text:
    Ana María LÓPEZ-ERQUICIA, Plaintiff, Appellee, v. Ángela WEYNE-ROIG, Defendant, Appellant, Office of the Insurance Commissioner of Puerto Rico; Jane Doe; John Doe, Defendants.
    No. 15-2278
    United States Court of Appeals, First Circuit.
    January 25, 2017

      Luis N. Blanco-Matos for appellant.
    Claudio Aliff-Ortiz, with whom Eliezer Aldarondo-Ortiz, Sheila Torres-Delgado, Eliezer A, Aldarondo-López, David R, Rodríguez-Burns, and Aldarondo & López-Bras were on brief, for appellee.
    Before THOMPSON, KAYATTA, and DYK, Circuit Judges.

       Of the Federal Circuit, sitting by designation.

   KAYATTA, Circuit Judge.

Ana María López-Erquicia (“López”) claims that Puerto Rico’s Insurance Commissioner, Ángela Weyne-Roig (“Weyne”), eliminated López’s job as a director within the Office of the Insurance Commissioner (“OIC”) on account of Lopez’s political affiliation. Weyne now seeks interlocutory review of the district court’s rejection of her argument that her qualified immunity defense entitled her to summary judgment on Lopez’s federal damages claim. Finding that a reasonable official in Weyne’s position could have understood the First Amendment not to protect López against politically motivated removal from her job, we reverse.

I. Background

In denying Weyne’s motion for summary judgment, the district court properly viewed the record in the light most favorable to López, and assumed the facts to be as supported by Lopez’s competent evidence. Neither party claims any error in that regard. We therefore take the facts “as given,” filling any gaps by similarly viewing the record “in the light most favorable to [López].” Johnson v. Jones, 515 U.S. 304, 319, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995).

Under Puerto Rico law, “career” employees may only be terminated for cause, whereas “trust” or “confidential” employees “can be selected and removed at will.” See P.R. Laws Ann. tit. 3, §§ 1462e, 1465; see also id. § 1462c. In 2004, after working as an attorney at the OIC for a number of years, López was promoted to the career position .of Director of the Anti-Fraud Special Investigations (“AFSI”) Division. In January 2009, she was appointed by then-insurance Commissioner . Ramón Cruz-Colón (“Cruz”) to the trust position of Auxiliary Commissioner of Legal Affairs. Several months later, López received an additional trust appointment to the position of Chief Deputy Commissioner, thereby elevating her to second-in-command of the agency. Both Cruz and López were affiliated with the New Progressive Party, as was the Governor of Puerto Rico at the time.

In November 2012, Puerto Rico elected the gubernatorial candidate of the Popular Democratic Party. The Governor-elect subsequently announced that he would be nominating Weyne to serve as his Insurance Commissioner. In January 2013, Ló-pez was reinstated to her previous career position as AFSI Director. Around the same time, Weyne assumed her position as Insurance Commissioner. Shortly thereafter, Weyne summoned López to her office to inform her that “things would be changing.” López responded by pointing out that her AFSI Director position was a career position, and that she intended to continue serving in the position “with excellence.” Nevertheless, López alleges that over the course of the next several months, she was subject to various forms of politically motivated harassment and disparate treatment.

On May 29, 2013, Weyne informed Ló-pez that Weyne was eliminating the AFSI Division and transferring Lopez’s employees to the Market Conduct Division. Because the division of which she was the director ceased to exist, López was reclassified as a Principal Attorney and assigned to the Legal Affairs Division. Although López retained the same salary and fringe benefits, her duties and the nature of her work changed substantially.

Soon thereafter, López filed this, lawsuit against Weyne, the OIC, and certain unknown OIC staff members (collectively, the “Defendants”), alleging that the job reassignment and alleged harassment violated the First and Fourteenth Amendments of the U.S. Constitution, various provisions of Article II of the Puerto Rico Constitution, and various provisions of Puerto Rico law. Under 42 U.S.C. § 1983, López sought damages from Weyne personally for the alleged violations of federal law.

The district court granted the Defendants’ motion for summary judgment as to López’s due process claims, but denied it as to her remaining claims, including her federal political discrimination claims for damages, declaratory relief, and injunctive relief. In so doing, the court rejected Weyne’s principal argument that any rational jury would have to conclude that López simply lost her job as a collateral effect of a broader reorganization of the agency. The district court also rejected an alternative defense raised by Weyne: that even if the reorganization could be interpreted as an action directed at López because of her political affiliation, Weyne was entitled to qualified immunity on the § 1983 damages claim because a reasonable official could have thought that Ló-pez’s position fell within the exception to the First Amendment’s bar on political removals recognized in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). That denial of the qualified immunity defense was immediately appealable for the purpose of allowing review of the district court’s assessment of the law as applied to the assumed facts. See Cady v. Walsh, 753 F.3d 348, 358-59 (1st Cir. 2014). After Weyne promptly sought such review, we granted Weyne’s request for a stay of the proceedings below and denied López’s request for summary disposition. We now turn to the substance of the appeal.

II. Discussion

Under our two-part test for qualified immunity in political discrimination cases, we ask (1) “whether the nature of [the] position was such that defendants were entitled to consider ... political affiliation as a job qualification,” and (2) “even if they were not, whether a reasonable official] at the time would have understood patronage dismissal [or demotion] to be barred.” López-Quiñones v. P.R. Nat’l Guard, 526 F.3d 23, 25 (1st Cir. 2008). For ease of reference, we refer to these two questions, respectively, as the “merits” question and the “reasonableness” question. We treat each question as a question of law, to be answered de novo. Hunt v. Massi, 773 F.3d 361, 367 (1st Cir. 2014).

The preferred approach is to decide the merits question first, reaching the reasonableness question only if the merits question is resolved against the defendant. See López-Quiñones, 526 F.3d at 25 (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 50 L.Ed.2d 272 (2001)). In this case, though, we face an unusual twist: in her answer to the complaint, Weyne admitted that party affiliation was not an appropriate requirement for López’s position. Hence, the district court deemed the merits question “uncontested.” And on appeal, while protesting that she could not have conceded a point of law, Weyne offers no developed argument for why that is so. Like the district court, then, we also treat the merits question as “uncontested.”

This concession nevertheless does little to narrow the scope of our inquiry. To answer the reasonableness question-whether a reasonable official at the time could have understood López’s job to be unprotected—we pretty much have to run through the entire merits analysis anyhow. We do so not to answer the uncontested merits question, but rather to see how close a question it is. Furthermore, the test we apply in assessing the closeness of the question “is objective, rather than subjective; we focus on what a reasonable [official] could have believed, not on allegations about what [the official] actually believed.” Eves v. LePage, 842 F.3d 133, 142 (1st Cir. 2016); see also López-Quifiones, 526 F.3d at 27. Though qualified immunity does not shield “the plainly incompetent or those who knowingly violate the law,” Eves, 842 F.3d at 140-41 (quoting Mullenix v. Luna, — U.S.—, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per curiam)), an official cannot “fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful,” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). With this twist explained, we turn to examining Lopez’s job to see how a reasonable official could have viewed it.

In conducting this examination, we try to determine the extent to which “the position involve[s] government deci-sionmaking on issues where there is room for political disagreement on goals or their implementation.” Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 241-42 (1st Cir. 1986) (en banc), cert. denied 481 U.S. 1014, 107 S.Ct. 1888, 95 L.Ed.2d 496 (1987). We begin “with an inspection of the functions of the position in question.” Valdizán v. Rivera-Hernandez, 445 F.3d 63, 65 (1st Cir. 2006) (citing Branti, 445 U.S. at 518, 100 S.Ct. 1287). We “examine the particular responsibilities of the position to determine whether it resembles a policymaker, a privy to confidential information, a communicator, or some other office holder whose function is such that party affiliation is an equally appropriate requirement.” Jimenez Fuentes, 807 F.2d at 242. We also look to secondary factors such as relative pay, title, and legal or legislative classification to further inform our analysis. See López-Quifiones, 526 F.3d at 28; Fontane-Rexach v. P.R. Elec. Power Auth., 878 F.2d 1493, 1497 n.4 (1st Cir. 1988); Jimenez Fuentes, 807 F.2d at 246.

In analyzing Lopez’s job functions, both parties rely primarily on the “Skills Profile” contained in the record. We do so as well. See Olmeda v. Ortiz-Quiñónez, 434 F.3d 62, 66 (1st Cir. 2006) (citing Duriex-Gauthier v. Lopez-Nieves, 274 F.3d 4, 8 (1st Cir. 2001)) (“[A]n official description of job functions is a presumptively reliable basis for determining those functions.”). The Skills Profile establishes that the AFSI Director performs “Managerial work ... of great complexity and responsibility ... under the general supervision of the Deputy Supervision and Compliance Commissioner.” Though the Deputy Commissioner “gives out specific instructions for the performance” of such work, the AFSI Director “[e]xercises initiative and individual judgment in the performance of ... her duties.”

The Skills Profile also sets forth the various “Duties and Responsibilities” of the position. Among other things, the AFSI Director “[p]lans, coordinates and supervises the work of the ... [u]nit in order to prepare studies and conduct investigations and research about the insurr anee industry.” The AFSI Director “Mo-ordinates with federal, local and state agencies, as well as with private information agencies that may assist in the investigative work” of the unit. The AFSI Director also “[develops rules and procedures and interprets statutes and regulations related to ... her area of responsibility.” The AFSI Director not only “[c]ollaborates "with and advises the Deputy Commissioner in matters related to the duties of the unit,” but also “[substitutes for the Deputy Commissioner, when required.”

So, what are we to make of these functions? To answer that question, it is helpful to consider a sampling of other jobs that have qualified or not qualified for protection from politically motivated removal. As we pointed out in Flynn v. City of Boston, 140 F.3d 42 (1st Cir. 1998), “[t]he Supreme Court cases ... granting or looking toward protection ... have involved a floor supervisor, a guard, a process server, an assistant public defender, a rehabilitation counselor, a road equipment operator, a garage worker, and a dietary manager.” Id. at 45 (citing pertinent cases). We ourselves have found similarly protected a “director of general services” who was responsible for inventory, maintenance, and related “mechanical” functions as well as the supervision of approximately thirty employees, López-Quiñones, 526 F.3d at 26-27; an administrative aide to the assistant director of a municipal agency, Cordero v. De Jesus-Mendez, 867 F.2d 1, 14-15 (1st Cir. 1989); the “Cleaning Supervisor” of a municipality, id. at 16-17; and the “Internal Auditor” of a municipality, whose nonsupervisory job was to check all municipal payroll and financial records for errors, which he would then report to a superior, id. at 17-18.

Conversely, we have found unprotected the positions of Assistant Secretary of State for Protocol Affairs at the Puerto Rico State Department, who made recommendations to and counseled Puerto Rico’s highest elected officials, Méndez-Aponte v. Bonilla, 645 F.3d 60, 67-68 (1st Cir. 2011); a municipal recreation commissioner with “considerable capacity to influence municipal decisions affecting parks and recreation,” Foote v. Town of Bedford, 642 F.3d 80, 86 (1st Cir. 2011); an “administrator” who developed legal strategy on environmental law issues and cases for the Puerto Rico Electric Power Authority, Uphoff Figueroa v. Alejandro, 597 F.3d 423, 429-30 (1st Cir. 2010); a municipal police chief, Wilson v. Moreau, 492 F.3d 50, 53 (1st Cir. 2007); an “Executive II” in Puerto Rico’s Department of Labor who participated in “the formulation and implementation of public and finance policy,” Valdizán, 445 F.3d at 65-66; a regional tax administrator, Galloza v. Foy, 389 F.3d 26, 31-32 (1st Cir. 2004); associate directors of several community centers, Flynn, 140 F.3d at 45-46; and an audit director who supervised employees and counseled a senior official about policy matters, Zayas-Rodriguez v. Hernandez, 830 F.2d 1, 3 (1st Cir. 1987).

We need not precisely locate Lopez’s AFSI Director position on the spectrum established by the foregoing precedent. Rather, we need determine only whether that precedent “placed the ... constitutional question beyond debate,” Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011), he., whether it clearly established the position’s constitutionally protected status. In making that determination, we find especially significant Lopez’s responsibility to “[d]evelop[ ] rules and procedures and interpret ] statutes and regulations” while “advis[ing]” and even “[s]ubstitut[ing] for the Deputy Commissioner.” These job requirements suggest “that [López] is an official, that she is involved in policymaking at least as an adviser, and that she is expected on occasion to serve as a representative of the [OIC] itself.” Olmeda, 434 F.3d at 67. Moreover, as in López-Quiñones—where we found a position constitutionally protected and yet the position’s protected status not clearly established—López “headed the unit in question”; “some of [her] duties were broadly phrased (even if seemingly less impressive in practice)”; she was “lightly supervised”; and she “reported directly to a political appointee.” 526 F.3d at 28.

To be sure, Lopez’s position was not classified as a trust position, and “a legislature’s classification system is ... entitled to some deference.” Jimenez Fuentes, 807 F.2d at 246. Nevertheless, our precedent makes clear that “[a]ctual functions of the job ... control” our analysis. Olmeda, 434 F.3d at 66 (citing Flynn, 140 F.3d at 44); see also Duriex-Gauthier, 274 F.3d at 8. Here, those actual functions preclude us from finding that a reasonable official, even one familiar with the law, would have found it clear that Lopez’s position fell inside the First Amendment’s protective ambit. That, in turn, means that Weyne is immune to a federal claim for damages under § 1983, even if the reorganization was targeted at López because of her political affiliation. See López-Qui-ñones, 526 F.3d at 27- (“[T]he abstract right of a non-policy-related employee to be free from politically motivated termination ... is not enough to defeat qualified immunity.”).

III. Conclusion

We reverse the district court’s denial of qualified immunity and remand for further proceedings consistent with this opinion.

      . This "exception is reserved for instances in which political affiliation is an ‘appropriate requirement for the effective performance of the public office involved,’ ” Galloza v. Foy, 389 F.3d 26, 28 (1st Cir. 2004) (quoting Bran-ti, 445 U.S. at 518, 100 S.Ct. 1287), and "helps to ensure that elected representatives will not be hamstrung in endeavoring to carry out the voters’ mandate,” ici (citing Elrod, 427 U.S. at 367, 96 S.Ct. 2673).

      . The position of Deputy Commissioner is itself a trust position. See P.R. Laws Ann. tit. 26, § 237(1).

      . We limit our sampling of cases to those decided before Weyne eliminated Lopez’s position because the reasonableness inquiry trains on the state of the law at the time of the challenged action, not at the time that the suit challenging the action is filed. See Harlow, 457 U.S. at 818, 102 S.Ct. 2727; accord López-Quiñones, 526 F.3d at 25.

      . The notion of a “reasonable” official is in some respects quite "artificial,” as few officials will be familiar enough with the.law to determine exactly what is “clearly, established.” Hallstrom v. City of Garden City, 991 F.2d 1473, 1483 (9th Cir. 1993); see also Amore v. Novarro, 624 F.3d 522, 535 (2d Cir. 2010) ("[T]he statement in Harlow that reasonably competent public officials know clearly established law[] is a legal fiction.” (second alteration in original) (quoting Lawrence v. Reed, 406 F.3d 1224, 1237 (10th Cir. 2005) (Hartz, J., dissenting))). In reality, the reasonableness question combines a .court's assessment of the law with an official’s hypothetical application of that assessment to the relevant factors. Cf Heien v. North Carolina, — U.S.—, 135 S.Ct. 530, 541, 190 L.Ed.2d 475 (2014) (Kagan, J., concurring) (making the analogous observation, albeit in the “more demanding” context of determining when the Fourth Amendment permits seizures predicated upon mistakes of law, that "the test is satisfied when the law. at issue is 'so doubtful in construction' that a reasonable judge could agree with the officer’s [proffered] view” of the law (quoting The Friendship, 9 F.Cas. 825, 826 (C.C.D. Mass. 1812) (No. 5,125))).

      . On appeal, López advances no claim that any conduct that occurred prior to her job reassignment entitles her to recover damages from Weyne even if her job reassignment does not.


source: Caselaw Access Project

author: KAYATTA, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Kelvin SANTINI-SANTIAGO, Defendant, Appellant.
    No. 15-1605
    United States Court of Appeals, First Circuit.
    January 27, 2017

      Luz M. Ríos-Rosario on brief for appellant.
    Rosa 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-.
    Before TORRUELLA, STAHL, and KAYATTA, Circuit Judges.
   KAYATTA, Circuit Judge.

Kelvin 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 eourt 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.

I. Discussion

We typically review sentencing decisions for abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Because San-tini 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 proeeed-ings.’” 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)).

Santini challenges only the procedural reasonableness of his sentence. We address his arguments in the order in which he presents them.

A. Variance or Departure?

Santini first invokes Federal Rule of Criminal Procedure 32(h), which provides in pertinent part that “[bjefore [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 presen-tenee report nor the court warned him that such a departure was in the offing.

Rule 32(h) is a vestige of the time before United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (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, 125 S.Ct. 738. 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, 128 S.Ct. 2198, 171 L.Ed.2d 28 (2008); United States v. Pantojas-Cruz, 800 F.3d 54, 60 (1st Cir. 2015).

So one 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 49-50, 128 S.Ct. 586.

All of 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) (opining that “Rule 32(h) has lost all utility”). Rather, it polices only a sentencing court’s choice of labels.

Whether a violation of such a vestigial rule could ever qualify as plain error we need not decide because, in this case, the district court ultimately rested its rationale on the nomenclature of a § 3553(a) variance‘rather than a Rule 32(h) departure. Indeed, this case well illustrates that a departure is just a variance by another name. The objects of the district court’s unease with a non-departing, non-varying sentence within the applicable guidelines sentencing range were Santini’s longtime drug use, his status as a fugitive charged with first degree murder and weapons violations, and the fact that he was captured carrying a stolen firearm after attempting to flee. To describe the effect it proposed to give to these factors, the court at one point used language that signaled an intent to make a departure:

in imposing the sentence^] the Court will consider going upwards pursuant-to the provisions of guideline section 4A1.3 and takes into consideration reliable information that concedes the possibility that this [defendant’s] Criminal History category is substantially under represented and has substantially under represented the seriousness of the offense, the one that he was previously convicted.

Just as we have already observed, the very same factors that prompted these comments also fit well within the scope of § 3553(a): the fact that Santini was fleeing serious criminal charges, while armed, bore on the “seriousness of the offense,” 18 U.S.C. § 3553(a)(2)(A), and the drug use and prior arrest bore on “the characteristics of the defendant,” id. § 3553(a)(1). Apparently seeing this overlap, the district court abandoned its signaled departure route and expressly opted to engage in a variance, concluding that, “in defining the proper sentence for this defendant that will be consistent with one reflecting the seriousness of the offense charged and consistent as well with the actions that he had engaged in,” the court would “engage in a variance.” See United States v. Nelson, 793 F.3d 202, 206-07 (1st Cir. 2015) (finding a variance where “[t]he district court at one point used the term ‘depart’ but then expressly said that it was ‘varying upward’” and “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”). Setting a sentence in this manner is the hallmark of a variance, even when the sentencing court references U.S.S.G. § 4A1.3. See United States v. Aponte-Vellón, 754 F.3d 89, 93 (1st Cir. 2014).

For these reasons, the district court did not obviously violate Rule 32(h) when it decided to impose a sentence above the guidelines sentencing range, nor did the manner in which it proceeded affect Santi-ni’s substantial rights. There was, in short, no plain error.

B. Proper Grounds for Variance

Santini’s next argument is that the factors cited by the court in moving upward from the guidelines sentencing range were not factors that a court can rely on in sentencing. First, he argues that the district court erred by accounting for unproven allegations supporting his state arrest on weapons and homicide charges, essentially penalizing him for criminal conduct for which he had not yet been convicted at the .time of sentencing. Second, he contends that the district court improperly based its decision on his “fail[ure] to turn himself in.”. Third, he argues that it was inappropriate for the district court to consider either whether he “learn[ed] his lesson” from a previous conviction and sentence or whether he was carrying a dangerous weapon.

These challenges are unavailing because, among other things, they materially misconstrue the district court’s decision-making process. For one thing, taking note of the pendency of the criminal case against Santini neither constituted punishment for a crime not yet proven nor deprived Santi-ni of his constitutionally guaranteed presumption of innocence. The district court did not purport to impose an above-guidelines sentence as a consequence of the alleged criminal acts underlying Santini’s state case. Rather, it took account of the fact that he was a fugitive from justice at the time of his arrest. Likewise, accounting for Santini’s fugitive status in balancing the sentencing factors was the court’s way of pointing out that when Santini committed the offense to which he pled guilty, he did so under circumstances that posed heightened risks: he was not merely a felon in possession of a firearm, but was a felon wanted for murder carrying a stolen gun and both hiding and fleeing from capture. So, too, the district court’s evaluation of Santini’s firearm possession and his failure to learn from his previous interaction with the criminal justice system was nothing more than an exercise in factor-balancing concerning the seriousness of Santini’s crime and his likelihood to recidivate.

The district court evaluated the factors provided under 18 U.S.C. § 3553(a) and determined that an above-guidelines sentence was appropriate. Decisions like these are within the sound discretion of sentencing courts, and we “will not disturb a well-reasoned decision to give greater weight to particular sentencing factors over others.” United States v. Gibbons, 553 F.3d 40, 47 (1st Cir. 2009). We are especially loath to meddle under a plain error standard of review, where an appellant must show a deprivation of his substantial rights. In sum, the district court’s decision to impose a sentence of thirty-six months’ imprisonment followed by a three-year term of supervised release was not unreasonable.

C. Judicial Bias

Finally, Santini makes a passing reference to what he views as actions of the district court that “created an appearance of bias or impartiality that could reasonably be questioned or considered ‘actual bias’ which warrants ... recusal” under 18 U.S.C. § 455. Santini makes no citation to the record and offers nothing in the way of argument to support this contention. In light of his failure to develop an argument on this front, the issue is waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

II. Conclusion

The district court’s “explanation, though brief, contained a clear, cogent, and coherent rationale for its decision.” United States v. Madera-Ortiz, 637 F.3d 26, 31 (1st Cir. 2011). We accordingly affirm.

      . The plea agreement included an appellate waiver. The patties agree, however, that the waiver does not bar this appeal because San-tini’s sentence exceeded the parties' stipulated range.

      . Section 4A1.3 is entitled “Departures Based on Inadequacy of Criminal History Category.”

      . This is not to say that advance notice is never required where a sentencing court engages in a variance; indeed, both we and the Supreme Court have suggested otherwise. See Irizarry, 553 U.S. at 715-16, 128 S.Ct. 2198; United States v. Vega-Santiago, 519 F.3d 1, 5 (1st Cir. 2008) (en banc) (“[WJhen proposing to adopt a variant sentence relying on some ground or factor that would unfairly surprise competent and reasonably prepared counsel, a judge must either provide advance notice or, on request, grant a continuance in order to accommodate a reasonable desire for more evidence or further research.”). Santini, however, neither moved for a continuance nor argues on appeal that reasonably competent counsel would have been unfairly surprised by the district court's variant sentence. Nor, it seems, could he; the facts upon which the district court based its variant sentence were undisputed and contained within the presen-tence report. See Vega-Santiago, 519 F.3d at 5.