Not for Publication in West's Federal Reporter 

United States Court of Appeals 

For the First Circuit 

No. 16-2034 

UNITED STATES, 

Appellee, 

v. 

HARRY PARSONS, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Denise J. Casper, U.S. District Judge] 

Before 

Howard, Chief Judge, 

Torruella and Thompson, Circuit Judges. 

 Robert C. Andrews on brief for appellant. 

 William D. Weinreb, Acting United States Attorney, and Alexia 

R. De Vincentis, Assistant United States Attorney, on brief for 

appellee. 

October 16, 2017 
- 2 - 

Per Curiam. Appellant-defendant Harry Parsons appeals 

from the 54-month sentence imposed upon resentencing, which 

represented an upward variance from the non-career offender 

guideline sentencing range (GSR) of 37-46 months. Parsons 

challenges the sentence as procedurally and substantively 

unreasonable. We grant the government's motion for summary 

disposition. 

At Parsons' original sentencing, the court determined 

(over Parsons' objection) that the career offender guideline 

applied to him. However, the court exercised its discretion to 

deviate from that GSR and to sentence him as though he were not a 

career offender. See United States v. Martin, 520 F.3d 87, 96 

(1st Cir. 2008)(stating that Kimbrough v. United States, 552 U.S. 

85 (2007) "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."). Neither party had requested a sentence 

within the career offender GSR and the court repeatedly stated 

that the career offender designation was not driving the sentence. 

After addressing in detail the 18 U.S.C. § 3553(a) factors as they 

applied to Parsons' case, the court imposed a 66-month sentence, 

which was somewhat above the non-career offender GSR of 37-46 
- 3 - 

months, but substantially below the career offender GSR of 262-

327 months. 

Parsons appealed his 66-month sentence to this court 

(Appeal No. 15-1539) and while that appeal was pending, the United 

States Supreme Court issued its decision in Johnson v. United 

States, 135 S.Ct. 2551 (2015)(Johnson II). In the wake of that 

decision, the government conceded that Parsons no longer qualified 

as a career offender and because the district court had not 

expressly stated "that it would have imposed the same sentence 

absent the career offender designation," Appellee's Brief in 

Appeal No. 15-1539, p. 27, the government took the position that 

the sentence should be vacated and the case remanded for 

resentencing. In view of that concession, we vacated Parsons' 

sentence and remanded. 

Upon remand to the same sentencing judge, the court 

imposed a 54-month sentence, which represented an upward variance 

of eight months from the non-career offender GSR of 37-46 months. 

It was below the 66-month sentence requested by the government but 

above the 30-month sentence requested by Parsons. The court 

adopted the reasons it had articulated at the original sentencing, 

but reduced the sentence on account of Parsons' positive postconviction conduct while in prison. The court recognized that the 

career offender guideline no longer applied, but emphasized that 
- 4 - 

it had "not consider[ed] [Parsons] the first time around as a 

career offender," Resentencing Transcript, p. 29, and that the 

initial sentence "was driven by [its] consideration of the § 

3553(a) factors, which . . . are largely the same here." Id., p. 

30. Parsons objected that the court had failed to sufficiently 

explain its decision to upwardly vary from the non-career offender 

GSR on remand, preserving that issue for appeal. 

This court "review[s] the reasonableness of a sentence 

in a bifurcated fashion, first assessing claims of procedural 

unreasonableness before turning to plaints of substantive 

unreasonableness." United States v. Ubiles-Rosario, 867 F.3d 277, 

290 (1st Cir. 2017). "Generally speaking, [this court] 'review[s] 

both procedural and substantive reasonableness under a deferential 

abuse-of-discretion standard.'” Id. 

I. Procedural Reasonableness 

Parsons contends that his sentence is procedurally 

unreasonable for 1) failure of the court to "articulat[e] the 

specific reasons for a sentence that was above the Guideline 

Range," and 2) "because the District Court failed to divorce his 

sentence from the prior erroneous career offender determination 

and did not otherwise provide a rationale that differentiated Mr. 

Parsons from similarly situated Criminal History Category III 

defendants." Appellant's Brief, p. 14. He maintains that 
- 5 - 

recidivism could not be relied upon to justify the upward variance 

because it had already been accounted for in calculating the CHC. 

Id. 

At the resentencing hearing, the sentencing court 

adopted and incorporated its analysis of the § 3553(a) factors 

from the original sentencing. See Resentencing Transcript, p. 28. 

It recognized that Parsons no longer qualified as a career 

offender, but noted that it had not considered Parsons as a career 

offender when initially sentencing him. Id. at 29. Therefore, the 

§ 3553 factors, that were addressed in detail at the first 

sentencing, applied in essentially the same way upon resentencing. 

See id., pp. 29-30. The exception was post-conviction conduct, 

for which the court reduced the 66-month sentence to 54 months. 

There was no abuse of discretion by the sentencing court in 

disavowing reliance upon the career offender GSR with respect to 

the initial sentencing or in adopting its analysis of the § 3553(a) 

factors from the original sentencing hearing. 

Nor did the district court abuse its discretion by 

failing to differentiate Parsons from similarly situated 

defendants in Criminal History Category (CHC) III. At the original 

sentencing, the court expressed concern that CHC III understated 

Parsons' criminal history. Specifically, the court had noted the 

nature and number of convictions reported in the presentence report 
- 6 - 

(PSR) and the fact that Parsons had served no state prison time 

for those convictions. The court had also noted that Parsons had 

committed the present offenses while on probation for a state court 

offense, and that he had twice violated terms of pre-trial release 

while awaiting trial on this case. 

Parsons contends that the court's explanation for 

finding that the CHC III did not adequately account for Parsons' 

criminal history was flawed on the ground that "recidivism could 

not be relied upon to justify the upward variance because it had 

already been accounted for in calculating the CHC." Appellant's 

Brief, p. 14. However, two of the factors specifically relied 

upon by the sentencing court (the recurrence of criminal offenses 

and the violations of pre-trial release) were not fully accounted 

for in the criminal history score. Because of the cap on onepoint convictions under U.S.S.G. § 4A1.1(c), some of Parsons' prior 

convictions were not included in his total criminal history score. 

And his repeated violations of the terms of pre-trial release were 

not at all accounted for in his CHC. 

There was no abuse of discretion in the court's 

explanation of its reasons for varying upwards from a GSR that was 

based upon a CHC of III. See United States v. Del Valle-Rodriguez, 

761 F.3d 171, 176 (1st Cir. 2014)(stating that "upward variance 

may be justified by . . . a finding that the defendant's criminal 
- 7 - 

history score underrepresents the gravity of his past conduct . . 

. or by a finding that the GSR underestimates the likelihood of 

recidivism"); United States v. Politano, 522 F.3d 69, 75 (1st Cir. 

2008)(upholding six-month variance that relied upon finding that 

defendant's "likelihood of recidivism was underestimated in the 

Guidelines"). 

II. Substantive Reasonableness 

The substantive dimension of the reasonableness inquiry 

"'focuses on the duration of the sentence in light of the totality 

of the circumstances.' It acknowledges that, although the 

'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.' Our review demands only 

'a plausible sentencing rationale and a defensible result'" United 

States v. Nieves-Mercado, 847 F.3d 37, 42 (1st Cir. 2017). "Even 

with respect to an upwardly variant sentence, an appellate court 

'must give due deference to the district court's decision that the 

[18 U.S.C.] § 3553(a) factors, on a whole, justify the extent of 

the variance.'" United States v. Bermudez-Melendez, 827 F.3d 160, 

163 (1st Cir. 2016). 

Parsons argues that his sentence is substantively 

unreasonable because "there is nothing about his circumstances 

that justifies an upward variance." Appellant's Brief, p. 17. But, 
- 8 - 

as discussed above, the court relied at re-sentencing upon the 

factors on which it had relied at the original sentencing: "the 

nature of the crimes, the recurrence, and what deterrent effect 

those previous convictions and penalties have had or, frankly, not 

had at this point." Sentencing Tr., p. 23. The sentencing court's 

reliance upon those factors provides a "plausible sentencing 

rationale." See United States v. Flores-Machicote, 706 F.3d 16, 25 

(1st Cir. 2013)(holding that "sentencing calculus centered on the 

seriousness of the defendant's criminal conduct, the defendant's 

past history and likelihood of recidivism, and the need for 

deterrence . . . constituted a plausible rationale"). 

"Where, as here, the district court imposes a sentence 

outside the GSR, a reviewing court must consider the extent of the 

variance. But even a substantial variance does not translate, ipso 

facto, into a finding that the sentence is substantively 

unreasonable. Everything depends on context." Id. (citations 

omitted). “'[T]here is not a single reasonable sentence but, 

rather, a range of reasonable sentences,' and, '[c]onsequently, 

reversal will result if — and only if — the sentencing court's 

ultimate determination falls outside the expansive boundaries of 

that universe.'" United States v. Castrillon-Sanchez, 861 F.3d 26, 

30 (1st Cir.)(citations omitted), cert. denied, ___ S.Ct. ___, 

2017 WL 3480393 (2017). 
- 9 - 

Here, the court imposed a sentence 8 months above the 

applicable GSR of 37-46 months. In the context of the court's 

expressly articulated consideration of the § 3553(a) factors, 

particularly the recurrence of Parsons' criminal offenses, his 

failure to have been deterred, and concern about the need for the 

sentence to provide deterrence, the 54-month sentence is 

defensible. See Nieves-Mercado, 847 F.3d at 44 (holding that 

"upward variance of 9 months on top of a 41-51 month range 

constitutes a 'defensible result'"). 

The court's determination that "this is a sentence that 

is sufficient but not greater than necessary, to effect and reflect 

all of the goals of sentencing under § 3553(a)," Resenting Tr., p. 

32, is also entitled to some weight. See Ubiles-Rosario, 867 F.3d 

at 294. Extraordinary circumstances were not necessary to justify 

the above-guideline sentence. See United States v. Pagan-Walker, 

___ F.3d ___, 2017 WL 3446130, at *2 (1st Cir. Aug. 11, 2017). 

Because the sentence was procedurally sound and 

substantively reasonable, the judgment of the district court is 

affirmed. See 1st Cir. R. 27.0(c).