United States Court of Appeals
                     For the First Circuit


No. 18-1952

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                     HUMBERTO LÓPEZ-DELGADO,

                      Defendant, Appellant.


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

         [Hon. Francisco A. Besosa, U.S. District Judge]


                             Before

                  Thompson, Lipez, and Barron,
                         Circuit Judges.


     Andrew S. McCutcheon, Assistant Federal Public Defender, with
whom Vivianne M. Marrero, Assistant Federal Public Defender
Supervisor, Appeals Section, and Eric Alexander Vos, Federal
Public Defender, were on brief, for appellant.
     Julia M. Meconiates, Assistant United States Attorney, with
whom Mariana E. Bauzá-Almonte, Assistant United States Attorney
Chief, Appellate Division, and Rosa Emilia Rodríguez-Vélez, United
States Attorney, were on brief, for appellee.


                         August 13, 2020
             BARRON, Circuit Judge.     Humberto López Delgado ("López")

challenges the procedural and substantive reasonableness of the

sentence that he received for his 2017 conviction for possession

of   a   machine    gun    in   violation    of   18    U.S.C.   § 922(o)    and

§ 924(a)(2).      We affirm.

                                      I.

             On June 7, 2016, local law enforcement officers arrested

López at the Luis Llorens Torres Public Housing Project in San

Juan,    Puerto    Rico,   on   suspicion    of   involvement    in   a   recent

homicide.     It is undisputed that in a search incident to that

arrest, police seized from López a loaded Glock pistol modified to

shoot automatically, a loaded twenty-two-round capacity Glock

magazine, a cellphone, a clear container filled with a green leafy

substance, and a small cigarette believed to contain synthetic

marijuana.

             In a subsequent interview with the police, López stated

that he carried the gun for protection.           He further stated that he

had killed a man named "Sica" who lived in the same housing project

and was reportedly abusive toward him.                 When the police later

attempted to verify this claim, they learned that a man nicknamed

"Sica" was indeed shot before López's arrest, but remained alive

and well after a stay in the hospital.             Upon later telling López

of this fact, one law enforcement officer recounted that López




                                     - 2 -
"started to cry, and his eyes became red." López reportedly stated

"that he did the job wrong; that he was not able to kill him."

            On June 16, 2016, a federal grand jury in the United

States District Court for the District of Puerto Rico indicted

López,   charging   him   with   having     possessed    a    machine     gun    in

violation of 18 U.S.C. § 922(o)(1) and § 924(a)(2).                      Shortly

thereafter, López's counsel asked Dr. Carol Romey, an experienced

psychologist, to evaluate his client's competency to stand trial.

            Romey   diagnosed    López    as   suffering      from   a   moderate

intellectual disability and noted that in the past López had been

diagnosed as suffering from bipolar disorder and attention deficit

hyperactivity disorder ("ADHD").         She concluded that López was not

competent to stand trial, but she did mention the concept of

"assisted   competency,"    which    might     allow    the    proceedings       to

continue if he had family members who could look out for his best

interests during the trial.

            In response to Romey's conclusions, on January 26, 2017,

López's counsel formally submitted a request to the District Court

to have his client's competency to stand trial evaluated.                Shortly

thereafter, the District Court ordered the federal Bureau of

Prisons ("BOP") to conduct a competency evaluation of López.                    The

BOP evaluators determined that López was competent to stand trial,

as they found that he was not "suffer[ing] from a severe mental

disorder or defect that would preclude his ability to understand


                                    - 3 -
the nature and consequences of the proceedings against him, or his

capacity to assist his attorney in his own defense."

            Romey evaluated López in person again in August of 2017.

She stood by her previous diagnosis of intellectual disability and

did not mention whether López's bipolar disorder diagnosis needed

to be revised.      Romey did find, however, given López's improved

behavior and mental state since she last saw him, that his ADHD

diagnosis ought to be reviewed and that he "should be considered

competent."

            On March 22, 2018, López pleaded guilty to violating 18

U.S.C.   § 922(o)    and     § 924(a)(2),      after    the       District    Court

concluded   that    López    was   competent    to     do   so.      The     initial

Presentence Investigation Report ("PSR") issued by the United

States Office of Probation and Pretrial Services calculated a

sentencing range under the United States Sentencing Guidelines

("Guidelines")      of      thirty-seven    to       forty-six        months      of

imprisonment.

            López, seeking a more lenient sentence, submitted a

sentencing memorandum that detailed the difficult circumstances of

his upbringing in Puerto Rico, as follows.                   His father was a

violent addict, who, when López was four years old, pleaded guilty

to sexually abusing López's older sister and was sentenced to

eighteen years in prison.           López and his siblings grew up in

poverty, as his mother was never gainfully employed and his father


                                    - 4 -
could   not    provide   any   financial   support.   Once   López   began

attending school, his teachers soon became concerned that he

suffered from behavioral and learning disabilities.          López claims

that a "Department of Education specialist" diagnosed him "with

ADHD and learning disabilities, prescribed medication, and placed

[him] in special education classes."

              When López was about eight years old, the sentencing

memorandum further recounted, his mother decided to move the family

from Puerto Rico to New York City.            Unable to find permanent

housing, López and his family lived in homeless shelters for over

a year and a half.         During this time, López's mental health

worsened, and doctors began prescribing him various medicines for

ADHD and bipolar disorder.       When López was fourteen years of age,

a switch in medication apparently triggered a change in his

behavior, causing him to become aggressive with teachers and

classmates at school.      As a result, López was sent to an inpatient

psychiatric hospital, where he was prescribed therapy and new

medications.

              Upon leaving that hospital, according to the sentencing

memorandum, López began using illegal drugs like marijuana and

phencyclidine ("PCP"), which worsened his mental-health problems.

In the ensuing years, López largely lived on the streets, with

occasional visits to psychiatric wards where he was prescribed yet

more bipolar and antipsychotic medication.        Sometime in 2014, when


                                   - 5 -
López was eighteen years old, a homeless shelter agreed to buy

plane tickets for López and his mother to return to Puerto Rico.

The two moved to the Luis Llorens Torres Public Housing Project

where López was eventually arrested.

          López asserted that, due to his traumatic childhood and

the improvement in his behavior since he stopped using drugs, he

should receive a forty-six-month prison sentence, with supervised

release in New York.   The government, though it did not challenge

the factual assertions in López's memorandum, did object to the

PSR, as it omitted the facts that López was originally arrested in

connection with a murder and that he had told police he believed

he killed a man named "Sica."    It requested an eighty-four-month

prison sentence.

          On June 21, 2018, the District Court held a short hearing

in which it postponed sentencing in order to allow the probation

office to respond to the government's contentions and to provide

time for further evaluation of López's mental health.      At that

same time, the District Court granted a request by the probation

office for an order permitting it to commission a specialist to

evaluate López's mental health and provide a fresh diagnosis of

the disorders from which he suffered.

          On July 21 and 22, 2018, the doctor selected by the

probation office, José Méndez Villarrubia ("Méndez"), commenced an

evaluation of López.   He reviewed the BOP's evaluation of López


                                - 6 -
and Romey's second assessment of his competency.                 In addition,

Méndez met in person with López and conducted several tests of his

own to evaluate López's mental health.              Méndez concurred with

Romey's call to revise López's diagnoses in light of his improved

behavior since terminating his drug use.             Specifically finding

that López did not suffer from ADHD, Méndez instead diagnosed López

with   antisocial     personality     disorder      as   well    as   several

substance-abuse disorders that were in remission while López was

incarcerated.      He did not diagnose López with bipolar disorder.

Further, Méndez concluded that López "is dangerous to society" and

that "[f]ollowing society's rules, laws, and community living is

a challenge for him."

             The   District   Court     held   a   sentencing     hearing    on

September 20, 2018.       The District Court heard testimony from law

enforcement    officers    concerning    the   remarks   López    made    about

"Sica" after his arrest, as well as their corroboration of the

fact that a man nicknamed "Sica" was shot in May 2016 in the same

housing project where López lived.          The District Court also heard

from Méndez, who testified that he did not believe that López

suffered from bipolar disorder but that he did present a danger to

society.

             The District Court determined that the PSR correctly

calculated     López's    recommended     sentencing     range    under     the

Guidelines to be thirty-seven to forty-six months of imprisonment.


                                    - 7 -
Nevertheless, the District Court concluded that an upward variance

was   appropriate.     It   then   imposed        a   ninety-six-month       prison

sentence, which it stated that it understood López would serve in

a prison hospital, with three years of supervised release to

follow.   López filed a notice of appeal four days later.

                                      II.

           On appeal, López contends that his sentence is both

procedurally and substantively unreasonable.                 There is a two-step

process for reviewing preserved sentencing challenges.                  First, we

examine "the procedural component of the sentence for abuse of

discretion."    United States v. Innarelli, 

, 292 (1st

Cir. 2008).    "[F]ailing to calculate (or improperly calculating)

the   Guidelines   range,    treating       the   Guidelines      as   mandatory,

failing to consider the [18 U.S.C.] § 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" are all examples of

procedural errors that could merit resentencing.                 Gall v. United

States, 

, 51 (2007).             Once we are satisfied that "no

significant    procedural    error"     exists

whether the sentence is substantively reasonable," United States

v. King, 

, 308 (1st Cir. 2014) (citing 

).




                                   - 8 -
                                       A.

             López's first set of procedural challenges concerns

various factual findings that the District Court made.                      The

government contends that he failed to preserve those challenges.

But, even assuming no forfeiture, our review of the District

Court's factfinding is only for clear error, see United States v.

Mendoza-Maisonet, 

, 20 (1st Cir. 2020), and we find none.

             We begin with López's contention that the District Court

clearly erred in finding that he "has a mental health record

stemming     from   his   substance   abuse    history,   including   several

hospitalization[s]."         López asserts that this finding is not

sustainable in light of uncontested portions of his sentencing

memorandum that reported that he first began receiving treatment

for his mental health well before he started abusing controlled

substances as a teenager.        He argues that this erroneous factual

finding prejudiced him, because it led the District Court to treat

López's mental-health difficulties as if they were solely the

consequence of his choice to use drugs when that was not the case.

             We do not agree, however, that the District Court clearly

erred in finding that López has "a mental health record" that

stemmed from drug abuse.         The record supportably shows that at

least some of López's mental-health problems are attributable to

his   drug   use,   and   the   District      Court's   statement   about   the

connection between the two -- given the use of the indefinite


                                      - 9 -
article "a" to modify "mental health record" -- does not assert

that all of his mental-health problems were attributable to his

drug use.

            Nor does this statement amount to a finding that López's

drug use was not itself a response to prior mental-health problems

brought about by his childhood trauma, and so any contention that

it constituted a clearly erroneous finding for that reason is

mistaken.    Indeed, the District Court specifically commented on

the traumatic childhood that López endured.

            López also contends that the District Court clearly

erred by finding that he did not suffer from bipolar disorder.   He

contends that it did so by relying solely on Méndez's conclusion

that López instead suffered from antisocial personality disorder,

when the record showed that he had been diagnosed with bipolar

disorder during his adolescence.    In support of this contention,

López relies on an out-of-circuit precedent, United States v.

Olhovsky, 

, 549 (3d Cir. 2009).

            But, as the government points out, in Olhovsky, the

government's psychologist had not even met with the defendant, and

his opinion was at odds with not only the diagnosis of the

defendant's treating doctor but also the opinions of two other

doctors that the defendant had retained, who had each provided

"very specific positive reports of [the defendant's] response to

therapy."

   Here, by contrast, the District Court


                               - 10 -
relied on an assessment from a psychiatrist, Méndez, who had

personally    interviewed    and     tested   the    defendant.     Moreover,

Méndez's conclusion that López did not suffer from bipolar disorder

is not inconsistent with the opinion of Romey, whom López had

specifically hired to evaluate his competency to proceed in court.

In her 2017 evaluation, she determined that López had a moderate

intellectual disability, and she called for a revision to his ADHD

diagnosis.      But, she was silent with regard to whether López

suffered from bipolar disorder.          Given that the bipolar disorder

diagnosis that López identifies in his sentencing memorandum was

apparently offered by the doctor who treated López years prior to

sentencing, when he was not yet an adult, we see no basis in the

record for finding that the District Court clearly erred in relying

on Méndez's contemporary assessment.

             That brings us to López's third challenge to the District

Court's factual findings, in which the District Court found that

"this is not a typical case.       This is . . . not a case of a typical

felon in possession who may recidivate.             This is a person who is

a danger to society."      Here, we understand López to argue that the

District Court clearly erred because it had no basis in the record

for finding López to be more dangerous than the typical prisoner.

             But,   the   District    Court's       finding   was   adequately

supported by the conclusions in Méndez's report, which detailed

the results of his July 2018 psychodiagnostic tests on López, and


                                     - 11 -
Méndez's testimony at the sentencing hearing.                In that report, he

concluded    that   López   had   a    minimal    understanding     of   general

society's mores and that "[h]is views of the world are mediated by

violence, drugs, [and] loyalty to a subculture of drugs and

criminal behaviors."        Then, in his testimony at the sentencing

hearing, he stated that López was "inherently dangerous" and that

he was "dangerous to society," a conclusion that Méndez said he

would    have   reached   "even   if    [López]     didn't    qualify    for   the

antisocial personality disorder."              The District Court understood

Méndez to be saying that López presented a level of danger to

society that fell outside the norm, as it remarked, with respect

to Méndez's assessment, that "I don't think I have ever heard

anybody say about anybody that a person enjoys behaving badly."

We thus cannot say that the District Court clearly erred in finding

as it did.

             López's next claim of procedural error is that the

District Court failed to meet its obligation under 18 U.S.C.

§ 3553(a) to "acknowledge and respond to any properly presented

sentencing argument which has colorable legal merit and a factual

basis."     United States v. Ausburn, 

, 329 (3d Cir.

2007).    He asserts in this regard that the District Court failed

to "explain how [López's] childhood trauma factored into the

sentencing calculus," even though that issue was a key part of

López's argument for a more lenient sentence.


                                      - 12 -
            Here, our review is for abuse of discretion, see United

States v. Cortés-Medina, 

, 570 (1st Cir. 2016), and we

find none.    The District Court did not ignore López's extremely

difficult childhood. In the course of discussing the circumstances

it found pertinent to its sentencing decision, including López's

substance-abuse history, the danger that machine guns like the one

that López possessed present to the public, and Méndez's conclusion

that López was a particularly dangerous individual, the District

Court   specifically        noted    that   López    "endured        a        traumatic

childhood" and mentioned the anguish that López's father caused to

his family.   Cf. United States v. Clogston, 

, 592 (1st

Cir. 2011) ("A reviewing court should be reluctant to read too

much into a district court's failure to respond explicitly to

particular sentencing arguments.").

            López also asserts that the District Court failed to

consider the need "to provide the defendant with needed educational

or   vocational     training,    medical    care,    or     other    correctional

treatment     in     the     most       effective    manner,"            18     U.S.C.

§ 3553(a)(2)(D), when imposing his sentence.                "The only time the

district    court   mentioned       rehabilitation    or     treatment,"         López

contends, "was during a boilerplate reference to 'fulfilling all

the sentencing objectives.'"

            Our    review   of   this    claimed    error    is     for       abuse   of

discretion, see United States v. Pedroza-Orengo, 

, 835


                                      - 13 -
(1st Cir. 2016), and we again find none.       The record shows that

rehabilitation and the specific question whether López should be

incarcerated or committed to a medical institution were squarely

considered at the sentencing hearing, with the District Court going

so far as to ask Méndez his opinion on whether López could receive

adequate treatment in a prison hospital.

          Finally,   López   contends   that   the   District   Court

committed a procedural error by "failing to justify the extent of

its upward variance" when it sentenced López to ninety-six months'

imprisonment, which is fifty months in excess of the topline

sentence recommended by the Guidelines.        He asserts that the

District Court relied upon grounds for the variance -- including

López's possession of a machine gun, the dangerousness of such

guns, López's statements about killing Sica," Méndez's conclusion

that López was an especially dangerous individual, and López's

drug use -- that are either already accounted for in the Guidelines

or are impermissible reasons for extending López's sentence.

          Contrary to López's contention, the District Court did

not rely on impermissible grounds in justifying the variance.     As

we have explained, it was not erroneous for the District Court to

rely upon Méndez's opinion that López was a danger to society.

Nor do we see how the District Court erred in considering López's

admitted drug use, see United States v. Díaz-Rivera, 

,

27 (1st Cir. 2020) (noting that one of the factors the sentencing


                              - 14 -
court    relied    upon     in   imposing      an     upward    variance       was   the

defendant's "history of drug use"), or his statements regarding

the shooting of "Sica," see 18 U.S.C. § 3661 ("No limitation shall

be placed on the information concerning the background, character,

and conduct of a person convicted of an offense which a court of

the United States may receive and consider for the purpose of

imposing an appropriate sentence.").

            To be sure, when a sentencing court imposes a sentence

outside of the Guidelines range, it is "obliged to explain how

[the    defendant's]       situation     was   different       from      the   ordinary

situation    covered       by,   and   accounted        for,   in   the     guidelines

calculation       and   thus     why    such     a    significant        variance    was

justified."       United States v. Ortiz-Rodríguez, 

, 18

(1st Cir. 2015).           In addition, "a major deviation from [the

Guidelines] must 'be supported by a more significant justification

than a minor one.'"        United States v. Martin, 

, 91 (1st

Cir. 2008) (quoting 

). But, the District Court

offered just such a justification by laying out in careful detail

the circumstances of López's case -- including not only the

particular offense itself, but also the evidence in the record

bearing on the danger he posed to society, such as the alleged

shooting    of    "Sica"    --   to    explain       why,   based   on    that   record

evidence, "a sentence above the guideline range reflects the

seriousness of the offense, promotes respect for the law, protects


                                        - 15 -
the public from further crimes by Mr. López, and addresses the

issues of deterrence and punishment."

                                         B.

               López     concludes     by     challenging        the     substantive

reasonableness of his sentence.             "The essence of appellate review

for substantive reasonableness is whether the sentence is the

product of 'a plausible . . . rationale and a defensible result.'"

United States v. Rivera-González, 

, 51 (1st Cir. 2015)

(alteration in original) (quoting 

).                        Though

we   review     substantive       reasonableness    challenges         for   abuse      of

discretion, see United States v. Ruiz-Huertas, 

, 226

(1st    Cir.    2015),    we   owe    "respectful     deference        . . .      to   the

sentencing court's exercise of its informed discretion," 

.

               López contends that the sentence here was substantively

unreasonable      because      "the   lower   court    hardly     touched         on   Mr.

López-Delgado's personal circumstances, ignoring or at the very

least minimizing their severity and role in his development,"

resulting in a sentence that was longer than necessary.                        But, as

we have noted, the District Court made clear it was well aware of

López's    extremely       traumatic     childhood.        The    District         Court

explained that it was ultimately more concerned with the unique

danger it believed López poses to the public.                     As the District

Court    recounted,       López    carried    a   pistol    modified         to    shoot


                                       - 16 -
automatically, consumed copious amounts of drugs, belonged to a

gang, claimed to have killed a man from his housing project, and

has unusual difficulty conforming to society's rules.             Thus, the

District Court provided a plausible rationale for imposing a

sentence that varied upward from the recommended Guidelines range.

          Granted, the variance here was substantial.               But, in

considering   this   aspect    of   the     substantive   reasonableness   of

López's sentence, we must keep in mind that "[i]n most cases, there

is not a single appropriate sentence but, rather, a universe of

reasonable sentences."        

(citing

United States v. Walker, 

, 234 (1st Cir. 2011)). Given

the totality of the circumstances in this case, the District

Court's chosen sentence was not outside of the "universe of

reasonable sentences."1

          We affirm.




     1 We note that, although the District Court did consider
López's need for rehabilitation, as 18 U.S.C. § 3553(a)(2)(D)
requires it to do, nothing in the record suggests that the District
Court imposed a longer sentence than it otherwise would have issued
because it thought he would "benefit from a prison treatment
program." Tapia v. United States, 

, 334 (2011).


                                    - 17 -