United States v. Davis ( 2022 )


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  •                Not for Publication in West's Federal Reporter
    United States Court of Appeals
    For the First Circuit
    Nos. 21-1467
    21-1468
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    TIMOTHY DANIEL DAVIS,
    Defendant, Appellant.
    APPEALS FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MAINE
    [Hon. Lance E. Walker, U.S. District Judge]
    Before
    Kayatta, Selya, and Thompson,
    Circuit Judges.
    Thomas J. O'Connor, Jr. on brief for appellant.
    Darcie N. McElwee, United States Attorney, and Jeanne D.
    Semivan, Assistant United States Attorney, on brief for appellee.
    September 22, 2022
    SELYA, Circuit Judge.           In these consolidated sentencing
    appeals, defendant-appellant Timothy Daniel Davis challenges his
    sixty-one-month      aggregate    sentence          as     procedurally     and
    substantively infirm.    Specifically, he claims that the sentencing
    court failed adequately to explain both its imposition of an
    upwardly   variant   sentence    and       its   imposition   of    consecutive
    sentences.   Moreover, he claims that his aggregate sentence is
    substantively   unreasonable.      Concluding         that    the   defendant's
    claims of error are impuissant, we summarily affirm.
    I
    We start by briefly rehearsing the relevant facts and
    travel of the case.     Where, as here, two related sentences follow
    admissions of guilt, we draw the facts from the change-of-plea
    colloquy, the undisputed portions of the presentence investigation
    report (PSI Report), the transcript of the revocation hearing, and
    the transcript of the sentencing hearing.                See United States v.
    Vélez-Andino, 
    12 F.4th 105
    , 110 (1st Cir. 2021).
    In 2018, the defendant pleaded guilty to possession of
    a firearm by a convicted felon.            See 
    18 U.S.C. § 922
    (g)(1).       The
    district court sentenced him to five years of probation.                   The
    conditions of his probation included, among other things, that he
    "not commit another . . . crime," that he "not unlawfully possess
    a controlled substance," and that he "not possess a firearm."
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    Roughly     four    months    after   the     commencement       of    his
    probationary term, a probation officer visited the defendant's
    home in Machiasport, Maine to conduct a home inspection.                     During
    this   inspection,       the        probation     officer        observed        drug
    paraphernalia.    When questioned about it, the defendant admitted
    to consuming marijuana the day before.                An ensuing search of the
    premises revealed not only a quantity of marijuana but also a
    shotgun.
    The defendant was arrested the next day. In short order,
    a revocation proceeding was initiated.
    Two months later, the government filed a single-count
    information    (the    Information)        charging      the     defendant       with
    possession of a firearm by a convicted felon.                     See 
    18 U.S.C. § 922
    (g)(1).     The defendant's final revocation hearing for the
    probation violation and his initial appearance for the new offense
    were held on the same day.          As to the former, the defendant pleaded
    guilty to the Information, admitting that he had violated the
    conditions of his probation.             As to the latter, the defendant
    pleaded guilty and the court accepted his guilty plea to the new
    offense (ordering the preparation of a PSI Report).                    The court
    then proceeded to revoke the defendant's probationary term.
    The defendant raised no objections either to the amended
    revocation    report   or     the    revised    PSI    Report.      The     amended
    revocation report recommended an advisory guideline sentencing
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    range of eight to fourteen months.             With respect to the new
    offense, the PSI Report recommended a total offense level of 17
    and a criminal history category of III, yielding an advisory
    guideline sentencing range of thirty to thirty-seven months.
    The district court held a combined disposition hearing
    for both the probation revocation and the new offense in June of
    2021.     The government recommended an aggregate sentence of fifty-
    four months:      twenty-four months on the revocation and thirty
    months on the new offense.     It told the court that "the guidelines
    and First Circuit precedent would treat consecutive sentences as
    basically the starting point . . . for similar types of cases" and
    "that nothing in this case weighs in favor of disposing of that
    default" position.       Defense counsel disputed the notion that
    consecutive sentences were the "default position" and advocated
    instead for time served.      The government rejoined that there were
    "indications in the guidelines that a consecutive sentence would
    be appropriate."
    Following the defendant's allocution, the district court
    adopted    the   guideline   recommendations    adumbrated   in   the   PSI
    Report.     It then considered the section 3553(a) factors, see 
    18 U.S.C. § 3553
    (a), noting that it found "most significant" the need
    to protect the public, the need for deterrence, and the seriousness
    of the offense.     The court emphasized that the "proximity of the
    violation on [the] revocation case to the time that [it] imposed
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    the probation . . . was a mere four months"      —   a factor that
    "weigh[ed] heavily" in its thinking.1 In the end, the court imposed
    incarcerative terms of twenty-four months on the revocation and
    thirty-seven months on the new offense, to run consecutively. This
    timely appeal followed.
    II
    "Appellate review of claims of sentencing error entails
    a two-step pavane."    United States v. Matos-de-Jesús, 
    856 F.3d 174
    , 177 (1st Cir. 2017).    "Under this bifurcated approach, we
    first examine any claims of procedural error.    If the challenged
    sentence passes procedural muster, we then proceed to examine any
    claim of substantive unreasonableness."    United States v. Díaz-
    Lugo, 
    963 F.3d 145
    , 151 (1st Cir. 2020) (citation omitted).
    Throughout, "our review of preserved claims of error is for abuse
    of discretion."2 
    Id.
    1 In this regard, the court told the defendant that the
    proximity "comes across as either a conscious disregard and
    flouting of this Court's authority or a near irrational disregard
    of the opportunity that you were given. . . . [I]n the face of
    such a generous opportunity, you chose to so flagrantly violate
    the trust that I placed on you."
    2 The parties squabble about whether the defendant's claims
    of error are preserved and about the attendant standards of review.
    We need not resolve these differences but, rather, assume —
    favorably to the defendant — that our review is for abuse of
    discretion. See, e.g., United States v. Figueroa-Figueroa, 
    791 F.3d 187
    , 191 (1st Cir. 2015).
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    A
    The defendant mounts two claims of procedural error.
    First,   he    argues    that     the    district        court       erred    by    failing
    adequately       to     explain         its        "reasons      for         imposing      a
    sentence . . . that was significantly higher than the top end of
    the applicable guidelines range." Second, he argues that the court
    erred by failing adequately to explain why it ran the two sentences
    consecutively.          We    examine     the        merits     of    these     arguments
    separately.
    1
    It is apodictic that a sentencing court must "state in
    open court . . . the specific reason for the imposition of a
    [variant] sentence."           
    18 U.S.C. § 3553
    (c).                  That explanation,
    though, need not "be precise to the point of pedantry."                              United
    States v. Del Valle-Rodríguez, 
    761 F.3d 171
    , 177 (1st Cir. 2014).
    The court "need only identify the main factors behind its decision"
    when imposing a variant sentence.                  United States v. Vargas-García,
    
    794 F.3d 162
    , 166 (1st Cir. 2015).                  And the court may fulfill this
    obligation     "either       explicitly       or    by   fair    inference         from   the
    sentencing record."           United States v. Montero-Montero, 
    817 F.3d 35
    , 38 (1st Cir. 2016).
    In this instance, the court identified the sentencing
    factors that it deemed "most significant."                    Although the court did
    not specifically link these factors to the upward variance, that
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    linkage may fairly be inferred from a review of the sentencing
    transcript.   In particular, the court spoke at length about the
    proximity between the start of the defendant's probationary term
    and the commission of the new offense.     See, e.g., supra note 1.
    It stressed the glaring breach of trust that the defendant had
    displayed by repeating — within a matter of four months — the same
    unlawful conduct that underpinned the probationary term.        The
    defendant, in effect, had "slapped away" the court's helping hand.
    That ends this aspect of the matter.    Because the court
    laid out the main factors behind its upwardly variant sentence, we
    think it satisfied its obligation to make an adequate explanation.
    Thus, the defendant's first claim of error founders.
    2
    The defendant's second claim of procedural error — that
    the court failed adequately to explain why the two sentences were
    imposed consecutively — fares no better.    To begin, the defendant
    faults the district court for "failing to address [his] argument
    against the imposition of consecutive sentences."      But we have
    stated before and reiterate today that "a sentencing court is under
    no obligation . . . to address every argument that a defendant
    advances in support of his preferred sentence."    United States v.
    Rivera-Morales, 
    961 F.3d 1
    , 19 (1st Cir. 2020).
    We add, moreover, that the defendant's argument in favor
    of concurrent sentences was thoroughly debated at the disposition
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    hearing.      That the court did not refer to it when imposing
    consecutive sentences suggests that the court was unconvinced by
    the argument, not that the argument was overlooked.
    The defendant has a related contention.          He contends
    that   the   court   was   required   to   give   reasons    for   imposing
    consecutive sentences, but that it gave none.         But the defendant
    is grasping at straws:      he points to no statute, rule, guideline,
    or precedential decision requiring a court to state specific
    reasons for imposing a consecutive sentence.
    In all events, the defendant is foraging in an empty
    cupboard.     Where, as here, "a term of imprisonment is imposed on
    a defendant who is already subject to an undischarged term of
    imprisonment, the terms may run concurrently or consecutively."
    
    18 U.S.C. § 3584
    (a).       Subsection (b) goes on to state that "in
    determining whether the terms imposed are to be ordered to run
    concurrently or consecutively," the court "shall consider, as to
    each offense for which a term of imprisonment is being imposed,
    the factors set forth in [18 U.S.C. §] 3553(a)."            Id. § 3584(b).
    In the case at hand, the record makes manifest that the court
    considered all of the section 3553(a) factors, cf. United States
    v. Dávila-González, 
    595 F.3d 42
    , 49 (1st Cir. 2010) (explaining
    that sentencing court's statement that "it had considered all the
    section 3553(a) factors is entitled to some weight"), and decided,
    in the due exercise of its discretion, to run the sentences back
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    to back.   Its reasons for opting to impose consecutive sentences
    can fairly be inferred from the record.            No more is exigible.
    B
    This brings us to the defendant's preserved contention
    that his aggregate sentence is substantively unreasonable.                 Once
    again, our review is for abuse of discretion.                   See Holguin-
    Hernandez v. United States, 
    140 S. Ct. 762
    , 766-67 (2020); United
    States v. Ortiz-Pérez, 
    30 F.4th 107
    , 113 (1st Cir. 2022).
    In   evaluating     the   substantive      reasonableness       of   a
    challenged sentence, we are mindful that "reasonableness is a
    protean concept."     United States v. Martin, 
    520 F.3d 87
    , 92 (1st
    Cir. 2008).     As we have said, "[t]here is no one reasonable
    sentence in any given case but, rather, a universe of reasonable
    sentencing outcomes."        United States v. Clogston, 
    662 F.3d 588
    ,
    592 (1st Cir. 2011).     Our task, then, is to determine whether the
    challenged "sentence falls within this broad universe."                  Rivera-
    Morales, 961 F.3d at 21.
    In   the   last   analysis,       "a   sentence   will   be   deemed
    substantively reasonable as long as it rests on 'a plausible
    rationale and . . . represents a defensible result.'"                     Ortiz-
    Pérez, 30 F.4th at 113 (alteration in original) (quoting Rivera-
    Morales, 961 F.3d at 21).       "Where, as here, an aggregate sentence
    is the product of two or more distinct sentences, we sometimes
    have found it useful to analyze the substantive reasonableness of
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    the aggregate sentence by analyzing the substantive reasonableness
    of each of its constituent parts."                Id.    We follow that praxis
    here.
    The aggregate sentence in this case is composed of two
    sentences.          The     first     sentence     is    an      upwardly    variant
    twenty-four-month sentence following the revocation of probation.
    An upwardly variant sentence requires a "heightened" degree of
    explanation.        United States v. Padilla-Galarza, 
    990 F.3d 60
    , 91
    (1st Cir. 2021).           We already have concluded, though, that this
    upward variance was adequately explained. See supra Part II(A)(1).
    That adequate explanation does double duty as the functional
    equivalent of a plausible rationale.              See United States v. Valle-
    Colón, 
    21 F.4th 44
    , 50 (1st Cir. 2021).
    The remaining sentence is a within-guidelines sentence
    of thirty-seven months on the new offense.                       To undermine the
    reasonableness of a within-the-range sentence, the defendant must
    "adduce fairly powerful mitigating reasons and persuade us that
    the district [court] was unreasonable in balancing pros and cons
    despite the latitude implicit in saying that a sentence must be
    'reasonable.'"       United States v. Navedo-Concepción, 
    450 F.3d 54
    ,
    59   (1st    Cir.    2006).         Seen   in   this    light,    showing        that   a
    within-the-range          sentence    is   unreasonable       presents      "a    heavy
    burden."     United States v. Pelletier, 
    469 F.3d 194
    , 204 (1st Cir.
    2006).      The defendant cannot lift that heavy burden here.
    - 10 -
    We need not tarry.      At sentencing, the court made clear
    that it had reached its determination as to the appropriate
    sentence after reviewing the PSI Report, listening to the parties'
    arguments, and mulling the section 3553(a) factors.             It identified
    the factors that it found "most significant" and noted that all
    those factors weighed in favor of a higher sentence.                      "[T]he
    balancing of the sentencing factors is largely within the district
    court's     discretion,"   Ortiz-Pérez,       30   F.4th   at   113,    and   the
    defendant has shown no misuse of that discretion here, see Rivera-
    Morales, 961 F.3d at 21 (explaining that court of appeals "must
    accord significant deference to the court's informed determination
    that the section 3553(a) factors justify the sentence imposed").
    Finally, the result reached by the district court is
    easily defensible:       the aggregate sentence falls within the broad
    universe of reasonable sentences for the probation revocation and
    the new offense. The defendant's conduct constituted a significant
    breach of the court's trust.          Less than four months after being
    sentenced to probation as a convicted felon in possession of a
    firearm, the defendant repeated essentially the same offense,
    pleading guilty to possessing yet another firearm.                     Given the
    timing of the new offense, there is no principled way in which we
    can   set   aside   an   aggregate    sentence     of   sixty-one   months     on
    reasonableness grounds.
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    The defendant resists this conclusion.             He says, in
    effect, that because he had originally received a probationary
    sentence for a firearms-possession offense, his aggregate sentence
    of five years is manifestly unreasonable.         But the fact that the
    court previously imposed a probationary sentence, coupled with the
    fact that the defendant flouted that largesse, is a substantial
    part of the reason why the current sentence falls within the "broad
    universe" of substantively reasonable sentences.
    For   these   reasons,    we   hold   that   the   defendant's
    aggregate sentence is substantively reasonable.
    III
    We need go no further.         The challenged sentences are
    summarily
    Affirmed.    See 1st Cir. R. 27.0(c).
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