United States Court of Appeals
                     For the First Circuit


No. 15-1353

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                        LAWRENCE MADSEN,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW HAMPSHIRE

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


                             Before

                    Kayatta, Selya and Stahl,
                         Circuit Judges.


     Tina Schneider on brief for appellant.
     Donald Feith, Acting United States Attorney, and Charles L.
Rombeau, Assistant United States Attorney, on brief for appellee.




                         January 8, 2016
             SELYA,   Circuit   Judge.        Defendant-appellant      Lawrence

Madsen asserts that the prosecutor's statements during closing

argument in his criminal trial misstated the evidence, amounted to

proscribed comments on his failure to testify, and improperly

shifted the burden of proof.          He further asserts that the district

court abused its discretion in imposing a variant sentence above

the guideline sentencing range (GSR).           Finding these claims to be

without merit, we affirm the defendant's conviction and sentence.

I.    BACKGROUND

             In August of 2014, a federal grand jury sitting in the

District of New Hampshire charged the defendant with seven counts

of aiding and abetting the making of material false statements in

connection with the acquisition of firearms.             See 18 U.S.C. §§ 2,

922(a)(6), 924(a)(2).      The indictment addressed a series of seven

gun purchases (involving a total of nine guns) by a codefendant,

Bretton Crawford.      Crawford eventually pled guilty and thereafter

cooperated with the government.          The defendant, however, stood his

ground.

             We rehearse the key facts as the jury could supportably

have found them at trial.         See United States v. Gobbi, 

, 305 (1st Cir. 2006). Crawford testified that he had purchased

the   guns    identified   in   the    indictment   as   a   "straw"   for   the

defendant, falsely describing himself on federal forms as the real

buyer.       According to Crawford, the defendant (a Massachusetts


                                      - 2 -
resident) relied on Crawford's ability to purchase firearms in New

Hampshire in order to acquire weapons that he (the defendant) could

then re-sell illicitly to third parties.              The defendant funded

Crawford's purchases and, in addition, paid him a $100 emolument

for each firearm.

            Crawford's    version    of     events   was   corroborated    in

substantial part by the dealers from whom he purchased the guns.

It was also corroborated by text messages between Crawford and the

defendant, text messages between the defendant and a third party,

and   a   surveillance   video   showing     Crawford   and   the   defendant

together in a gun shop.     The defendant did not testify.

            At the close of all the evidence, the jury convicted the

defendant on six of the seven counts.                During the sentencing

hearing, the district court set the defendant's base offense level

at twelve; added a four-level enhancement because the offense

conduct involved between eight and twenty-four weapons, see USSG

§§2K2.1(a)(7), (b)(1)(B); and placed the defendant in criminal

history category I.      Although these calculations yielded a GSR of

21 to 27 months, the court varied upward and imposed a 36-month

term of immurement.      This timely appeal followed.

II.   ANALYSIS

            In this venue, the defendant raises claims of both trial

and sentencing error.     We consider these claims sequentially.




                                    - 3 -
              A.   The Prosecutor's Closing Argument.

           Grasping the defendant's claim of trial error requires

some additional background.    In his opening statement, defense

counsel began by telling the jury:

     This is Larry Madsen.     Larry is innocent of these
     charges, ladies and gentlemen. He didn't do what the
     government has accused him of doing, and I'm going to
     talk to you a little about the evidence in the case.

A few moments later, defense counsel returned to this theme,

declaring: "Well, Larry didn't do it.    He's not guilty of these

crimes."   Later, defense counsel spoke as if the words were coming

from the defendant:

     [H]e told [the police], yeah, I know Bretton Crawford.
     He's my friend. And, yeah, I went with him on several
     occasions when he purchased guns, but I didn't give him
     money. I didn't ask him to go buy guns for me. I didn't
     tell him what guns to buy. I didn't do it.

           We fast-forward to the government's closing argument.

There, the prosecutor reviewed the evidence introduced at trial.

Near the end of his argument, the prosecutor reminded the jury of

defense counsel's opening statement:

     Now, the judge has told you and I'll repeat, a defendant
     has no obligation to put on any evidence of any kind.
     But I would say it's fair to at least think about what
     was told to you in the opening. The defendant's opening
     said, quote, I am innocent. Quote, he did not do it.
     So you should think about that when you look at the
     evidence. Is the defendant innocent? Did he not do it?

     Let's consider the evidence that I've told you in teasing
     that out. Is he innocent. Did he not do it.




                               - 4 -
The defendant did not contemporaneously object to any of these

remarks.   Thus, our review of the challenge that he raises for the

first time on appeal is for plain error.        See United States v.

Taylor, 

, 972-73 (1st Cir. 1995).

             To obtain relief under this standard, a defendant 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.

Duarte, 

, 60 (1st Cir. 2001). This is a difficult hurdle

to vault: plain error review exists to correct "blockbusters," not

"the ordinary backfires . . . which may mar a trial record." United

States v. Griffin, 

, 100 (1st Cir. 1987).

             The defendant marshals a trio of contentions stemming

from the prosecutor's closing argument.     None of these contentions

is persuasive.

             1.   Mis-quotation.    To begin, the defendant suggests

that the prosecutor's mis-quotation of defense counsel's opening

statement constituted prosecutorial misconduct.      The premise that

underlies this suggestion is sound: an incorrect recitation of

either the evidence or the record in a closing argument may

constitute    prosecutorial   misconduct.     See   United   States   v.

Azubike, 

, 38 (1st Cir. 2007).           In this context,

"misconduct" is not limited to "deliberate wrongdoing," but may


                                   - 5 -
include "a statement of fact that is mistaken or unsupported by

any evidence."       

conclusion that the defendant would

have us draw from this premise is questionable.           Especially under

plain error review, we must assess the prosecutor's statements

"within the context of the case as a whole."             United States v.

Pires, 

, 14 (1st Cir. 2011). Such an assessment requires

us     to    consider   "the   frequency     and   deliberateness   of   the

prosecutor's comments, the strength and clarity of the trial

judge's instructions, and the strength of the government's case

against the defendant."        United States v. Morales-Cartagena, 

, 854 (1st Cir. 1993).

               Viewed through this lens, the defendant's claim of error

cannot withstand scrutiny.           First and foremost, the substantive

difference between the versions is barely visible to the naked

eye.        The prosecutor appears to have conflated two of defense

counsel's statements — "Larry is innocent" and (speaking in the

defendant's voice) "I didn't do it" — into the unitary phrase "I

am innocent."       It is hard to conceive of such a minor alteration

as a basis for a finding of prosecutorial misconduct.             After all,

the prosecutor's statement accurately conveyed the essence of what

defense counsel had said.

               Furthermore,    the    mis-quotation     was   a     one-time

occurrence, and there is no indication that it was deliberate.            In


                                     - 6 -
addition, the district court made clear to the jury, both at the

beginning and at the end of the trial, that statements by counsel

were   not   evidence.      Those   lucid   instructions   dissipated   any

realistic threat of prejudice.        See, e.g., 

;

United States v. Ortiz, 

, 36 (1st Cir. 2006); Morales-

.         And, finally, the government's case

against the defendant was robust.           Under these circumstances, it

is fanciful to suggest that the prosecutor's trivial mis-quotation

amounted to plain error.

             2.   Failure to Testify.       Taking a different tack, the

defendant     asseverates    that    the     excerpted   portion   of   the

prosecutor's closing argument comprised an improper comment on his

failure to testify.      We discern no plain error.

             It is, of course, common ground that "[c]omment by a

prosecutor on a defendant's failure to testify violates the Fifth

Amendment guarantee against self-incrimination."           United States v.

Wihbey, 

, 769 (1st Cir. 1996).            Where, as here, the

allegedly infringing comment is not explicit, an inquiring court

must examine whether "the language used was manifestly intended or

was of such character that the jury would naturally and necessarily

take it to be a comment on the failure of the accused to testify."

United States v. Vázquez-Larrauri, 

, 286 (1st Cir.

2015) (quoting United States v. Newton, 

, 27 (1st Cir.

2003)). As this test implies, much depends on context. See United


                                    - 7 -
States v. Sepulveda, 

, 1187 (1st Cir. 1993).       And when

— as in this case — no contemporaneous objection occurred, "it

seems fair to give the arguer the benefit of every plausible

interpretation of her words."      

case at hand, there is nothing to suggest a

manifest intent to comment on the defendant's silence.          Nor is

there anything to suggest that the jurors would naturally and

necessarily have taken the challenged statement as a comment on

the   defendant's   failure   to    testify.      Fairly   viewed,   the

prosecutor's closing was not designed to criticize the defendant's

failure to testify but, rather, was designed to refocus the jury's

attention on the trial evidence.         The most natural understanding

of the challenged statement is as a reference back to the words

used by defense counsel in his opening statement.           Giving the

arguer the benefit of the interpretive doubt, see 

no plain error.

          3.   Burden of Proof.     In a final variation on his theme,

the defendant complains that the prosecutor's remarks improperly

shifted the burden of proof. This fusillade, too, misses the mark.

          To be sure, the government has the burden of proving all

the elements of a criminal charge beyond a reasonable doubt; and

"a prosecutor may cross the line by arguing to the jury that the

defendant is obligated to present evidence of his innocence."

United States v. Diaz-Diaz, 

, 135 (1st Cir. 2005).


                                   - 8 -
But that is not what happened here.           Even if the challenged

statements     are   somehow   susceptible    to   a   burden-shifting

interpretation — a matter on which we take no view — we cannot

simply assume, in the absence of a contemporaneous objection, that

the jury interpreted the prosecutor's words in the worst possible

light.   See 

, 287 n.8; United

States v. Wilkerson, 

, 8-9 (1st Cir. 2005).      Stripped of

rhetorical flourishes, the defendant's plaint is nothing more than

an invitation "to fish in the pool of ambiguity," 

— and on plain error review, such invitations ought

not to be accepted.

             We add, moreover, that any possibility of harm was

ameliorated by the surrounding circumstances.       For one thing, the

district court gave strong and explicit instructions about the

burden of proof, the presumption of innocence, and the fact that

the court, not counsel, is the source of the applicable law.       For

another thing, there was substantial evidence of the defendant's

guilt.   Given the record as a whole, any error surely would not

sink to the level of plain error.1       See 

-

9; 

.




    1 The defendant's reliance on our decision in United States v.
Roberts, 

(1st Cir. 1997), is mislaid.      That case
involved a clear burden-shifting statement by the prosecutor: that
"the defendant has the same responsibility [as the government] and


                                 - 9 -
                    B.    The Sentencing Determination.

            The    process      of   determining     the    reasonableness     of   a

sentence is bifurcated: an inquiring court must "first determine

whether the sentence imposed is procedurally reasonable and then

determine whether it is substantively reasonable."                 United States

v.    Clogston,   

,   590   (1st    Cir.    2011).      Generally

speaking, both aspects of this review are for abuse of discretion.

See Gall v. United States, 

, 46 (2007); United States

v. Martin, 

, 92 (1st Cir. 2008).

            In this case, the district court — after noting that the

applicable GSR was 21 to 27 months — applied an upward variance

and sentenced the defendant to 36 months in prison.                    In doing so,

the court concluded that the guideline range was inadequate because

the    offenses   of     conviction     involved     the    defendant's    manifest

intent to re-sell the purchased firearms on a secondary (illegal)

market.      The       defendant     challenges      this     sentence    as   both

procedurally and substantively unreasonable.2

            1.      Procedural       Reasonableness.          Procedurally,     the

defendant    contends       that     the   district        court   insufficiently




that is to present a compelling case." 

(alteration in
original). Nothing of that sort transpired here.

       2
       The government posits that some aspects of the defendant's
claims of sentencing error should be reviewed only for plain error.
We bypass this argument because, regardless of the standard of
review, the claims are bereft of merit.


                                        - 10 -
explained the upward variance and erroneously relied on factors

already taken into account by the sentencing guidelines.                       This

contention is futile.

             As a general rule, "a sentencing court's obligation to

explain a variance requires the court to offer a plausible and

coherent rationale . . . but it does not require the court to be

precise to the point of pedantry."               United States v. Del Valle-

Rodríguez, 

, 177 (1st Cir.), cert. denied, 

(2014).     When a court imposes an upwardly variant sentence,

its rationale "should typically be rooted either in the nature and

circumstances      of   the   offense     or     the   characteristics    of    the

offender."     United States v. Flores-Machicote, 

, 21

(1st Cir. 2013) (quoting 

).                     The factors

elaborated by the court "must justify a variance of the magnitude

in question."      

.

             In this case, the sentencing court's explanation easily

passes muster.      At the disposition hearing, the court indulged in

an extensive colloquy with the prosecutor and defense counsel.                      It

addressed a range of concerns, including the proportionality of

the   defendant's       sentence   vis-à-vis       Crawford's      sentence,    the

defendant's personal circumstances, and the like. The court placed

great emphasis on the serious nature of the defendant's conduct:

the evidence at trial clearly showed that the defendant had

arranged   straw    purchases      of    firearms      in   New   Hampshire    as    a


                                        - 11 -
precursor   to    re-selling   the   purchased     firearms    illegally   in

Massachusetts.     The court concluded that:

     [A]n upward variance is warranted here and for the
     reasons that I've specified.        I don't think the
     guidelines really adequately capture how — the
     significance of the harm that a person causes when they
     engage in the business of acquiring guns for resale
     through illegal means. I just think that the harm to
     the society is really great with that kind of offense.
     And so when I consider the purposes of the sentencing
     statute, the concept of a just sentence in my view calls
     for a significant period of incarceration. The need to
     protect the public from you warrants a significant
     period of incarceration and the need to deter others
     from engaging in similar kind[s] of conduct.

            This was a plausible, cogent, and entirely sufficient

explanation of the court's reasons for its upward variance.                Nor

were the factors upon which this variance rested double-counted.

Although the guidelines suggest that straw purchases are usually

made to circumvent state or federal law, see USSG §2K2.1, comment

(n.4), the district court's concern in this case was broader: the

defendant   not    only   received   guns   from    Crawford    (his   straw

purchaser) but also sought to re-sell the guns illegally.

            Relatedly, the defendant argues that the sentencing

guidelines envision profit as a normal incident of the offenses of

conviction and, thus, consideration of the profit motive as a basis

for an upward variance was redundant.        In support, the defendant

relies on USSG §2K2.1, comment (n.15), which provides for a

downward departure where no money changes hands between the straw

buyer and person who employs him.       But the defendant conveniently


                                 - 12 -
ignores the rest of the application note, which conditions the

appropriateness of such a downward departure on a finding that

"(A) none of the enhancements in [USSG §2K2.1(b)] apply, (B) the

defendant was motivated by an intimate or familial relationship or

by threats or fear to commit the offense and was otherwise unlikely

to commit such an offense, and (C) the defendant received no

monetary compensation from the offense."           

Because   none    of   these    three    conditions       obtains   here,   the

defendant's argument is unavailing.3

          2.     Substantive Reasonableness.          This leaves only the

defendant's claim that his 36-month sentence is substantively

unreasonable.      That   sentence      represents    a    nine-month    upward

variance from the top of the defendant's GSR.                Although such a

variance is substantial (a one-third increase from the GSR), "even

a substantial variance does not translate, ipso facto, into a

finding that the sentence is substantively unreasonable."               Flores-

.

          In     examining     the   defendant's     claim    of    substantive

unreasonableness, we are mindful that "a range of reasonable

sentences" exists for any given offense.           

.




    3 While the defendant suggests more broadly that sentencing
enhancements built into the guidelines for the number of guns
purchased serve as "a proxy for profit," see USSG §2K2.1(b)(1),
nothing in the guidelines compels such a conclusion.



                                     - 13 -
The question is not whether we, if sitting as a nisi prius court,

would have meted out the same sentence.            See Del 

.      Instead, the question is whether the sentence

imposed   is    anchored   by    a   plausible    sentencing   rationale   and

culminates in a defensible result.            See 

.

           Considering "the duration of the sentence in light of

the totality of the circumstances," Del 

, we have scant difficulty in concluding that the defendant's

sentence was within the universe of reasonable sentences for the

offenses of conviction.          The court pointed, for example, to the

defendant's principal culpability in the scheme and his goal of

personal profit at the expense of the broader societal good.

           Contrary to the defendant's importunings, this is not

simply a case of procuring the services of a straw purchaser and

falsifying the attendant paperwork in order to buy guns.             Rather,

the most salient fact is that the defendant committed these

offenses for the purpose of re-selling the purchased firearms on

a   secondary    (illegal)      market.    This    fact   distinguishes    the

defendant's case and takes it out of the heartland for the offenses

of conviction. We conclude, therefore, that it was securely within

the district court's sound discretion to vary upward from the GSR.

           That leaves only the question of the extent of the

variance (nine months).         Given the circumstances, we are confident

that the extent of the variance was reasonable.


                                     - 14 -
            In sum, the district court's sentencing rationale —

which emphasized the reprehensible nature of the crimes and the

need for deterrence — was plausible; and the sentencing outcome is

plainly defensible.    It follows that the challenged sentence is

substantively reasonable.

III.   CONCLUSION

            We need go no further. For the reasons elucidated above,

the defendant's conviction and sentence are



Affirmed.




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