United States v. Scott , 877 F.3d 30 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 15-2405
UNITED STATES OF AMERICA,
Appellee,
v.
MICHAEL DAVID SCOTT,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Howard, Chief Judge,
Thompson and Kayatta, Circuit Judges.
George F. Gormley, with whom Stephen Super and George F.
Gormley, P.C. were on brief, for appellant.
David B. Goodhand, Attorney, U.S. Department of Justice,
Criminal Division, Appellate Section, with whom William D.
Weinreb, Acting U.S. Attorney, Victor A. Wild, Assistant U.S.
Attorney, Ryan M. DiSantis, Assistant U.S. Attorney, Kenneth A.
Blanco, Acting Assistant Attorney General, U.S. Department of
Justice, and Trevor N. McFadden, Deputy Assistant Attorney
General, were on brief, for appellee.
December 8, 2017
KAYATTA, Circuit Judge. Michael David Scott appeals
from his conviction and sentence for wire fraud, bank fraud, and
money laundering, associated with a mortgage fraud scheme
perpetrated in the Boston area. His principal argument is that
the government unfairly procured his guilty plea by misusing
information he provided during proffer sessions. He also
challenges his sentence. For the following reasons, we affirm.
I. Background
In February 2008, the government began investigating
Scott as a result of a civil case against him in Massachusetts
state court involving a mortgage fraud scheme Scott operated in
and around Boston. Scott purchased multi-family homes, divided
them into condominium units, and then recruited straw buyers to
purchase the units at prices favorable to Scott. He attracted
buyers by promising that they would not have to put up any money
for the purchase and would ultimately be able to sell for a profit.
Scott and his team also prepared false mortgage applications and
closing documents in order to secure inflated loans for the buyers.
Scott then used the loan proceeds to pay off his own mortgage on
the building, and pocketed the profit.
In February 2009, the government informed Scott of the
federal investigation against him. On February 23, 2009, Scott
and his attorney met with two Assistant United States Attorneys,
as well as three FBI Special Agents. At that meeting, Scott signed
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a proffer agreement with the government. The agreement provided,
among other things:
1. No statements made or other
information provided by Michael Scott will be
used by the United States Attorney directly
against him, except for purposes of cross-
examination and/or impeachment should he offer
in any proceeding statements or information
different from statements made or information
provided by him during the proffer, or in a
prosecution of Michael Scott based on false
statements made or false information provided
by Michael Scott.
2. The government may make derivative
use of, or may pursue any investigative leads
suggested by, any statements made or other
information provided by Michael Scott in the
course of the proffer. Any evidence directly
or indirectly derived from the proffer may be
used against him and others in any criminal
case or other proceeding. This provision is
necessary in order to eliminate the
possibility of a hearing at which the
government would have to prove that the
evidence it would introduce is not tainted by
any statements made or other information
provided during the proffer. See Kastigar v.
United States, 406 U.S. 441 (1972).
After he signed the proffer agreement, Scott gave the
government information regarding the fraudulent condominium sales
he had conducted, including information about the fake paperwork
he provided to secure loans. Scott also provided information
regarding the roles played by James Driscoll, a sales loan officer
employed by both a mortgage company and a bank, and Michael
Anderson, a real estate lawyer, in the mortgage fraud scheme. Over
the course of three proffer sessions held in March 2009, Scott
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provided the government with detailed information regarding
Driscoll -- that he often worked from home and that he kept copies
of the mortgage paperwork from his employers at home -- as well as
information regarding the physical layout of Driscoll's home.
Using this information, the government applied for a search warrant
of Driscoll's home, which was approved on March 16, 2009.
On May 15, 2009, the government got Scott to sign two
consent-to-search forms authorizing the government to make
forensic images of his computer and server. The forms allowed the
FBI to conduct "a complete search" of Scott's Compaq computer and
Dell server. The forms stated, among other things, that Scott
gave "permission for this search, freely and voluntarily, and not
as the result of threats or promises of any kind" and "authorize[d]
[FBI] Agents to take any evidence discovered during this search,
together with the medium in/on which it is stored, and any
associated data, hardware, software and computer peripherals."
Scott's attorney was not present at this meeting, although he had
authorized it. Scott continued to meet with the government for
proffer sessions, for a grand total of eighteen sessions, ending
in June 2010. Starting in the fall of 2009, Scott and the
government also engaged in plea negotiations that ultimately fell
apart.
In January 2010, while proffer sessions and plea
negotiations were ongoing, Scott began meeting with members of the
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accounting firm Verdolino & Lowey ("V&L"). Back in April 2009,
Scott had filed for bankruptcy and a United States Trustee was
appointed to oversee the proceeding. V&L served as the accountant
for the bankruptcy trustee. Once Scott began meeting with V&L, he
provided the firm with his business records in paper form, as well
as access to images of the content of his computer server and
laptop.
About a month after the final proffer session with Scott,
the government withdrew an unaccepted plea agreement it had
proposed. Shortly thereafter, the government convened a grand
jury, calling one of the FBI agents involved in Scott's case as
its sole witness. The grand jury indicted Scott on 62 counts on
August 26, 2010. On September 16, the government obtained a 68-
count superseding indictment against Scott. The superseding
indictment also charged Jerrold Fowler, the founder of an
investment company, and Thursa Raetz, a credit union
representative, for their participation in the mortgage fraud
scheme.
Seventeen months later, the bankruptcy trustee told
prosecutors that he would likely dismiss Scott's bankruptcy
petition. The prosecutors asked the trustee to preserve the
materials Scott had provided to V&L, but the trustee did not turn
over the materials, citing conflicting legal duties. The trustee
dismissed Scott's petition on March 14, 2012, and the government
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soon after applied for a search warrant to seize the computer
images and paper files Scott had provided to V&L. The affidavit
submitted in support of the search warrant relied in large part on
data obtained from Scott's server, which had been imaged in
May 2009 pursuant to Scott's written consent. The application
explicitly sought to search "the same server" as well as the boxes
of materials that Scott had provided to V&L. The magistrate judge
assigned to Scott's case approved the warrant application on
March 21, 2012, and the government executed the warrant. In a
discovery letter sent in June 2012, the government informed Scott
that the hard drives it had imaged from V&L were the same as the
images the government had taken directly from Scott in 2009.
On February 6, 2013, the magistrate judge held a status
conference, during which the government represented that, with one
exception not relevant here, "every piece of information presented
to the Grand Jury came from an independent source."1 The
implication of this statement in context was that the evidence
presented to the grand jury was derivative of (but did not directly
1The portion of the conference transcript Scott quotes in
his briefing actually reflects Scott's own attorney's
characterization of the government's position "that every piece of
information presented to the Grand Jury came from an independent
source." This does not impact our analysis, however, because the
government immediately thereafter responded, "That's correct." We
therefore treat the representation as if it had come directly from
the government.
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make use of) evidence obtained from Scott himself, and therefore
conformed to the proffer agreement.
When Scott learned that the government intended to use
evidence from the March 2012 search of V&L in its case against
him, he moved to suppress the evidence. Scott argued that using
that evidence "was a blatant end-run around the proffer agreement"
and that V&L, acting under the government's instruction, violated
the Fourth Amendment when it retained custody of Scott's property
after his bankruptcy petition was dismissed. The government
countered that the terms of the consent Scott provided in May 2009
placed his searched property outside the scope of the proffer
agreement, thereby rendering it unprotected. The government
further argued that even if that were not the case, the use of
data obtained in the March 2012 search was permissible derivative
use. The court rejected the government's arguments and granted
Scott's motion to suppress "the cloned files" seized pursuant to
both Scott's consent forms and the search of V&L.
Over a year later, on May 29, 2015, the district court
accepted Scott's unconditional plea of guilty to the superseding
indictment. At sentencing, the court determined the applicable
guideline sentencing range to be 135 to 168 months. See U.S.
Sentencing Guidelines Manual ("U.S.S.G.") ch. 5, pt. A (U.S.
Sentencing Comm'n 2015). The court arrived at this range after a
downward departure for Scott's acceptance of responsibility and
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another reduction of "two levels to give Mr. Scott the benefit of
the doubt as to the loss calculation." The court ultimately
sentenced Scott to 135 months' imprisonment on counts 1 through 46
and 120 months' imprisonment on counts 47 through 68, to be served
concurrently.2 Fowler and Raetz were each sentenced to 24 months'
imprisonment, after most of the counts against them were dismissed.
The court also ordered Scott to pay over $11 million in
restitution. Scott timely appealed his conviction and sentence.
II. Discussion
Scott challenges his conviction on the grounds that the
government breached the proffer agreement, both by presenting
evidence to the grand jury that was obtained directly from him and
by continuing to prosecute him even after the court granted his
motion to suppress. Scott also challenges his sentence to
135 months of imprisonment, on the grounds that it was procedurally
improper and substantively unreasonable. We address each argument
in turn.
A.
As his principal basis for appeal, Scott asks that we
vacate his conviction and sentence and remand for a Kastigar
hearing, see Kastigar v. United States, 406 U.S. 441, 448–60
(1972), to determine what, if any, evidence obtained during his
2Scott challenges only his 135-month sentence. We therefore
omit any further discussion of his concurrent 120-month sentence.
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proffer sessions was used by the government to secure his
indictment and prepare for trial.
Scott's request faces an immediate problem: his
unconditional guilty plea. Once a criminal defendant enters such
a plea, "he may not thereafter raise independent claims relating
to the deprivation of constitutional rights that occurred prior to
the entry of the guilty plea." Tollett v. Henderson, 411 U.S.
258, 267 (1973).3 In this circuit, "[w]e have assiduously followed
the letter and spirit of Tollett, holding with monotonous
regularity that an unconditional guilty plea effectuates a waiver
of any and all independent non-jurisdictional lapses that may have
marred the case's progress up to that point." United States v.
Cordero, 42 F.3d 697, 699 (1st Cir. 1994) (collecting cases).4
3At least two exceptions to the Tollett rule have been
recognized but are not applicable here. See Menna v. New York,
423 U.S. 61, 62 (1975) (per curiam) (holding that Tollett does not
prevent a defendant from challenging a conviction based on the
double jeopardy clause); Blackledge v. Perry, 417 U.S. 21, 30
(1974) (holding that Tollett does not prevent a defendant from
using a federal writ of habeas corpus to challenge the "very power
of the State to bring the defendant into court" where the state's
vindictive prosecution denied him due process of law).
4The Supreme Court has declined to frame the Tollett line of
cases as establishing a waiver rule. See Menna, 423 U.S. at 62
n.2 (clarifying that the Tollett rule is not that counseled guilty
pleas waive antecedent constitutional violations, but rather that
such a reliable admission of factual guilt "simply renders
irrelevant those constitutional violations"); see also Tollett,
411 U.S. at 267 (finding that the defendant's guilty plea
"forecloses independent inquiry" into a claim of error regarding
the grand jury notwithstanding the absence of "waiver" in the
traditional sense of the word). Because this distinction has no
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Tollett does not, however, prevent a defendant from arguing that
his guilty plea was involuntary. Tollett, 411 U.S. at 267; see
also United States v. Castro-Vazquez, 802 F.3d 28, 33 (1st Cir.
2015) ("So long as the unconditional guilty plea is knowing and
voluntary, the Tollett rule applies.").
To work around Tollett, Scott argues that his guilty
plea was not voluntary because it was based on a government-induced
misapprehension that the government had proof for its case that it
was permitted to use under the terms of the proffer agreement.
Before turning to this argument, we consider the appellate standard
of review.
Scott never asked the district court to do what he asks
us to do: let him withdraw his guilty plea and conduct a Kastigar
hearing to challenge his indictment. This failure continued even
after June 1, 2015, the day on which he claims that he personally
learned, months prior to sentencing, of the government's alleged
misconduct. The closest he came to doing so was a letter Scott
wrote to the district court dated September 2, 2015, which was
filed under seal and which Scott included in a sealed appendix on
appeal. In his briefing before this court, Scott characterized
his letter to the district court as expressing regret that he had
entered a guilty plea "in light of the Grand Jury testimony." But
impact on our analysis, we apply the waiver language used in
Cordero.
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plainly, the letter reflects that Scott did not characterize his
plea as involuntary and, more importantly, did not make a request
to withdraw his plea pursuant to Rule 11(d). See Fed. R. Crim.
P. 11(d)(2)(B). Nor did he subsequently move for withdrawal. At
sentencing, neither Scott nor his attorney mentioned the September
letter or moved to withdraw Scott's plea. Understandably, the
district court did not sua sponte construe Scott's letter as a
motion to withdraw his plea and did not address the issue in any
way. Under these circumstances, Scott did not do enough to raise
in the district court an argument that his plea was involuntary on
the grounds that it was obtained by misrepresentation. See United
States v. Souza, 749 F.3d 74, 81 (1st Cir. 2014) (finding that the
defendant failed to preserve an argument regarding the exclusion
of specific pretrial time periods for speedy trial purposes where
the defendant's pro se filing "comprised vague complaints of delay
and accusations against the court, the government, and his
attorneys").
Nor did Scott have any good reason for failing to raise
in the district court the argument that he presses on appeal. To
the contrary, both Scott and his counsel knew before sentencing
precisely what they now say demonstrates the government's
misrepresentation. We therefore review Scott's argument only for
plain error. Fed. R. Crim. P. 52(b). In so stating, we
acknowledge that we have previously suggested (albeit not held)
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that de novo review is appropriate when a defendant claims he was
misled into pleading guilty. See Sotirion v. United States, 617
F.3d 27, 34 n.6 (1st Cir. 2010) (citing United States v. Goodson,
544 F.3d 529, 539 n.9 (3d Cir. 2008) for the proposition that de
novo review applies to a defendant's claim that he was misled into
signing a plea agreement containing an appellate waiver even where
he did not object in the district court). Nothing in that dicta,
though, considered what standard of review applies where the
defendant learns of a claimed misrepresentation prior to
sentencing. Subsequently, we stated that "we have yet to decide"
the applicable standard of review, Castro-Vazquez, 802 F.3d at 31–
32. Most recently, we reviewed only for plain error an unpreserved
argument that a plea was the result of a promise by counsel to
argue a point that counsel did not argue. See United States v.
Tanco-Pizarro, 873 F.3d 61, 64 (1st Cir. 2017). Without
foreclosing the possibility of de novo review for certain other
claims of involuntariness, we see no good reason to encourage a
defendant who is aware of an alleged misrepresentation to sit on
a claim of reliance until after he sees how the sentencing goes.
Cf. United States v. Vonn, 535 U.S. 55, 73 (2002) (noting that
"the incentive to think and act early when Rule 11 is at stake
would prove less substantial" if plain error did not apply).
To prevail under the plain error standard, Scott must
make four showings: "(1) that an error occurred (2) which was
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clear or obvious and which not only (3) affected the defendant's
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings." United
States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).
So, in light of the foregoing, the first (and ultimately
the only relevant) question is this: Was it clear or obvious that
Scott's plea was the involuntary product of impermissible
government malfeasance? In arguing that it was, Scott relies on
Ferrara v. United States, 456 F.3d 278, 290 (1st Cir. 2006).
Ferrara states:
A defendant who was warned of the usual
consequences of pleading guilty and the range
of potential punishment for the offense before
entering a guilty plea must make two showings
in order to set that plea aside as
involuntary. First, he must show that some
egregiously impermissible conduct (say,
threats, blatant misrepresentations, or
untoward blandishments by government agents)
antedated the entry of his plea. Second, he
must show that the misconduct influenced his
decision to plead guilty or, put another way,
that it was material to that choice. In
mounting an inquiry into these elements, a
court must consider the totality of the
circumstances surrounding the plea.
Id. (citations omitted). Scott does not argue that the district
court failed to warn him of the consequences of pleading guilty or
of the range of potential punishment. Our analysis is therefore
limited to determining whether he has clearly made the two showings
required to prove that his plea was involuntary under Ferrara:
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egregiously impermissible government conduct and a decision to
plead guilty that was influenced by that conduct.
In this instance, Scott argues that the manner in which
the government used and then misrepresented its use of his
proffered information constituted the type of "egregiously
impermissible conduct" to which Ferrara refers. To put this
argument in context, we revisit the terms of the proffer agreement.
With several exceptions not relevant here, the agreement
only prevented the government from using Scott's statements or
other information provided by Scott "directly against him." The
agreement explicitly allowed the government to "make derivative
use of" and to "pursue any investigative leads suggested by[] any
statements made or other information provided by" Scott. Adding
belt to suspenders, the agreement further stipulated that "[a]ny
evidence directly or indirectly derived from the proffer may be
used against [Scott]."
The parties have long disagreed concerning the meaning
and application of these terms. Two examples illustrate the nature
of the disagreement. First, one of the government agents who
interviewed Scott used the results of the interviews to supply the
factual basis for a warrant to search the property of one of
Scott's co-conspirators, James Driscoll. This search yielded
records and information that inculpated Scott. Scott maintains
that -- because he was the source of the information leading to
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Driscoll and because his own files contained identical records --
the use of Driscoll's files during the grand jury proceeding
violated the proffer agreement. The government disagrees,
characterizing Driscoll's files as proper derivative evidence.
Neither party secured a ruling on this point from the magistrate
judge or the district court.
Second, the government used computer files obtained
directly from Scott to secure a search warrant for V&L, which
allowed the government to seize the same records Scott had already
provided by consent. The government regarded the information
gathered from V&L to be derivative of Scott's proffer. Scott
disagreed, and the district court sided with him, suppressing all
files seized pursuant to the March 2012 V&L search as well as those
same files provided by Scott in May 2009.
With this context in mind, we turn to Scott's specific
argument. He points to the government's reported representation
in February 2013, implying that all the evidence it had presented
to the grand jury complied with the proffer agreement. That
statement was false, Scott says, pointing to a transcript of the
grand jury proceedings that the government provided to his counsel
two weeks before Scott pled guilty. Scott adds that he did not
receive that transcript through the prison mail until three days
after his plea was accepted and that, had he known that the
government's case presented to the grand jury relied on proffered
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statements, he would not have pled guilty. Rather, he would have
known that the government likely did not have sufficient untainted
evidence to convict him.
We have reviewed the transcript of the grand jury
proceeding and find nothing in it that clearly puts the lie to
anything later said by the government. To begin, the
representation made by the government at the status conference
(notably, before Scott had even filed his motion to suppress) was
not plainly wrong or even unreasonable. The proffer agreement and
the consent-to-search forms signed by Scott authorized very broad
derivative use of Scott's statements and of evidence seized from
him.5 And given that the government at the time was openly
maintaining that it could use Scott's statements to obtain a
warrant for derivative evidence, the government's representation
at the status conference merely reflected its present, disclosed
position on the wide scope of permissible evidence. No one would
have reasonably misunderstood the government's statements as
5 The consent-to-search forms stated, in relevant part:
I have been advised of my right to refuse
to consent to this search, and I give
permission for this search, freely and
voluntarily, and not as the result of threats
or promises of any kind.
I authorize [FBI] Agents to take any
evidence discovered during this search,
together with the medium in/on which it is
stored, and any associated data, hardware,
software and computer peripherals.
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representing that it had presented to the grand jury only
information that would meet Scott's narrower definition of
permissible evidence, which even today seems at odds with the
language of the proffer agreement.
The fact that the government turned over the grand jury
transcripts to Scott's counsel two weeks before Scott pled guilty,
apparently without any reluctance, belies Scott's suggestion that
the government was attempting to deceive him until he entered a
plea and was sentenced. Moreover, this is by no means a case in
which the government played hide-and-seek with exculpatory
evidence. Cf. Ferrara, 456 F.3d at 292 (finding egregiously
impermissible government conduct where the prosecutors failed to
inform the defendant of a key witness's "plainly exculpatory"
recantation and pressured the witness to testify according to his
original story).
The examples listed in Ferrara -- threats, blatant
misrepresentations, or untoward blandishments -- make clear that
the government conduct must be "particularly pernicious," id. at
291, not merely "simple neglect," id., or "garden-variety" error,
id. at 293. We see no sign here, and certainly no clear sign, of
anything particularly pernicious. Ferrara also establishes that,
absent egregious misconduct, "a defendant's misapprehension of the
strength of the government's case" does not render his plea
involuntary. Id. at 291; see also United States v. Lara-Joglar,
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400 F. App'x 565, 567 (1st Cir. 2010) (relying on Ferrara for the
proposition that a defendant's "assessment of the prosecution's
case . . . cannot form the basis for a finding of
involuntariness"); cf. United States v. Allard, 926 F.2d 1237,
1243 (1st Cir. 1991) ("[T]he defendant may not later renege on the
[plea] agreement on the ground that he miscalculated or belatedly
discovered a new defense."). Contrary to Scott's assertions, that
is all we have here; at most, Scott may have incorrectly presumed
that the government's admissible evidence was stronger than it
actually was. But this is not a basis for treating his plea as
involuntary.
Scott's remaining argument does not persuade us
otherwise. Scott contends that the government engaged in
misconduct when it decided to continue prosecuting his case after
the district court granted Scott's motion to suppress. But Scott
cites no authority for the proposition that any implicit
representation in the government's decision to proceed with the
case could even qualify as a misrepresentation. Even if it did,
it would simply not rise to the level of government misconduct
addressed in Ferrara.
Because Scott cannot show clearly egregious government
conduct in this case, we need not address the second Ferrara prong
-- whether the government's conduct was material to the decision
to plead guilty. Nor need we consider the remaining prongs of the
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plain error test. To the extent Scott raises other challenges to
his conviction unrelated to voluntariness, these arguments are
waived as a result of his unconditional guilty plea. We therefore
affirm Scott's conviction.
B.
In addition to his challenge regarding the proffer
agreement, Scott also challenges his 135-month sentence. "We
review federal criminal sentences imposed under the advisory
Guidelines for abuse of discretion." United States v. Villanueva
Lorenzo, 802 F.3d 182, 184 (1st Cir. 2015); see also Gall v. United
States, 552 U.S. 38, 51 (2007). In doing so, we engage in a two-
step process: "First, we evaluate the procedural soundness of the
sentence; second, we assay its substantive reasonableness."
United States v. Madera-Ortiz, 637 F.3d 26, 30 (1st Cir. 2011).
Scott challenges both the procedure and the substance of his
sentence.
1.
Scott argues that the district court committed two
procedural errors. First, Scott argues that the district court
improperly calculated the Sentencing Guidelines range because it
wrongly included five properties in the loss calculation known to
the government only through statements Scott made in proffer
sessions. The Guidelines are clear that, absent certain exceptions
not relevant here, information collected pursuant to a proffer
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agreement "shall not be used in determining the applicable
guideline range." U.S.S.G. § 1B1.8(a).
We need not decide whether the court erred in finding at
sentencing that the government had "pointed to sufficient
independent sources" to justify the consideration of the five
properties because even if it did, Scott suffered no prejudice.
See United States v. Alphas, 785 F.3d 775, 780 (1st Cir. 2015)
("[R]esentencing is required if the error either affected or
arguably affected the sentence."). The five properties Scott
challenges had a loss amount of $1,119,050. The total loss amount
for which Scott was found liable by the district court was
$11,374,201.64. So even setting aside the five properties in
question, Scott would still find himself comfortably within the
range of $9,500,000 to $25,000,000 in total losses, which elicits
the same offense level increase of twenty. U.S.S.G.
§ 2B1.1(b)(1)(K)–(L). Because the inclusion of the five
properties had no impact on Scott's total offense level, and
because Scott has not challenged the amount of restitution ordered,
we cannot say that any error below "affect[ed] the district court's
selection of the sentence imposed." Williams v. United States,
503 U.S. 193, 203 (1992).
We also note that the district court gave Scott "the
benefit of the doubt" regarding the loss calculation, by reducing
the loss-related increase from twenty levels to eighteen. This
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further supports the conclusion that Scott was not harmed by the
court's consideration of the five disputed properties.
Scott's second claim of procedural error is that the
district court failed to adequately explain its reasons for Scott's
sentence, which in Scott's view is excessive and does not reflect
the circumstances of his offense. Although Scott presents this
argument in his opening brief as one relating to the substantive
reasonableness of his sentence, we address it as a procedural
challenge. See Gall, 552 U.S. at 51 (listing failure to consider
section 3553(a) factors and failure to adequately explain the
chosen sentence as examples of procedural errors).
Scott concedes that the district court "explain[ed] in
detail its GSR calculation, fully describing why it added each
enhancement." Nevertheless, Scott maintains that the district
court erred by failing to explain how it applied the section
3553(a) factors. We reject this argument. The district court
stated, immediately prior to imposing Scott's sentence, that it
had considered the section 3553(a) sentencing factors. We have
held that "[s]uch a statement 'is entitled to some weight,'"
especially where, as here, the court imposes a within-the-range
sentence. United States v. Vega-Salgado, 769 F.3d 100, 105 (1st
Cir. 2014) (quoting United States v. Clogston, 662 F.3d 588, 592
(1st Cir. 2011)). The district court in this case went even
further in justifying the sentence it imposed, stating that it
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"adopt[ed] the reasons advanced by [the government]" at the
sentencing hearing, which included the seriousness of Scott's
crime, the sentences imposed on similar defendants in other
mortgage fraud cases, and the need to deter Scott and others from
pursuing similar crimes. The court also expressed its
disappointment that Scott chose to use his "obvious intelligence
and ability" to enrich himself at the ultimate expense of
individuals in "the most vulnerable neighborhoods of Boston."
Given the district court's "lightened burden" to explain the
within-the-range sentence imposed on Scott, see United States v.
Pérez, 819 F.3d 541, 547 (1st Cir. 2016), this explanation was
more than sufficient.
2.
We turn now to the substance of Scott's sentence. A
defendant, like Scott, who seeks to challenge as unreasonable a
within-the-range sentence carries a "heavy burden." United States
v. Pelletier, 469 F.3d 194, 204 (1st Cir. 2006). While we do not
presume such a sentence to be reasonable, "it requires less
explanation than one that falls outside the GSR." Madera-Ortiz,
637 F.3d at 30. "[A] defendant would usually have to adduce fairly
powerful mitigating reasons and persuade us that the district judge
was unreasonable in balancing pros and cons despite the latitude
implicit in saying that a sentence must be 'reasonable.'" United
States v. Navedo-Concepción, 450 F.3d 54, 59 (1st Cir. 2006).
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Scott cannot make this showing. Notably, Scott was
sentenced not only within the applicable guidelines range, but at
the very bottom of that range. Nevertheless, Scott argues that
his sentence is substantively unreasonable because it is
disproportionate to the sentences imposed on his co-defendants and
others involved in the mortgage fraud scheme. Scott, though, fails
to "compare apples to apples." United States v. Reyes-Santiago,
804 F.3d 453, 467 (1st Cir. 2015). Co-defendants Fowler and Raetz,
both of whom were given 24-month sentences, "were not connected to
all the properties at issue." According to Scott, Driscoll
"appears to not have been prosecuted at all." And Anderson, who
was also sentenced to 24 months in a separate case, was a real
estate attorney who assisted during the properties' closings. In
contrast, Scott was found to be an organizer of the entire scheme.
Because Scott has not "isolate[d] 'identically situated' co-
defendants" to demonstrate a sentencing disparity, there is no
basis for concluding that his sentence was unreasonable. Id.(quoting United States v. Rivera-Gonzalez, 626 F.3d 639, 648 (1st
Cir. 2010)).
III. Conclusion
Finding no reason to upset Scott's conviction and
sentence, we affirm.
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