United States v. Sweeney , 606 F. App'x 588 ( 2015 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 14-1015
UNITED STATES OF AMERICA,
Appellee,
v.
JAMES A. SWEENEY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Torruella, Howard, and Thompson,
Circuit Judges.
Paul J. Garrity on brief for appellant.
Renée M. Bunker, Assistant United States Attorney, and
Thomas E. Delahanty II, United States Attorney, on brief for
appellee.
April 7, 2015
PER CURIAM. Appellant James Sweeney appeals the 70-month
prison sentence meted out to him after he pleaded guilty to
conspiracy to possess with intent to distribute more than 100
kilograms of marijuana. He also appeals a "stay dry" condition of
supervised release prohibiting him from possessing or consuming
alcohol for four years after his release from prison. We have
already affirmed the 72-month sentence of Sweeney's partner in
crime, Gerald Rich. United States v. Rich, 589 F. App'x 549 (1st
Cir. 2015) (per curiam). As with Rich, "[t]here is no reason to
tarry" over Sweeney's appellate arguments. Id.
1. Sentence
We begin with Sweeney's challenge to his sentence.
Eschewing any complaint about its procedural reasonableness, and
forgoing any argument that the district court came up with the
wrong sentencing range or misapplied the United States Sentencing
Guidelines ("Guidelines"), Sweeney says only that it was
substantively unreasonable. In essence, Sweeney argues that he is
entitled to a downward variance from the Guidelines-recommended
range of 70-87 months. He suggests 36 months would be appropriate,
and he asks us to vacate his 70-month sentence and remand for
resentencing. Our review is for abuse of discretion. United
States v. Ayala-Vazquez,751 F.3d 1, 29 (1st Cir.), cert. denied sub
nom. Ayala-Vasquez v. United States, 135 S. Ct. 289 (2014) and
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cert. denied sub nom. Cruz-Vasquez v. United States, 135 S. Ct. 467
(2014).
Sweeney's arguments boil down to an expression of
disappointment about the weight the district judge gave to various
aspects of his personal history and characteristics, along with
assurances that his family "would be behind him" while he was in
prison, compared to the weight given to the facts about his
specific involvement in a significant and growing drug smuggling
operation. Such an attack bears no fruit. "That the court chose
to attach less significance to certain mitigating circumstances
than [Sweeney] thinks they deserved does not make his sentence
substantively unreasonable." United States v. Colón-Rodríguez, 696
F.3d 102, 108 (1st Cir. 2012); see also United States v. Rossignol,
___ F.3d ___, 2015 WL 1136485 at *4 (1st Cir. Mar. 16, 2015) ("That
the defendant would prefer an alternative weighing of the
circumstances does not undermine the district court's sentencing
decision.").
Sweeney also takes issue with what he considers to be the
district judge's failure to take into account his good behavior
while out on pre-sentence release. Specifically, he claims the
judge "made no mention of . . . his good conduct, over an
approximate year and a half time period, while on pre-sentence
release." This conduct includes his gainful employment and the
lack of any additional trouble with the law prior to sentencing.
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What's more, Sweeney believes his relative youth demonstrates his
rehabilitative potential and should count in his favor, too.
The problems with Sweeney's position are two-fold.
First, as a factual matter, the record shows that the district
judge did consider Sweeney's youth and his good post-arrest
behavior in crafting the sentence. Indeed, the district judge
explicitly recognized that, "[a]fter his arrest and release,
[Sweeney] worked as a roofer in Portland." As far as Sweeney's
argument about his age goes, the judge stated that he saw "an
enormous amount of potential" in Sweeney, and told Sweeney that he
would have the opportunity to "put this felony . . . behind [him]"
when he gets out of jail and "use . . . his talents in a legal and
constructive way to go out and carve out a good life for
[himself]." So, we see that Sweeney's complaint lacks factual
support in the record, and his real beef is with how the district
judge factored these personal characteristics into the overall
sentencing calculus.
This brings us to the second area of weakness: that the
district judge found Sweeney's mitigation evidence to be outweighed
by other relevant considerations1 does not mean that Sweeney's
1
For example, the judge stated that Sweeney had "committed a
serious federal crime, that there's a lot of money involved, and
there are a lot of dangers in this type of illegal activity, and
that if people sitting out there hear that . . . people like you
are treated leniently, they will be encouraged to do it and to
follow in your footsteps."
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sentence is substantively unreasonable. See Colón-Rodríguez, 696
F.3d at 108. Though the district court may give significant weight
to a defendant's pre-sentence rehabilitation if appropriate in a
particular case, cf. Pepper v. United States, 131 S. Ct. 1229, 1241
(2011), we have never required a sentencing judge to automatically
tip the scale in favor of that consideration. The lynchpin of our
analysis, whether the district court adequately weighed the
relevant statutory factors and whether it provided a "plausible
sentencing rationale," United States v. Martin, 520 F.3d 87, 96
(1st Cir. 2008), remains unchanged.2
In that regard, after an exhaustive hearing the district
judge concluded that Sweeney was the "brains behind the [drug]
operation." Sweeney used his contacts in Mexico to get hundreds of
pounds of marijuana into the United States for eventual
distribution in Maine. The district judge characterized Rich and
Sweeney as "equal partner[s]" in their drug operation, a logical
finding given that Rich would have had no product to sell without
2
Sweeney relies heavily on Martin, a case in which we upheld
a downward variance of 91 months where the defendant "made a
particularly striking impression." 520 F.3d at 94. Yet it takes
but a moment's thought to recognize that affirming a downward
variance granted by one sentencing judge has nothing at all to do
with whether Sweeney's bottom-of-the-range Guidelines sentence was
substantively unreasonable. Further, in Martin we noted that
"there are valid reasons for regarding professions of post-offense
rehabilitation skeptically," and "separating wheat from chaff is
primarily a task for the district court." Id. at 93.
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Sweeney, and Sweeney would not have been able to sell his drugs on
the street without Rich.
Considering the overall record, we conclude that Sweeney
has not come close to adducing the type of "fairly powerful
mitigating reasons" necessary to stand a chance of convincing an
appellate court that "the district judge was unreasonable in
balancing pros and cons" when passing sentence. Ayala-Vazquez, 751
F.3d at 32-33 (quoting United States v. Batchu, 724 F.3d 1, 14 (1st
Cir. 2013)) (internal quotation marks omitted). And, as we
recently reiterated in affirming Rich's 72-month sentence, "[i]n
the mine-run of criminal cases there is no single appropriate
sentence but, rather, a universe of reasonable sentences." Rich,
589 F. App'x at 549 (citing United States v. Walker, 665 F.3d 212,
234 (1st Cir. 2011)). We are satisfied that Sweeney's sentence
fits comfortably within that universe. Accordingly, the judge did
not abuse his discretion in imposing the bottom-of-the-range 70-
month sentence.
2. "Stay dry" Condition of Supervised Release
Having disposed of the first ground of appeal, we come
now to the second. Sweeney, recognizing that he failed to object
to any of the conditions of supervised release at sentencing, says
that the district court plainly erred in prohibiting him from
possessing or using alcohol while he is out on supervised release.
The crux of his argument is that he was convicted of a drug-related
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crime, not an alcohol-related one, and that there is nothing about
his personal history or characteristics that warrants prohibiting
him from drinking when he gets out of prison.
Although the government does respond to the merits of
Sweeney's argument, it first urges us to find that he did not
merely forfeit the objection, he waived it completely. We agree.
The Presentence Investigation Report ("PSR") concluded by
listing special conditions of supervised release recommended to the
district court. The first of these proposed conditions would
prohibit Sweeney from "us[ing] or possess[ing] any controlled
substance, alcohol, or other intoxicant." Although Sweeney
objected to other aspects of the PSR, he did not object to the
"stay dry" recommendation.
Then, at the sentencing hearing, the district judge
advised Sweeney of the following before he passed sentence:
I'm going to place you, as I did Mr. Rich, on
four years of supervised release. I'm going
to impose some conditions. Those conditions
will include drug treatment. I don't want you
slipping back to your old ways of marijuana
abuse and alcohol abuse. I'm not going to
trust you on that. I'm going to require that
you get tested and make sure that you're not
going back and abusing drugs and alcohol.
Shortly thereafter, and as promised, the judge imposed this
particular condition, decreeing that Sweeney "shall not use or
possess any controlled substance, alcohol, or other intoxicant"
while on supervised release. After imposing other conditions and
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discussing a potential fine, the following colloquy with defense
counsel ensued:
The Court: Is there any objection to the
terms of supervised release on the part of the
defendant?
[Counsel]: No. No, there is not, Judge.
Thank you.
Sweeney did not file any post-sentencing motions, and waited until
this appeal to express any dissatisfaction with the "stay dry"
provision.
On this record, Sweeney's conduct smacks to us of waiver,
not forfeiture. We have previously determined that
[a] party waives a right when he intentionally
relinquishes or abandons it. This is to be
distinguished from a situation in which a
party fails to make a timely assertion of a
right-what courts typically call a
"forfeiture." This difference is critical: a
waived issue ordinarily cannot be resurrected
on appeal, whereas a forfeited issue may be
reviewed for plain error.
United States v. Sánchez-Berríos, 424 F.3d 65, 74 (1st Cir. 2005)
(quoting United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir.
2002)). We have also concluded that a party waives an objection by
affirmatively agreeing with a judge's proposed course of action.
United States v. DeLeon, 704 F.3d 189, 192-93 (1st Cir. 2013)
(finding a party waived objection to providing jurors with certain
demonstrative aids when counsel acquiesced by stating, multiple
times, things like "I'm fine with that" in response to the judge's
proposal to send the aids in to the jury room). And when talking
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about a condition of supervised release, we have held that waiver
occurs where a party fails to object to it "at sentencing or by
post-trial motion." United States v. Elwell, 984 F.2d 1289, 1298
(1st Cir. 1993).
We find these principles controlling here. Sweeney was
aware of the proposed "stay dry" condition from the PSR. At
sentencing, the district judge told Sweeney that he would impose
this very condition. The judge explained his reasoning--he doesn't
want Sweeney to backslide after he gets out of jail--on the
record.3 The judge went on to impose this exact condition, then
explicitly asked defense counsel whether he had any objection to
the terms of supervised release just imposed. Counsel responded
with an unequivocal "No."
From these facts, there is no doubt that Sweeney
affirmatively relinquished his right to challenge the "stay dry"
condition. Accordingly, we affirm the "stay dry" condition of
supervised release.
3
In Elwell, we pointed out that the failure to object "[made]
it impossible to assess the district court's reasons for adding in
[the] condition." 984 F.2d at 1298. Here, of course, we know the
district judge's reasoning for imposing the "stay dry" condition.
Sweeney's failure to object to a condition that he knew was coming
deprived the district judge of the opportunity to consider
Sweeney's arguments against that condition. The failure to object
when a sentencing judge explains why he is imposing a particular
condition supports a finding of waiver just as much (if not more)
than the record in Elwell, which was devoid of both an objection to
and the reasoning behind the imposed condition.
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To reiterate, there is no merit to any argument Sweeney
makes in his appeal. We, therefore, summarily affirm his 70-month
sentence and the "stay dry" condition of supervised release. See
1st Cir. R. 27.0(c).
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