United States v. Laboy-Nadal ( 2021 )

United States Court of Appeals
For the First Circuit
No. 19-1488
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
GILBERTO LABOY-NADAL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Howard, Chief Judge,
Boudin and Barron, Circuit Judges.
Marie L. Cortés-Cortés on brief for appellant.
W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-
Almonte, Assistant United States Attorney, Chief, Appellate
Division, and Gregory B. Conner, Assistant United States Attorney,
on brief for appellee.
March 30, 2021
BOUDIN, Circuit Judge. Officers of the Puerto Rico
Police Department arrested Gilberto Laboy-Nadal ("Laboy") after
watching him toss a bag containing a loaded machinegun, an
ammunition magazine, and ammunition onto a patio in Ponce, Puerto
Rico. He was charged with unlawfully possessing a machinegun, 18
U.S.C. § 922(o), and being a felon in possession of a firearm, 18
U.S.C. § 922(g)(1). He pled guilty to both counts.
Laboy's Guidelines Sentencing Range ("GSR") was sixty-
three to seventy-eight months, but the district judge sentenced
him to 100 months in prison and two years of supervised release.
He now appeals his sentence. Based on the issues raised, our
review is for abuse of discretion. United States v. Santiago-
Rivera, 744 F.3d 229, 232 (1st Cir. 2014).1
Laboy argues that his sentence was unreasonable because
the judge relied on a Guideline provision that authorizes a
departure when "the defendant's criminal history category
substantially under-represents the seriousness of the defendant's
criminal history or the likelihood that the defendant will commit
other crimes," U.S.S.G. §4A1.3(a)(1), but in deciding that Laboy's
criminal history was underrepresented, the judge impermissibly
1 The government argues Laboy did not preserve his procedural
objections below, which would entitle him to only plain error
review. See United States v. Arroyo-Maldonado, 791 F.3d 193, 199
(1st Cir. 2015). However, his claims fail even under the less
deferential abuse of discretion standard.
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focused on Laboy's number of prior convictions rather than the
nature of each prior offense, see U.S.S.G. §4A1.3 cmt. n.2(B).
His second claim is that the judge failed to "structure the
departure" as the Guidelines require, by "moving incrementally
down the sentencing table to the next higher offense level in
Criminal History Category VI until it finds a guideline range
appropriate to the case." U.S.S.G. §4A1.3(a)(4)(B).
The government's answer is that the district judge
imposed a variance, not a departure, because the analysis at
sentencing tracked the statutory factors relevant when imposing a
variance. See 18 U.S.C. § 3553(a). Although this court has
sometimes characterized above-Guidelines sentences as variances
despite the sentencing court's "stray" use of the word "depart,"
those cases involved judges who said they were "departing" from
the Guidelines but then corrected themselves, or who used
"variance" and "departure" alternately. E.g., United States v.
Ríos-Rivera, 913 F.3d 38, 45 (1st Cir. 2019); United
States v. Nelson, 793 F.3d 202, 206-07 (1st Cir. 2015).
Here, the judge noted that "the Court considers an upward
departure pursuant to the provisions of United States Guidelines
4A1.3(a)(1)," immediately before announcing Laboy's sentence. And
despite repeated invocation and analysis of the 18 U.S.C. § 3553(a)
factors, the judge never uttered the words "variance" or "vary"
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during sentencing. It is therefore at least ambiguous whether the
district court was imposing a variance or a departure.
Ultimately, though, it does not matter: "any error in a
departure is harmless where the district court would have imposed
the same sentence as a variance in any event." United States v.
Aponte-Vellón, 754 F.3d 89, 93 (1st Cir. 2014). Even if the
district court imposed a departure rather than a variance, its
analysis tracked the § 3553(a) factors (including, contrary to
Laboy's argument, by examining the nature and circumstances of his
past convictions in addition to their number).
Laboy points out that the court cited a departure
provision, U.S.S.G. §4A1.3(a)(1), that depended on his criminal
history and likelihood of recidivism. But those considerations
are among the § 3553(a) factors, see 18 U.S.C. § 3553(a)(1),
(2)(C), and a variance analysis may "echo" a departure
consideration, United States v. Acevedo-López, 873 F.3d 330, 342
(1st Cir. 2017) (quoting Aponte-Vellón, 754 F.3d at 93). Because
it analyzed the § 3553(a) factors, which this court has called
"the hallmark of a variance," United States v. Santini-Santiago,
846 F.3d 487, 491 (1st Cir. 2017), we are confident that the court
would have arrived at the same sentence had it done so under the
name of a variance.
Finally, Laboy argues that his sentence was unreasonably
long because the court overstated his criminal history and failed
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to consider his drug addiction as a mitigating factor. The
sentence will stand if the court put forth a "plausible sentencing
rationale and a defensible result." United States v. Martin, 520
F.3d 87, 96 (1st Cir. 2008).
The court's focus on Laboy's past convictions does not
take this sentence out of the broad universe of reasonable
sentences -- Laboy had twenty-three criminal history points at the
time of sentencing, easily surpassing the thirteen points that
would put him in the highest criminal history category under the
Guidelines. A court is entitled to rely on the "history and
characteristics of the defendant" as well as the need for the
sentence to promote respect for the law, deter future criminal
conduct, and protect the public. 18 U.S.C. § 3553(a)(1)-(2).
Laboy's extensive criminal history bears on all those
considerations. Similarly, the court did consider Laboy's history
of drug use, and it did not err merely by giving that potentially
mitigating factor less weight than Laboy argues it should have.
See United States v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011).
Affirmed.
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