In this sentencing appeal, defendant-appellant Edgardo L. Bermúdez-Meléndez mounts a multifaceted challenge to his upwardly variant sentence for a firearms offense. After careful consideration, we affirm.
I.
Inasmuch as this appeal trails in the wake of a guilty plea, we draw the facts from the non-binding plea agreement (the Agreement), the change-of-plea colloquy, the undisputed portions of the presentence investigation report (PSI Report), and the transcript of the disposition hearing. See United States v. Almonte-Nuñez,
In due season, a federal grand jury returned a four-count indictment. Counts 1 through 3 charged the appellant with a litany of drug-trafficking crimes, while count 4 — the only count in issue here— charged him with possession of a firearm in furtherance of a drug-trafficking crime. See 18 U.S.C. § 924(c)(1)(A). After initially maintaining his innocence, the appellant relented and entered into the Agreement, in which he agreed to plead guilty to count 4 in exchange for the dismissal of the other charges. Among other things, the Agreement memorialized a joint sentencing recommendation of 72 months’ immurement.
At the change-of-plea hearing, the district court accepted the appellant’s guilty plea to count 4 and ordered the preparation of the PSI Report. In the completed Report, the probation office noted that the statute of conviction required a minimum 60-month term of imprisonment. See 18 U.S.C. § 924(c)(1); USSG § 2K2.4(b). It
At sentencing, the parties urged the district court to impose the agreed 72-month sentence. The court demurred, concluding that a stiffer sentence was in order. It then meted out a 90-month incarcerative term.
II.
We pause at the threshold to brush aside the waiver-of-appeal clause contained in the Agreement. That clause conditioned the waiver on the imposition of a sentence in “accordance with the terms and conditions set forth in the Sentence Recommendation provisions of [the Agreement].” The sentence levied by the district court was not within the compass of the Sentence Recommendation provisions. It follows that the waiver-of-appeal clause is a dead letter and does not pretermit this appeal. See, e.g., United States v. Vargas-García,
Ill-
This brings us to the appellant’s asseverational array. It is familiar lore that we review challenges to the reasonableness of a sentence by means of a two-step pavane. See Gall v. United States,
In determining substantive reasonableness, substantial respect is due to the sentencing court’s discretion. See id. This deferential approach recognizes that though “[a] sentencing court is under a mandate to consider a myriad of relevant factors ... the weighting of those factors is largely within the court’s informed discretion.” United States v. Clogston,
In carrying out these tasks, our standard of review is for abuse of discretion. See id.; United States v. Narváez-Soto,
A.
Against this backdrop, we turn first to the appellant’s claims of procedural error. To this end, the appellant argues that the district court failed to give an adequate explanation for the sentence imposed and, in the bargain, failed to make an individualized assessment of his history and char
Review for plain error is not appellant-friendly. That review “entails four showings: (1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant’s substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” United States v. Duarte,
1.
The appellant’s principal procedural challenge implicates 18 U.S.C. § 3553(c), which obliges a sentencing court to “state in open court the reasons for its imposition of the particular sentence.” This statutory imperative has consistently been “read in a practical, common-sense way,” Dávila-González,
Even so, a sentencing court need not “be precise to the point of pedantry.” United States v. Turbides-Leonardo,
In the case at hand, there is no applicable guideline sentencing range; the statutory mandatory minimum sentence (here, 60 months) is the guideline sentence. See USSG § 2K2.4(b), comment, (n.2); see also Vargas-García,
At the disposition hearing, the district court commented upon the appellant’s frequent brushes with the law, the seriousness of the offense of conviction, and the need to promote both deterrence and respect for the law. The court then noted the joint sentencing recommendation
This explanation is lean, but we think it sufficient to withstand plain error review. After all, the appellant had assembled an impressive array of munitions: an AK-47 assault rifle, at least 11 high-capacity magazines, roughly 270 rounds of ammunition (in various calibers), and a Glock pistol. To make matters worse, he possessed these munitions in close proximity to a trove of illegal drugs. Where — as here — “the rec
This conclusion is strengthened by the fact that the appellant himself acknowledged the appropriateness of an upward variance: he agreed to the imposition of a 72-month sentence (an upward variance of 12 months over the guideline sentence). The sentencing court’s determination that the gravity and circumstances of the offense of conviction warranted an additional 18 months of imprisonment was not plain error.
Nor is there any basis here for the appellant’s suggestion that the district court was obliged to explain why it rejected the parties’ joint recommendation for a 72-month sentence. See United States v. Ruiz-Huertas,
2.
The appellant’s second claim of procedural error posits that the district court did not individualize his sentence and, thus, overlooked some sentencing factors. But at the disposition hearing, the court clearly indicated its awareness of the appellant’s personal history and characteristics. For example, it engaged explicitly with the appellant’s drug consumption, the absence of any mental health issues, and the like. There is no reason to believe that the court neglected to factor this information into the sentencing calculus. For aught that appears, the appellant’s real complaint is not that the court ignored his history and personal characteristics but that it weighed those factors less favorably than he would have liked. Assigning weight to pertinent sentencing factors is, within wide limits, a prototypical exercise of a sentencing court’s discretion, see Rivera-González,
3.
The appellant’s procedural challenge has a final facet: he attacks the district court’s use of the term “arsenal” in describing the assortment of firearms and ammunition at his residence.
While the court may have engaged in hyperbole, sentencing courts are entitled to broad latitude in their linguistic choices. Consequently, gratuitous rhetorical flourishes, without more, will not render a sentence infirm. See United States v. Flores-Machicote,
B.
Having cleared the procedural hurdles, we come next to the appellant’s
Even though the appellant did not advance this claim of error below, the standard of review is in doubt. See Ruiz-Huer-tas,
The “touchstone of abuse of discretion review in federal sentencing is reasonableness.” United States v. Vargas-Dávila,
A challenge to the substantive reasonableness of a sentence pivots on whether the sentencing court has offered a plausible rationale for the sentence and whether the sentence itself represents a defensible outcome. See United States v. Madsen,
To be sure, the district court did embellish this rationale. For example, it stated during the disposition hearing, “How many more, how many more firearms are we going to allow on the streets of this island? How many more acts of violence?” Spotlighting such comments, the appellant suggests that the court’s sentencing rationale was tainted by its concerns about community-based considerations. We do not agree.
We have squarely held that a district court may consider community-based and geographic factors in formulating its sentence. See Flores-Machicote,
Nor does the length of the appellant’s sentence (90 months) seem indefensible. The offense of conviction is quite serious, the circumstances of its commission are particularly troubling, and the sentence imposed represents only a modest increase over the sentence (72 months) that the
iv.
We need go no further. For the reasons elucidated above, the appellant’s sentence is
Affirmed.
Notes
. The court, in pursuance of the Agreement, also dismissed the three remaining counts.
. The court recalled the joint sentencing recommendation as 70 months' imprisonment, not 72 months' imprisonment. Obviously, the court misspoke. In context, though, this slip of the tongue is inconsequential.
. For example (as quoted above), the court said when it pronounced sentence: "... considering the nature of the firearms, the amount of ammunition, the kind of magazines, the whole bit. It’s an arsenal....” To cite another example, the court remarked, at an earlier point during the disposition hearing, "when you have this [sic] kind of firearms, this is what you call an arsenal.”