FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Aida M. Delgado-Colón, U.S. District
Ríos-Rosario on brief for appellant.
Emilia Rodríguez-Vélez, United States Attorney,
Nelson Pérez-Sosa, Assistant United States Attorney,
Chief, Appellate Division, and Julia M. Meconiates, Assistant
United States Attorney, on brief for appellee.
Torruella, Stahl, and Kayatta, Circuit Judge.
KAYATTA, Circuit Judge.
Santini-Santiago ("Santini") pled guilty to being a
prohibited person in possession of a firearm in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2).Although the
applicable sentencing guidelines range recommended a term of
imprisonment of twelve to eighteen months, the district court
sentenced him to thirty-six months' imprisonment to be
followed by a three-year term of supervised release. Santini
now challenges his sentence on three bases. First, he
contends that he did not receive adequate notice that the
court was considering an upward departure from the applicable
guidelines range. Second, he argues that the district court
inappropriately found facts and relied on unproven
accusations to increase his term of imprisonment. Third, he
avers that the sentencing judge was biased against him and
should have recused herself. Finding none of these arguments
persuasive, we affirm Santini's sentence.
typically review sentencing decisions for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51
(2007). Because Santini failed to raise contemporaneous
objections in the court below, however, "the plain error
standard supplants the customary standard of review."
United States v. Arroyo-Maldonado, 791 F.3d 193, 197
(1st Cir. 2015) (quoting United States v.
Fernández-Hernández, 652 F.3d 56, 71 (1st
Cir. 2011)). "Under this rigorous standard, an appellant
must demonstrate '(1) that an error occurred (2) which
was clear or obvious and which not only (3) affected the
defendant's substantial rights, but also (4) seriously
impaired the fairness, integrity, or public reputation of
judicial proceedings.'" United States v.
Colón de Jesús, 831 F.3d 39, 44 (1st Cir.
2016) (quoting United States v. Duarte, 246 F.3d 56,
60 (1st Cir. 2001)).
challenges only the procedural reasonableness of his
sentence. We address his arguments in the order in which he
Variance or Departure?
first invokes Federal Rule of Criminal Procedure 32(h), which
provides in pertinent part that "[b]efore [a] court may
depart from the applicable sentencing range on a ground not
identified for departure in the presentence report or in a
party's prehearing submission, the court must give the
parties reasonable notice that it is contemplating such a
departure." Santini contends that the sentence he
received was the result of a departure from the applicable
guidelines sentencing range based on the court's view of
information contained in the presentence report probation
supplied, and that neither the presentence report nor the
court warned him that such a departure was in the offing.
32(h) is a vestige of the time before United States v.
Booker, 543 U.S. 220 (2005), an era when the guidelines
were mandatory and variances were little more than a gleam in
the eye of the Supreme Court. See Fed. R. Crim. P.
32(h) advisory committee's note to 2002 amendment
(describing the addition of Rule 32(h)). Booker
eliminated the need for sentencing courts to rely on
departures to justify movements away from the guidelines
sentencing range. Booker, 543 U.S. at 259-60.
Instead, post-Booker, a sentencing court can pick a
sentence outside the applicable guidelines sentencing range
simply by announcing a discretionary "variance."
Rule 32(h), in turn, does not apply to variances. See
Irizarry v. United States, 553 U.S. 708, 714 (2008);
United States v. Pantojas-Cruz, 800 F.3d 54, 60 (1st
might therefore ask: Is there any situation in which a
movement away from the applicable guidelines sentencing range
can be justified as a departure, but not as a variance? For
practical purposes, the answer would seem to be
"no." The guidelines authorize a variety of
"departures." Many account for identified
"offense characteristics or offender
characteristics." U.S.S.G. § 5K2.0, cmt. 2(A);
id. §§ 5K2.1-24. Others counsel moving
upward or downward from a given sentencing range based on a
defendant's criminal history. See, e.g.,
id. § 4A1.3. Section 5K3.1 of the guidelines
also authorizes departures for an "early disposition
program." In short, departures are justified by
reference to specified characteristics of the offense or the
offender, or to an early disposition program. Variances, in
turn, can also be justified by "the nature and
circumstances of the offense" and "the history and
characteristics of the defendant, " plus much more, such
as "deterrence, " inducing "respect for the
law, " and effective "correctional treatment."
18 U.S.C. § 3553(a); see Gall, 552 U.S. at
this means that we are at a loss to identify any movement
away from the applicable guidelines sentencing range that can
be justified as a departure but not as a variance. And absent
such an example, or some change in either the sentencing
factors provided under § 3553(a) or the Guidelines'
grounds for departure, Rule 32(h) as it presently stands
serves no substantive purpose at all. See United States
v. Brown, 732 F.3d 781, 786 (7th Cir. 2013) ...