sentence on the firearm charge. Aponte‘s
Additionally, we can infer the court‘s reasoning for the upward variance on the drug charge from the sentencing record. Aponte recognized in his sentencing memorandum the “gravity” of his possession of “an AK Pistol, along with all the ammunition and controlled substances.” (Emphases added.) He also acknowledged that he “was under the influence of [several] drugs” at the time of his arrest and that he “fell asleep while driving,” which caused the car accident. At the sentencing hearing, Aponte similarly addressed “the controlled substances that were seized.” The court then highlighted the variety of drugs and drug paraphernalia seized as among those “factors... that warrant[ed] a variant sentence.” From all this, we can deduce that the district court reasoned that it was Aponte‘s driving under the influence while possessing a loaded firearm and large cache of ammunition that took his drug offense outside the heartland
Further, the decisions that Aponte highlights in his Rule 28(j) letter to this court are inapposite. See Colón-Cordero, 91 F.4th 41; United States v. Flores-González, 86 F.4th 399 (1st Cir. 2023) (en banc). First, Aponte suggests that Colón-Cordero and this case share “the same error: the court‘s mere listing of the items seized and basic biographical information about [him].” But, as he also recognizes, the district court in Colón-Cordero merely listed the facts without placing “‘emphasis on any particular circumstance,’ and thus it [was] ‘impossible to tell’ what the court‘s rationale was for landing on [a] 9-month upward variance.” 91 F.4th at 53 (quoting Muñoz-Fontanez, 61 F.4th at 214). Here, by contrast, the district court explained that it had “identified factors... that warrant[ed] a [higher] variant sentence” and then highlighted certain items seized from Aponte‘s car, including an “AK-style assault pistol, 123 rounds of 7.62 ammunition for assault weapons used by NATO country military forces,” multiple high-capacity magazines, and a variety of drugs and drug paraphernalia. And, with regard to the firearm charge, Aponte himself requested an upward variance based on the “nature
Next, Aponte emphasizes that our en banc decision in Flores-González made clear that certain of our prior decisions, including Rivera-Berríos and United States v. Carrasquillo-Sánchez, 9 F.4th 56 (1st Cir. 2021), “remain controlling circuit precedent.” Flores-González, 86 F.4th at 413. That much is true. As in Rivera-Berríos and Carrasquillo-Sánchez, Aponte continues, the district court here based its sentencing decision on community-centered concerns (i.e., the “acute problem[] of gun violence in Puerto Rico“) “without tying that community-centered concern in any way to the case or to... Aponte‘s circumstances.” But the circumstances in Rivera-Berríos and Carrasquillo-Sánchez are distinct from those before us here. In Rivera-Berríos, the court imposed a variance based solely on “the mere fact that the offense of conviction involved a machine gun,” even though that factor “was already fully accounted for in the guideline [section 2K2.1(a)(4)(B)] calculus”
Unlike in Rivera-Berríos and Carrasquillo-Sánchez, the district court here did not base its sentencing decision on a factor that already was accounted for in the guidelines. See
In sum, because the court identified several factors behind its decision to impose an upwardly variant sentence of 120 months, see Bermúdez-Meléndez, 827 F.3d at 164, and we can “infer[]” additional reasons “from the sentencing record,” Ortiz-Pérez, 30 F.4th at 114, we reject Aponte‘s procedural reasonableness claim.
III. CONCLUSION
For all these reasons, we affirm the district court‘s sentence and judgment.