United States v. Coombs , 857 F.3d 439 ( 2017 )


Menu:
  •           United States Court of Appeals
    For the First Circuit
    No. 16-1246
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    CHRISTOPHER COOMBS,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MAINE
    [Hon. George Z. Singal, U.S. District Judge]
    Before
    Lynch, Selya and Kayatta,
    Circuit Judges.
    James S. Hewes for appellant.
    Renée M. Bunker, Assistant United States Attorney, with whom
    Thomas E. Delahanty II, United States Attorney, was on brief, for
    appellee.
    May 19, 2017
    SELYA, Circuit Judge.           Defendant-appellant Christopher
    Coombs strives to persuade us that the district court erred both
    in denying his multiple motions to suppress incriminating evidence
    and   in   fashioning   his    sentence.          We   are   not   convinced     and,
    therefore, affirm.
    I.    BACKGROUND
    We   rehearse     the   facts    as    supportably      found   by    the
    district court following an omnibus hearing on the appellant's
    several motions to suppress.          See United States v. Gamache, 
    792 F.3d 194
    , 196 (1st Cir. 2015); United States v. Paneto, 
    661 F.3d 709
    , 711-12 (1st Cir. 2011).
    In the wake of his 2009 conviction on drug-trafficking
    charges, the appellant was sentenced to a fifteen-month term of
    immurement to be followed by a five-year term of supervised
    release.    He served his prison sentence but, during his final six
    months under supervision, he again found himself on the wrong side
    of the law.
    In October of 2014, Customs and Border Protection (CBP)
    agents intercepted a package at John F. Kennedy International
    Airport in New York.     An air waybill — a document completed by the
    sender that includes the package's origin, destination, and a
    description of its contents — accompanied the package.                      The air
    waybill indicated that the package was from "Marry" in Shanghai
    - 2 -
    and was to be delivered at the appellant's residence in Westbrook,
    Maine.    The contents were described as "[p]olycarbonate."
    Inspection of the contents revealed an amber-colored
    crystal (a rock-like substance).              The agents conducted a chemical
    field     test     and    received     a    reading     that      was       positive   for
    methylenedioxymethamphetamine (MDMA), commonly known as ecstasy.
    A second analysis, conducted in Portland, Maine, at a Department
    of      Homeland         Security     (DHS)        facility,       detected        alpha-
    pyrrolidinopentiophenone             (alpha-PVP),       a      type     of      synthetic
    cathinone.        Synthetic cathinones are colloquially known as bath
    salts.1
    On    October     31,    DHS     agents     and      local      police,   in
    conjunction with the U.S. Postal Service, executed a controlled
    delivery of the package (with the contents safely removed) to the
    appellant at his Westbrook address.
    While the controlled delivery was underway, the officers
    sought     an     anticipatory       search    warrant      for       the     appellant's
    1 Bath salts are a relatively new phenomenon in the drug
    enforcement arena. See Nat'l Drug Intelligence Ctr., U.S. Dep't
    of Justice, Synthetic Cathinones (Bath Salts): An Emerging
    Domestic Threat 5 (2011). They have come into use as surrogates
    for better-known drugs such as ecstasy, methamphetamine, and
    cocaine. See 
    id. Of late,
    bath salts have become a particular
    problem in Maine. See, e.g., McCue v. City of Bangor, 
    838 F.3d 55
    , 57-60 (1st Cir. 2016); United States v. Ketchen, No. 1:13-cr-
    00133, 
    2016 WL 3676150
    , at *7-9 (D. Me. July 6, 2016); Skoby v.
    United States, Nos. 1:11-cr-00208, 1:14-cv-00352, 
    2015 WL 4250443
    ,
    at *3 (D. Me. July 13, 2015).
    - 3 -
    residence.     In support of probable cause, they represented, inter
    alia, that the substance in the package had tested positive for
    MDMA and alpha-PVP.      A state magistrate issued the search warrant,
    with the caveat that it should be executed only if the appellant
    took the parcel inside his home.
    As matters turned out, the appellant accepted the parcel
    while standing outside the building, and the officers promptly
    took him to the ground.        He was arrested on the spot and never
    brought the package into his home.          The officers described the
    appellant's manner at the time of the detention as "nerved up" but
    cooperative.      By the time that news of the warrant arrived at the
    scene, the appellant already had consented to a search of his
    residence and had signed a form to that effect.
    Following the appellant's arrest, officers transported
    him to the police station and read him his Miranda rights.             See
    Miranda v. Arizona, 
    384 U.S. 436
    , 478-79 (1966).           The appellant
    stated that he had ordered the package and some other shipments
    from China on behalf of a third party.       When packages arrived, the
    appellant would deliver them to the requesting individual and would
    be   paid   for   his   trouble.   The   intercepted   parcel,   he   said,
    represented the largest order that he had placed.          When asked if
    alpha-PVP "sounded familiar," he responded in the affirmative.
    During a search of the appellant's residence, officers
    seized a computer, a tablet, and five cell phones.           Thereafter,
    - 4 -
    the appellant — still in custody — exchanged telephone calls with
    his wife.        A standard recording at the beginning of each call
    warned him that the conversations would be recorded and monitored.
    When his wife noted that the authorities had taken his electronic
    gear, he asked her to delete receipts from two e-mail accounts and
    supplied her with the passwords.             In a subsequent conversation,
    the appellant sought to confirm that his wife had not only deleted
    the receipts but also had emptied the trash folders to "make sure
    they were deleted securely."
    In    due   course,    the    government     sought     and    received
    warrants authorizing the search of the five cell phones found at
    the appellant's residence and the two e-mail accounts that he had
    mentioned to his wife. The search of the e-mails disclosed several
    exchanges    between     the   appellant     and    overseas       pharmaceutical
    companies, in which the appellant, in his own words, solicited
    "apvp (or similar products)."            In addition, he made inquiries as
    to pricing and quantities and placed several orders.
    Subsequent to the issuance of the last of the warrants,
    the   seized      amber-colored      crystal       was     subjected       to     more
    sophisticated laboratory testing.            This testing was conducted at
    a Drug Enforcement Administration (DEA) laboratory.                  It revealed,
    for   the      first     time,     that     the     substance        was        alpha-
    pyrrolidinohexanophenone          (alpha-PHP)      rather     than     alpha-PVP.
    Although    these    substances     were    (and    are)    both    regulated      as
    - 5 -
    controlled substances — illegal bath salts — the two have different
    chemical compositions.
    At the time of the appellant's offensive conduct, alpha-
    PVP was regulated pursuant to the Attorney General's authority to
    designate controlled substances temporarily, as needed, in order
    to "avoid imminent hazards to public safety."2         21 U.S.C. § 811(h);
    see Schedules of Controlled Substances: Temporary Placement of 10
    Synthetic Cathinones Into Schedule I, 79 Fed. Reg. 12,938, 12,938
    (Mar. 7, 2014).       On the other hand, alpha-PHP was (and is)
    regulated as a controlled substance analogue, meaning that it is
    "substantially   similar"    to    a   controlled   substance,     21   U.S.C.
    § 802(32)(A), and thus may be regulated as such if intended for
    human consumption, see 
    id. § 813;
    see also McFadden v. United
    States,   135   S.   Ct.   2298,   2302    (2015)   (explicating    relevant
    statutory scheme).
    On January 15, 2015, a federal grand jury sitting in the
    District of Maine handed up a two-count indictment against the
    appellant. Count one charged possession with intent to distribute
    alpha-PHP, a schedule I controlled substance analogue.                  See 21
    U.S.C. §§ 802(32)(A), 813, 841(a)(1).         Count two, which focused on
    2Although it makes no difference for present purposes, alpha-
    PVP has since been permanently designated as a schedule I
    controlled substance.    See Schedules of Controlled Substances:
    Placement of 10 Synthetic Cathinones Into Schedule I, 82 Fed. Reg.
    12,171,   12,172   (Mar.   1,  2017)   (codified   at  21   C.F.R.
    § 1308.11(d)(61)).
    - 6 -
    the appellant's instructions to his wife to delete certain e-
    mails,    charged    obstruction    of     justice.   See   18   U.S.C.
    §   1512(b)(2)(B).
    The appellant maintained his innocence and filed five
    separate motions to suppress.       Following an omnibus hearing, the
    district court — ruling in an electronic order — deemed the first
    suppression motion moot3 and denied the four remaining motions.
    The appellant thereafter entered a conditional guilty plea to
    counts one and two, see Fed. R. Crim. P. 11(a)(2), reserving the
    right to appeal the denial of his quartet of motions to suppress.
    Without objection, the district court calculated the
    appellant's guideline sentencing range as fifty-seven to seventy-
    one months. The court then sentenced the appellant to a concurrent
    five-year incarcerative term on each count of conviction, to be
    followed by five years of supervision. At the same time, the court
    dealt with the appellant's admitted violation of his earlier
    supervised release and imposed a 366-day incarcerative sentence
    for that violation.      The court decreed that the revocation-of-
    3 The first suppression motion sought to challenge the
    anticipatory search warrant, which had no effect unless and until
    the appellant brought the package inside his residence.       See
    generally United States v. Ricciardelli, 
    998 F.2d 8
    , 10-11 (1st
    Cir. 1993) (explaining use of anticipatory search warrants for
    controlled deliveries of contraband). As events played out, the
    officers detained the appellant before he brought the package
    inside.    Consequently, the government agreed to withdraw the
    warrant and to disregard it as a basis for the search of the
    appellant's home.
    - 7 -
    supervised-release        sentence    would     run      consecutively       to   the
    concurrent sentences imposed with respect to the offenses of
    conviction.
    The    appellant      moved     to      modify      the    judgment.
    Pertinently, he sought to reduce his new term of supervision from
    five years to three years.            The court granted this entreaty in
    part, reducing the supervised release term for count two to three
    years    (the    statutory   maximum    for   that       count,   see   18    U.S.C.
    §§ 3559(a)(3), 3583(b)(2)).          This timely appeal followed.
    II.    ANALYSIS
    In this venue, the appellant challenges the denial of
    four of his motions to suppress.         We address the first two of these
    motions together and then examine the other two motions separately.
    Thereafter, we scrutinize the appellant's claims of sentencing
    error.
    A.     Suppression.
    We review a district court's findings of fact on a motion
    to suppress for clear error.         See United States v. Zapata, 
    18 F.3d 971
    , 975 (1st Cir. 1994).        This standard requires us to accept not
    only    the     court's   factual    findings      but    also    the   reasonable
    inferences drawn from those discerned facts.               See 
    Paneto, 661 F.3d at 711
    .   Questions of law engender de novo review.                See 
    Zapata, 18 F.3d at 975
    .
    - 8 -
    1.   The Second and Third Motions to Suppress.                The
    appellant's second motion to suppress sought to exclude evidence
    obtained from the five cell phones found in his residence, and the
    third   motion     sought    to   exclude    messages    recovered   from   the
    appellant's two e-mail accounts.            The appellant argues that there
    was no showing of probable cause sufficient to justify the search
    of his cell phones and e-mails.
    A finding of probable cause does not demand proof beyond
    a reasonable doubt.         See United States v. Hoffman, 
    832 F.2d 1299
    ,
    1305-06 (1st Cir. 1987).           As relevant here, it demands proof
    sufficient to support a fair probability that a crime has been
    committed and that evidence of that crime is likely to be found
    within the objects to be searched.             See United States v. Clark,
    
    685 F.3d 72
    , 75-76 (1st Cir. 2012); United States v. Ricciardelli,
    
    998 F.2d 8
    , 10-11 (1st Cir. 1993).            The district court concluded
    that the government's proffer passed through this screen.                   The
    appellant's challenge to this conclusion rests on the assertion
    that    the    affidavits      accompanying     the     warrant   applications
    contained false information: that the amber-colored crystal in the
    mailed package was alpha-PVP when, in fact, it was alpha-PHP.
    A criminal defendant may impugn the veracity of an
    affidavit supporting a search warrant if he can show that a false
    statement, necessary to a finding of probable cause, was included
    in the affidavit "knowingly and intentionally, or with reckless
    - 9 -
    disregard for the truth."          Franks v. Delaware, 
    438 U.S. 154
    , 155-
    56 (1978).     Evidence obtained as a result of a warrant will be
    suppressed    if    "the    defendant        proves   intentional       or   reckless
    falsehood     by     preponderant        evidence         and    the    affidavit's
    creditworthy averments are insufficient to establish probable
    cause." United States v. Tanguay, 
    787 F.3d 44
    , 49 (1st Cir. 2015).
    In this instance, the challenged affidavits were signed
    by   DHS   Special    Agent      Gary   Moulton.        Moulton    submitted      two
    affidavits: one in support of the search of the five cell phones
    and the other in support of the search of the two e-mail accounts.
    Each of Moulton's affidavits incorporated an earlier affidavit
    from   a   member    of    the   Westbrook       Police    Department,       Augustin
    Rodriguez, originally prepared in support of the application for
    the anticipatory search warrant.              See supra note 3.        The appellant
    does not allege that either Moulton or Rodriguez intentionally
    misled the magistrate in order to obtain search warrants.                         The
    question reduces, then, to whether the challenged statements in
    the affidavit were made "with reckless disregard for the truth."
    United States v. Ranney, 
    298 F.3d 74
    , 78 (1st Cir. 2002).
    Hindsight     is     always      20/20     and,     when    viewed    in
    retrospect,    the    affidavits        at   some     points    mis-described     the
    contents of the package.          As matters turned out, the package did
    not contain alpha-PVP but alpha-PHP.                  It is apodictic, though,
    that "[e]ven if a warrant issues upon an insufficient showing of
    - 10 -
    probable cause, suppression may be inappropriate if the officers
    involved have exhibited objective good faith."           United States v.
    Floyd, 
    740 F.3d 22
    , 32 (1st Cir. 2014).         This makes perfect sense:
    the purpose of suppression is to deter police misconduct, see
    United States v. Leon, 
    468 U.S. 897
    , 918-21 (1984), and when law
    enforcement officers have obtained a search warrant in good faith
    and acted within its scope, there is "nothing to deter," 
    id. at 921.
    Even so, recklessness can defeat a claim of good faith.
    We have explained that when an affiant "in fact entertained serious
    doubts as to the truth" of his statements or when "circumstances
    evincing obvious reasons to doubt the veracity of the allegations"
    were present, the affiant can be said to have crossed the line
    into recklessness.       
    Ranney, 298 F.3d at 78
    (quoting United States
    v. Williams, 
    737 F.2d 594
    , 602 (7th Cir. 1984)); accord 
    Tanguay, 787 F.3d at 52
    .         In contrast, small inaccuracies in a warrant
    affidavit do not invalidate the warrant if those inaccuracies
    result from good-faith mistakes.            See, e.g., United States v.
    Capozzi,   
    347 F.3d 327
    ,   332-33   (1st   Cir.   2003)   (emphasizing
    importance of leeway for affidavits drafted by nonlawyers "under
    significant time pressure"); United States v. Brunette, 
    256 F.3d 14
    , 20 (1st Cir. 2001) (holding that statement that "all" seized
    images were pornographic when at least two of thirty-three were
    not was misleading, but did not justify suppression).             So, too,
    - 11 -
    incorrect assertions made in good faith reliance on a third party's
    errors, or even lies, do not demand suppression. See United States
    v. Tzannos, 
    460 F.3d 128
    , 138 (1st Cir. 2006).                Nor does sincere
    reliance on incorrect technical data, even when law enforcement
    officers themselves are to blame for the bevue.              See United States
    v. Barnett, 
    989 F.2d 546
    , 556-57 (1st Cir. 1993).
    Here, the government's first line of defense is that
    there was no false statement at all: read together, the affidavits
    simply stated that the amber-colored crystal had tested positive
    for MDMA and alpha-PVP (which was in fact true).              But this is only
    part of the story: the affidavits referred, several times, to the
    substance itself as alpha-PVP.4              Neither the government nor the
    defendant is entitled to cherry-pick an affidavit, focusing only
    on portions of the affidavit that are helpful to that party's cause
    and ignoring the remainder.             See 
    Clark, 685 F.3d at 76
    (stating
    that       the   probable   cause    analysis    requires   reading    supporting
    affidavits "as a whole").            By the time of the suppression hearing,
    the    government      knew   that    the   amber-colored    crystal    had   been
    identified definitively as alpha-PHP.              Yet, a fair reading of the
    affidavits as a whole shows, with conspicuous clarity, that they
    4
    For example, Rodriguez's affidavit specifically discussed
    "remov[ing] a quantity of the Alpha-PVP" from the package before
    the controlled delivery. Similarly, one of Moulton's affidavits
    references the appellant's "receipt of a large quantity of Alpha
    PVP" on the date of the controlled delivery.
    - 12 -
    featured the assertion, later revealed to be mistaken, that the
    amber-colored crystal was alpha-PVP.                We therefore reject the
    government's claim that there was no false statement at all.
    To be sure, the affidavits did misstate a fact.                 Even
    so, that the affidavits, in hindsight, misstated a fact does not
    resolve the matter.       Rodriguez signed his affidavit on October 31,
    2014.   Moulton signed the first of his two affidavits on November
    6, 2014.    He signed the second affidavit on November 14, 2014.
    But the amber-colored crystal was not accepted for testing at the
    DEA laboratory until November 14, and the results of that testing
    were not made available to the DHS until December 9 (long after
    all of the search warrants had been issued).
    There   is    not   a   shred   of   evidence   that,    when    the
    affidavits were executed and submitted, either affiant knew (or
    for that matter had any reason to believe) that the amber-colored
    crystal was not alpha-PVP.          The affiants' mistaken assertion was
    made neither knowingly nor with reckless disregard for the truth.
    Quite the opposite: the affiants relied on the only laboratory
    test results then available to them — results that indicated,
    albeit preliminarily, the presence of MDMA and alpha-PVP.                   The
    appellant   does    not   allege    that    these   preliminary     tests   were
    conducted negligently or that the affiants acted recklessly in
    relying upon those results.
    - 13 -
    When all is said and done, the record in this case
    contains nothing that shows that either affiant had the slightest
    reason to entertain serious doubts about the accuracy of the
    available test results.               For aught that appears, the affiants
    incorporated into their affidavits the best information known to
    them.       Law enforcement officers who prepare warrant affidavits are
    expected to use care, but they are not expected to be clairvoyant.
    That    a    small    portion    of    the   information   contained       in   these
    affidavits ultimately proved to be mistaken does not vitiate the
    affiants' good faith.           See 
    Barnett, 989 F.2d at 556-57
    .
    We could stop here but, for the sake of completeness, we
    proceed to consider whether the affidavits, even without the
    statements incorrectly referring to the amber-colored crystal as
    alpha-PVP, would still demonstrate probable cause.                   We think that
    they do.
    To begin, the initial laboratory test results would not
    need to be edited out of the Rodriguez affidavit.                    Regardless of
    what the substance eventually proved to be, it is not false to say
    that the initial tests returned positive readings for MDMA and
    alpha-PVP.        Thus, the Rodriguez affidavit, incorporated in the
    later       Moulton   affidavits,       would    still   be   read    to    assert,
    truthfully, that the contents of the package addressed to the
    appellant tested positive for controlled substances.
    - 14 -
    Moreover, Moulton's affidavits would continue to state,
    truthfully, that the appellant accepted delivery of the package
    and that he asked his wife to delete receipts from his e-mail
    accounts after learning that the police had seized his computer.
    Given these and other statements, we are satisfied that the
    affidavits, stripped of the false assertion, would still contain
    enough true facts to establish a fair probability that evidence of
    a crime would be found through a search of the appellant's cell
    phones and e-mail accounts.    See 
    Tanguay, 787 F.3d at 50
    .
    That   ends   this   aspect    of   the   matter.   In   the
    circumstances of this case, the officers' good faith is manifest.
    They gained no advantage by describing the amber-colored crystal
    as alpha-PVP rather than alpha-PHP.           Both were regulated as
    controlled substances and, thus, we conclude that the officers
    reasonably believed that they were dealing with an illicit drug
    and identified that drug in a way that, though mistaken, did not
    materially mislead the magistrate.        Put another way, had the
    affidavits referred exclusively to alpha-PHP, their force would
    not have been diminished.      To cinch the matter, the affidavits,
    stripped of the false assertion, still make out a robust showing
    of probable cause.   It follows that no error, clear or otherwise,
    tainted the district court's order denying the appellant's second
    and third motions to suppress.
    - 15 -
    2.   The Fourth Motion to Suppress.               Consent is a well-
    recognized exception to the requirement that police must have a
    warrant to search one's home.            See Schneckloth v. Bustamonte, 
    412 U.S. 218
    , 219 (1973); United States v. Laine, 
    270 F.3d 71
    , 74-75
    (1st Cir. 2001).      Here, the appellant challenges the denial of his
    fourth motion to suppress, which sought to invalidate his consent
    to the search of his residence and exclude the evidence gathered
    as a result of that search.
    The validity of a defendant's consent must be gauged
    under the totality of the circumstances.                   See United States v.
    Stierhoff, 
    549 F.3d 19
    , 23 (1st Cir. 2008).                 When evaluating the
    totality of the circumstances, an inquiring court must look for
    evidence of coercion, duress, confusion, and the like.                        See
    
    Schneckloth, 412 U.S. at 227
    .         A   consenting   party's   mental
    frailties may have a bearing upon this analysis. See United States
    v. Watson, 
    423 U.S. 411
    , 424-25 (1976).                  But such frailties are
    entitled to little weight in the abstract.                 See United States v.
    Richards, 
    741 F.3d 843
    , 849 (7th Cir. 2014) (explaining that "a
    person is not precluded from consenting to a warrantless search
    simply because he or she suffers from a mental disease"); cf.
    United States v. Palmer, 
    203 F.3d 55
    , 61-62 (1st Cir. 2000) ("In
    the context of the voluntariness of a confession, a defendant's
    mental state by itself and apart from its relation to official
    coercion   never      disposes     of    the     inquiry   into   constitutional
    - 16 -
    voluntariness.").    For weight to attach, there must be evidence of
    some nexus between, say, the individual's mental condition and the
    giving of consent, see United States v. Reynolds, 
    646 F.3d 63
    , 73-
    74 (1st Cir. 2011), or some evidence that officers obtained consent
    by exploiting a known vulnerability, cf. United States v. Hughes,
    
    640 F.3d 428
    , 438-39 (1st Cir. 2011) (making same point in context
    of allegedly coerced confession).        When the evidence shows that
    the consenting party was "responsive, lucid, and cooperative with
    the police officers," post hoc claims of incompetency inspire
    suspicion.    
    Reynolds, 646 F.3d at 74
    .
    In the case at hand, the appellant acknowledges that he
    read and signed a consent form authorizing the search of his
    residence.     That form, among other things, specifically advised
    him that he had a right not to consent to the search.              He
    nonetheless maintains that his consent was not voluntarily given.
    He says that he had just been thrown to the ground and arrested,
    and suggests that he was intimidated and under intense stress.
    The record, however, undermines this suggestion: Moulton (whose
    testimony was credited by the district court) stated that more
    than twenty minutes elapsed between the appellant's arrest and his
    consent to the search.      The appellant appeared cooperative and
    lucid throughout, even if a bit "nerved up."        What is more, no
    officer's weapon was drawn and no threats were uttered.
    - 17 -
    The appellant also argues that his history of mental
    illness — anxiety, depression, and bipolar disorder — vitiated his
    consent.    But the record contains nothing in the way of persuasive
    evidence    that    might   show   a     nexus   between    the   appellant's
    psychiatric history and the giving of consent.              Importantly, the
    officers who testified observed no evidence of mental incapacity
    during their interactions with the appellant.              Overall, he seemed
    calm, albeit nervous, and was "able to carry on a conversation."
    In     the   last   analysis,    the   voluntariness      of   the
    appellant's consent presented an issue of fact for the district
    court.     We have said before that "[w]here the evidence supports
    two plausible but conflicting inferences, the factfinder's choice
    between them cannot be clearly erroneous."          
    Laine, 270 F.3d at 76
    .
    So it is here: there was ample record support for the district
    court's conclusion that the appellant, even given his afflictions,
    was not so stressed by the circumstances that his consent could be
    regarded as either coerced or otherwise involuntary.              We therefore
    uphold the denial of the appellant's fourth motion to suppress.
    3. The Fifth Motion to Suppress. Finally, the appellant
    complains that the district court should have granted his fifth
    motion to suppress and excluded his statements at the police
    station following his arrest.          In this regard, he notes that there
    is no documentation either of the Miranda warning or of his
    purported waiver of his Miranda rights. He does not deny, however,
    - 18 -
    that       the   officers     advised    him   of    his   Miranda    rights   before
    interrogating him.
    The   appellant's      argument     gains   no     headway    because
    neither a signed waiver of Miranda rights nor any other form of
    documentation is required.5              See Berghuis v. Thompkins, 
    560 U.S. 370
    , 384-85 (2010); see also United States v. Guzman, 
    603 F.3d 99
    ,
    106 (1st Cir. 2010) ("Oral waivers of Miranda rights are sufficient
    . . . .").             Here, the government produced evidence that the
    officers not only read the appellant his rights but also received
    his verbal assurances that he understood those rights. To be sure,
    the appellant again points to his history of mental illness to
    suggest that his waiver of rights was not voluntary.                      The officers
    testified, though, that he was cooperative and responsive during
    the    interview        and   that   there     was    no   reason    to    doubt   the
    voluntariness of his waiver. On a cold appellate record, we cannot
    second-guess the district court's decision to credit the officers'
    testimony. We therefore uphold the denial of the appellant's fifth
    motion to suppress.           See United States v. Pelletier, 
    469 F.3d 194
    ,
    5
    We note, though, that the officers had recording equipment
    available at the time of the interview but opted not to use it.
    That decision was unfortunate: recording suspects' interviews is
    a salutary way to eliminate future questions that may arise both
    about how a particular interview was conducted and about what was
    said. See United States v. Houlihan, 
    92 F.3d 1271
    , 1289 (1st Cir.
    1996) (decrying policy of deliberately avoiding recording or
    taking notes during pretrial interviews and explaining that
    maintaining contemporaneous records safeguards against witnesses
    changing their stories over time).
    - 19 -
    201 (1st Cir. 2006) (indicating that findings of voluntariness
    hinge on credibility determinations).
    B.   Sentencing.
    This brings us to the appellant's claims of sentencing
    error.    As a general matter, we review such claims for abuse of
    discretion.     See Gall v. United States, 
    552 U.S. 38
    , 41 (2007);
    United States v. Martin, 
    520 F.3d 87
    , 92 (1st Cir. 2008).          We first
    resolve any claims of procedural irregularity and then address any
    challenge to the substantive reasonableness of the sentence.            See
    United States v. Demers, 
    842 F.3d 8
    , 12 (1st Cir. 2016); 
    Martin, 520 F.3d at 92
    .
    Here,   the   appellant       musters   both   procedural    and
    substantive claims.      First, he assigns error to the district
    court's decision to run his 366-day sentence for the violation of
    his   earlier    supervised    release      term   consecutively   to   his
    concurrent five-year sentences for the offenses of conviction.
    Second, he insists that those concurrent five-year sentences are
    substantively unreasonable.        We address these claims separately.6
    1.    Consecutive Sentence.        The appellant assails the
    district court's decision to run his 366-day sentence for violating
    his   earlier    supervised    release      term   consecutively   to   the
    6In his appellate brief, the appellant advanced yet another
    claim of sentencing error, challenging the five-year term of
    supervised release imposed on count one. At oral argument in this
    court, the appellant abandoned that claim.
    - 20 -
    concurrent five-year sentences for the offenses of conviction.                 In
    support, the appellant relies on 18 U.S.C. § 3584(a), which draws
    a distinction between "terms of imprisonment imposed at the same
    time" and those "imposed at different times."                 The sentences here
    fell into the former classification and, with respect to that
    classification, the statute provides that such sentences should
    run concurrently "unless the court orders" otherwise.                
    Id. A decision
    as to whether to run sentences concurrently
    or consecutively normally rests in the sentencing court's informed
    discretion.     See United States v. Román-Díaz, 
    853 F.3d 591
    , 597
    (1st Cir. 2017); United States v. Carrasco-de-Jesús, 
    589 F.3d 22
    ,
    29 (1st Cir. 2009).         Section 3584(a) does not create an exception
    to this standard. The plain language of the statute makes pellucid
    that a sentencing court has discretion to run sentences imposed at
    the   same    time    for    different    crimes     either     concurrently   or
    consecutively.       In such a situation, the statute makes concurrent
    sentences    the     default    rule    but     gives   the    sentencing   court
    discretionary authority to deviate from that rule.                   See United
    States v. García-Ortiz, 
    792 F.3d 184
    , 194 (1st Cir. 2015).
    The appellant's challenge runs headlong into the abuse-
    of-discretion standard of review.                Given the district court's
    concerns about the appellant's cavalier attitude toward the law,
    see infra Part II(B)(2), we think that its decision to run the
    - 21 -
    sentences consecutively fits comfortably within the compass of its
    discretion.
    Relatedly, the appellant argues that the imposition of
    consecutive sentences in this case amounts to double-counting.              In
    his view, he is being punished twice for the same act because the
    conduct underlying the counts of conviction forms the basis for
    the revocation of his supervised release term.                 This argument,
    too, lacks force.
    Where, as here, conduct committed by a person while on
    supervised release transgresses the criminal law as well as the
    conditions    of   supervision,    there    is    no   legal   impediment   in
    sentencing the defendant both as a criminal and as a supervised
    release violator.        See United States v. Chapman, 
    241 F.3d 57
    , 61
    (1st Cir. 2001).         Were the rule otherwise, a defendant would
    effectively     escape     meaningful    punishment     for    violating    his
    supervised release conditions.          See 
    id. By the
    same token, there is no legal impediment to
    imposing the sentences to run consecutively.            See United States v.
    Quinones, 
    26 F.3d 213
    , 216 (1st Cir. 1994). Indeed, the sentencing
    guidelines envision precisely such a scenario:
    [a]ny term of imprisonment imposed upon the
    revocation of probation or supervised release
    shall be ordered to be served consecutively to
    any   sentence   of  imprisonment   that   the
    defendant is serving, whether or not the
    sentence of imprisonment being served resulted
    - 22 -
    from the conduct that is the basis of the
    revocation of probation or supervised release.
    USSG §7B1.3(f).
    2.    Substantive Reasonableness.             The appellant's last
    plaint    is     that    his     concurrent      five-year       sentences      are
    substantively unreasonable.          Specifically, he complains that these
    sentences      offend   the    "parsimony     principle"    because      they   are
    "greater than necessary to achieve the purposes of sentencing."
    United States v. Dunston, 
    851 F.3d 91
    , 100 (1st Cir. 2017); see 18
    U.S.C. § 3553(a).       Even though this plaint was not voiced below,
    our standard of review is unsettled.             See 
    Demers, 842 F.3d at 14
    ;
    United States v. Ruiz-Huertas, 
    792 F.3d 223
    , 228 & n.4 (1st Cir.),
    cert. denied, 
    136 S. Ct. 258
    (2015).             Here, however, the claim of
    error    fails   regardless     of    which    standard    of   review   obtains.
    Consequently, we assume — favorably to the appellant — that review
    is for abuse of discretion.
    A claim that a sentence offends the parsimony principle
    is typically treated, for all practical purposes, as a claim that
    the   challenged    sentence     is    substantively      unreasonable.         See
    
    Dunston, 851 F.3d at 100
    .            The appellant characterizes his claim
    as such, and we will treat it accordingly.
    With respect to a claim that a sentence is substantively
    unreasonable, the key inquiry is whether the sentencing court has
    articulated a plausible rationale and reached a defensible result.
    - 23 -
    See 
    Martin, 520 F.3d at 96
    .      "There is more than one reasonable
    sentence in virtually any case, and we will vacate a procedurally
    correct sentence as substantively unreasonable only if it lies
    'outside the expansive boundaries' that surround the 'universe' of
    reasonable sentences."     United States v. Matos-de-Jesús, ___ F.3d
    ___, ___ (1st Cir. 2017) [No. 16-1695, slip op. at 10] (quoting
    
    Martin, 520 F.3d at 92
    ).     This formulation presents an appellant
    with an uphill climb, and that climb is even steeper when, as in
    this case, the challenged sentence is within a properly calculated
    guideline sentencing range.     See United States v. Clogston, 
    662 F.3d 588
    , 592-93 (1st Cir. 2011).
    The appellant catalogues a litany of factors that, in
    his view, justify greater leniency.      As a youth, he endured sexual
    and physical abuse, which led to homelessness when his mistreatment
    proved too much.      He has experienced a number of health-related
    problems, including bipolar disorder, depression, anxiety, chronic
    back pain, and hepatitis C.     In addition, his family will suffer
    from his absence: he is a father figure to his three stepchildren
    (ages nine to twelve at the time of sentencing), and his wife
    suffers from fibromyalgia.
    We do not gainsay that this litany of mitigating factors
    weighs in favor of leniency.      The district court, though, took
    pains to note that it gave these factors due weight.              It then
    mentioned   several   countervailing   considerations   and   —    having
    - 24 -
    constructed a balance — set forth cogent reasons for nonetheless
    imposing a mid-range sentence.   For example, the court — which had
    sentenced the appellant for his original drug-trafficking offenses
    — expressed concern that his relatively short prison term for his
    prior drug convictions already had taken the mitigating factors
    into consideration. The court was entitled to weigh in the balance
    the fact that it had given the appellant "a significant break" in
    his earlier case.   Following that lenient treatment, the appellant
    had neither turned his life around nor learned to "obey the law."
    Moreover, the court worried that the appellant continued to have
    a "mentality that he [could] get away with something."   The court
    expressed particular skepticism about the appellant's claim that
    he did not know that alpha-PHP was illegal.
    The short of it is that the district court weighed all
    of the relevant sentencing factors, see 18 U.S.C. § 3553(a), and
    wove those factors into a plausible sentencing rationale.   That it
    did not weigh the factors as the appellant would have liked does
    not undermine the plausibility of this rationale.    See 
    Clogston, 662 F.3d at 593
    ("A sentencing court is under a mandate to consider
    a myriad of relevant factors, but the weighting of those factors
    is largely within the court's informed discretion.").
    The district court also achieved a defensible result.
    On this issue, the fact that the concurrent five-year sentences
    were within the guideline range is deserving of some weight.   See
    - 25 -
    Rita v. United States, 
    551 U.S. 338
    , 347 (2007); United States v.
    Rodríguez-Adorno, 
    852 F.3d 168
    , 178 (1st Cir. 2017).    To complete
    the picture, the sentences were "responsive to the nature and
    circumstances of the offense, the characteristics of the offender,
    the importance of deterrence, and the need for condign punishment."
    Matos-de-Jesús, ___ F.3d at ___ [No. 16-1695, slip op. at 11].   So
    viewed, the sentences were within the universe of reasonable
    sentences for the offenses of conviction.
    III.   CONCLUSION
    We need go no further. For the reasons elucidated above,
    the judgment is
    Affirmed.
    - 26 -