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. BauzáAlmonte, Assistant United States Attorney, Chief, Appellate 

Division, and Gregory B. Conner, Assistant United States Attorney, 

on brief for appellee.

March 30, 2021
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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 sixtythree 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. SantiagoRivera, 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.