UNITED STATES OF AMERICA, Appellee, v. FRANKIE DEJESÚS, Defendant, Appellant.
No. 19-1445
United States Court of Appeals For the First Circuit
July 9, 2021
Hon. John A. Woodcock, Jr., U.S. District Judge
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE. Before Kayatta, Selya, and Barron, Circuit Judges.
Halsey B. Frank, United States Attorney, and Benjamin M. Block, Assistant United States Attorney, on brief for appellee.
I. BACKGROUND
Because the defendant‘s sentence followed a guilty plea, we draw the facts from the change-of-plea colloquy, the presentence investigation report (PSI Report), and the transcripts of the pre-sentencing conference and disposition hearings. See United States v. Rivera-González, 776 F.3d 45, 47 (1st Cir. 2015); United States v. Del Valle-Rodríguez, 761 F.3d 171, 173 (1st Cir. 2014).
Beginning in 2015, the defendant became involved in a conspiracy to distribute controlled substances. The nerve center of the conspiracy was in Rochester, New York. A network of associates transported weekly shipments of heroin and crack cocaine from out of state to a dozen or more distribution locations, known as “trap houses,” in central Maine. Members of the conspiracy traveled back and forth between the drug ring‘s New York headquarters and these trap houses in order to supply and sell the drugs and collect the proceeds. This arrangement facilitated a heavy flow of drugs: from May 27 to June 26, 2016, the defendant himself moved a converted drug weight of 1,874.11
After participating in a shootout at a Walmart parking lot in Augusta, Maine, the defendant came to the attention of the authorities. He was arrested on state charges on June 26, 2016. His cell phone was seized, and a forensic search turned up text messages indicative of drug trafficking.
Incident to this arrest, the defendant was charged with reckless conduct with a dangerous weapon, see
That was not the end of the matter. As a result of the leads generated from the defendant‘s cell phone, a federal grand jury sitting in the District of Maine returned an indictment against him. The indictment charged him with a single count of conspiracy to distribute and to possess with intent to distribute controlled substances. See
While on pretrial release, the defendant worked for a number of different employers, including Speedway (a convenience-
Just one day before the scheduled hearing, the defendant was arrested and charged with fourth-degree grand larceny for stealing from Speedway. See
On November 20, 2018, the defendant belatedly pleaded guilty to the pending federal charge. At the district court‘s direction, the probation office prepared a PSI Report. The PSI Report recommended a total offense level (TOL) of 34 and a criminal history category (CHC) of I, yielding a guideline sentencing range (GSR) of 151-188 months. In calculating the TOL, the probation office declined to recommend an offense-level reduction for acceptance of responsibility, see
At the disposition hearing, the district court adopted the probation office‘s recommended guideline calculations (including the recommendation that the defendant not receive an offense-level reduction for acceptance of responsibility). After weighing the relevant sentencing factors, see
II. ANALYSIS
In fashioning a sentence, a district court must first “use the Sentencing Guidelines to calculate a recommended sentencing range” and then consider “whether a guideline sentence is appropriate in light of the factors enumerated in
The task of evaluating a sentence typically involves a two-step pavane. See United States v. Miranda-Díaz, 942 F.3d 33, 39 (1st Cir. 2019); United States v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011). In executing this pavane, “we first determine whether the sentence imposed is procedurally reasonable and then determine whether it is substantively reasonable.” Clogston, 662 F.3d at 590. Here, the defendant challenges both the procedural integrity and the substantive reasonableness of his sentence. Apart from his challenge to the court‘s declination to make a downward adjustment for acceptance of responsibility, he finds no fault with the district court‘s guideline calculations.
The defendant‘s twin challenges occur at separate steps in the sentencing pavane. Thus, we address them separately.
A. The Claim of Procedural Error.
The defendant‘s procedural challenge centers on the district court‘s decision to deny him an offense-level reduction for acceptance of responsibility. This challenge has two facets.
To begin, the defendant asserts that the district court failed to make an individualized assessment of his circumstances when evaluating his acceptance of responsibility. Instead, it denied him the offense-level reduction based on a general policy and, thus, committed error. See United States v. Flores-Machicote, 706 F.3d 16, 24 (1st Cir. 2013) (requiring district courts to “ground sentencing determinations in case-specific factors“). As evidence of this purported error, the defendant points to a statement made by the court during the disposition hearing. At that time, the judge stated: “[i]n general, it has been my policy
The words of a sentencing court must, of course, be taken in context. See United States v. Rodríguez-Cruz, 997 F.3d 362, 366 (1st Cir. 2021) (“A party cannot lift a single comment from the sentencing dialogue and focus on it in splendid isolation.“). Here - when the challenged statement is viewed in its full context - the defendant‘s assertion withers. The statement, read as a whole, described a tendency, not a rigid policy. And perhaps more importantly, the court went on to make clear that its application of its approach “depend[ed] on the nature of the new criminal activity,” thereby putting to rest any impression that the defendant was being sentenced based on a general policy.
Last - but surely not least - the court couched the denial of the acceptance-of-responsibility reduction not only on the defendant‘s commission of a new offense while on pretrial release but also more specifically on facts unique to the defendant‘s new offense. These idiosyncratic facts included the method of perpetration of the theft, its timing, and the defendant‘s relationship with his victim. This focus on the particular circumstances surrounding the aggravating offense “unmistakably shows that the judge gave individualized attention
The second facet of the defendant‘s claim of procedural error is no more robust. The defendant challenges the acceptance-of-responsibility denial frontally, asserting that the district court overemphasized the seriousness of the theft and downplayed the significance of his guilty plea to the offense of conviction. Thus, the defendant submits, the court contradicted a core principle of the guidelines: that a timely and truthful admission of guilt be given great weight in assessing acceptance of responsibility. See
There is less to this argument than meets the eye. We acknowledge, of course, that the guidelines are advisory, see United States v. Booker, 543 U.S. 220, 259-60 (2005), and the Sentencing Commission‘s commentary is not binding, see United States v. Chuong Van Duong, 665 F.3d 364, 368 (1st Cir. 2012). Even so, the baseline rule is that, in calculating a defendant‘s GSR, “[c]ourts ordinarily should interpret and apply the guidelines as written,” looking both to the “guideline provision about which the defendant complains” and “its associated commentary.” United States v. Fiume, 708 F.3d 59, 62 (1st Cir. 2013). The weighing of guideline factors is left principally to the district court‘s judgment and its factfinding will not be disturbed unless shown to be clearly erroneous. See United States v. Franky-Ortiz, 230 F.3d 405, 408 (1st Cir. 2000); United States v. Royer, 895 F.2d 28, 29-30 (1st Cir. 1990). What is more, the court is not obliged to spell out its reasoning in exquisite detail: a “plausible basis for arriving at [a particular] conclusion” is sufficient. Royer, 895 F.2d at 30.
There was no clear error here. The defendant bore the burden of proving his entitlement to an offense-level reduction for acceptance of responsibility. See United States v. D‘Angelo, 802 F.3d 205, 210 (1st Cir. 2015). Although the guidelines look with favor upon a timely guilty plea as a plinth for an acceptance-of-responsibility adjustment, see
In the case at hand, the district court furnished a convincing explanation as to why it deemed the defendant‘s new
These reasons are persuasive, especially since the defendant attempted to counter them solely through his own testimony.1 Because the district court was “not bound to credit self-serving protestations,” United States v. Jiminez, 498 F.3d 82, 86 (1st Cir. 2007), its determination that the defendant had deliberately engaged in significant criminal conduct while on pretrial release cannot be said to be clearly erroneous. And once the district court supportably has found that the defendant has committed a new offense after being charged, it “may . . . decline to award a reduction for acceptance of responsibility on that ground alone.” United States v. Carrington, 96 F.3d 1, 9 (1st Cir. 1996).
This leaves the defendant‘s claim that his sentence is substantively unreasonable. We treat that claim as preserved, see Holguin-Hernandez v. United States, 140 S. Ct. 762, 766 (2020), and review it for abuse of discretion, see Gall, 552 U.S. at 51; Martin, 520 F.3d at 92. To apply this standard, we must consider the totality of the circumstances. Martin, 520 F.3d at 92.
Our starting point is the sentence itself: a 130-month term of immurement. That sentence was a full twenty-one months beneath the bottom of the GSR. Notwithstanding this sharp downward variance, the defendant argues that - all things considered - any sentence exceeding 120 months should be regarded as substantively unreasonable.2
This argument cannot withstand scrutiny. “Our case law makes pellucid that the hallmarks of a substantively reasonable sentence are a plausible sentencing rationale and a defensible result.” Rodríguez-Cruz, 997 F.3d at 366. Both hallmarks are present here.
In this instance, the court‘s rationale included its appraisal of the defendant‘s culpability. It stressed his role in a sprawling conspiracy that trafficked large amounts of highly addictive drugs. The court also thought it significant that the defendant participated in the conspiracy not out of addiction but out of a decision to profit from a “business that trades on misery.” So, too, the court attached significance to the defendant‘s participation in a risky shootout in a Walmart parking lot during broad daylight, endangering innocent bystanders who were close at hand.
The court then extended its rationale to take account of mitigating factors. It noted, for example, the defendant‘s youth, his traumatic childhood, his guilty plea, and the absence of a prior criminal record. Weighing all of the factors, pro and con, the court concluded that a downwardly variant sentence was appropriate.
We find this rationale plausible. Although the defendant insists that the district court misallocated the weight that it gave to competing factors, the allocation of weight as among sentencing factors is - within wide margins - a matter committed to the district court‘s informed discretion. See United States v. Colón-Rodríguez, 696 F.3d 102, 108 (1st Cir. 2012); Clogston, 662 F.3d at 593. The court below did not venture beyond those margins.
The question remains as to whether the length of the sentence is defensible. The defendant urges us to answer this question in the negative, arguing that a 130-month sentence is longer than necessary and, thus, offends the parsimony principle. See
Where a sentence falls within a properly calculated GSR, a defendant who challenges it faces a steep uphill climb to show that the length of the sentence is unreasonable. See Rita v. United States, 551 U.S. 338, 347-48 (2007); United States v. Cortés-Medina, 819 F.3d 566, 572 (1st Cir. 2016). It necessarily follows that the climb is even steeper where, as here, a defendant contests the length of a downwardly variant sentence. See United States v. Millán-Machuca, 991 F.3d 7, 32 (1st Cir. 2021). The defendant cannot scale those heights.
When appellate review focuses on whether the length of a sentence is defensible, significant deference is due to the first-hand judgment of the sentencing court. See Gall, 552 U.S. at 51-52; Martin, 520 F.3d at 92. Because “reasonableness is a protean concept,” Martin, 520 F.3d at 92, there is usually not a
The defendant resists this conclusion. He says that there is a disparity between his sentence and the sentences imposed on others who participated in the same drug-trafficking conspiracy. The defendant, though, asks us to compare incomparables: apart from the fact that his proposed comparators took part in the same drug-trafficking conspiracy, he makes no effort to show that any of them was similarly situated. For aught that appears, facts such as the defendant‘s possession of a firearm, his acceptance-of-responsibility shortfall, and/or his role in the parking-lot shootout strip the proposed comparisons of any probative value. See Flores-Machicote, 706 F.3d at 24 (explaining that “[c]omparing apples to oranges is not a process calculated to lead to a well-reasoned result” when a defendant alleges sentencing disparity).
That ends this aspect of the matter. Because the district court articulated a plausible sentencing rationale and reached a thoroughly defensible result, we reject the defendant‘s claim of substantive unreasonableness.
We need go no further. For the reasons elucidated above, the defendant‘s sentence is
Affirmed.