Upward Variances After a Taylor Vacatur: Guidelines “Unit Cap” and Dismissed § 924(c) Exposure Can Justify Reimposing the Original Aggregate Sentence

I. Introduction

In United States v. Acevedo-Rodriguez (1st Cir. June 16, 2026), the First Circuit reviewed a resentencing that followed the vacatur of a single 18 U.S.C. § 924(c) conviction under the Supreme Court’s intervening decision in United States v. Taylor, 596 U.S. 845 (2022). Brian Jeriel Acevedo-Rodríguez had pleaded guilty to eleven Hobbs Act robberies (one attempted) and six carjackings (one attempted), committed over roughly three weeks, plus one § 924(c) count predicated on attempted Hobbs Act robbery. After Taylor made that predicate invalid, the § 924(c) count was vacated on collateral review, and the district court resentenced on the remaining counts.

The central issues on appeal were whether the new 207-month sentence—an upward variance from the post-vacatur Guidelines range of 97–121 months—was (1) procedurally reasonable (adequately explained and properly grounded) and (2) substantively reasonable. A threshold dispute existed over an appeal waiver and an alleged government breach of the plea agreement at resentencing, but the court assumed without deciding that the appeal could proceed and affirmed on the merits.

II. Summary of the Opinion

The First Circuit affirmed. It held that the district court did not commit plain procedural error in explaining an upward variance and did not abuse its discretion in selecting 207 months. Critically, the panel emphasized that the Guidelines’ multi-count grouping rules—especially the USSG § 3D1.4 cap—can materially undercount the seriousness of a crime spree with many counts, and that the sentencing judge could reasonably place weight on conduct and exposure reflected in dismissed § 924(c) counts when determining a variant sentence after one § 924(c) conviction is vacated.

III. Analysis

A. Precedents Cited

  • United States v. Taylor, 596 U.S. 845 (2022): The intervening decision that triggered resentencing by holding attempted Hobbs Act robbery is not categorically a “crime of violence” under § 924(c)(3)(A). The First Circuit treated the vacatur as changing the conviction set, not the underlying conduct.
  • United States v. Angiolillo, 864 F.3d 30 (1st Cir. 2017): Used for the court’s choice to “assume without deciding” that the appellate waiver did not bar review.
  • United States v. Colón-De Jesús, 85 F.4th 15 (1st Cir. 2023) and United States v. Millán-Isaac, 749 F.3d 57 (1st Cir. 2014): Provided the governing four-part plain error framework for unpreserved procedural challenges.
  • United States v. Maldonado-Velazquez, 164 F.4th 154 (1st Cir. 2026); United States v. Melendez-Hiraldo, 82 F.4th 48 (1st Cir. 2023); United States v. Del Valle-Rodríguez, 761 F.3d 171 (1st Cir. 2014): The “upward variance explanation” line of cases requiring a court to articulate why the case differs from the norm and why a deviation is warranted.
  • United States v. Carmona-Alomar, 109 F.4th 60 (1st Cir. 2024) and United States v. Rivera-Berríos, 968 F.3d 130 (1st Cir. 2020): Stood for the proposition that when a court relies on factors already counted by the Guidelines, it should explain why they deserve “extra weight” in the particular case. The panel distinguished this case because many counts and related conduct were not fully captured due to § 3D1.4’s cap.
  • United States v. Montero-Montero, 817 F.3d 35 (1st Cir. 2016): Confirmed that a sentencing explanation may be explicit or reasonably inferred from the record.
  • United States v. Ortiz-Pérez, 30 F.4th 107 (1st Cir. 2022) and United States v. Dixon, 449 F.3d 194 (1st Cir. 2006): Reinforced that district courts must consider § 3553(a) factors but need not recite them mechanically.
  • United States v. Díaz-Lugo, 963 F.3d 145 (1st Cir. 2020) and United States v. Lozada-Aponte, 689 F.3d 791 (1st Cir. 2012): Provided the key inference used to reject the mitigation argument—silence about argued mitigation often means “unpersuasive,” not “ignored.”
  • United States v. Ruperto-Rivera, 16 F.4th 1 (1st Cir. 2021); United States v. Majeroni, 784 F.3d 72 (1st Cir. 2015); United States v. Clogston, 662 F.3d 588 (1st Cir. 2011): Emphasized deference to the sentencing court’s weighing of factors and that disagreement over weight assigned to mitigation does not equal unreasonableness.
  • United States v. Contreras-Delgado, 913 F.3d 232 (1st Cir. 2019); United States v. Burgos, 133 F.4th 183 (1st Cir. 2025); United States v. Del-Valle-Camacho, 164 F.4th 52 (1st Cir. 2026); United States v. Ramírez-Ayala, 101 F.4th 80 (1st Cir. 2024): Supplied the deferential substantive-reasonableness framework (“universe of reasonable outcomes,” “plausible rationale and defensible result”).
  • United States v. Valle-Colón, 21 F.4th 44 (1st Cir. 2021): Linked procedural explanation and substantive plausibility, supporting the panel’s streamlined affirmance once it found the explanation adequate.
  • United States v. Fernández-Garay, 788 F.3d 1 (1st Cir. 2015) and Melendez-Hiraldo (quoted): Confirmed a court may consider relevant conduct underlying counts dismissed in a plea negotiation—important here because multiple viable § 924(c) counts were dismissed.
  • United States v. Amirault, 224 F.3d 9 (1st Cir. 2000) and United States v. Rostoff, 53 F.3d 398 (1st Cir. 1995): Used to show the First Circuit has upheld large upward departures/variances (including around 70%) when circumstances warrant.
  • United States v. Rivera-Clemente, 813 F.3d 43 (1st Cir. 2016) and United States v. Ocasio-Cancel, 727 F.3d 85 (1st Cir. 2013): Supported the idea that a court’s reasoning can be inferred by comparing arguments and the PSR to what the judge did.
  • Statutory reinstatement discussion and out-of-circuit authorities: the panel discussed 18 U.S.C. § 3296 and cited Witham v. United States, 97 F.4th 1027 (6th Cir. 2024); Jones v. United States, 39 F.4th 523 (8th Cir. 2022); United States v. Moore, 802 F. App’x 338 (10th Cir. 2020); and contrasted United States v. Petties, 42 F.4th 388 (4th Cir. 2022), plus United States v. Narang, No. 19-4850, 2021 WL 3484683 (4th Cir. Aug. 9, 2021). These citations framed (without deciding) how reinstatement could work and why the district court could consider that background when selecting a sentence.

B. Legal Reasoning

1. Why “already accounted for” aggravators still mattered: the § 3D1.4 cap

The defendant argued the court improperly relied on (i) the number of crimes, (ii) firearm use/brandishing, and (iii) violence inherent in robbery/carjacking— all of which, he claimed, were already captured by Guidelines enhancements and grouping rules.

The First Circuit’s core procedural holding turned on how the Guidelines actually operated in this case. Although Acevedo-Rodríguez committed seventeen robbery/carjacking counts, the multi-count rules capped the cumulative impact:

  • The court starts with the highest adjusted offense level among grouped counts.
  • Other counts add “units,” but USSG § 3D1.4 caps the increase at five levels, no matter how many additional counts exist.
  • Here, the defendant accumulated seventeen units, yet only five levels were added; thus many counts did not affect the final offense level.

From this mechanical reality, the panel reasoned that the Guidelines range did not fully reflect the seriousness of the overall spree—both in sheer count numerosity and in repeated violence/firearm conduct across many episodes. Therefore, it was not plain error for the district court to give these factors “extra weight” in deciding an upward variance.

2. Mitigation was not ignored

On the mitigation claim (age, drug use, rehabilitation, first-offender status), the First Circuit relied on its consistent principle that a judge need not address each mitigating point expressly. Where mitigation is argued and the court states it considered the PSR, the memoranda, and § 3553(a), the more natural inference—under Díaz-Lugo and Lozada-Aponte—is that the judge found the points unpersuasive rather than overlooked.

3. Substantive reasonableness: plausible rationale and defensible result

The panel concluded the upward variance had a plausible rationale: the breadth and seriousness of the spree, repeated actual/threatened violence, and firearm use (including discharge/brandishing). It stressed the conduct did not become less serious merely because one count was later vacated under Taylor.

The court also deemed the length “defensible” even though it exceeded the top of the range by about 70%, citing Amirault and Rostoff as examples where large variances/departures were upheld when anchored in circumstances that the Guidelines under-captured.

4. Dismissed § 924(c) counts and reinstatement “in the wings”

A notable feature of the reasoning was the court’s acceptance that the sentencing judge could consider the reality that the plea bargain had led the government to dismiss multiple other viable § 924(c) counts predicated on completed robberies/carjackings—counts that, if charged and convicted, would have carried extremely large mandatory minimum exposure. The panel pointed to precedent allowing consideration of conduct underlying dismissed counts (Fernández-Garay, quoted in Melendez-Hiraldo) and explained that, on this record, the judge could reasonably view the original aggregate term as still proportionate to the total criminal behavior.

The opinion discussed 18 U.S.C. § 3296 (reinstatement of dismissed counts after a defendant successfully vacates a plea-based conviction) and cited multiple circuits about its possible application when a conviction (rather than the entire plea) is vacated. While the government did not reinstate counts, the court treated the potential reinstatement and the dismissed-count backdrop as part of the sentencing context, not as a shortcut around § 3296’s procedures.

C. Impact

  • Post-Taylor resentencings: The decision supports district courts’ ability to impose substantial upward variances after a § 924(c) vacatur where the remaining Guidelines range understates a defendant’s overall conduct—particularly in multi-count sprees.
  • Guidelines numerosity undercount: The opinion highlights a practical lesson for litigants: the § 3D1.4 unit cap can be a persuasive explanation for why a “within-range” sentence may be insufficient in cases with many grouped counts.
  • Plea bargaining and dismissed counts: The case reinforces that dismissed-count conduct and the structure of a plea agreement may inform § 3553(a) analysis, including at resentencing, so long as the court explains its reasoning and does not treat the plea as eliminating the duty to justify a variance.
  • Appellate posture: By affirming under plain-error review procedurally and deferential abuse-of-discretion review substantively, the opinion underscores the strategic importance of preserving objections at resentencing and building a record focused on why the Guidelines do (or do not) capture the specific seriousness of the defendant’s conduct.

IV. Complex Concepts Simplified

  • § 924(c) “crime of violence” and the categorical approach: A § 924(c) conviction requires that the predicate offense meet a statutory definition of “crime of violence.” Under the categorical approach, courts look to the elements of the offense, not the facts of the case. United States v. Taylor held that attempted Hobbs Act robbery does not categorically qualify.
  • Procedural vs. substantive reasonableness: Procedural reasonableness asks whether the court followed the correct method (correct range, considered § 3553(a), explained variances). Substantive reasonableness asks whether the final sentence is within the broad range of acceptable outcomes given the reasons stated.
  • Plain error review: If a defendant fails to object at sentencing, appellate courts correct only clear, prejudicial errors that seriously affect the integrity of proceedings.
  • USSG § 3D1.4 “unit cap”: When many related counts are grouped, the Guidelines add offense-level “units” for additional counts, but the total increase is capped. In very large sprees, many counts may have little or no effect on the final offense level—creating an argument that the Guidelines understate seriousness.
  • Relevant conduct and dismissed counts: Sentencing can consider reliable information about conduct beyond the counts of conviction, including conduct tied to dismissed counts, particularly where the dismissal resulted from a plea deal.
  • 18 U.S.C. § 3296 reinstatement: In some circumstances, if a defendant later succeeds in vacating plea-based convictions, the government may seek to reinstate counts dismissed under the plea agreement. The opinion treated this as contextual background at resentencing.

V. Conclusion

United States v. Acevedo-Rodriguez clarifies that after a Taylor-driven § 924(c) vacatur, a district court may lawfully reimpose the original aggregate sentence via an upward variance where the post-vacatur Guidelines range undercounts the defendant’s conduct—especially in a multi-count violent spree constrained by the USSG § 3D1.4 cap. The First Circuit’s affirmance also confirms (1) mitigation need not be discussed point-by-point when the record shows it was considered, and (2) dismissed-count conduct and the plea’s dismissed § 924(c) exposure can be part of a plausible § 3553(a) rationale, yielding a sentence that remains within the “universe of reasonable sentencing outcomes.”