United States v. Fields , 858 F.3d 24 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 16-1451
UNITED STATES OF AMERICA,
Appellee,
v.
KEVIN JOSEPH FIELDS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Landya B. McCafferty, U.S. District Judge]
Before
Lynch, Selya and Kayatta,
Circuit Judges.
Claudia Leis Bolgen and Bolgen & Bolgen on brief for
appellant.
Emily Gray Rice, United States Attorney, and Seth R. Aframe,
Assistant United States Attorney, on brief for appellee.
May 26, 2017
SELYA, Circuit Judge. Defendant-appellant Kevin Joseph
Fields stole more than $30,000 worth of postage stamps by passing
bad checks at various post offices. This stamp-stealing scheme
proved ill-conceived and, following his conviction, the appellant
was sentenced to a 30-month term of immurement. He now appeals
his upwardly variant sentence. Discerning no error, we affirm.
I. BACKGROUND
Because this appeal follows a guilty plea, "we glean the
relevant facts from the change-of-plea colloquy, the unchallenged
portions of the presentence investigation report (PSI Report), and
the record of the disposition hearing." United States v. Vargas,
560 F.3d 45, 47 (1st Cir. 2009).
In June of 2014, the United States Postal Inspection
Service began investigating reports that an individual was using
bad checks to purchase stamps at a number of post offices in New
Hampshire and Maine. A copy of one of the checks, written on an
account at the Kennebunk Savings Bank, displayed the name and
address of the appellant. The inspectors requested information
about this account from the bank. It supplied the requested
information and also disclosed that it had contacted the local
sheriff's department about the account. That contact was inspired
when — a few weeks earlier — the appellant made two deposits into
the account using counterfeit checks (each in an amount in excess
of $3000).
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Warming to the chase, postal inspectors located the
appellant in Dover, New Hampshire. They advised him of his Miranda
rights, see Miranda v. Arizona, 384 U.S. 436, 478-79 (1966), which
he waived. The appellant admitted to opening the checking account
and using checks furnished by the bank to purchase stamps despite
his knowledge that the account did not contain sufficient funds.
He estimated that he had purchased nearly $27,000 worth of stamps
using bad checks, explained that "[m]oney drives me," and related
that he had taken the stamps to pawn shops and exchanged them
either for cash or for merchandise. He added that he had created
fake checks on his computer (though he had not purchased stamps
with those home-made checks).
Following a review of post office and bank records,
inspectors concluded that, during the period from June 9 through
June 17, 2014, the appellant had obtained more than $30,000 worth
of stamps by passing bad checks at post offices in New Hampshire,
Maine, and Massachusetts. In due course, a federal grand jury
sitting in the District of New Hampshire returned an indictment
charging the appellant with possessing stolen government property
(the stamps) with intent to convert that property. See 18 U.S.C.
§ 641. A summons and, later, an arrest warrant were issued but
never served.
We fast-forward to May of 2015, at which time the
appellant wound up in state custody for an unrelated parole
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violation. He was brought before a federal magistrate pursuant to
a writ of habeas corpus ad prosequendum and subsequently entered
a guilty plea to the charge of possession of stolen government
property with intent to convert. The district court allowed a
change of counsel at the appellant's request and, some months
later, held a sentencing hearing.
The probation department submitted the PSI Report, which
recommended a base offense level of six, see USSG §2B1.1(a)(2); a
four-level enhancement premised on the amount of loss, see id.
§2B1.1(b)(1)(C); and a two-level enhancement on the basis that the
offense of conviction involved the possession or use of device-
making equipment, see id. §2B1.1(b)(11)(A)(i). After subtracting
two levels for acceptance of responsibility, see id. §3E1.1(a),
the PSI Report recommended a total offense level of ten. The
appellant's past convictions — including convictions for identity
fraud, forgery, larceny, and the fraudulent use of credit cards —
produced a criminal history score of 30, which the PSI Report
augmented by two points because the appellant had committed the
offense of conviction while on parole for unrelated state charges.
See id. §4A1.1(d). These computations placed the appellant
squarely in criminal history category VI.
At sentencing, the district court adopted most of the
guideline calculations limned in the PSI Report. The appellant
objected, however, to the two-level enhancement for his alleged
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possession or use of device-making equipment. Though he had
manufactured counterfeit checks, he had not employed them in his
stamp-stealing scheme. The district court sustained this
objection and reduced the appellant's total offense level
accordingly. This adjustment in the appellant's offense level,
coupled with his placement in criminal history category VI, yielded
a guideline sentencing range of 18 to 24 months (as opposed to the
24- to 30-month range suggested in the PSI Report).
The court proceeded to impose an above-the-range
sentence of 30 months' imprisonment. In pronouncing sentence, the
court emphasized the appellant's extensive criminal history and
fretted that the appellant would not be deterred from future
criminal conduct because earlier prison terms had failed to
ameliorate his behavior. Thus, a relatively stiff sentence was
needed to protect the public and to promote general deterrence.
This timely appeal ensued.
II. ANALYSIS
As a general matter, we review the imposition of a
sentence for abuse of discretion. See Gall v. United States, 552
U.S. 38, 51 (2007); United States v. Martin, 520 F.3d 87, 92 (1st
Cir. 2008). Within this rubric, though, some specific parameters
pertain. "[S]entencing claims are addressed under a two-step
pavane. First, we address those claims that affect the procedural
integrity of the sentence. Second, we address any residual
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question as to the substantive reasonableness of the sentence."
United States v. Rodríguez-Adorno, 852 F.3d 168, 175 (1st Cir.
2017) (citations omitted). Our review "is characterized by a frank
recognition of the substantial discretion vested in a sentencing
court." United States v. Flores-Machicote, 706 F.3d 16, 20 (1st
Cir. 2013).
Consistent with our bifurcated process, we first address
the appellant's assignments of procedural error. Specifically, he
claims that the sentencing court relied on clearly erroneous facts
and, moreover, failed adequately to explain its reasons for
imposing an upwardly variant sentence.
We start with the appellant's claim that the sentencing
court relied on clearly erroneous facts. In approaching this
claim, we pause to recognize that the abuse of discretion standard
is not monolithic. Within it, we review findings of fact for clear
error and embedded questions of law de novo.1 See United States
v. Carrasco-de-Jesús, 589 F.3d 22, 26-27 (1st Cir. 2009). Clear
error review is respectful and requires that we accept findings of
fact and inferences drawn therefrom unless, "on the whole of the
1Of course, unpreserved claims of sentencing error are
normally reviewed for plain error. See United States v. Duarte,
246 F.3d 56, 60 (1st Cir. 2001). Here, the parties dispute whether
any or all of the appellant's procedural claims of sentencing error
were preserved below. We need not resolve this dispute: we assume
instead, favorably to the appellant, that the ordinary standard of
review for preserved claims of error applies. Even so, the
appellant's procedural claims still fail.
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record, we form a strong, unyielding belief that a mistake has
been made." United States v. Demers, 842 F.3d 8, 12 (1st Cir.
2016) (quoting Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152
(1st Cir. 1990)).
The appellant's complaint about the court's use of
clearly erroneous facts is really two separate claims. We take
these claims one by one, beginning with the appellant's contention
that the district court clearly erred in refusing to find that the
appellant's criminal conduct was attributable to his substance
abuse. After setting the stage, we explain why we reject this
claim.
At the disposition hearing, the appellant asked for
leniency on account of his lengthy struggle with substance abuse.
In support, his counsel sought to attribute the appellant's stamp-
stealing spree to the fact that he was in the thrall of drugs.
The lawyer noted that the appellant's most recent arrest involved
the possession of heroin. Furthermore, in his presentence
interview, the appellant had explained that "he did whatever he
had to do to support his habit." And on appeal, counsel called
our attention to the PSI Report's suggestion that the appellant
was using heroin daily at the time of the offense of conviction.
We recognize that drug abuse is at the root of many
crimes. To some extent, addiction may play a role in virtually
everything that an addict does or does not do. This does not mean,
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however, that every crime committed by a person with a drug habit
can automatically be written off as a by-product of that habit.
In this instance, the district court was fully aware of
the appellant's protracted involvement with drugs. It nonetheless
rejected the appellant's plea and found that "his crimes [did] not
appear to be related to drug abuse." The court implied instead
that the appellant was motivated by greed.
In reaching this conclusion, the court mentioned the
absence of any evidence that the appellant, when writing the bad
checks, purchasing the stamps, or swapping the stamps at the pawn
shop, was either under the influence of any controlled substances
or in possession of such substances. Stressing that the
appellant's crime was "premeditated," the court concluded that he
appeared to "enjoy[] the process of deceiving . . . the bank, the
United States Post Office, [and] the pawnshop." The court stated
that, although it would recommend substance abuse treatment given
the appellant's history, it did not believe that any such treatment
would help to allay the appellant's larcenous inclinations.
The circumstances surrounding the offense of conviction
lend credence to the district court's view. The appellant's
explanation as to why he had embarked on his stamp-stealing spree
("[m]oney drives me"), given during his post-Miranda interview,
was consistent with a finding that greed was the impetus for his
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actions. The appellant did not claim, for example, that he had
intended to sell or trade the purloined stamps to obtain drugs.2
At any rate, the standard of review is determinative
here. The district court had the opportunity to see and hear the
appellant, and its on-the-spot judgment is entitled to
considerable weight. See United States v. Matos, 328 F.3d 34, 40
(1st Cir. 2003). Though a different finding may have been
supportable in view of the appellant's history of drug abuse, the
district court was not required to interpret the record in the
manner that the appellant urged. See Rivera-Rivera v. United
States, 844 F.3d 367, 373 (1st Cir. 2016). We have said before,
and today reaffirm, that "where there is more than one plausible
view of the circumstances, the sentencing court's choice among
supportable alternatives cannot be clearly erroneous." United
States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990). We therefore
uphold the district court's determination that the appellant's
offensive conduct was not attributable to his drug habit.3
In point of fact, the appellant exchanged at least some of
2
the stolen stamps for pawn shop merchandise rather than cash. A
number of these items were found in his home, including an iPad
and a laptop — and nothing in the record indicates that he was
planning to sell or swap these devices for controlled substances.
At the same time, we note that, had the district court
3
agreed with the appellant and found that his criminality was driven
by his addiction, his sentence may well have been the same. How
much weight to afford such a conclusion would have been subject to
the court's discretion. See United States v. Bermúdez-Meléndez,
827 F.3d 160, 165 (1st Cir. 2016).
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The appellant's other claim about the sentencing court's
supposed reliance on a clearly erroneous fact fails for a different
reason. Simply put, there is less to this claim than meets the
eye.
The appellant asserts that the court became confused and
found (incorrectly) that his offensive conduct involved identity
fraud.4 This assertion has two parts. First, it presumes that
the appellant did not engage in identity fraud as part of the
offense of conviction. Second, it presumes that the court
misconstrued the appellant's crime and thought that it involved
identity fraud. Only one of these presumptions is true.
We agree with the appellant that the record is barren of
any evidence that his stamp-stealing scheme included identity
fraud. For instance, there is no evidence that he opened the
checking account using a false identity, or that the checks he
submitted to the various post offices bore any name other than his
own, or that he gave a pseudonym to the pawn shops when unloading
the stamps.
The appellant's claim runs aground, though, on the
second part of his hypothesis: the record makes pellucid that the
Both in the colloquy in the district court and in their
4
briefs, the parties refer variously to "identity fraud," "identity
theft," "credit card fraud," and the like. Whatever the precise
phrase, the point is the same. So for simplicity's sake, we refer
throughout (except where direct quotations are involved) to
"identity fraud."
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district court made no finding that the offensive conduct involved
identity fraud. While the court did comment about identity fraud,
the appellant's plaint yanks the court's comments from their
contextual moorings. We explain briefly.
In the critical portion of its remarks at sentencing,
the court discussed the weight to be given to the appellant's
criminal record ─ a record that it characterized as "horrendous."
The court expressed particular concern about the appellant's
historical record of fraud and theft crimes, including state-court
convictions for forgery, fraudulent use of credit cards, and
identity fraud. The court's passing reference to the importance
of protecting the victims of identity fraud was made in the course
of concluding that, although the appellant's past crimes were not
violent, they nonetheless signified a significant threat to the
public and warranted substantial weight in the sentencing
calculus.5 This was an entirely appropriate factor for the court
to consider at sentencing. See 18 U.S.C. § 3553(a)(1); see also
Flores-Machicote, 706 F.3d at 21. We discern no error, clear or
otherwise.
5In particular, the court stated that "victims of credit card
fraud," though not subjected to violence, certainly experience "a
violation" and face difficulty when they "try to clear their
record[s]" and "clear their name[s]."
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The appellant has one more shot in his procedural-error
sling. He alleges that the district court failed adequately to
explain its reasons for imposing an upwardly variant sentence.
It is common ground that a sentencing court must "state
in open court the reasons for its imposition of the particular
sentence." 18 U.S.C. § 3553(c). Beyond that, the court is
obligated to complete "a statement of reasons form." Id.
§ 3553(c)(2); see 28 U.S.C. § 994(w)(1)(B). Even so, the court's
failure to complete this form does not require vacation of the
sentence absent a showing of prejudice. See United States v.
Vázquez-Martínez, 812 F.3d 18, 25-26 (1st Cir. 2016). We will not
set aside a sentence on such a ground if, after reviewing "the
district court's oral explanation, we believe that the district
court would have imposed the same sentence had it filed a written
statement of reasons form." Id. at 25.
We are mindful that the challenged sentence represents
an upward variance, exceeding the top of the applicable guideline
range by six months. A sentencing court's obligation to explain
its reasons for the sentence imposed is heightened in proportion
to the extent that the sentence varies from the guideline
sentencing range. See United States v. Montero-Montero, 817 F.3d
35, 37 (1st Cir. 2016). Larger variances require more cogent (or,
at least, more detailed) explanations. See id.
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In the case at hand, the appellant asseverates that the
district court did not furnish an adequate explanation for his
above-the-range sentence. The court did file a written statement
of reasons form, but the appellant argues that the court did not
sufficiently address that form's component parts. Specifically,
the appellant points out that the court did not complete section
VI(D) of the form, which directs that the court "[s]tate the basis
for a variance." This asseveration is true as far as it goes, but
it does not take the appellant very far.
Despite the omission on which the appellant relies, the
court did complete section VI(C) of the form, entitled "18 U.S.C.
§ 3553(a) and other reason(s) for a variance." This section
presents a checklist of the section 3553(a) factors and provides
blank lines for the court to insert more particularized comments.
The court checked several boxes listing pertinent statutory
factors, and it specified (in the space allotted) that the nature
of the offense — a "[p]lanned, premeditated fraud" — together with
the appellant's "[e]xtensive" criminal history warranted the
upwardly variant sentence. Given that the court did supply its
reasons for the variance, we are not convinced that its failure to
complete section VI(D) was error.
Even assuming, for argument's sake, that the failure to
fill out section VI(D) was error, any such error was harmless.
See United States v. Fernández-Garay, 788 F.3d 1, 5 (1st Cir. 2015)
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("[A]n error is deemed harmless if a reviewing court can say with
fair assurance that the sentencing court 'would have imposed the
same sentence even without the error.'" (quoting United States v.
Tavares, 705 F.3d 4, 25 (1st Cir. 2013)). What the court wrote in
responding to other sections of the form, combined with what it
said at the disposition hearing, leaves no doubt that the district
court would have imposed the same sentence had it filed a fully
completed statement of reasons form.
The appellant demurs. He suggests that having the
district court complete the form in full would have made a
difference in his sentence. In his view, the district court was
"subconsciously" influenced by the proposed two-level enhancement
for the possession or use of device-making equipment, see USSG
§2B1.1(b)(11)(A)(i), even though the court sustained the
appellant's objection to this proposed enhancement. Had the court
written out the basis for the variance, the appellant says, it
"may have noted the eerie similarity between the variant sentence
handed down and the top of the Guideline Sentencing Range
[including] the disallowed two-level enhancement."
This argument, though creative, is woven entirely out of
tattered threads of speculation and surmise. Nothing in the record
so much as hints that the court confused the two guideline
sentencing ranges and thought it was imposing a top-of-the-range
sentence. Nor does the record indicate that once the court had
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rejected the proposed enhancement, it nonetheless continued to
take it into account.
The appellant makes one last effort to pull a rabbit out
of a hat. The sentencing court's oral reasoning makes
transparently clear that the driving force behind the upward
variance was the combination of the appellant's prolific criminal
history and the gravity of the offense of conviction. The
appellant strives to transmogrify the clarity of this explanation
into a fatal flaw. He posits that the sentencing guidelines
already accounted for these factors and, thus, the court needed to
explain why the guidelines insufficiently accounted for them
before imposing an above-the-range sentence. See United States v.
Zapete-Garcia, 447 F.3d 57, 60 (1st Cir. 2006) (explaining that
when a sentencing court relies on a factor already accounted for
by the sentencing guidelines to impose a variant sentence, the
court must indicate what makes that factor worthy of extra weight
in the defendant's case); see also United States v. Del Valle-
Rodríguez, 761 F.3d 171, 176 (1st Cir. 2014).
The appellant's argument collapses because the court did
exactly what the case law requires. The court noted that both the
appellant's past convictions and the offense conduct were non-
violent and stated "that's why the guideline range on this
. . . is light." It then explained that, notwithstanding their
non-violent nature, the appellant's crimes were serious and
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emphasized the hardship that fraud of the type perpetrated by the
appellant in past cases imposes on its victims. Similarly, the
court was "very concerned" about protecting the public from the
appellant's "serial nonstop criminal conduct" and worried that the
appellant would resume his criminal behavior "the minute he gets
out." No more detailed explanation was exigible: "a sentencing
court's obligation to explain a variance requires the court to
offer a plausible and coherent rationale — but it does not require
the court to be precise to the point of pedantry." Del Valle-
Rodríguez, 761 F.3d at 177.
This brings us to the appellant's challenge to the
substantive reasonableness of his sentence. The government
concedes that the appellant preserved this objection below and,
thus, our review is for abuse of discretion. See United States v.
Medina-Villegas, 700 F.3d 580, 583 (1st Cir. 2012).
"In appraising the substantive reasonableness of a
sentence, we first ask whether the district court has offered a
plausible rationale for the sentence and then ask whether the
sentence embodies a defensible result." United States v. Díaz-
Arroyo, 797 F.3d 125, 129 (1st Cir.), cert. denied, 136 S. Ct. 272
(2015). We must affirm the sentence if it is "within the universe
of acceptable outcomes." United States v. Vargas-Dávila, 649 F.3d
129, 132 (1st Cir. 2011). This remains true even if reasonable
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jurists could disagree on the length of the ideal sentence. See
id.
This standard is "highly deferential" to the district
court's judgment, even when that court has imposed a variant
sentence. United States v. Matos-de-Jesús, ___ F.3d ___, ___ (1st
Cir. 2017) [No. 16-1695, slip op. at 10]. Here, moreover, the
court below provided a surfeit of reasons in support of the
sentence imposed.
As we already have discussed, the appellant came before
the court with a lengthy criminal history — one that convinced the
court that the appellant presented a very high risk of recidivism.
In addition, the court was troubled by the fact that the
appellant's criminal conduct seemed to be increasing in severity,
as his current offense was "a planned, premeditated scheme" of
"deceit and fraud" that "lasted over many weeks" as opposed to a
crime of opportunity. This escalation reflected a change of course
(in the wrong direction) from the appellant's earlier convictions
for, say, stealing wallets.
To be sure, the court recognized that there were two
sides to the story. For example, it found the appellant's personal
circumstances mitigating. He had been raised by a supportive
foster family from the age of four, but his upbringing was marred
by behavioral and mental health issues. The court considered the
appellant's psychological infirmities — anxiety, depression, post-
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traumatic stress disorder, and polysubstance dependence — to weigh
in mitigation. The court told the appellant that it had "taken
into consideration everything I've heard" and "come down from where
I really thought you should be based on my reading of your criminal
record."
The sentencing court's comments, read as a whole, paint
a clear picture of the court's thought process. We consider its
carefully balanced rationale to be thoroughly plausible.
So, too, we take no issue with the resulting sentence.
The duration of the sentence is readily defensible: the appellant's
criminal history is substantial, the offense of conviction is
serious, and the appellant's past encounters with the legal system
have not altered his behavior. Seen in this light, the 30-month
sentence falls well within the universe of reasonable sentences.
See Vargas-Dávila, 649 F.3d at 132. Accordingly, the appellant's
claim of substantive unreasonableness fails.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the sentence is
Affirmed.
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