          United States Court of Appeals
                     For the First Circuit

No. 17-1779

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                    HEISSAN HERNÁNDEZ-RAMOS,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]


                             Before

                      Howard, Chief Judge,
               Boudin and Barron, Circuit Judges.


     Alex Omar Rosa-Albert on brief for appellant.
     Francisco A. Besosa-Martinez, Assistant United States
Attorney, Rosa Emilia Rodriguez-Velez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, on brief for appellee.


                        October 15, 2018
             BOUDIN,        Circuit        Judge.       Heissan      Hernández-Ramos

("Hernández") appeals to contest his sixty-month prison sentence

following a guilty plea entered in district court to two offenses:

being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1),

and unlawfully possessing a machine gun, id. § 922(o).

             On September 1, 2016, Puerto Rico police officers were

patrolling in the vicinity of the Luis Llorens-Torres Public

Housing Project in San Juan.               As the officers approached a group

gathered near a known drug distribution point, one man, Hernández,

pulled a firearm from his waist and fled, throwing down the

firearm.     The police captured Hernández and recovered the gun,

which proved to have been modified to fire as an automatic weapon.

             Hernández pled guilty to both counts.                Based on a total

offense level of seventeen and a criminal history category ("CHC")

of   III,     the     presentence         report     stipulated       a       guidelines

imprisonment        range       of    thirty   to   thirty-seven      months.        At

sentencing, the government sought a sentence at the top of the

guidelines    range.            The   government    argued    that    Hernández     had

previously     been     convicted         of   crimes    involving        weapons   and

threatening public officers, serving time for one such crime, and

that messages on his cell phone suggested his involvement in

selling     drugs    and    high-capacity         firearm    magazines.         Defense

counsel     requested       a    twenty-four-month        sentence,       a   six-month

downward variance.

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             The district court, in no way bound by the parties'

sentencing recommendations whether the parties agree or differ,

United States v. Rivera-González, 776 F.3d 45, 51 (1st Cir. 2015),

varied upward based on the severity of the offense and related

conduct, Hernández's criminal history and past behavior, and the

need to deter Hernández and other individuals from committing

firearms offenses.       The court noted Puerto Rico's continuing

experience     with   gun   violence,    a   permissible    sentencing

consideration provided the court does not "ignore [a defendant's]

individual circumstances." United States v. Laureano-Pérez, 892

F.3d 50, 52 (1st Cir. 2018).

             The court sentenced Hernández to sixty months in prison

to be followed by three years of supervised release.       The court's

summary of its reasoning was as follows:

             [T]his is an individual who continues to threaten
             other individuals, has had weapons when he's
             threatened others, and has . . . semiautomatic or
             a machine gun-type firearms in his possession, he's
             carrying them. He's also distributing controlled
             substances or trafficking firearms. Even though
             he's not charged with that here, it is something
             the Court can consider. So, I find in this
             particular case an upward variance is warranted.

             And I find that given all the factors that I just
             mentioned along with the community geographic
             factors, the recidivism he has shown, the type of
             firearm he was carrying, and also the fact that his
             cell phone reveals that he is selling minor amounts
             of drugs and also trafficking or attempting to
             traffic ammunition, the Court finds that a sentence
             of 60 months is sufficient but not greater than
             necessary.

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            Defense     counsel      objected    to    the    sentence    as

"procedurally unreasonable."          The court answered: "What you're

talking about is 'substantively unreasonable.'          Object to both and

preserve it for the record."          Defense counsel replied, "Right.

Substantively and procedurally unreasonable . . . for the record."

            On appeal, Hernández's sole claim is that the variant

sentence    was    excessive   and   thus    substantively    unreasonable.

Reviewing for abuse of discretion, Gall v. United States, 552 U.S.

38, 56 (2007), this case is a clear affirmance.

            Hernández    repeatedly    points    out   that   the   district

court's sentence doubled the lower end of the guidelines range,

but the more pertinent figure for our analysis is the distance

between the upper end of the guidelines range and the imprisonment

term.    When examining this variance, we recognize that "a major

departure should be supported by a more significant justification

than a minor one."      Id. at 50.

            The upper end of the guidelines range was just over three

years, and Hernández received a five-year sentence for two offenses

for which Congress in each case fixed ten years as the statutory

maximum, 18 U.S.C. § 924(a)(2), making difficult a claim that the

sentence here was "outside the universe of reasonable sentences .

. . ."     United States v. Paulino-Guzman, 807 F.3d 447, 451 (1st

Cir. 2015).       What matters more than generalities are Hernández's

own conduct and history as well as the force of the district

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court's reasoning.

              Hernández contends that because his offense conduct and

personal characteristics were already considered by the Probation

Officer in calculating the guidelines sentence, the judge double-

counted      the   same    factors    in    relying    on   them   to   justify   the

variance.

              The offense conduct and the defendant's criminal history

form the foundation of most guidelines calculations.                    Hernández's

double-counting argument, if embraced, would render every variance

based   on    offense      conduct    and    the     defendant's   characteristics

unreasonable.        Accordingly, this court has rejected this argument,

permitting consideration of a defendant's prior criminal history

in both the CHC determination and the section 3553(a) variance

analysis.      United States v. Maisonet-González, 785 F.3d 757, 763-

64 (1st Cir. 2015).

              Hernández also says that the district court assigned too

much weight to community factors and failed to individually tailor

his sentence.            The sentencing transcript shows that the court

discussed      Hernández's     age,     education,       family    background,    and

escalating criminal history--including incidents in which he had

threatened         law    enforcement       officers--before        analyzing     the

seriousness of the offense and the need to promote deterrence.

Past decisions have upheld similar variances.                 Laureano-Pérez, 892

F.3d    at    52–53      (collecting       cases).      The   variance,    although

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substantial, was lawfully imposed and adequately explained.

          Finally, Hernández argues that the government stood by

its recommendation of a sentence within the guidelines range, so

it would be "unbecoming" for the government to defend the variance

on appeal.   This, however, is quite common: "As an appellee, the

government is tasked, in effect, with defending the district

court's judgment when a criminal defendant appeals."          United

States v. Carbajal-Váldez, 874 F.3d 778, 786 (1st Cir. 2017).    And

no matter the propriety of the government's defense, the outcome

is our responsibility.

          Affirmed.




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