United States Court of Appeals

For the First Circuit

No. 14-1262

UNITED STATES OF AMERICA,

Appellee,

v.

DELANO NELSON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Howard, Chief Judge,

Torruella and Selya, Circuit Judges.

Angela G. Lehman on brief for appellant.

Seth R. Aframe, Assistant United States Attorney, and John P.

Kacavas, United States Attorney, on brief for appellee.

July 17, 2015
TORRUELLA, Circuit Judge. Appellant Delano Nelson

("Nelson") seeks review of his sentence for armed robbery. Finding

no reversible error in the proceedings of the district court, we

affirm Nelson's sentence.

I. Background

On October 17, 2011, two men later identified as Nelson

and Walter Williams robbed Hannoush Jewelers in Manchester, New

Hampshire. Nelson, who had only recently been released from an

eighteen-year incarceration for his role in a conspiracy to commit

armed robbery in Indiana, entered the store first and took a

brochure from an employee. Williams then entered the store,

wearing a mask and brandishing a silver handgun. At this point,

Nelson jumped over a display counter and ordered a second employee

to get down while Williams maintained control of the lobby. 

Williams ordered the store manager to retrieve the cash from the

register. When the manager pressed the alarm button, Williams

demanded that the manager turn around and get down on his knees and

then struck the manager on the back of his head with the gun. 

Nelson, meanwhile, ordered an employee to open the display case and

access the store's safe. The value of merchandise taken was an

estimated $212,332.00.

On November 4, 2011, three men in Halloween masks robbed

Kay Jewelers in Tilton, New Hampshire. Williams and Nelson were

identified as two of these men. Williams again brandished a silver

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handgun during the robbery. The total financial loss to Kay

Jewelers was $208,297.96.

On May 11, 2012, the government filed a criminal

complaint charging Nelson with two counts of interference with

commerce by threats or violence, in violation of 18 U.S.C.

§ 1951(a). On July 20, 2012, Nelson surrendered to the

authorities. A two-count indictment followed on August 22, 2012, 

and Nelson pled guilty to both counts. The Presentence

Investigation Report ("PSR") calculated a Guidelines range of 97 to

121 months.1 The government requested an upward variance to 210

months. The district court sentenced Nelson to 168 months in

prison.

1 Under the United States Sentencing Guidelines, Count 1 had a

base offense level of twenty (U.S.S.G. § 2B3.1(a)). Six levels

were added for the use of a firearm (U.S.S.G. § 2B3.1(b)(2)(B)). 

Two levels were added because the victim sustained a bodily injury

(U.S.S.G. § 2B3.1(b)(3)(A)). Two levels were added because the

loss exceeded $50,000 (U.S.S.G. § 2B3.1(b)(7)(C)), making the

adjusted offense level 30. Count 2 had a base offense level of

twenty (U.S.S.G. § 2B3.1(a)). Six levels were added for the use of

a firearm (U.S.S.G. § 2B3.1(b)(2)(B)). Two were added because the

loss exceeded $50,000 (U.S.S.G. § 2B3.1(b)(7)(C)), making the

adjusted offense level 28. Under the multiple count adjustment,

each count had a unit of one. These units were added to the

greater of the offense levels (thirty) for a total of thirty-two

for the combined adjusted offense level. Two levels were

subtracted for acceptance of responsibility (U.S.S.G. § 3E1.1(a)). 

An additional level was subtracted because Nelson timely notified

the authorities of his intent to plead guilty (U.S.S.G.

§ 3E1.1(b)), making the total offense level 29. Nelson received a

criminal history score of three from the armed robbery he committed

in 1992, giving him a Criminal History Category ("CHC") of II. The

Guidelines recommendation for a defendant with a total offense

level of 29 and a CHC of II is 97-121 months. 

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The court explained that it was "varying upward" because

"the nature of the offenses of conviction here are extremely

violent robberies . . . the nature of which isn't sufficiently

captured by the guidelines itself." The court added, "[T]he

defendant's criminal history paints a picture of someone who is

substantially more serious than a Criminal History Category II

defendant as the guidelines would characterize him." The court was

"particularly concerned by the fact that the defendant was most

recently incarcerated previously for in part his involvement in a

conspiracy to rob a jewelry store, and yet within 11 months . . .

he's back involved in multiple jewelry store robberies." The court

found that "the fact that his most recent conviction was for a

sentence of substantial length, that that did not deter him,

suggests that he does need to be removed from society for a

substantial period of time to protect society." The court did not

impose the sentence of 210 months requested by the government

because it believed that Nelson was trying to turn his life around. 

The court then sentenced him to 168 months' imprisonment and noted

that Nelson had a limited right to appeal. This timely appeal

followed.

II. Analysis

Nelson argues that the district court "procedurally erred

when it pronounced a sentence of 168 [months] without adequately

explaining the sentence or complying with [U.S.S.G.] §

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4A1.3(a)(4)." In this regard, he attempts to make hay of the

district court's loose usage of the terms "departure" and

"variance." Nelson also contends that the sentence was

"substantively unreasonable where the guideline range as calculated

by the PSR was 97 - 121 months." According to Nelson, the district

court failed to follow U.S.S.G. § 4A1.3 "when it arbitrarily

announced a sentence of 168 months which effectively increased

Nelson's criminal history category (CHC) from a level II to a level

V or VI without the court ever stating as much."

This court reviews criminal sentences for both procedural

and substantive reasonableness:

We review the reasonableness of a criminal sentence under

an abuse-of-discretion standard. This is a deferential

standard, which recognizes the sentencing court's

superior coign of vantage. In reviewing a sentence, we

seek to ensure that it is both procedurally sound and

substantively reasonable. A sentence is procedurally

sound so long as the district court did not commit a

procedural error in arriving at the sentence. Examples

of procedural errors include: failing to calculate (or

improperly calculating) the Guidelines range, treating

the Guidelines as mandatory, failing to consider the

section 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. When assessing

procedural reasonableness, our abuse of discretion

standard is multifaceted. [W]e review factual findings

for clear error, arguments that the sentencing court

erred in interpreting or applying the guidelines de novo,

and judgment calls for abuse of discretion simpliciter. 

Once we determine that the district court committed no

significant procedural error, we then consider the

substantive reasonableness of the sentence imposed under

an abuse-of-discretion standard. When conducting this

review, we take into account the totality of the

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circumstances, including the extent of any variance from

the [Guidelines Sentencing Range]. 

United States v. Trinidad-Acosta, 773 F.3d 298, 308-09 (1st Cir.

2014) (internal citations and quotation marks omitted).

The defendant argues that the sentencing judge imposed an

upward departure based on the inadequacy of the defendant's

criminal history category without complying with the attendant

procedural requirements. See U.S.S.G. § 4A1.3(a)(4)(A); see also

Fed. R. Crim. P 32(h). The threshold question, of course, is

whether the district court imposed such a departure or instead

imposed a variant sentence.

"A 'departure,' as explained by the Supreme Court, 'is a

term of art under the Guidelines and refers only to non-Guidelines

sentences imposed under the framework set out in the Guidelines.'" 

United States v. Aponte-Vellón, 754 F.3d 89, 93 (1st Cir. 2014)

(quoting Irizarry v. United States, 553 U.S. 708, 714 (2008)). 

"Variant sentences, by contrast . . . result from a court's

consideration of the statutory sentencing factors enumerated in 18

U.S.C. § 3553(a)." Id. The procedural requirements for variances

are more lenient than those for departures, as this court made

clear in United States v. Flores-Machicote:

Appellate review of federal criminal sentences 

is characterized by a frank recognition of the 

substantial discretion vested in a sentencing 

court. Although the advisory guidelines are 

the starting point and the initial benchmark, 

a sentencing judge may draw upon his 

familiarity with a case, weigh the factors 

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enumerated in 18 U.S.C. § 3553(a), and 

custom-tailor an appropriate sentence. It 

follows that a sentencing court may not 

mechanically assume that the GSR frames the 

boundaries of a reasonable sentence in every 

case. Rather, the court must take a flexible, 

case-by-case approach: once the GSR is properly

calculated, sentencing becomes a judgment call 

involving an intricate array of factors.

United States v. Flores-Machicote, 706 F.3d 16, 20-21 (1st Cir.

2013) (internal citations and quotation marks omitted). We have

found that a district court, when determining whether to apply a

variance, "may consider whether a defendant's criminal history

score substantially underrepresents the gravity of his past

conduct." Id. at 21 (citations omitted). 

That is precisely what occurred here. The district court

at one point used the term "depart" but then expressly said that it

was "varying upward." It then explained its decision to impose an

above-the-range sentence by referencing not only the defendant's

criminal record but also several of the enumerated section 3553(a)

factors, including the seriousness of the offense, the need for

deterrence, and the need to protect the public. "In short, nothing

in the sentencing record persuades us that the district court

intended to or in fact applied an upward departure under U.S.S.G.

§ 4A1.3(a)(1)." Aponte-Vellón, 754 F.3d at 93. Thus, to the

extent that there was any procedural error - which we doubt - it

was harmless; the record makes clear that "the district court would

have imposed the same sentence as a variance in any event." Id.;

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see also United States v. Oquendo-Garcia, 783 F.3d 54, 56 (1st Cir.

2015) ("If there were any question, the court's explicit invocation

of 18 U.S.C. § 3553(a) at the time that it augmented the sentence

sheds light on the court's intent. For the simple reason that the

court varied, rather than departed, there was no Rule 32(h)

error.").

That brings us to Nelson's argument that his variant

sentence is substantively unreasonable. "In reviewing the

reasonableness of a sentence outside the Guidelines range,

appellate courts may . . . take the degree of variance into account

and consider the extent of a deviation from the Guidelines." Gall

v. United States, 552 U.S. 38, 47 (2007). Although a major

deviation must be supported by a more significant justification

than a minor one, no "extraordinary" circumstances are required to

justify a sentence outside the Guidelines range. See id. Nor

should the "percentage of a departure" be used "as the standard for

determining the strength of the justifications required for a

specific sentence." Id. The same holds true to the percentage of

a variance. Furthermore, we have held that when a sentence is

outside of the Guidelines range, "[t]he court's reasons for

deviation should typically be rooted either in the nature and

circumstances of the offense or the characteristics of the

offender . . . . " United States v. Martin, 520 F.3d 87, 91 (1st

Cir. 2008).

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"[T]he linchpin of a reasonable sentence is a plausible

sentencing rationale and a defensible result." Id. at 96. Such is

the case here. None of the forms of error articulated in

Trinidad-Acosta was evident in Nelson's sentencing. Rather, the

additional forty-seven months imposed on top of the Guidelinesrecommended 121 months reflect the sentencing judge's concerted

deliberation, a balance of the severity of the crimes with Nelson's

stated desire to reform his behavior. The numerical upward

adjustment and case-specific circumstances at issue here are akin

to those in United States v. Del Valle-Rodríguez, 761 F.3d 171 (1st

Cir. 2014), in which we upheld a variant sentence.

III. Conclusion

The upwardly variant sentence imposed on Nelson, which

was rooted in the circumstances of the offense and Nelson's

characteristics, reflects the sentencing judge's concerted

deliberation and balancing of the § 3553(a) factors. Because the

sentence was procedurally sound and substantively reasonable, the

judgment of the district court is therefore

AFFIRMED.

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