United States Court of Appeals

For the First Circuit

No. 14-1576

UNITED STATES OF AMERICA,

Appellee,

v.

JAVIER GUZMAN-FERNANDEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge] 

Before

Thompson, Lipez, and Barron,

Circuit Judges.

Mary Davis and Tisdale & Davis, P.A. on brief for appellant.

Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson 

Pérez-Sosa, Assistant United States Attorney, Chief, Appellate 

Division, and Thomas F. Klumper, Assistant United States Attorney, 

on brief for appellee.

June 1, 2016
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LIPEZ, Circuit Judge. Javier E. Guzman-Fernandez 

("Guzman") pled guilty to one count of conspiring to commit Hobbs 

Act robberies in violation of 18 U.S.C. § 1951(a). After 

calculating Guzman's guideline sentencing range ("GSR") to be 97 

to 121 months, the district court imposed a 135-month term of 

imprisonment. Guzman appeals his sentence, arguing that the upward 

variance was both procedurally and substantively unreasonable. 

Finding no errors, we affirm. 

I.

In June 2010, Guzman, who was a supervisor at Kmart, 

provided his co-conspirators with security information about one 

of the Kmart stores, including the layout of the store and the 

identity of the security guard. Relying on this information, 

Guzman's co-conspirators robbed the store. The robbery involved 

the use of a firearm, physical restraint of the store security 

guard, and injury to the guard. 

In December 2010, Guzman provided security details about 

another Kmart store to his co-conspirators and prepared a hiding 

spot in the store for his co-defendant, who then hid in that spot 

until the store closed. When Guzman and other employees 

encountered the robber at the store the next morning,1 Guzman 

pretended to be both a victim and a negotiator between the 

 

1 It is not clear from the record why the robbery was still 

in progress the following morning. 
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employees and the robber. The second robbery involved a firearm, 

restraint of the store employees, and injury to the store watchman. 

The value of all the property taken during the two robberies 

exceeded $50,000.

Guzman pled guilty to conspiracy to commit Hobbs Act 

robberies. See 18 U.S.C. § 1951(a). His plea agreement and

presentence investigation report recommended a GSR of 97 to 121 

months, based on a total offense level of 30 and a criminal history 

category of I. The offense level calculation included multiple 

enhancements: (1) a five-level increase applied because a firearm 

was brandished, see U.S.S.G. § 2B3.1(b)(2)(C); (2) a two-level 

increase applied because victims sustained bodily injury, see id.

§ 2B3.1(b)(3)(A); (3) a two-level increase applied because victims 

were physically restrained, see id. § 2B3.1(b)(4)(B); (4) a twolevel increase applied because the loss exceeded $50,000, see id.

§ 2B3.1(b)(7)(C)2; and (5) a two-level increase applied because 

Guzman "abused [his] position of public or private trust, . . . in 

a manner that significantly facilitated the commission or 

concealment of the offense," id. § 3B1.3. At the sentencing 

hearing, Guzman's counsel argued for a 97-month term of 

imprisonment because "all the worst aspects of this case have been 

 

2 This section was amended, effective November 1, 2015. Here, 

we are relying on the guidelines that were in effect at the time 

that the presentence investigation report was prepared and Guzman

was sentenced.
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included in the [GSR] calculation." The government argued for a 

120-month sentence.

The district court rejected both proposed sentences and 

imposed a 135-month term of imprisonment, a 14-month variance from 

the top end of the GSR. In explaining its decision, the court 

considered the sentencing factors as set forth in 18 U.S.C. 

§ 3553(a). The court's observations included the following:

 Guzman's age and personal background

suggested that he had "additional controls 

and additional insight as to what are the 

responsibilit[ies] of a mature individual";

 he was involved in two robberies;

 Guzman's insider role in the two robberies 

-- including providing information "used to 

intimidate and threaten employees" and 

playing both the "victim's role" and "the 

role of a negotiator" -- demonstrated the 

"boldness" of the conduct and its "planned" 

and "deliberate" nature; and

 the two robberies were serious crimes,

involving restraint of the victims and

injury to the store employees, and hence 

were different from the typical Hobbs Act 

robberies found in the "Federal case law."

The district court determined that the unique facts of the 

robberies and Guzman's personal circumstances "require[d]" the 

variance in order "to promote respect for the law, . . . to deter 

criminal conduct, and protect the public and hard working people 

who [were] making basically minimum wage." See id. § 3553(a)(2). 

The court concluded, in short, that a 14-month variance was 
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warranted to "provide just punishment with what happened." 

Guzman's counsel "object[ed] to the variance and the Court's 

application to the 3553 factors" because "all the worst aspects of 

th[e] case ha[d] been included in the [GSR] calculation." 

II.

The reasonableness of a district court's sentencing 

determinations has procedural and substantive dimensions. United 

States v. Politano, 522 F.3d 69, 72 (1st Cir. 2008). The 

procedural inquiry asks whether the district court committed 

errors "such as failing to calculate (or improperly calculating) 

the [GSR], 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." United States v. Flores-Machicote, 

706 F.3d 16, 20 (1st Cir. 2013) (alterations in original) (quoting 

Gall v. United States, 552 U.S. 38, 51 (2007)). The substantive 

inquiry "focuses on the duration of the sentence in light of the 

totality of the circumstances." United States v. Del ValleRodríguez, 761 F.3d 171, 176 (1st Cir. 2014).

Guzman contends that his sentence was procedurally and 

substantively unreasonable.3 We review both claims for abuse of 

 

3 We may consider Guzman's appeal because the district court 

did not sentence Guzman according to the parties' sentencing 
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discretion. Id. (citing Gall, 552 U.S. at 46). Indeed, while the 

government argues that a plain error standard should apply to 

Guzman's procedural unreasonableness claim, we find that Guzman's 

objection in the proceedings below -- that "all the worst aspects 

of this case" have been accounted for in the Guidelines calculation

-- sufficed to place the district court on notice of the procedural 

claim at issue. Cf. United States v. Ríos-Hernández, 645 F.3d 

456, 462 (1st Cir. 2011). Hence, we review both reasonableness 

claims under the abuse-of-discretion standard. See Politano, 522 

F.3d at 72.

A. Procedural Error

Guzman argues that the district court failed to explain 

the reasons for the upward variance from the GSR, independent of 

the factors that were already accounted for in the offense level

calculation. 

Our review indicates, however, that the district court 

articulated at least one additional reason, beyond those accounted 

for in the total offense level, in considering the § 3553(a) 

factors. The court discussed Guzman's mature age and personal 

background, noting that he planned and carried out the dangerous 

crimes despite his understanding of the nature and severity of his 

conduct. See United States v. Martin, 520 F.3d 87, 91 (1st Cir. 

 

recommendation, and hence, as the government concedes, the waiver 

of appeal provision in the plea agreement is not enforceable.
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2008) (explaining that sentencing decisions are "a unique study in 

the human failings that sometimes mitigate, sometimes magnify, the 

crime and the punishment to ensue" (quoting Gall, 552 U.S. at 52)). 

Where the district court relied on factors already 

accounted for in the total offense level, namely, Guzman's insider 

role, the fact of two robberies, injury, and restraint, the court 

justified its reliance with an explanation. We have previously 

held that, "[w]hen a court varies from the GSR, its reasons for 

doing so 'should typically be rooted either in the nature and 

circumstances of the offense or the characteristics of the 

offender.'" Flores-Machicote, 706 F.3d at 21 (quoting Martin, 520 

F.3d at 91). When a factor within those § 3553(a) considerations 

is already included in the total offense level that determines the 

GSR, the court "must articulate specifically the reasons that this 

particular defendant's situation is different from the ordinary 

situation covered by the guidelines calculation." United States

v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir. 2006); see also United 

States v. Smith, 445 F.3d 1, 6-7 (1st Cir. 2006). 

Here, the district court distinguished Guzman's insider 

participation from the typical "abuse[] . . . of . . . private 

trust" reflected in the Guidelines. U.S.S.G. § 3B1.3. 

Specifically, the court explained that, in addition to the 

immediate consequence of "facilitat[ing] the commission or 

concealment of the offense," id., Guzman's insider role spoke to 
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the "boldness" of the conduct and its "planned" and "deliberate"

nature. Similarly, while the fact that there were two robberies 

may have been considered in calculating the total loss amount

(which then enhanced the total offense level applicable to Guzman),

see id. § 2B3.1(b)(7)(C), the court relied on the number of 

robberies to emphasize the seriousness or nature of the conduct in 

imposing an upward variance -- a consideration different in kind 

from the combined harm or losses. The court also explained how 

the particular facts of the robberies reinforced the seriousness 

of the injury and restraint, which collectively differentiated 

this case from the typical "in and out" robberies to which the 

Guidelines apply.4 

"[A] sentencing court's obligation to explain a variance 

requires the court to offer a plausible and coherent rationale --

but it does not require the court to be precise to the point of 

pedantry." Del Valle-Rodríguez, 761 F.3d at 177. We conclude

 

4 In recognizing the fact-specific ways in which the district 

court interpreted Guzman's insider position and the injury and 

restraint, we note that we have applied a similarly discerning 

approach to double-counting arguments in the context of upward 

adjustments in the Guidelines calculation. There, we have held 

that "[m]ultiple sentencing adjustments may derive from 'the same 

nucleus of operative facts while nonetheless responding to 

discrete concerns.'" United States v. Fiume, 708 F.3d 59, 61 (1st 

Cir. 2013) (quoting United States v. Lilly, 13 F.3d 15, 19 (1st 

Cir. 1994)). Indeed, "in the absence of an express prohibition, 

this court routinely has permitted a single underlying fact to be 

used more than once when that fact bears upon two separate 

sentencing considerations." Id. 
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that the district court did not abuse its discretion in 

articulating the reasons for an above-GSR sentence. 

B. Substantive Error

Guzman also contends that his sentence is substantively 

unreasonable because the district court relied on factors already 

considered in the Guidelines enhancements to impose a sentence 

"well above" the GSR, even though his conduct was not so egregious 

as to warrant any variance. The substantive assessment of a 

criminal sentence is characterized by "a frank recognition of the 

substantial discretion vested in a sentencing court." FloresMachicote, 706 F.3d at 20. Where, as here, a court has correctly 

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, 520 F.3d at 92 (internal quotation marks 

omitted). 

At the outset, the district court did not abuse its 

discretion in relying on § 3553(a) factors that overlapped with 

factors in the Guidelines considerations, given the wide latitude 

afforded to courts in making sentencing determinations. See

generally Flores-Machicote, 706 F.3d at 20 ("[A] sentencing judge 

may draw upon his familiarity with a case, weigh the factors 

enumerated in [§ 3553(a)], and custom-tailor an appropriate 

sentence.") (citing Kimbrough v. United States, 552 U.S. 85, 91
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(2007)). Additionally, the district court explained that it was 

the combination of all the § 3553(a) factors discussed -- some 

overlapping, others not -- that required a variant sentence to 

provide "just punishment with what happened."

We also add that a 14-month variance and a 135-month 

term of imprisonment are not unreasonable in light of the totality 

of the circumstances. See Del Valle-Rodríguez, 761 F.3d at 176. 

Consistent with the flexibility accorded to the sentencing court, 

our substantive review has operated on a sliding scale, on which

the greater the variance, "the more compelling the sentencing 

court's justification must be." Id. at 176-77; see Smith, 445 

F.3d at 4; Zapete-Garcia, 447 F.3d at 61. 

The variance in this case is modest. The rare cases in 

which variant sentences were found to be unreasonable involved 

more extreme variances from the GSR. See United States v. OrtizRodríguez, 789 F.3d 15, 18-20 (1st Cir. 2015) (holding that a 

sentence "three times greater than the top of the advisory [GSR]"

is a "large variance" that required, but lacked, significant 

justification); Smith, 445 F.3d at 6-7 (holding that a sentence 

that is less than half of the bottom end of the GSR is unreasonably 

low); Zapete-Garcia, 447 F.3d at 60-61 (finding a sentence that is 

eight times the top end of the GSR to be unreasonable). By

contrast, we have here a 14-month variance over the 121-month high 

end of the GSR, which is proportionately smaller than many of the 
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variances that we have affirmed as reasonable. See, e.g., United 

States v. Díaz-Arroyo, 797 F.3d 125, 127-30 (1st Cir. 2015) 

(finding a 27-month variance from the 21-month high end of the GSR 

to be reasonable); Del Valle-Rodríguez, 761 F.3d at 177 (holding 

that a 15-month variance over the 105-month top end of the GSR is 

modest and reasonable); Flores-Machicote, 706 F.3d at 20, 25 

(finding a 19-month variance from the 41-month high end of the GSR 

to be reasonable); Politano, 522 F.3d at 71-72, 75 (finding a 6-

month variance from the 18-month top end of the GSR to be 

reasonable). The district court also justified the modest variance 

with an adequate rationale, including the personal circumstances 

of Guzman, the specific ways in which Guzman used his insider 

position, and the overall seriousness of the offense.5

Within "a universe of reasonable sentences," where there 

is "not a single appropriate sentence," United States v. Oquendo-

 

5 Guzman suggests that the district court's recognition that 

departure from the GSR is not appropriate in this case means that 

variance from the GSR was also not appropriate. Departure and 

variance, however, are two different concepts. See United States

v. Oquendo-Garcia, 783 F.3d 54, 56 (1st Cir. 2015) (noting that 

departure "refers to specific deviations imposed in accordance 

with a statute or a specific guidelines provision," whereas a 

variance "exist[s] as a result of the advisory nature of the 

guidelines"). Considerations that render a departure 

inappropriate, such as the lack of prior notice as observed by the 

district court here, do not necessarily render a variance 

inappropriate. See, e.g., Irizarry v. United States, 553 U.S. 

708, 716 (2008) (holding that advance notice required in departure 

under Rule 32(h) of the Federal Rules of Criminal Procedure is not 

required in variance). 
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Garcia, 783 F.3d 54, 57 (1st Cir. 2015) (quoting United States v.

Rivera-González, 776 F.3d 45, 52 (1st Cir. 2015)), the factors 

relied on by the court "add[ed] up to a plausible rationale" for 

the modest variance imposed in this case, Martin, 520 F.3d at 91. 

Affirmed.