United States Court of Appeals 

For the First Circuit 

No. 15-1405 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

NARCISO MONTERO-MONTERO, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. Juan M. Pérez-Giménez, U.S. District Judge] 

Before 

Lynch, Selya and Lipez, 

Circuit Judges. 

 Irma R. Valldejuli 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, 

Senior Appellate Counsel, on brief for appellee. 

 

March 23, 2016 
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SELYA, Circuit Judge. In this sentencing appeal, the 

appellant claims both that his sentence is procedurally infirm 

(because the district court failed adequately to explain its sharp 

upward variance) and that it is substantively unreasonable 

(because the district court did not articulate a plausible 

rationale sufficient to make the length of the sentence 

defensible). For present purposes, these claims are two sides of 

the same coin. After careful consideration, we conclude that the 

district court's utter failure to explain its sharp upward variance 

requires vacation of the sentence. 

A detailed canvass of the facts and travel of the case 

would serve no useful purpose. It suffices to say that defendantappellant Narciso Montero-Montero was before the district court 

for sentencing in connection with a violation of the conditions of 

his supervised release (a supervised release term having been 

imposed following an earlier conviction for conspiracy to possess 

with intent to distribute narcotics). See 21 U.S.C. §§ 841(a)(1), 

846. 

Applying the advisory sentencing guidelines to the 

facts, the guideline sentencing range for this offense was 6 to 12 

months. See USSG §§7B1.1(a)(2), 7B1.4(a). Nevertheless, the 

district court sentenced the appellant to a 60-month term of 

immurement (the statutory maximum for the supervised release 

violation, see 18 U.S.C. § 3583(e)(3)). The court offered no 
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coherent explanation for its dramatic upward variance, and this 

timely appeal ensued. 

Claims of sentencing error are customarily reviewed for 

abuse of discretion. See Gall v. United States, 552 U.S. 38, 51 

(2007); United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). 

That review typically starts with claims of procedural error. See 

Martin, 520 F.3d at 92. But where the appellant has failed to 

preserve a claim of procedural error below, review is for plain 

error. See United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 

2001). To succeed under plain error review, an appellant must 

show "(1) that an error occurred (2) which was clear or obvious 

and which not only (3) affected the [appellant's] substantial 

rights, but also (4) seriously impaired the fairness, integrity, 

or public reputation of judicial proceedings." Id. 

In its procedural aspect, the claim of error here is 

that the district court did not adequately state its reasons for 

imposing a sentence that exceeded the top of the applicable 

guideline range by a multiple of five (that is, a 500% upward 

variant). Since the appellant did not advance this claim below, 

our review is for plain error. 

Congress has instructed every sentencing court to "state 

in open court the reasons for its imposition of the particular 

sentence." 18 U.S.C. § 3553(c). Although the sentencing court's 

explanation need not "be precise to the point of pedantry," United 
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States v. Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 2006), the 

explanation ordinarily must "identify the main factors driving 

[the court's] determination." United States v. SepúlvedaHernández, ___ F.3d ___, ___ (1st Cir. 2016) [No. 15-1293, slip 

op. at 5]; see United States v. Vargas-García, 794 F.3d 162, 166 

(1st Cir. 2015). 

If the district court imposes a sentence that falls 

within the guideline sentencing range, the burden of adequate 

explanation is lightened. See United States v. Ruiz-Huertas, 792 

F.3d 223, 227 (1st Cir.), cert. denied, 136 S. Ct. 258 (2015); 

United States v. Ocasio-Cancel, 727 F.3d 85, 91 (1st Cir. 2013). 

Conversely, if the district court imposes a sentence that either 

ascends above or descends below the guideline sentencing range, 

the burden of adequate explanation grows heavier. See Gall, 552 

U.S. at 50; United States v. Ofray-Campos, 534 F.3d 1, 43 (1st 

Cir. 2008). And that burden increases in proportion to the extent 

of the court's deviation from the guideline range: the greater the 

deviation, the greater the burden of justifying the sentence 

imposed. See United States v. Smith, 445 F.3d 1, 4 (1st Cir. 

2006); United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005). 

In this instance, the variance from the peak of the 

guideline range is unusually steep. Thus, the need for some 

explication of the sentencing court's rationale was acute. The 

sentencing transcript, though, does not contain any such 
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explication — there is nothing that remotely resembles an adequate 

explanation of the sharply variant sentence. 

To be sure, a sentencing court's rationale sometimes may 

be inferred from the sentencing colloquy and the parties' arguments 

(oral or written) in connection with sentencing. See United States 

v. Rivera-Clemente, ___ F.3d ___, ___ (1st Cir. 2016) [No. 13-

2275, slip op. at 13]. Here, however, the record offers very few 

clues as to what was in the sentencing court's mind. Given the 

marked extent of the variance, we are reluctant to guess at what 

the court was thinking. 

We summarize succinctly. When, as now, a sentencing 

court imposes a variant sentence, that sentence must be explained, 

either explicitly or by fair inference from the sentencing record. 

In this case, the variant sentence is at the statutory maximum and 

represents a five-fold increase over the high end of the guideline 

range. Yet, we are confronted with the virtually complete absence 

of any meaningful explanation for what appears, on its face, to be 

an uncommonly harsh sentence. We are, moreover, unable to backfill 

the gaps by drawing reasonable inferences from other parts of the 

sentencing record. 

Plain error review is not appellant-friendly. But the 

plain error barrier, though formidable, is not insurmountable. We 

conclude that the appellant has scaled that barrier and shown plain 

error. See, e.g., United States v. Rivera-Gonzalez, 809 F.3d 706, 
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711-12 (1st Cir. 2016) (vacating, under plain error standard, 

inadequately explained sentence that constituted six-fold increase 

over top of guideline range). After all, the district court's 

failure to make anything resembling an adequate explanation of the 

appellant's variant sentence was a clear and obvious error, 

especially given the Brobdingnagian extent of the variance. That 

error may well have affected the appellant's substantial rights. 

In such circumstances, it would cast a shadow over the courts' 

reputation for fairness to enforce the sentence blindly. 

We need go no further.1 For the reasons elucidated 

above, we vacate the appellant's 60-month sentence and remand for 

resentencing consistent with this opinion. We take no view as to 

the length of the sentence to be imposed on remand. 

Vacated and Remanded.

 

 1 We have said that a sentence is substantively reasonable as 

long as it rests on a "plausible sentencing rationale" and embodies 

a "defensible result." Martin, 520 F.3d at 96. Here, the 

appellant also argues that his sentence fails this test because 

the district court did not articulate a "plausible sentencing 

rationale" sufficient to show that a statutory maximum sentence 

was a "defensible result." Because we vacate the sentence and 

remand for resentencing on a different (though related) ground, we 

do not reach this claim of error.