United States Court of Appeals 

For the First Circuit 

No. 17-1340 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

PRIMO TOSI, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE 

[Hon. D. Brock Hornby, U.S. District Judge] 

Before 

Thompson, Boudin, and Barron, 

Circuit Judges. 

Clifford B. Strike and Strike, Gonzales & Butler Bailey on 

brief for appellant. 

Halsey B. Frank, United States Attorney, and Julia M. Lipez, 

Assistant United States Attorney, on brief for appellee. 

 

July 24, 2018 
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BOUDIN, Circuit Judge. Primo Tosi was convicted of 

possessing a firearm while subject to a qualifying court order. 

18 U.S.C. § 922(g)(8). After pleading guilty, the only issue on 

appeal is Tosi's sentence. 

On May 16, 2016, officers of the Scarborough, Maine 

Police Department received a call from a woman who said that, the 

night before, Tosi put a pillow over her face, pressed a firearm 

up against the pillow, and said "bang, bang." 

During a search of Tosi's residence, police found a 

Remington 12-gauge shotgun. At the time of the incident, Tosi was 

subject to a state court order aimed at protecting his child and 

his child's mother. Tosi pled guilty to a one-count information, 

charging him with violating 18 U.S.C. § 922(g)(8) based on his 

possession of the shotgun. 

The Probation Office's pre-sentence report ("PSR") 

proposed a total offense level of twelve--which included a 

two-level decrease for the defendant's acceptance of 

responsibility--and a criminal history category ("CHC") of III, 

resulting in an initial guideline range of fifteen to twenty-one 

months. U.S.S.G. §§ 2K2.1(a)(6)(A), 3E1.1(a); id. ch. 5, pt. A. 

In its sentencing memorandum, the government argued for 

an upward departure as to Tosi's CHC--urging the court to adopt a 

CHC of V. The government also sought an upward variance, 

ultimately requesting a term of sixty months' imprisonment. 
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Tosi, by contrast, sought a sentence below the PSR's 

recommended guideline range of fifteen to twenty-one months' 

imprisonment, downplaying his criminal past and citing his 

difficult family background, personal medical problems, and 

history of substance abuse. At the sentencing hearing, defense 

counsel repeated these arguments before suggesting that a sentence 

"within the [guideline range], or slightly below" would be 

appropriate. 

The district court at sentencing adopted one of the 

government's proposals when it departed and assigned Tosi a CHC of 

V. The court refused, however, to vary upwards and instead 

sentenced Tosi to thirty-three months' imprisonment--a term at the 

top of, but still within, the range set by a final total offense 

level of twelve and CHC of V. Id. at ch. 5, pt. A. 

On appeal, Tosi challenges his sentence on both 

substantive and procedural grounds, categories themselves somewhat 

elastic and defined in terms that can depart from common usage. 

See, e.g., United States v. Crespo-Ríos, 787 F.3d 34, 37 n.3 (1st 

Cir. 2015). 

It simplifies the discussion without changing the 

outcome to assume that the alleged errors were all preserved and 

all subject to review under a deferential standard, see United 

States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013)--save 

for certain specific issues raised for the first time in Tosi's 
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reply brief, which are barred, United States v. Carbajal-Váldez, 

874 F.3d 778, 785 n.2 (1st Cir. 2017). Such deference does not 

protect legal rulings, but no such legal errors are asserted here. 

See Flores-Machicote, 706 F.3d at 20. 

Tosi alleges that the district court "haphazardly tossed 

aside" the 18 U.S.C. § 3553(a) factors without "due consideration" 

and failed to give significant weight to his mitigating personal 

characteristics. But the district judge did address these factors 

before discussing how some of them, such as the nature of the 

offense--including the "domestic violence overlay"--and the need 

to "protect[] the public" applied to Tosi's sentence. 

The court also took seriously the supposedly mitigating 

factors pressed by the defense, including Tosi's family and medical 

history, but concluded that while some of these factors explained 

Tosi's past conduct, a "risk of future conduct" also had to be 

given weight. The defense says that the court should have more 

heavily focused on Tosi's employment record, management of his 

psychiatric issues, and alleged good relationship with his own 

children (we note that one of Tosi's protective orders was issued 

to protect his child and the child's mother). 

Here, the district court weighed the mitigating factors 

carefully, concluding (to Tosi's benefit) that the threat Tosi 

poses was not so far above the average as to require a variant 

sentence above the guideline range. Adopting the top of the fully 
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justified range (with a total offense level of twelve and CHC of 

V), but going scarcely over halfway to the government's goal, 

represented a compromise between factors weighing for and against 

Tosi. Here this compromise worked largely in Tosi's favor. This 

also answers fully Tosi's claim that the judge should have adopted 

a sentence below the guideline range. 

A sentencing court is obliged to focus on the uniqueness 

of the individual person and case before it. United States v. 

Ayala-Vazquez, 751 F.3d 1, 31 (1st Cir. 2014) (citing Gall v. 

United States, 522 U.S. 38, 52 (2007)). The district judge did 

just that--properly and carefully conducting an individualized 

sentencing as required by case law. The judge's focus throughout 

was on Tosi's own conduct and history and was in no way abstract 

or mechanical. 

Tosi attacks the choice of CHC V, claiming that the 

district court did not sufficiently justify the departure. The 

guideline resulting in the PSR's calculation of CHC III held down 

artificially Tosi's criminal history points by capping the count 

of one-point crimes to four points. U.S.S.G. § 4A1.1(c). As a 

result, Tosi's ten criminal history points, which would correspond 

to CHC V, were capped at six. 

The Sentencing Guidelines state that an upward departure 

may be warranted when a defendant's CHC "substantially underrepresents the seriousness of the defendant's criminal history or 
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the likelihood that the defendant will commit other crimes." 

Id. § 4A1.3(a)(1). After describing Tosi's "reoccurring pattern 

of convictions," the court found that a CHC of III indeed failed 

to reflect both Tosi's full criminal history and the likelihood 

that he would engage in future criminal conduct. That history 

included domestic violence incidents, violations of conditions of 

release, drug possession, and various other offenses. 

Tosi raises some more specific procedural arguments in 

his reply brief--e.g., he complains that the district court upped 

his CHC to V without "cit[ing] reliable information indicating 

that [his] criminal history or likelihood to recidivate most 

closely resembles CHC V defendants rather than CHC IV or CHC III 

defendants." But, as already noted, arguments available at the 

outset but raised for the first time in a reply brief need not be 

considered. Carbajal-Váldez, 874 F.3d at 785 n.2. 

Lastly, the sentence of thirty-three months falls easily 

"within the expansive universe of reasonable sentences." United 

States v. King, 741 F.3d 305, 308 (1st Cir. 2014) (citation 

omitted). Nothing in Tosi's arguments (which essentially rehash 

his already-rejected procedural-reasonableness claims) makes the 

choice of this within-guidelines sentence vulnerable. 

Tosi was sentenced by a district judge who, buttressed 

by much experience, provided here a model of how to sentence a 

defendant, showing both skill and sensitivity in his conduct of 
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the proceeding and the calibration of his judgments. Tosi has 

shown no error in his sentence. 

Affirmed.