United States v. Tanco-Pizarro , 892 F.3d 472 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 15-2388
UNITED STATES,
Appellee,
v.
RAFAEL TANCO-PIZARRO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Lynch, Stahl, and Thompson,
Circuit Judges.
Gail M. Latouf for appellant.
John A. Mathews II, with whom Rosa Emilia Rodríguez-Vélez,
United States Attorney, Mariana E. Bauzá-Almonte, Assistant United
States Attorney, Chief, Appellate Division, and Tiffany V.
Monrose, Assistant United States Attorney, were on brief, for
appellee.
June 13, 2018
THOMPSON, Circuit Judge. Rafael Tanco-Pizarro mounts a
multi-dimensional challenge — on both procedural and substantive
grounds — to the 60-month sentence he received following the
revocation of his supervised release. After giving his arguments
full and fair consideration, we affirm.
Revocation Primer
To help the reader better understand what happened
below, we begin with some general observations about revocation
sentencing.
By statute, a court may revoke a person's supervised
release if it finds the government proved a release-condition
violation by a preponderance of the evidence, see 18 U.S.C.
§ 3583(e)(3), which is a more-likely-than-not standard, see United
States v. Edwards, 857 F.3d 420, 421 (1st Cir. 2017). Shifting to
sentencing, the court starts its analysis by calculating the
suggested prison range under the federal sentencing guidelines —
a range that is based on the offender's criminal history at the
time of his original sentence and the grade of his violation.
U.S.S.G. § 7B1.4(a). There are three violation grades, running
from grade A (the most serious) to grade C (the least serious).
See id. §§ 7B1.1, 7B1.3. The violation's grade is determined by
the "conduct constituting" any "federal, state, or local offense
punishable by" various "term[s] of imprisonment." See id.
§ 7B1.1(a). Armed with the relevant info, the court turns to the
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guidelines' "Revocation Table." And by plotting the offender's
violation grade along the table's vertical axis and his criminal
history along the table's horizontal axis, the court ends up with
the advisory-prison range. See id. § 7B1.4.
The word "advisory" is a dead giveaway that the table's
ranges are nonbinding. See United States v. Márquez-García, 862
F.3d 143, 147 n.2 (1st Cir. 2017). A court has discretion, but
not carte blanche. A statute caps the stiffest possible sentences.
And the statutory cap depends "on the severity of 'the offense
that resulted in the term of supervised release.'" United States
v. Fontanez, 845 F.3d 439, 445 (1st Cir. 2017) (quoting 18 U.S.C.
§ 3583(e)(3)). "For that purpose," § 3583(e) groups offenses "in
various categories." Id. And these "groupings have real-world
consequences," as we recently wrote: "upon revocation of
supervised release" a
[c]lass C or D felony bears a maximum sentence . . . of
two years; a [c]lass B felony bears a maximum sentence
. . . of three years; a [c]lass A felony bears a maximum
sentence . . . of five years; and all other offenses
bear a maximum sentence . . . of one year.
Id. at 445-46 (citing § 3583(e)(3)). A court can sentence the
offender to a prison stint within the applicable statutory maximum,
after considering the relevant sentencing factors that help guide
the court's discretion, see, e.g., United States v. Vargas-Dávila,
649 F.3d 129, 131-32 (1st Cir. 2011) — and we will say more about
that later.
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With this short primer in place, we turn to Tanco-
Pizarro's case.
Violations and Fallout
The key facts are simple and undisputed. Almost eight
years ago, in December 2010, Tanco-Pizarro finished a prison
sentence for possessing a gun and ammo in furtherance of a drug-
trafficking crime and began a five-year term of supervised release.
And things went swimmingly, apparently — at least for a while.
In December 2014 and again in September 2015, probation
notified the district court that Tanco-Pizarro had broken several
conditions of supervised release. Only three are relevant here.
The first one arose from probation's claim that it had tried
without success to contact him "numerous times" (by phone and in
person), that he had not updated his contact info as required, and
that he had failed to report to the probation office as requested
— all of which, probation alleged, violated a supervised-release
term requiring him to "answer truthfully all inquiries by the
probation officer and follow the instructions of the probation
officer." The next two stem from probation's claim that while
police officers in San Juan were helping Tanco-Pizarro get out of
a BMW overturned on a road, they found an "AK rifle," a "Glock
pistol," and a collection of magazines and ammunition in the auto
— all of which, according to probation, violated supervised-
release terms forbidding him from committing another "federal,
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state[,] or local crime" and banning him from possessing "a
firearm" or "ammunition" (excess capitalization omitted).
Matters went from bad to worse for Tanco-Pizarro, when
in October 2015 a federal grand jury — relying on what the police
had recovered from the flipped-over Beemer — indicted him for being
a felon in possession of a firearm. Skipping over details not
relevant to this appeal, we see that hard on the heels of this
indictment, Tanco-Pizarro moved for a continuance of the final-
revocation hearing and moved for discovery: filed 7 days before
the hearing, the continuance motion argued that "the outcome" of
the felon-in-possession case "may have an effect in the disposition
of the instant case"; filed 2 days before the hearing, the
discovery motion asked that the court order the government to turn
over certain documents related to the felon-in-possession matter.
The court denied his motions. And following a hearing, the court
revoked his supervised release. To avoid consuming too many pages
of the Federal Reporter, we cover only the highlights from that
proceeding.
Starting with the felon-in-possession charge first,
Tanco-Pizarro (through his lawyer) disputed whether the seized
firearm was an automatic — in this instance (the parties agreed)
an automatic firearm would support a grade A violation, while a
non-automatic firearm would support a grade B violation. And he
moved orally for the court to hear the testimony of the probation
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officer on this point. But the court denied the motion. He then
conceded that the court could rely on the indictment to determine
whether he had violated his supervised release by possessing a
firearm. Tackling the failure-to-report violation, he
"accept[ed]" that infraction, conceding (in the words of his
lawyer) that "after November of 2014," his "whereabouts . . . were
unknown until the time that he was arrested" following the
overturned-BMW incident — a "grade C violation." No surprise,
then, that the court found that he violated his supervised release
by "not reporting to the probation officer." But the court found,
too, that his "new criminal behavior" also infracted his supervised
release — a "grade B violation," not a grade A violation.
Using the higher-found grade and a criminal history
category of II, the court calculated Tanco-Pizarro's advisory-
prison range to be 6 to 12 months. See U.S.S.G. §§ 7B1.1(a)(2),
7B1.4(a). And because his original crime was a "class A felony,"
the court said that it could put him back behind bars for up to 60
months, the maximum penalty provided by statute.
The government pushed for a 60-month sentence. For his
part, Tanco-Pizarro's counsel did not request a specific sentence.
But he did ask the court to keep in mind that his client faced a
sentencing range of 37 to 46 months for the felon-in-possession
charge and that any sentence on that charge would probably "run[]
consecutively to" any revocation sentence.
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Concluding Tanco-Pizarro had shown he would not comply
with the law or with the conditions of supervision, the court
sentenced him to 60 months in prison — with no further supervised
release. That sentence, the court added, "reflect[s] the
seriousness of the offense, promote[s] respect for the law, . . .
provide[s] just punishment for the offense, . . . afford[s]
adequate deterrence, and protect[s] the public from further
crimes" — and thus was "sufficient but not greater than necessary
in this case." Significantly, neither Tanco-Pizarro nor his lawyer
objected to the sentence.
Five days later, however, Tanco-Pizarro moved for
reconsideration, arguing as relevant here that the district court
did not adequately explain its sentencing rationale and wrongly
factored "the seriousness" of the felon-in-possession crime, "the
promotion of respect for the law, and punishment for" the felon-
in-possession "offense" into its sentencing analysis.1 The
1 We pause to remind the bar that "[t]here is simply no such
thing as a 'motion to reconsider' an otherwise final sentence
. . . ." United States v. Ortiz, 741 F.3d 288, 292 n.2 (1st Cir.
2014) (second alteration in original) (quoting United States v.
Dotz, 455 F.3d 644, 648 (6th Cir. 2006)); accord United States v.
Gonzalez-Rodriguez, 777 F.3d 37, 41 (1st Cir. 2015). A "court may
not modify a term of imprisonment once it has been imposed," see
18 U.S.C. § 3582(c), subject only (so far as pertinent here) to an
exception allowing a court to "correct" an "arithmetical,
technical, or other clear error" within "14 days after sentencing,"
see Fed. R. Crim. P. 35(a) — for other exceptions, check out Fed.
R. Crim. P. 35(b) (dealing with a situation where a defendant
provides substantial assistance after the sentence is imposed) and
§ 3582(c)(2) (dealing with a situation where the Sentencing
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government opposed the motion. And the court denied it, ruling —
in an electronic order — that Tanco-Pizarro's "lack of compliance
with the reporting requirement of his supervised release and the
fact that he was arrested while heavily armed . . . are strong
reasons for the [c]ourt to impose" a 60-month sentence.2
Commission has made a retroactive change in a guidelines range).
The advisory notes to Rule 35 make clear that
[t]he authority to correct a sentence under [Rule 35(a)]
is intended to be very narrow and to extend only to those
cases in which an obvious error or mistake has occurred
in the sentence, that is, errors which would almost
certainly result in a remand of the case to the trial
court for further action under Rule 35(a). The
subdivision is not intended to afford the court the
opportunity to reconsider the application or
interpretation of the sentencing guidelines or for the
court simply to change its mind about the
appropriateness of the sentence.
Fed. R. Crim. P. 35 advisory committee's note to 1991 amendment.
Tanco-Pizarro's motion conspicuously did not cite any authority
authorizing his reconsideration bid. But that issue is not before
us. So we have nothing more to say about it.
2 We take judicial notice that after the revocation sentencing
but before the reconsideration ruling, Tanco-Pizarro pled guilty
— under a written plea agreement — to the felon-in-possession
charge. See United States v. Tanco-Pizarro, 873 F.3d 61, 63 (1st
Cir. 2017); see generally White v. Gittens, 121 F.3d 803, 805 n.1
(1st Cir. 1997) (discussing judicial notice). And one day after
losing his reconsideration bid, the court (acting through a
different judge) sentenced him to a 57-month prison term on the
felon-in-possession charge, to run consecutive to his 60-month
revocation sentence. See Tanco-Pizarro, 873 F.3d at 64. He later
appealed his felon-in-possession conviction and sentence, arguing
that his plea was not knowing and voluntary, that the government
breached the plea agreement, and that the court violated his right
to allocute before sentencing him. See id. at 63. But we affirmed.
Id.
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That brings us to today's appeal, which, as we said,
centers around Tanco-Pizarro's claim that the 60-month sentence is
both procedurally unsound and substantively unreasonable.
Procedural Reasonableness
Issues
Tanco-Pizarro offers a number of arguments in support of
his procedural-reasonableness attack. Focusing on the district
court's rulings denying his motions for continuance, discovery,
and the probation officer's in-court testimony, he charges that
these edicts violated Fed. R. Crim. P. 32.1 and the Constitution's
due-process guarantees. To his mind, these denials deprived him
of the "opportunity to obtain evidence that would be available in
the parallel criminal prosecution" and to "present testimony that
would demonstrate the nature of the firearm" that triggered
revocation. He also insists that the court wrongly considered a
bunch of factors — the seriousness of, and providing just
punishment for, the felon-in-possession offense, plus the need to
promote respect for the law — in settling on the revocation
sentence. For ease of reference we will sometimes refer to these
as the "contested factors." Shifting gears, he accuses the court
of not adequately considering a "mitigating factor" — i.e., that
he had complied with his supervised-release conditions "for four
years until he failed to report" in December 2014. He then
complains that the court gave no weight to the § 7B1.4 recommended
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range of 6 to 12 months. And finally, he faults the court for not
sufficiently explaining the reasons for the sentence.
It probably goes without saying — but we say it anyway
— that the government believes Tanco-Pizarro is wrong about
everything.
Standard of Review
We usually review procedural-reasonableness claims for
abuse of discretion. See, e.g., United States v. Alejandro-Rosado,
878 F.3d 435, 438-39 (1st Cir. 2017). But Tanco-Pizarro failed to
preserve a procedural-reasonableness objection at sentencing. So,
with one exception discussed shortly, we review only for plain
error. See id. at 439. And for him to prevail under that standard,
he "must show (1) error, (2) plainness, (3) prejudice, and (4) an
outcome that is a miscarriage of justice or akin to it," see United
States v. Edelkind, 467 F.3d 791, 797 (1st Cir. 2006) — a tall
order, indeed, see United States v. Garay-Sierra, 885 F.3d 7, 12
(1st Cir. 2018).
But wait a minute, says Tanco-Pizarro — surely the motion
for reconsideration preserved the procedural-reasonableness claim
— or so he protests. The problem for him is that arguments unveiled
for the first time in a reconsideration motion are not preserved
for appeal. See, e.g., United States v. McNicol, 829 F.3d 77, 83
n.2 (1st Cir. 2016); United States v. Almonte-Reyes, 814 F.3d 24,
27 n.4 (1st Cir. 2016). Enough said on that.
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Now on to Tanco-Pizarro's procedural-reasonableness
arguments.
Due-Process and Rule-32.1 Concerns
To hear Tanco-Pizarro tell it, the district court's
rejection of his motions for a continuance, discovery, and in-
court testimony offended his "right to Due Process" that he says
is "embodied in" Rule 32.1.3 But unfortunately for him, we see
nothing approaching plain error here.
Take first his beef with the court's denial of his
continuance and discovery motions. His basic theory is that by
doing what it did, the court robbed him of the chance "to defend
himself and offer potentially mitigating or exculpatory evidence."
One problem for him is that the defense conceded below that since
"the grand jury [found] probable cause to indict" him for the
felon-in-possession crime, the court could "rely on the
indictment" to determine if he violated his supervised-release
conditions. Another problem for him is that he never so much as
hinted what mitigating or exculpatory evidence he hoped to come up
with — not in his motions or at the revocation hearing (or for
3 Under the heading "Revocation Hearing," Rule 32.1
pertinently provides that "[u]nless waived by the person, the court
must hold [a] revocation hearing," at which he can "present
evidence"; "question any adverse witness unless the court
determines that the interest of justice does not require the
witness to appear"; and offer "any information in mitigation."
Fed. R. Crim. P. 32.1(b)(2)(C), (E).
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that matter in his appellate papers). Indeed, he never used any
combination of the words "mitigating" or "exculpatory" below.
Given this concatenation of circumstances, we think it too much to
expect the court to second-guess his silence on this matter and
intuit what possible mitigating or exculpatory evidence there
might be — which is why this is not the stuff of plain error. See
United States v. Frady, 456 U.S. 152, 163 (1982) (noting that plain
error assumes an error so clear-cut that the court should have
avoided it, "even absent the defendant's timely assistance in
detecting it").
The same is true for the court's handling of Tanco-
Pizarro's in-court testimony request. To his way of thinking, in-
court testimony would have shown that "the firearm was not fully
automatic" — which, as he argued below, would have meant that he
had committed a grade-B violation rather than a grade-A violation.
But even a cursory glance at the sentencing transcript shows the
court gave the firearm violation a B grade, just as Tanco-Pizarro
had wanted. Consequently, his argument here has no oomph.
Consideration of the Contested Factors
We are similarly unpersuaded by Tanco-Pizarro's claim
that the court erred by integrating the contested factors — the
seriousness of the offense, respect for the law, and just
punishment — into its sentencing calculus. As we said above, 18
U.S.C. § 3583(e) lets a district court revoke supervised release
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after the court considers a collection of sentencing factors listed
in 18 U.S.C. § 3553(a). Vargas-Dávila, 649 F.3d at 131-32. These
factors — which guide the lower court's sentencing discretion —
include
the nature and circumstances of the offense, . . .
§ 3553(a)(1); the history and characteristics of the
offender, id.; the need for adequate deterrence, id.
§ 3553(a)(2)(B); the need to protect the public, id.
§ 3553(a)(2)(C); and the penological needs of the
offender, such as the need for special care or treatment,
id. § 3553(a)(2)(D).
Id. at 131. Missing from § 3583(e)'s list is § 3553(a)(2)(A),
which talks about "the need for the sentence imposed . . . to
reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense."
Given subsection (a)(2)(A)'s omission, Tanco-Pizarro
thinks the court had no business focusing on "the severity of the"
felon-in-possession offense, "respect [for] the law[,] and
punishment." As he sees things, these contested factors are taboo
here because they mimic subsection (a)(2)(A). Also, quoting the
sentencing guidelines, he reminds us that unlike original
sentencing, supervised-release revocation rests on a notion of
"sanction[ing] primarily the defendant's breach of trust" and
"taking into account, to a limited degree, the seriousness of the
underlying violation and the criminal history of the violator."
See U.S.S.G. ch. 7, pt. A, intro. cmt. 3(b). And by focusing on
the contested factors, his theory continues, the court "punished
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[him] for the new criminal conduct" and not for the breach of
trust.
None of our cases requires us to accept his theory,
however. And several stand in his way, two of which the parties
fight about — Vargas-Dávila, 649 F.3d at 131-32, and United States
v. Bohan, 496 F. App'x 95, 96 (1st Cir. 2012).
Vargas-Dávila rejected an argument similar to Tanco-
Pizarro's, explaining that "[a]lthough section 3583(e)(3)
incorporates by reference, and thus encourages, consideration of
certain enumerated subsections of section 3553(a), it does not
forbid consideration of other pertinent section 3553(a) factors."
See 649 F.3d at 131-32 (emphasis added) (rejecting defendant's
claim that "the district court improperly considered the
government's statement at the revocation hearing that he had
'demonstrate[d] a lack of respect for the Court's order[s],'" which
"overlap[s] with section 3553(a)(2)(A)'s instruction 'to promote
respect for the law' — an instruction not incorporated . . . by
reference in section 3583(e)"). Vargas-Dávila cited for support
United States v. Williams, where the Second Circuit held that
§ 3583(e) "does not state that any particular factor cannot be
considered, and we interpret § 3583(e) simply as requiring
consideration of the enumerated subsections of § 3553(a), without
forbidding consideration of other pertinent factors." 443 F.3d
35, 47 (2d Cir. 2006) (emphasis added). Tanco-Pizarro tries to
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distinguish Vargas-Dávila on the grounds that there, unlike here,
"the revocation sentence was appellant's second revocation, and
the violation occurred shortly after appellant's release from
serving the first revocation sentence." But he gives us no
convincing explanation (and we at present can think of none) for
why the issue should turn on the number of supervised-release
revocations involved or the timing of those revocations — which
dooms his bid to escape Vargas-Dávila's grasp.
Echoing Vargas-Dávila, Bohan flatly "reject[ed]" the
argument that a court errs by "rely[ing] on § 3553(a)(2)(A)
factors." See 496 F. App'x at 96 n.1; see also id. at 96 (spurning
defendant's contention "that the sentencing court impermissibly
considered § 3553(a)(2)(A) factors, including the need for the
sentence imposed to 'reflect the seriousness of the offense' and
to 'provide just punishment for the offense'"). Tanco-Pizarro
pooh-poohs Bohan, principally because it is an unpublished
decision. But we know of no authority holding that a district
court plainly errs by doing what an unpublished opinion of ours
permits and no binding/published opinion prohibits. See generally
United States v. Knox, 593 F. App'x 536, 537-38 (6th Cir. 2015)
(holding that the fact that a Sixth-Circuit opinion "is unpublished
does not matter to the plain-error analysis: [b]ecause there was
no Supreme Court or published Sixth Circuit case law to the
contrary, the district court did not plainly err in following 'the
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law, albeit unpublished, of this circuit'" (quoting United States
v. Crouch, 288 F.3d 907, 910 (6th Cir. 2002))); United States v.
Guerrero-Robledo, 565 F.3d 940, 946 (5th Cir. 2009) (explaining
that "[i]t certainly is not plain error for the district court to
rely on an unpublished opinion that is squarely on point").
If more were needed (and we do not think that it is),
there is United States v. Soto-Soto, 855 F.3d 445 (1st Cir. 2017).
A supervised-release-revocation case, Soto-Soto said that "the
seriousness of the offense, promoting respect for the law, [and]
providing just punishment" were "proper . . . sentencing factors."
Id. at 451. And we see no reason why Tanco-Pizarro's case falls
outside Soto-Soto's reach.
As for Tanco-Pizarro's claim that the district court
punished him for his new criminal conduct, not for his breach of
trust, the record shows otherwise. Among other things, the court
noted that Tanco-Pizarro has shown zero ability to comply with the
law and with his supervised-release conditions. To back up its
point, the court stressed that he possessed "a firearm" while
"being a convicted felon"; that he "did not visit the probation
office as requested"; and that "his whereabouts were unknown" for
a significant stretch. And, devastating to his position, these
"reasons fall within the Guidelines 'breach of trust' approach" —
an approach that lets courts "consider[] . . . 'the nature of the
conduct leading to the revocation . . . in measuring the extent of
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the breach of trust,' and impos[e] . . . a sentence 'intended to
sanction the violator for failing to abide by the conditions of
the court-ordered supervision.'" Bohan, 496 F. App'x at 96-97
(quoting U.S.S.G. ch. 7, pt. A (3)(b), intro. cmt.).4
The bottom line is that none of this sinks to the level
of plain error.5
Consideration of the Mitigating Factor
We can make quick work of Tanco-Pizarro's claim that the
district court did not consider as mitigation that he had complied
with his supervised-release conditions "for four years" before
going off the grid. Tanco-Pizarro did not allude to, let alone
discuss, this mitigating factor at his revocation hearing — he
limited his argument for a lighter revocation sentence only to his
claim that the advisory-guideline range would likely be 37 to 46
months for the felon-in-possession charge, and his revocation
sentence and his felon-in-possession sentence would probably run
consecutive to one another. Under these circumstances, he "waived"
4 We quote this passage from Bohan to counter Tanco-Pizarro's
suggestion that Bohan actually helps his cause.
5 Tucked in this section of Tanco-Pizarro's brief is this
additional argument on the felon-in-possession matter: "although
the court did not hear evidence on the question whether the firearm
was automatic, the record supports the inference that the court
did factor that unsupportable allegation into the revocation."
But again, the record shows with absolute clarity that the court
treated the gun as a non-automatic weapon — hence this aspect of
Tanco-Pizarro's argument is a no-go as well.
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the claim he makes now — so not even plain-error review is
possible. See United States v. Mayes, 332 F.3d 34, 37 n.4 (1st
Cir. 2003); see also United States v. Burks, 191 F. App'x 4, 5-6
(1st Cir. 2006).
Weight Given to § 7B1.4's Recommended Sentence
Also going nowhere is Tanco-Pizarro's argument that the
district court gave zero weight to the 6 to 12 months range
recommended by the sentencing table in § 7B1.4. "[T]his table is
an 'advisory' policy statement rather than a formal guideline."
United States v. Tapia-Escalera, 356 F.3d 181, 182 (1st Cir. 2004)
(quoting U.S.S.G. ch. 7, pt. A, intro. cmt. 3). The lower court
must "consider" that policy statement. United States v. Daoust,
888 F.3d 571, 576 (1st Cir. 2018). And the court here did just
that. But the court was not bound to follow the table's
recommendation. See, e.g., United States v. Hernández-Ferrer, 599
F.3d 63, 66 (1st Cir. 2010); Tapia-Escalera, 356 F.3d at 182;
United States v. O'Neil, 11 F.3d 292, 301 n.11 (1st Cir. 1993).
So the court's treatment of § 7B1.4's recommended sentence does
not come anywhere close to plain error.
Adequacy of the Explanation
We train our sights then on Tanco-Pizarro's claim that
the district court offered no credible explanation to justify
imposing a 60-month sentence that exceeded the top of the
applicable advisory-sentencing range (12 months) by a factor of
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five — i.e., a 500% upward variance. Compounding matters, he
writes, "the district court knew [he] was being prosecuted in a
parallel case for the criminal conduct that was the basis of
revocation." Once again, though, he cannot show plain error.
True, a court must adequately explain "in open court"
why it chose a particular sentence. 18 U.S.C. § 3553(c). And
that burden certainly increases the more the court drifts away
from the advisory-sentencing range. United States v. Montero-
Montero, 817 F.3d 35, 37 (1st Cir. 2016). But "a variant sentence"
is often "'based on a complex of factors whose interplay and
precise weight cannot . . . be precisely described.'" United
States v. Matos-de-Jesús, 856 F.3d 174, 179 (1st Cir. 2017)
(quoting United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008)).
Such is the case here. So the court's explanation did not have to
be detailed to the point of obsession — all the court had to do
was "identif[y] the primary reasons underpinning its decision."
Id.
By our lights, the court met its burden, offering a
coherent justification for the 60-month sentence. The court
discussed each violation, for example — remember, per the court,
Tanco-Pizarro violated not one, but two supervised-release
conditions: failing to report for months on end and committing
the crime of possessing firearms as a felon. And the court walked
through the key factors that drove its decision, including the
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need to protect the public from, and to deter further criminal
activity by, an offender who got hit with a felon-in-possession
charge while on supervised release for an earlier gun-related
offense. All of this led the court to conclude that Tanco-Pizarro
had shown a history of not following the criminal law or his
conditions of supervised release.6
As for Tanco-Pizarro's suggestion that the court should
have gone easier on him because it knew he "would be punished again
for the same conduct in the parallel criminal prosecution," the
revocation sentence is the only sentence that punished him for the
violations, and implicit in the court's analysis is its judgment
that he should get serious prison time for those flagrant
violations. Also, he cites no authority limiting the court's
ability to give him the statutory maximum even though he faced
punishment in the "parallel criminal" case. Perhaps that is
because we have clear authority cutting against his theory — United
States v. Coombs, 857 F.3d 439, 451 (1st Cir. 2017). Coombs
contains two holdings relevant here. The first is that when a
supervised releasee "transgresses the criminal law as well as the
conditions of supervision, there is no legal impediment in
6
Montero-Montero — on which Tanco-Pizarro heavily relies —
is easily distinguishable from today's case because there, unlike
here, the "sentencing transcript" revealed "nothing that remotely
resemble[d] an adequate explanation of the sharply variant
sentence." See 817 F.3d at 37.
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sentencing [him] both as a criminal and as a supervised release
violator" — if the rule were "otherwise," he "would effectively
escape meaningful punishment for violating his supervised release
conditions." Id. The second is that "there is no legal impediment
to imposing the sentences to run consecutively" — actually, a
guideline provision "envision[s] precisely such a scenario," what
with it saying that "'[a]ny term of imprisonment imposed'" after
"'the revocation of . . . supervised release shall be ordered to
be served consecutively to any sentence of imprisonment that the
defendant is serving,'" regardless of "'whether . . . the sentence
of imprisonment being served resulted from the conduct that is the
basis of the revocation of . . . supervised release.'" Id.
(quoting U.S.S.G. § 7B1.3(f)).
We thus have no trouble concluding that the court's
explanation, brief as it is, suffices to withstand plain-error
review.7 See Alejandro-Rosado, 878 F.3d at 440.
7 One final matter before we leave the explanation issue.
Tanco-Pizarro says that probation "did not prepare a Revocation
Report or an Amended Presentence Report," and "[t]he district court
did not prepare a written Statement of Reasons for the revocation
sentence." But he develops no legal argument directed to these
points and so waived any argument that he might have had. See,
e.g., United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
(describing the "settled appellate rule that issues adverted to in
a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived").
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Substantive Reasonableness
Even less need be said about Tanco-Pizarro's
substantive-reasonableness challenge. Made only in passing, the
entirety of his argument — which basically recycles something we
just rejected — is this: "[t]he sentence in this case, 500% upward
variance where the court [knew] the defendant [would] be punished
again for the same conduct in the parallel criminal prosecution,
is not defensible; nor is the explanation offered by the court
plausible." Despite débuting this claim here, we will "assume,
favorably to [him], that the abuse-of-discretion standard of
review applies." See Márquez-García, 862 F.3d at 147 (noting that
"[t]he standard of review for [unpreserved] claims of substantive
unreasonableness is 'somewhat blurred,'" and choosing "to skirt
this murky area" by "assum[ing]" for argument's sake that the more
favorable "abuse-of-discretion" test controls (quoting United
States v. Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir. 2015))).
As Tanco-Pizarro alluded to in his brief, a sentence is
substantively reasonable if the court's reasoning is plausible and
the result is defensible. See, e.g., United States v. Rodríguez-
Adorno, 852 F.3d 168, 177 (1st Cir. 2017). Know too that because
it is an inherently flexible concept, "[r]easonableness" in this
context "entails a range of potential sentences," rather than "a
single" definite outcome. United States v. Dixon, 449 F.3d 194,
204 (1st Cir. 2006).
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With that in mind, we cut directly to the chase. Nothing
in Tanco-Pizarro's arguments convinces us the sentence is
implausible or indefensible. As we were at pains to show in the
last section, the court — after considering the proper sentencing
factors — plainly justified the incarcerative term. And while
stiff, the sentence's length — 60 months, well above the nonbinding
range of 6 to 12 months, and right at the statutory maximum — is
defensible. After all, even a stiff sentence may come "within the
universe of reasonable sentences." United States v. de Jesús, 831
F.3d 39, 43 (1st Cir. 2016). Yes, "the greater the extent of a
variance, 'the more compelling the sentencing court's
justification must be.'" Id. (quoting United States v. Del Valle–
Rodríguez, 761 F.3d 171, 177 (1st Cir. 2014)). But, for the
reasons recorded above, the court's explanation satisfies that
metric, reflecting (as it does) the realities of Tanco-Pizarro's
situation. And his final salvo — that his sentence is
substantively infirm because the court knew he would be "punished
again for the same conduct in the parallel criminal prosecution"
— also misfires, thanks to Coombs. See 857 F.3d at 451.
Conclusion
Our work over, we affirm Tanco-Pizarro's 60-month
revocation sentence.
-Concurring Opinion Follows-
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THOMPSON, Circuit Judge, concurring. I agree (obviously)
with everything the court has said but write separately (and
briefly) only to make one additional point.
The law books are full of our opinions saying that when
a defendant raises a substantive-reasonableness challenge for the
first time here, "it is arguable whether our review is for abuse
of discretion or for plain error" — though we assume favorably to
the defendant that the abuse-of-discretion standard holds sway.
See, e.g., United States v. Demers, 842 F.3d 8, 14 (1st Cir. 2016).
Now, when it comes to alleged trial errors, a defendant "who deems
himself aggrieved . . . ordinarily must object then and there, or
forfeit any right to complain at a later time" — the reason being
that "calling a looming error to the trial court's attention
affords an opportunity to correct the problem before irreparable
harm occurs," and if the defendant holds his tongue below, he must
run the gauntlet of plain-error review. United States v. Taylor,
54 F.3d 967, 972 (1st Cir. 1995). But since we are dealing here
with a supposed sentencing error, I wonder whether and how Tanco-
Pizarro could have preserved a substantive-reasonableness
argument. I say this because a sentence is generally deemed
imposed when the judge announces it in open court. See Fed. R.
Crim. P. 35(c). So — as of now — it seems to me that once the
court imposed sentence, Tanco-Pizarro could only request a
modification through a Rule-35 motion (see footnote 1 of the lead
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opinion), even if he had voiced an objection at that point in the
hearing.
Neither party presses this issue, however. Consequently
there is no need to explore the matter today.
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