Of the District of Puerto Rico, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 06-2342

UNITED STATES OF AMERICA,

Appellee,

v.

JERMAINE N. POLITANO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Torruella and Lynch, Circuit Judges,

and Fusté, District Judge. *

Albert F. Cullen, Jr., for appellant.

Leah B. Foley, Assistant United States Attorney, with whom

Michael J. Sullivan, United States Attorney, were on brief for

appellee.

April 3, 3008
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TORRUELLA, Circuit Judge. On May 3, 2006, Jermaine N.

Politano pled guilty to engaging in the business of dealing in

firearms without a license, in violation of 18 U.S.C. § 922(a)

(1)(A). At sentencing, Politano requested, and the Government

recommended, a twelve-month term of incarceration. The district

court calculated Politano's Guidelines Sentencing Range ("GSR") to

be twelve to eighteen months, based on an offense level of 13, but

proceeded to sentence Politano to twenty-four months'

incarceration. Politano now appeals his sentence. After careful

consideration, we affirm the sentence.

I. Background

In April 2005, Politano sold three guns and approximately

100 rounds of ammunition to a confidential witness. On August 24,

2005, Politano was indicted on one count of engaging in the

business of dealing in firearms without a license. Politano

subsequently pled guilty to the charges in the indictment.

At sentencing, the district court adopted the presentence

report's ("PSR") recommended Guidelines offense level of 13. To

arrive at that offense level, the court began with a base offense

level of 12 for "prohibited transactions involving firearms or

ammunition," U.S.S.G. § 2K2.1(a)(7), added two levels because the

offense involved three to seven firearms, id. § 2K2.1(b)(1)(A), and

two more levels because at least one firearm "was stolen," id.

§ 2K2.1(b)(4)(A). It then reduced the offense level by three for
 Politano has "two open matters" in Brockton District Court. He 1

faces charges for assault and battery, assault and battery with a

dangerous weapon, and malicious damage to a motor vehicle. He also

faces charges in the same court for disturbing the peace and

disorderly conduct. As of the filing of this appeal, Politano had

not appeared in Brockton and "technical warrants" had been issued.

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acceptance of responsibility to arrive at the offense level of 13.

Id. § 3E1.1 (a) & (b). The court also accepted the PSR's

determination that the defendant had a criminal history category I,

and that his advisory GSR was therefore twelve to eighteen months.

The district court went on to invite the parties to

address the sentencing factors set forth in 18 U.S.C. § 3553(a) and

suggest an appropriate sentence. The Government stated that it was

concerned about "what will happen when Mr. Politano is discharged"

and that it was important to continue to detain Politano until the

Probation Department could devise a program to prevent recidivism.

The Government recommended a sentence of twelve months'

incarceration, followed by a three-year term of supervised release.

The district court asked the probation officer about

certain unresolved criminal matters in Brockton District Court.1

The probation officer stated that the cases were in fact unresolved

and that default warrants had been issued because Politano, being

in federal custody, was unable to appear in those cases. Counsel

for Politano said he would "move those cases along" once he had the

opportunity to do so.
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Politano told the court that he agreed with the

Government's recommendation of twelve months' incarceration. He

noted that he agreed it was "necessary for a plan to be in place"

with the Probation Department before Politano's release. Politano

also emphasized that he had only one prior conviction for resisting

arrest. Finally, he noted that under the supervision of the

Probation Department, Politano could "start working and lead a

productive life."

At that point, the district court began its consideration

of the sentence, first addressing the "nature and circumstances" of

the offense. The district court explained that, pursuant to 18

U.S.C. § 3553, it would consider "the seriousness of the offense,

to promote respect for the law, to provide just punishment, to

afford adequate deterrence to criminal conduct both specifically

and generally, and to protect the public from further crimes by the

defendant." The court further stated:

I think any reader of the daily newspapers is

aware that the illegal trafficking of firearms

at the street level is a significant

contributing factor in what, without

exaggeration I think, can be called an

epidemic of handgun violence in communities

within this district. Not only do guns sold

illegally in this way directly facilitate

crimes of violence, but they also indirectly

facilitate other crimes, including drug

offenses. And so I think in light of these

considerations, it is necessary to regard this

"engaging in the business," I emphasize that,

of selling firearms illegally to be a very

serious offense in this district at this point

in time. And so I think it has to be punished
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by a sentence which reflects the seriousness,

promotes respect for it in compliance with the

law, and has an effect both specifically but

also a general deterrence effect as advice to

others who might commit it.

Another factor is the history and

characteristics of the defendant. And it is

true he is a young man. He has a very brief

countable criminal history. There are more

encounters with the law enforcement than are

countable under the Guidelines. And I think

when considered in conjunction with the

defendant's social history, it is, I think,

fair to say that the Guidelines somewhat

underestimate or undercount the likelihood of

recidivism, which is a concern. 

The district court then sentenced Politano to twenty-four

months' incarceration. The court had not advised the parties

beforehand that it was considering a sentence above the Guidelines

recommendation.

On appeal, Politano challenges the sentence on two

grounds. First, he argues that the sentence is unreasonable.

Second, he argues that the sentence is defective for lack of

notice.

II. Discussion

A. Reasonableness

We review a district court's sentence for reasonableness,

which involves a procedural as well as a substantive inquiry. See

Gall v. United States, 128 S. Ct. 586, 597 (2007); United States v.

Martin, No. 06-1983, 2008 WL 748104, at *4-5 (1st Cir. Mar. 21,

2008).
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We first determine whether the district court made any

procedural errors "such as failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,

selecting a sentence based on clearly erroneous facts, or failing

to adequately explain the chosen sentence –- including an

explanation for any deviation from the Guidelines range." Gall,

128 S. Ct. at 597. Where the district court has committed no such

error, we next turn to the substantive reasonableness of the

sentence actually imposed and review the sentence for abuse of

discretion. See Martin, 2008 WL 748104, at *5; see also Gall, 128

S. Ct. at 594 ("Our explanation of 'reasonableness' review in the

Booker opinion made it pellucidly clear that the familiar abuse-ofdiscretion standard of review now applies to appellate review of

sentencing decisions." (citing United States v. Booker, 543 U.S.

220, 260-62 (2005))); Rita v. United States, 127 S. Ct. 2456, 2465

(2007) ("[R]easonableness review merely asks whether the trial

court abused its discretion.").

In view of the Supreme Court's recent decision in Gall,

we emphasize that the broad discretion afforded to the district

court is paramount: after the court has 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 precisely described." Martin, 2008
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WL 748104, at *4 (quoting United States v. Vega-Santiago, No. 06-

1558, 2008 WL 451813, at *3 (1st Cir. Feb. 21, 2008)(en banc)).

"[T]he linchpin of a reasonableness sentence is a plausible

sentencing rationale and a defensible overall result." Id. at *8

(citing United States v. Jiménez-Beltre, 440 F.3d 514, 519 (1st

Cir. 2006) (en banc)).

After properly calculating the GSR, the district court in

this case sentenced Politano to a term above the recommended range

based on the § 3553(a) factors. Our focus is, therefore, directed

at whether the district court provided a sufficient explanation for

its variance and whether the overall result is defensible. Id., at

*4 ("The Court's reasons for 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.").

In imposing its sentence, the district court noted that

the crime of engaging in the business of dealing in firearms

without a license is "a very serious offense in [the District of

Massachusetts] at this point in time," specifically because it

"directly facilitate[s] crimes of violence, . . . [and] indirectly

facilitate[s] other crimes, including drug offenses" in the

District of Massachusetts. Consequently, the district court

opined, Politano's crime "ha[d] to be punished by a sentence which
 Specifically, the district court considered the need for the 2

sentence imposed "to reflect the seriousness of the offense" and

"to promote respect for the law," 18 U.S.C. § 3553(a)(2)(A), and

"to afford adequate deterrence to criminal conduct," id. § 3553

(a)(2)(B).

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reflects [the] seriousness [of the offense], promotes respect for

it in compliance with the law, and has an effect both specifically

but also a general deterrence effect as advice to others who might

commit it." Thus, in considering the factors set forth in

§ 3553(a), the district court thought that the community-specific 2

characteristics in the District of Massachusetts made Politano's

offense more serious and the need for deterrence greater than that

reflected by the Guidelines.

Considerations regarding the "seriousness of the offense"

and "adequate deterrence" are both factors which the district court

is required to consider. See 18 U.S.C. § 3553(a)(2)(A) & (B).

Politano's challenge is not that the district court took those

factors into account, but that the court's explanation was flawed

because it relied on "generalized reports" rather than individual

conduct. The argument is misconceived. Pre-Booker, this circuit

had held that consideration of local community characteristics

directly contravened the Sentencing Commission's policy choice "to

dispense with inequalities based on localized sentencing

responses." United States v. Aguilar-Pena, 887 F.2d 347, 352 (1st

Cir. 1989). We concluded that Congress could not have intended for

"a district court [to] override the guidelines merely because the
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crime was perpetrated locally." Id. at 351-52. After Booker,

those Guidelines are no longer mandatory. Furthermore, the Supreme

Court's decision in Kimbrough "opened the door for a sentencing

court to deviate from the guidelines in an individual case even

though that deviation seemingly contravenes a broad policy

pronouncement of the Sentencing Commission." Martin, 2008 WL

748104, at *9 (citing Kimbrough, 128 S. Ct. at 574-75); see also

Rita, 127 S. Ct. at 2465 (allowing a district to find that "the

Guidelines sentence should not apply, perhaps because . . . the

case at hand falls outside the 'heartland' to which the commission

intends individual Guidelines to apply, perhaps because the

Guidelines sentence itself fails properly to reflect § 3553(a)

considerations, or perhaps because the case warrants a different

sentence regardless." (emphasis added) (citation omitted)).

Post-Booker, it is now apparent that the district court

has the discretion to take into account all of the circumstances

under which Politano committed the offense, including the

particular community in which the offense arose. In considering

the characteristics of that community, the district court has the

authority to conclude that the impact of this particular offense is

more serious than that reflected by the Sentencing Commission.

Indeed, the § 3553(a) factors expressly provide for consideration

of general deterrence: section 3553(a)(2)(B) states that "[t]he

court, in determining the particular sentence to be imposed, shall
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consider the need for the sentence imposed to afford adequate

deterrence to criminal conduct." General deterrence is about

preventing criminal behavior by the population at large and,

therefore, incorporates some consideration of persons beyond the

defendant. See U.S.S.G. ch. 4, pt. A, introductory cmt. ("General

deterrence of criminal conduct dictates that a clear message be

sent to society that repeated criminal behavior will aggravate the

need for punishment with each recurrence." (emphasis added)). In

this case, the district court expressly considered the ways in

which Politano's firearms offense was more serious and harmful

within this specific community. Cf. United States v. Cavera, 505

F.3d 216, 223 (2d Cir. 2007) (vacating the sentence because "[t]he

district court does not purport to establish that Cavera's crime

was itself more harmful, but only that his crime falls within a

category of offenses (gun crimes in densely populated areas) that

the district court viewed as more serious, on average, than gun

crimes in less urban communities"). Therefore, to the extent the

district court's explanation is grounded in "case specific

considerations," we accord a "respectful deference" to its "factintensive sentencing decisions." Martin, 2008 WL 748104, at *4, 8-

9.

The district court also relied on Politano's "unresolved

charges" in Brockton District Court to enhance his sentence.

Specifically, the district court stated, "[t]here are more
 The district court's determination of the appropriate sentence 3

in this case came after consideration of several § 3553(a) factors.

This is not a case in which the resulting variance was due solely

to a prior arrest or outstanding charge. In such a case, more

explanation may be required. See United States v. Zapete-García,

447 F.3d 57, 60 (1st Cir. 2006).

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encounters with law enforcement than are countable under the

Guidelines. And I think when considered in conjunction with the

defendant's social history, it is, I think, fair to say that the

Guidelines somewhat underestimate or undercount the likelihood of

recidivism, which is a concern." Specifically, the district court

was concerned about outstanding warrants for a charge of assault

and battery with a dangerous weapon, and for charges of disturbing

the peace and disorderly conduct.

Sections 3553(a)(1) and 3553(a)(2)(c) invite the district

court to consider, broadly, "the nature and circumstances of the

offense and the history and characteristics of the defendant" and

"the need for the sentence imposed . . . to protect the public from

further crimes of the defendant." In view of these considerations,

the district court acted within its discretion in finding that

Politano's likelihood of recidivism was underestimated in the

Guidelines. See United States v. Pelletier, 469 F.3d 194, 203 3

(1st Cir. 2006); cf. United States v. Solís-Bermúdez, 501 F.3d 882,

886-87 (8th Cir. 2007) (discussing the district court's discretion

post-Booker to decline an upward departure under U.S.S.G.
 While I continue to disagree with the outcome of Vega-Santiago, 4

I am compelled to follow this rule until the Supreme Court rules

otherwise. See United States v. Irizarry, 458 F.3d 1208 (11th Cir.

2006), cert. granted, 128 S. Ct. 828 (2008).

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§ 4A1.3(a), but apply an upward variance under § 3553(a)(1) and

(a)(2)(c) on the basis of criminal history).

Moreover, in concluding that the district court's

sentence is reasonable, we recognize that "sentencing decisions

represent instances in which the whole sometimes can be greater

than the sum of the constituent parts." Martin, 2008 WL 748104, at

*8. In this case, after considering the PSR and the arguments of

counsel, the district court concluded that, in view of the

§ 3553(a) factors, the GSR fell below that which was appropriate

for Politano's offense and circumstances. The district court was

well within its discretion in concluding that a six-month increase

to the sentence was merited.

B. Lack of Notice

Politano next argues that the sentence should be vacated

because the district court failed to give advance notice that it

intended to impose a sentence above the Guidelines range. In a

recent decision, we rejected the applicability of the Federal Rule

of Criminal Procedure Rule 32(h) notice requirement to post-Booker

variances. See Vega-Santiago, 2008 WL 451813. We held that a 4

judge must provide advance notice or grant a continuance only in

those cases where the district court "propos[ed] to adopt a
 In a letter filed pursuant to Fed. R. App. P. 28(j), Politano 5

asserts that the district court should have provided notice under

Rule 32(h) because "the court's sentence contained an actual

departure for which counsel was not notified in advance." We

decline to consider this untimely argument. Politano concedes that

this argument was not made on appeal, and we accordingly deem it to

be waived. See, e.g., Sleeper Farms v. Agway, Inc., 506 F.3d 98,

104 (1st Cir. 2007).

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variance sentence relying on some ground or fact that would

unfairly surprise competent and reasonably prepared counsel." Id. 5

at *4. Our inquiry is, therefore, limited to whether the district

court's articulated grounds for its variance would have unfairly

surprised competent and reasonably prepared counsel.

As described above, the district judge in this case

relied on three grounds for varying from the GSR: the seriousness

of the crime, the need for deterrence, and the adequacy of the

Guidelines sentence in addressing Politano's risk of recidivism.

All three fall within the "[g]arden variety considerations of

culpability, criminal history, likelihood of re-offense,

seriousness of the crime, nature of the conduct and so forth

[which] should not generally come as a surprise to trial lawyers

who have prepared for sentencing." Id. at *3. We are unpersuaded

that the facts of this case present an exceptional circumstance.

The district court properly considered the seriousness of

the crime, the need for deterrence, and Politano's likelihood of

recidivism within its discussion of the § 3553(a) factors. Counsel

are aware that post-Booker, the district court is required to
With respect to the consideration of Politano's criminal 6

history, even under Rule 32(h), notice is only required for those

grounds not identified in the PSR or one of the party's prehearing

submissions. Fed. R. Crim. P. 32(h). Politano's criminal history

was clearly outlined in the PSR and counsel admits to being "well

aware of Mr. Politano's record and the potential effects it could

have on the sentence."

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consider and weigh each of the § 3553(a) factors. See Gall, 128 S.

Ct. at 596-97. The district court in this case simply considered

and applied those factors to this case. Nothing in the district

court's discussion of these factors indicates that they are beyond

the scope of what reasonably prepared counsel should have been

prepared to argue. We are hard-pressed to see how the district 6

court's sentence on these grounds surprised counsel unfairly.

III. Conclusion

For the foregoing reasons, the district court's sentence

is affirmed.

Affirmed.