United States v. DeJesus ( 2021 )

United States Court of Appeals
For the First Circuit
No. 19-1445
UNITED STATES OF AMERICA,
Appellee,
v.
FRANKIE DEJESÚS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Kayatta, Selya, and Barron,
Circuit Judges.
John W. VanLonkhuyzen and Verrill Dana LLP on brief for
appellant.
Halsey B. Frank, United States Attorney, and Benjamin M.
Block, Assistant United States Attorney, on brief for appellee.
July 9, 2021
SELYA, Circuit Judge. In this sentencing appeal,
defendant-appellant Frankie deJesús challenges both the district
court's refusal to grant him an offense-level reduction for
acceptance of responsibility, see USSG §3E1.1, and the substantive
reasonableness of his downwardly variant sentence. Concluding, as
we do, that his claims of error are fruitless, we affirm.
I. BACKGROUND
Because the defendant's sentence followed a guilty plea,
we draw the facts from the change-of-plea colloquy, the presentence
investigation report (PSI Report), and the transcripts of the pre-
sentencing conference and disposition hearings. See United States
v. Rivera-González, 776 F.3d 45, 47 (1st Cir. 2015); United States
v. Del Valle-Rodríguez, 761 F.3d 171, 173 (1st Cir. 2014).
Beginning in 2015, the defendant became involved in a
conspiracy to distribute controlled substances. The nerve center
of the conspiracy was in Rochester, New York. A network of
associates transported weekly shipments of heroin and crack
cocaine from out of state to a dozen or more distribution
locations, known as "trap houses," in central Maine. Members of
the conspiracy traveled back and forth between the drug ring's New
York headquarters and these trap houses in order to supply and
sell the drugs and collect the proceeds. This arrangement
facilitated a heavy flow of drugs: from May 27 to June 26, 2016,
the defendant himself moved a converted drug weight of 1,874.11
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kilograms of heroin and crack cocaine. In the same time frame,
the defendant possessed a firearm to help him carry out the
conspiracy's business.
After participating in a shootout at a Walmart parking
lot in Augusta, Maine, the defendant came to the attention of the
authorities. He was arrested on state charges on June 26, 2016.
His cell phone was seized, and a forensic search turned up text
messages indicative of drug trafficking.
Incident to this arrest, the defendant was charged with
reckless conduct with a dangerous weapon, see Me. Rev. Stat. Ann.
tit. 17-A, § 211; id. § 1252(4) (repealed 2019); attempted murder,
see id. §§ 152, 201; and aggravated assault, see id. § 208. He
subsequently pleaded guilty to reckless conduct with a dangerous
weapon and disposition was deferred. The other charges were
dropped.
That was not the end of the matter. As a result of the
leads generated from the defendant's cell phone, a federal grand
jury sitting in the District of Maine returned an indictment
against him. The indictment charged him with a single count of
conspiracy to distribute and to possess with intent to distribute
controlled substances. See 21 U.S.C. §§ 841(a)(1), 846. He
pleaded not guilty and was released pending trial.
While on pretrial release, the defendant worked for a
number of different employers, including Speedway (a convenience-
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store chain). In the meantime, the district court set a change-
of-plea hearing for October 24, 2018.
Just one day before the scheduled hearing, the defendant
was arrested and charged with fourth-degree grand larceny for
stealing from Speedway. See N.Y. Penal Law § 155.30. It turned
out that, less than one week after starting at the convenience
store, he loaded $1,500 onto a prepaid debit card and left the
store without paying for the transfer. After committing this
theft, he never returned to work at Speedway. Although the
defendant now says that the entire affair was the result of a
misunderstanding, he pleaded guilty to a lesser charge of petit
larceny, see id. § 155.25, and was sentenced to time served.
On November 20, 2018, the defendant belatedly pleaded
guilty to the pending federal charge. At the district court's
direction, the probation office prepared a PSI Report. The PSI
Report recommended a total offense level (TOL) of 34 and a criminal
history category (CHC) of I, yielding a guideline sentencing range
(GSR) of 151-188 months. In calculating the TOL, the probation
office declined to recommend an offense-level reduction for
acceptance of responsibility, see USSG §3E1.1, on the ground that
the defendant's larceny offense evinced a failure to withdraw from
criminal conduct during pretrial release. Even so, the PSI Report
limned factors that might provide a basis for a downward variance,
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including the defendant's youth, his childhood traumas, and his
lack of any prior criminal history.
At the disposition hearing, the district court adopted
the probation office's recommended guideline calculations
(including the recommendation that the defendant not receive an
offense-level reduction for acceptance of responsibility). After
weighing the relevant sentencing factors, see 18 U.S.C. § 3553(a),
the court imposed a downwardly variant 130-month term of
immurement. This timely appeal followed.
II. ANALYSIS
In fashioning a sentence, a district court must first
"use the Sentencing Guidelines to calculate a recommended
sentencing range" and then consider "whether a guideline sentence
is appropriate in light of the factors enumerated in 18 U.S.C.
§ 3553(a)." United States v. Vázquez, 724 F.3d 15, 28-29 (1st
Cir. 2013). We review imposed sentences through the deferential
prism of the abuse of discretion standard. See Gall v. United
States, 552 U.S. 38, 51 (2007); United States v. Martin, 520 F.3d
87, 92 (1st Cir. 2008). "The touchstone of abuse of discretion
review in federal sentencing is reasonableness." United States v.
Vargas-Dávila, 649 F.3d 129, 130 (1st Cir. 2011).
The task of evaluating a sentence typically involves a
two-step pavane. See United States v. Miranda-Díaz, 942 F.3d 33,
39 (1st Cir. 2019); United States v. Clogston, 662 F.3d 588, 590
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(1st Cir. 2011). In executing this pavane, "we first determine
whether the sentence imposed is procedurally reasonable and then
determine whether it is substantively reasonable." Clogston, 662
F.3d at 590. Here, the defendant challenges both the procedural
integrity and the substantive reasonableness of his sentence.
Apart from his challenge to the court's declination to make a
downward adjustment for acceptance of responsibility, he finds no
fault with the district court's guideline calculations.
The defendant's twin challenges occur at separate steps
in the sentencing pavane. Thus, we address them separately.
A. The Claim of Procedural Error.
The defendant's procedural challenge centers on the
district court's decision to deny him an offense-level reduction
for acceptance of responsibility. This challenge has two facets.
To begin, the defendant asserts that the district court
failed to make an individualized assessment of his circumstances
when evaluating his acceptance of responsibility. Instead, it
denied him the offense-level reduction based on a general policy
and, thus, committed error. See United States v. Flores-Machicote,
706 F.3d 16, 24 (1st Cir. 2013) (requiring district courts to
"ground sentencing determinations in case-specific factors"). As
evidence of this purported error, the defendant points to a
statement made by the court during the disposition hearing. At
that time, the judge stated: "[i]n general, it has been my policy
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that if a defendant commits a new criminal offense while on
pretrial release, I have tended to deny . . . acceptance of
responsibility."
The words of a sentencing court must, of course, be taken
in context. See United States v. Rodríguez-Cruz, 997 F.3d 362,
366 (1st Cir. 2021) ("A party cannot lift a single comment from
the sentencing dialogue and focus on it in splendid isolation.").
Here — when the challenged statement is viewed in its full context
— the defendant's assertion withers. The statement, read as a
whole, described a tendency, not a rigid policy. And perhaps more
importantly, the court went on to make clear that its application
of its approach "depend[ed] on the nature of the new criminal
activity," thereby putting to rest any impression that the
defendant was being sentenced based on a general policy.
Last — but surely not least — the court couched the
denial of the acceptance-of-responsibility reduction not only on
the defendant's commission of a new offense while on pretrial
release but also more specifically on facts unique to the
defendant's new offense. These idiosyncratic facts included the
method of perpetration of the theft, its timing, and the
defendant's relationship with his victim. This focus on the
particular circumstances surrounding the aggravating offense
"unmistakably shows that the judge gave individualized attention
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to the defendant's situation." Flores-Machicote, 706 F.3d at 22;
see United States v. Deppe, 509 F.3d 54, 61 (1st Cir. 2007).
The second facet of the defendant's claim of procedural
error is no more robust. The defendant challenges the acceptance-
of-responsibility denial frontally, asserting that the district
court overemphasized the seriousness of the theft and downplayed
the significance of his guilty plea to the offense of conviction.
Thus, the defendant submits, the court contradicted a core
principle of the guidelines: that a timely and truthful admission
of guilt be given great weight in assessing acceptance of
responsibility. See USSG §3E1.1 cmt. n.1.
There is less to this argument than meets the eye. We
acknowledge, of course, that the guidelines are advisory, see
United States v. Booker, 543 U.S. 220, 259-60 (2005), and the
Sentencing Commission's commentary is not binding, see United
States v. Chuong Van Duong, 665 F.3d 364, 368 (1st Cir. 2012).
Even so, the baseline rule is that, in calculating a defendant's
GSR, "[c]ourts ordinarily should interpret and apply the
guidelines as written," looking both to the "guideline provision
about which the defendant complains" and "its associated
commentary." United States v. Fiume, 708 F.3d 59, 62 (1st Cir.
2013). The weighing of guideline factors is left principally to
the district court's judgment and its factfinding will not be
disturbed unless shown to be clearly erroneous. See United States
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v. Franky-Ortiz, 230 F.3d 405, 408 (1st Cir. 2000); United States
v. Royer, 895 F.2d 28, 29-30 (1st Cir. 1990). What is more, the
court is not obliged to spell out its reasoning in exquisite
detail: a "plausible basis for arriving at [a particular]
conclusion" is sufficient. Royer, 895 F.2d at 30.
There was no clear error here. The defendant bore the
burden of proving his entitlement to an offense-level reduction
for acceptance of responsibility. See United States v. D'Angelo,
802 F.3d 205, 210 (1st Cir. 2015). Although the guidelines look
with favor upon a timely guilty plea as a plinth for an acceptance-
of-responsibility adjustment, see USSG §3E1.1 cmt. n.3, a guilty
plea alone — even a timely guilty plea — does not guarantee receipt
of the downward adjustment, see D'Angelo, 802 F.3d at 210; Royer,
895 F.2d at 29-30. And a sentencing court, when attempting to
determine the sincerity of a defendant's acceptance of
responsibility, can weigh in the balance any new criminal conduct
committed while the defendant was on pretrial release for the
offense of conviction. See USSG §3E1.1 cmt. n.1(B); see also
D'Angelo, 802 F.3d at 211; United States v. Jordan, 549 F.3d 57,
61 (1st Cir. 2008). Such new criminal conduct has an obvious
bearing on the sincerity of a defendant's professed acceptance of
responsibility.
In the case at hand, the district court furnished a
convincing explanation as to why it deemed the defendant's new
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crime antithetic to an offense-level reduction for acceptance of
responsibility. The court gave four reasons. First, the amount
of money that the defendant stole ($1,500) was substantial.
Second, the fact that the theft was from the defendant's employer
betokened a "breach of trust" that signified a "lack of remorse."
Third, the theft occurred less than a week after the defendant had
commenced his employment. Fourth, the theft's logistics indicated
a "deliberate, planned crime that required forethought."
These reasons are persuasive, especially since the
defendant attempted to counter them solely through his own
testimony.1 Because the district court was "not bound to credit
self-serving protestations," United States v. Jiminez, 498 F.3d
82, 86 (1st Cir. 2007), its determination that the defendant had
deliberately engaged in significant criminal conduct while on
pretrial release cannot be said to be clearly erroneous. And once
the district court supportably has found that the defendant has
committed a new offense after being charged, it "may . . . decline
to award a reduction for acceptance of responsibility on that
ground alone." United States v. Carrington, 96 F.3d 1, 9 (1st
Cir. 1996).
1When the district court (during a pre-sentencing conference)
noted the lack of extrinsic evidence favoring the defendant on
this point and offered defense counsel an opportunity to supplement
the record, counsel declined. He told the court that he "[did
not] believe that approach [was] worth the coin."
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B. The Claim of Substantive Unreasonableness.
This leaves the defendant's claim that his sentence is
substantively unreasonable. We treat that claim as preserved, see
Holguin-Hernandez v. United States, 140 S. Ct. 762, 766 (2020),
and review it for abuse of discretion, see Gall, 552 U.S. at 51;
Martin, 520 F.3d at 92. To apply this standard, we must consider
the totality of the circumstances. Martin, 520 F.3d at 92.
Our starting point is the sentence itself: a 130-month
term of immurement. That sentence was a full twenty-one months
beneath the bottom of the GSR. Notwithstanding this sharp downward
variance, the defendant argues that — all things considered — any
sentence exceeding 120 months should be regarded as substantively
unreasonable.2
This argument cannot withstand scrutiny. "Our case law
makes pellucid that the hallmarks of a substantively reasonable
sentence are a plausible sentencing rationale and a defensible
result." Rodríguez-Cruz, 997 F.3d at 366. Both hallmarks are
present here.
2 The reasoning behind this 120-month figure is not
immediately apparent. Arguably, it may represent an attempt either
to borrow the sentence imposed on another member of the conspiracy
or to recast the GSR to reflect what it would have been had the
court granted a downward adjustment for acceptance of
responsibility.
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We begin with the sentencing court's rationale. That
rationale must be discernable, but it need not "be precise to the
point of pedantry." Del Valle-Rodríguez, 761 F.3d at 177.
In this instance, the court's rationale included its
appraisal of the defendant's culpability. It stressed his role in
a sprawling conspiracy that trafficked large amounts of highly
addictive drugs. The court also thought it significant that the
defendant participated in the conspiracy not out of addiction but
out of a decision to profit from a "business that trades on
misery." So, too, the court attached significance to the
defendant's participation in a risky shootout in a Walmart parking
lot during broad daylight, endangering innocent bystanders who
were close at hand.
The court then extended its rationale to take account of
mitigating factors. It noted, for example, the defendant's youth,
his traumatic childhood, his guilty plea, and the absence of a
prior criminal record. Weighing all of the factors, pro and con,
the court concluded that a downwardly variant sentence was
appropriate.
We find this rationale plausible. Although the
defendant insists that the district court misallocated the weight
that it gave to competing factors, the allocation of weight as
among sentencing factors is — within wide margins — a matter
committed to the district court's informed discretion. See United
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States v. Colón-Rodríguez, 696 F.3d 102, 108 (1st Cir. 2012);
Clogston, 662 F.3d at 593. The court below did not venture beyond
those margins.
The question remains as to whether the length of the
sentence is defensible. The defendant urges us to answer this
question in the negative, arguing that a 130-month sentence is
longer than necessary and, thus, offends the parsimony principle.
See 18 U.S.C. § 3553(a); see also Holguin-Hernandez, 140 S. Ct. at
765-66; United States v. Rodríguez, 527 F.3d 221, 228 (1st Cir.
2008). We disagree.
Where a sentence falls within a properly calculated GSR,
a defendant who challenges it faces a steep uphill climb to show
that the length of the sentence is unreasonable. See Rita v.
United States, 551 U.S. 338, 347-48 (2007); United States v.
Cortés-Medina, 819 F.3d 566, 572 (1st Cir. 2016). It necessarily
follows that the climb is even steeper where, as here, a defendant
contests the length of a downwardly variant sentence. See United
States v. Millán-Machuca, 991 F.3d 7, 32 (1st Cir. 2021). The
defendant cannot scale those heights.
When appellate review focuses on whether the length of
a sentence is defensible, significant deference is due to the
first-hand judgment of the sentencing court. See Gall, 552 U.S.
at 51-52; Martin, 520 F.3d at 92. Because "reasonableness is a
protean concept," Martin, 520 F.3d at 92, there is usually not a
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single appropriate sentence in any given case but, rather, a "wide
universe of reasonable sentences," United States v. Sepúlveda-
Hernández, 817 F.3d 30, 34 (1st Cir. 2016). We conclude, without
serious question, that the below-the-range sentence imposed here
fits comfortably within this capacious universe.
The defendant resists this conclusion. He says that
there is a disparity between his sentence and the sentences imposed
on others who participated in the same drug-trafficking
conspiracy. The defendant, though, asks us to compare
incomparables: apart from the fact that his proposed comparators
took part in the same drug-trafficking conspiracy, he makes no
effort to show that any of them was similarly situated. For aught
that appears, facts such as the defendant's possession of a
firearm, his acceptance-of-responsibility shortfall, and/or his
role in the parking-lot shootout strip the proposed comparisons of
any probative value. See Flores-Machicote, 706 F.3d at 24
(explaining that "[c]omparing apples to oranges is not a process
calculated to lead to a well-reasoned result" when a defendant
alleges sentencing disparity).
That ends this aspect of the matter. Because the
district court articulated a plausible sentencing rationale and
reached a thoroughly defensible result, we reject the defendant's
claim of substantive unreasonableness.
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III. CONCLUSION
We need go no further. For the reasons elucidated above,
the defendant's sentence is
Affirmed.
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