United States v. Stile ( 2017 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 15-1720
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    JAMES STILE,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MAINE
    [Hon. John A. Woodcock, Jr., U.S. District Judge]
    Before
    Howard, Chief Judge,
    Selya and Kayatta, Circuit Judges.
    Alexandra H. Deal for appellant.
    Renée M. Bunker, Assistant United States Attorney, with whom
    Thomas E. Delahanty II, United States Attorney, was on brief, for
    appellee.
    January 3, 2017
    KAYATTA, Circuit Judge.        The defendant, James Stile,
    pled guilty to robbery of a controlled substance from a pharmacy
    by use of a dangerous weapon, in violation of 
    18 U.S.C. § 2118
    (a)
    and (c)(1).       The district court sentenced him to 120 months in
    prison.     He now appeals that sentence on both substantive and
    procedural grounds.     For the following reasons, we affirm.
    I.    Background
    We   summarize   the   facts    briefly,   drawing   on     the
    presentence report (PSR) and the transcript of the sentencing
    hearing.    See United States v. Jiminez, 
    498 F.3d 82
    , 84 (1st Cir.
    2007).    We reserve further discussion of the facts for where they
    become relevant to each issue raised by Stile's appeal.
    In the early evening of September 12, 2011, Stile entered
    the E.W. Moore & Son Pharmacy in Bingham, Maine. He wore a baseball
    cap, sunglasses, a dust mask, and purple rubber gloves.                As he
    entered the store, he pulled a sawed-off shotgun from his pants.
    He walked to the pharmacy counter at the back of the store and
    ordered three employees to lie on their stomachs.        When a customer
    walked in, Stile forced him behind the pharmacy counter with the
    employees.     Stile handed the owner of the pharmacy a black duffel
    bag and ordered him to fill it with drugs.         Stile tied the hands
    and feet of the owner, the customer, and the employees with zip
    ties.     He then departed the store, taking $12,890 worth of drugs
    and $417 in cash.
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    After initially pleading not guilty and going through
    several preliminary proceedings including a suppression hearing,
    Stile pled guilty to robbery of a controlled substance from a
    pharmacy by use of a dangerous weapon, in violation of 
    18 U.S.C. § 2118
    (a) and (c)(1).   After conducting a sentencing hearing, the
    district court calculated Stile's advisory sentencing range under
    the United States Sentencing Guidelines, U.S.S.G. §§ 2B3.1 and
    3C1.1, to be 108 to 135 months' imprisonment based on a total
    offense level of 31 and a criminal history category of I.        The
    district court sentenced Stile to 120 months of imprisonment.
    At sentencing, the district court did three things that
    Stile now claims were procedural error.   First, the district court
    applied a two-level enhancement to what would have otherwise been
    a total offense level of 29.   The basis for the enhancement was a
    finding of obstruction of justice under U.S.S.G. § 3C1.1.   Second,
    the district court denied Stile's requested two-level reduction
    for acceptance of responsibility under U.S.S.G. § 3E1.1(a). Third,
    the district court did not give the evidence of Stile's drug
    addiction the weight and effect that Stile claims it warrants.   We
    discuss in turn each of these asserted errors, plus Stile's catch-
    all argument that his sentence was substantively unreasonable.
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    II.    Discussion
    A.   Obstruction of Justice
    The district court may apply a two-level enhancement to
    a defendant's offense level
    [i]f (1) the defendant willfully obstructed or
    impeded, or attempted to obstruct or impede,
    the administration of justice with respect to
    the investigation, prosecution, or sentencing
    of the instant offense of conviction, and (2)
    the obstructive conduct related to . . . the
    defendant's offense of conviction and any
    relevant conduct.
    U.S.S.G.     §    3C1.1.       Covered     conduct     includes      "threatening,
    intimidating,      or     otherwise      unlawfully     influencing     a   .    .   .
    witness . . . or attempting to do so."                Id. cmt. n.4(A).
    In calculating Stile's guidelines sentencing range, the
    district   court        applied   this    enhancement     for    two   independent
    reasons.   First, the court found that Stile had assaulted another
    inmate in an attempt to intimidate that inmate from testifying
    against Stile.          Second, the court found that Stile had committed
    perjury during a suppression hearing in December 2012.                          Stile
    challenges       both    findings,      either   of    which    is   independently
    sufficient to sustain the enhancement.                   We begin--and end--by
    explaining why we see no cause to reverse the witness intimidation
    finding.
    That finding arose out of Stile's incarceration prior to
    sentencing.       A fellow inmate informed authorities that Stile had
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    confessed to having committed the robbery, relating many specific
    details that the inmate could not have made up.               The government
    thereafter gave to Stile's then-counsel a report of the informant's
    allegations, excluding the informant's name.              Just over a month
    later,    a    prison   video   camera   captured   Stile    assaulting   the
    informant.      Authorities found in Stile's cell a copy of the report
    given to his counsel chronicling the information received from the
    inmate.       For obvious reasons, the PSR flagged this incident as
    warranting an obstruction of justice enhancement.
    In   Stile's   sentencing     memorandum,     Stile's   counsel
    previewed the prospect of an alternative motive for Stile's attack
    on the informant:       the inmate had supposedly made sexual advances
    toward Stile.        The memorandum acknowledged that there was an
    informant and that Stile had learned as much.               It also made no
    claim that anyone other than the inmate Stile assaulted was the
    informant or that Stile had related facts of the robbery to anyone
    other than the inmate he assaulted.            Rather, it challenged the
    adequacy of the government's proof that Stile knew that the inmate
    he assaulted was the informant (because the report did not contain
    the informant's name), and that the fight occurred because the
    inmate was a potential witness.
    The district court commenced the sentencing hearing by
    explaining to Stile that the court would hear from counsel and
    "from you if you wish to speak to me."              After receiving into
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    evidence the PSR and assorted exhibits (including a video of the
    assault), the district court asked Stile's counsel, "Is there
    anything that you wish to present?"    Replied counsel:   "No, sir.
    No evidence, only argument."   Defense counsel, consulting in the
    process with Stile, then argued that the government's evidence was
    insufficient to show obstruction.   Immediately after hearing this
    argument, the district court issued its findings, ruling that Stile
    had assaulted the inmate to punish him for informing and to deter
    him from testifying and noting the absence of any actual evidence
    of a contrary motive.1
    After the court announced its ruling, Stile's lawyer
    stated that Stile wished to "reopen the evidence" on the assault
    and give his own testimony.     The court explained that Stile's
    request was "a little late in the day," and that, typically,
    "people put their evidence in front of the judge before he makes
    the decision, not after the judge makes the decision."      Stile's
    attorney nevertheless asked that the court consider the request to
    be a motion to reconsider and to reopen the evidence.       Such a
    motion is directed to the court's discretion.    Cf. United States
    1 The district court noted, specifically, that there was no
    evidence that the assault was a response to sexual advances. That
    contention appeared only in the text of the sentencing memorandum.
    The district court also noted that although the sentencing
    memorandum stated that Stile was planning to provide the affidavit
    of another inmate who had witnessed the informant's sexual
    advances, he never did so.
    - 6 -
    v. Peterson, 
    233 F.3d 101
    , 106 (1st Cir. 2000) ("Generally, if
    [the defendant] wishes to testify [at trial], he must do so before
    he rests his case; otherwise, he can move the trial court to reopen
    the evidence, but the choice whether to reopen is left to the
    court's sound discretion.").
    Before ruling on that motion, the district court warned
    Stile that if the court reopened the evidence to allow Stile to
    testify belatedly and found that Stile was not telling the truth,
    then Stile "[would] receive a harsher sentence."                   The court
    explained that it had already gone through the evidence, given
    Stile's counsel an opportunity to argue in his favor, and found
    the evidence against Stile so strong that it would have made that
    same finding "beyond a reasonable doubt" had it needed to do so.
    The court indicated that Stile would "have a very, very difficult
    time" convincing the court that he had not assaulted the inmate
    because the inmate had informed on him.             After hearing of this
    potential downside to testifying, Stile ultimately declined to
    testify.    The court, in turn, relied on the finding of witness
    intimidation to support the two-level enhancement for obstruction
    of justice.
    Stile does not argue that the foregoing record lacks
    sufficient support for the district court's finding of witness
    intimidation.    He argues, though, that the finding must be vacated
    because    the   district   court     "prevented"     him   from    offering
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    exculpatory evidence that would have cast his behavior in a
    different light and led an open-minded factfinder to a different
    conclusion.      In this respect, Stile says, the district court
    violated his due process rights and Federal Rule of Criminal
    Procedure 32 by "threatening" him with a harsher sentence if he
    testified untruthfully during the sentencing hearing.      Stile did
    not raise this argument below,2 so we review the court's actions
    for plain error.    United States v. Rodríguez-Reyes, 
    714 F.3d 1
    , 10
    (1st Cir. 2013).      To establish plain error, Stile must show
    (1) that the court below committed an error; (2) that the error
    was plain; (3) that the error affected the substantial rights of
    the defendant; and (4) that "the error 'seriously affects the
    fairness,     integrity   or    public   reputation   of    judicial
    proceedings.'"    United States v. Colon-Nales, 
    464 F.3d 21
    , 25 (1st
    Cir. 2006) (quoting United States v. Olano, 
    507 U.S. 725
    , 735–36
    (1993)).
    To advance his argument, Stile relies by analogy on Webb
    v. Texas, 
    409 U.S. 95
     (1972) (per curiam).    There, a defendant in
    a criminal jury trial called only one witness to testify on his
    2 Stile objected to the characterization of the assault as an
    obstruction of justice and requested that the district court
    reconsider its ruling at the sentencing hearing, but did not object
    to the court's "threat[]" about the consequences of providing false
    testimony.   The defendant's statement in court that the judge
    appeared "predetermined on this" was not an objection to the fact
    that the judge gave a perjury warning.
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    behalf.   
    Id. at 95
    .    Before the witness testified, and out of the
    presence of the jury, the trial judge singled out the witness for
    a direct admonition to the effect that the witness need not
    testify, and if he did and lied, the trial judge would personally
    see to it that he was indicted for perjury, followed by a likely
    conviction and sentence.          
    Id.
     at 95–96.      The Supreme Court held
    that this admonition, delivered in strong terms by the judge to
    the defendant's only witness, "effectively drove that witness off
    the stand."     
    Id. at 98
    .   Here, Stile reasons, the district court's
    admonition to Stile drove him to surrender his right to testify at
    his sentencing hearing.
    On plain error review, this argument stumbles at the
    outset because it is unclear to what extent the principles of Webb
    apply to sentencing proceedings. Certainly a defendant has a right
    to due process at sentencing.            See Betterman v. Montana, 
    136 S. Ct. 1609
    , 1617 (2016) ("After conviction . . . [a defendant]
    retains   an     interest    in    a    sentencing     proceeding     that     is
    fundamentally fair."); United States v. Abreu, 
    202 F.3d 386
    , 391
    (1st Cir. 2000).       This right is protected both by the Fifth
    Amendment and by Federal Rule of Criminal Procedure 32. See United
    States v. Kenney, 
    756 F.3d 36
    , 49 (1st Cir. 2014); United States
    v. Curran, 
    926 F.2d 59
    , 61 (1st Cir. 1991).           As most relevant here,
    "a   criminal   defendant    enjoys     a   due   process   right   not   to   be
    sentenced on false information, and due process therefore requires
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    that the defendant be given an adequate opportunity to refute
    information relied on at sentencing."               United States v. Wilfred
    Am. Educ. Corp., 
    953 F.2d 717
    , 722 (1st Cir. 1992) (citation
    omitted); see also United States v. Rivera-Rodríguez, 
    489 F.3d 48
    ,
    53–54 (1st Cir. 2007).         Similarly, Rule 32 gives a defendant the
    right    "to    speak   or   present    any     information    to    mitigate   the
    sentence."      Fed. R. Crim. P. 32(i)(4)(A)(ii); see also Irizarry v.
    United States, 
    553 U.S. 708
    , 715 (2008) ("Rule 32(i)(1)(C) requires
    the district court to allow the parties to comment on 'matters
    relating to an appropriate sentence' . . . .").
    Nevertheless, the due process right at sentencing is not
    as robust as the due process right at trial.                  See Betterman, 
    136 S. Ct. at 1617
     ("After conviction, a defendant's due process right
    to liberty, while diminished, is still present."); see also United
    States v. Jackson, 
    453 F.3d 302
    , 305 (5th Cir. 2006) ("It is well-
    established . . . that a defendant's rights at sentencing differ
    considerably from his pre-conviction rights.").3                    For example, a
    defendant has no right to insist on calling other witnesses on his
    3 Jackson, which considered a perjury warning at a sentencing
    hearing concerning a witness other than the defendant, suggests
    that Webb may not apply in that context.      
    453 F.3d at
    305–06.
    There is a stronger argument that Webb applies here because the
    potential witness who received the warning was the defendant
    himself. See Fed. R. Crim. P. 32(i)(4)(A)(ii); United States v.
    Cruzado-Laureano, 
    527 F.3d 231
    , 238 (1st Cir. 2008). We need not
    decide this issue, though, as we hold that Webb was not violated
    even if it does apply.
    - 10 -
    behalf, see United States v. Cruzado-Laureano, 
    527 F.3d 231
    , 238
    (1st Cir. 2008), and no due process right to disclosure of all
    information relied upon by the sentencing court if such disclosure
    is not mandated by Rule 32,4 see Curran, 
    926 F.2d at
    61–62.
    Even putting to one side these caveats qualifying the
    scope of due process rights at sentencing, and assuming (without
    deciding) that Webb fully applies to sentencing proceedings, for
    at least two reasons it would require quite a stretch to conclude
    that any error, much less plain error, occurred in this case.
    First, the intimidation of the witness in Webb occurred
    during the defendant's presentation of his defense.      The witness,
    who was prepared to testify on the defendant's behalf, constituted
    the criminal defendant's entire offered defense.       Webb, 
    409 U.S. at
    97–98.   Calling   the   witness   to   testify   represented   a
    "fundamental element of due process of law."     
    Id. at 98
     (quoting
    Washington v. Texas, 
    388 U.S. 14
    , 19 (1967)).    Explicitly refusing
    to allow the witness to testify would have been a plain and
    fundamental error.   It therefore made sense to police the trial
    court's admonition to the extent that it served as a de facto
    refusal to allow the testimony.
    4 In Curran, this court used its supervisory powers to compel
    disclosure of this information, but did not hold that due process
    required it. 
    926 F.2d at 63
    .
    - 11 -
    Here, by contrast, at the time the court issued its
    warning to Stile, the court in normal course had already allowed
    him--indeed, invited him--to present whatever evidence he wished
    to present without any form of dissuasion.    He declined to do so
    until after the record was closed and the court had decided the
    matter. At that point, Stile had no right to reopen the proceeding
    to provide evidence he had possessed during the proceeding.    Cf.
    Peterson, 
    233 F.3d at 106
     (holding that, at trial, the decision
    whether to reopen the evidence is generally left to the court's
    sound discretion).    Rather, reopening the proceeding for more
    evidence was within the court's wide discretion, the exercise of
    which can easily result in a refusal to reopen when no adequate
    excuse is offered.   Cf. 
    id. at 107
     ("Without such a requirement of
    excuse, the rule generally limiting testimony to the evidence-
    taking stage of a trial would hardly be a rule at all, and it would
    be too easy for a defendant to postpone testifying for strategic
    reasons until after the close of evidence.")      On appeal, Stile
    still offers no excuse for having failed to testify when given the
    opportunity.   Nevertheless, when Stile moved to reopen, the court
    discouraged but allowed the testimony, giving Stile more, not less,
    than that to which he was entitled.
    Second, in Webb the admonitions were the product of an
    opinion preemptively formed before the defendant even began his
    defense.   Here, the district court had already properly made up
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    its mind on a properly closed record. Its pronouncements therefore
    posed no appearance of preemptive fact-finding on a partial record,
    and made a perjury finding more likely.            See United States v.
    Vavages, 
    151 F.3d 1185
    , 1190 (9th Cir. 1998) ("Among the factors
    courts consider in determining the coercive impact of perjury
    warnings are the manner in which the . . . judge raises the
    issue . . . [and the] judge's basis in the record for believing
    the witness might lie . . . .").
    In this context, we read the court's admonition as a
    disclosure that educated Stile concerning the risks of his gambit,
    rather than as a threat designed to scare off a proposed witness
    in his defense.      We therefore easily find no plain error.
    B.     Acceptance of Responsibility
    The district court may decrease the offense level by two
    levels "[i]f the defendant clearly demonstrates acceptance of
    responsibility for his offense."        U.S.S.G. § 3E1.1(a).    Pleading
    guilty does not automatically entitle a defendant to a reduced
    offense level for acceptance of responsibility.          United States v.
    D'Angelo, 
    802 F.3d 205
    , 210 (1st Cir. 2015).        This is particularly
    true   where   the    defendant   has   received   the   enhancement   for
    obstruction of justice under § 3C1.1. It is only an "extraordinary
    case[] in which adjustments under both §§ 3C1.1 and 3E1.1 may
    apply."    U.S.S.G. § 3E1.1 cmt. n.4; see also United States v.
    Maguire, 
    752 F.3d 1
    , 6 (1st Cir. 2014) (stating that downward
    - 13 -
    adjustment    under    §    3E1.1   when     a   sentence   is   enhanced   for
    obstruction of justice is "hen's-teeth rare").               "The sentencing
    judge is in a unique position to evaluate a defendant's acceptance
    of responsibility.          For this reason, the determination of the
    sentencing    judge    is   entitled    to   great   deference    on   review."
    U.S.S.G. § 3E1.1 cmt. n.5.
    Stile argues that:         (1) because the court erred in
    applying the obstruction of justice enhancement, it also erred in
    not applying the reduction for acceptance of responsibility; and,
    (2) even if the court did not err in applying the obstruction of
    justice enhancement, this was an "extraordinary case" in which he
    should still receive the reduction.                Because we have already
    rejected     Stile's    challenge      to    the   obstruction    of    justice
    enhancement, we consider only the latter argument.
    The district court did not clearly err in concluding
    that Stile had "failed to show that his case [was] an extraordinary
    one."   The district court rested its determination on the fact
    that Stile both obstructed justice by assaulting the informant and
    then refused to accept relevant responsibility for the misconduct
    when caught.     However one might label such behavior, we have no
    trouble concluding that it provided ample support for finding that
    Stile failed to establish that this is one of those rare cases in
    which an acceptance of responsibility reduction should be granted
    to a defendant who has obstructed the government's efforts to
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    prosecute him.     See U.S.S.G. § 3E1.1 cmt. n.3 (although pleading
    guilty before trial is "significant evidence of acceptance of
    responsibility," that evidence "may be outweighed by conduct of
    the defendant that is inconsistent with such acceptance"); United
    States v. Meada, 
    408 F.3d 14
    , 25 (1st Cir. 2005) (upholding refusal
    to grant a reduction for acceptance of responsibility where the
    district court found that defendant was "continuing the misconduct
    that caused" the court to previously find that he had committed
    perjury).
    C.   Section 3553(a) Factors
    Stile argues that the district court erred by failing to
    consider adequately the effect of his drug addiction on his
    conduct, as required by 
    18 U.S.C. § 3553
    (a)(1).           In his view, the
    court   should   have   treated   drug   addiction   as   a   disease   that
    "diminishes the addict's capacity to evaluate and control his or
    her behaviors." United States v. Hendrickson, 
    25 F. Supp. 3d 1166
    ,
    1174 (N.D. Iowa 2014).     In so arguing, Stile must acknowledge that
    the court considered and rejected requests for downward departures
    on the basis of his drug addiction pursuant to various specific
    sections of the guidelines, and he does not challenge those
    decisions.     He also must concede that the district court allowed
    him to present extensive evidence on his addiction and history.
    Nevertheless, he argues that the court abused its discretion by
    choosing not to vary downward from the sentencing guidelines range
    - 15 -
    under § 3553(a)(1).       See Maguire, 752 F.3d at 7 ("Under the
    advisory guidelines, discretionary refusals to vary or depart are
    open to reasonableness review in accordance with an abuse of
    discretion standard.").
    Under § 3553(a)(1), a court determining a sentence is
    required to consider "the nature and circumstances of the offense
    and the history and characteristics of the defendant."                   Drug
    addiction may be one relevant characteristic.           See United States
    v. Innarelli, 
    524 F.3d 286
    , 292 (1st Cir. 2008).               The district
    court explicitly considered it.      The court acknowledged the nearly
    thirty-year gap since Stile's last criminal conduct, his pain
    management issues, and his recent relapse.           It then weighed those
    facts against the nature and circumstances of the crime, which
    appeared to be preplanned and involved threatening the victims
    with a firearm and tying them up with zip ties.         The district court
    also considered the impact on the victims and the need to deter
    future crime, which was particularly important given the recent
    "rash of pharmacy robberies" in central Maine.              When considering
    Stile's request for a departure under U.S.S.G. § 5H1.3, the court
    specifically noted that if it departed downward because of Stile's
    addiction, then "there would be few [defendants] who would not be
    entitled   to   a   similar   downward   departure    who    commit   similar
    crimes."   It observed that in pharmacy robberies, in particular,
    - 16 -
    defendants      frequently    suffer    from   mental    conditions      and
    addictions.
    We conclude that the sentencing court did not abuse its
    discretion in considering Stile's drug addiction.               The record
    reflects   an    attentive   and    deliberative   sentencing    judge   who
    permitted the defendant to offer relevant evidence and explained
    quite carefully and clearly how he weighed the factors involved in
    the exercise of his judgment.          We require no more.      See United
    States v. Denson, 
    689 F.3d 21
    , 27–28 (1st Cir. 2012).
    To the extent that Stile complains not about process,
    but rather about the substance of the court's weighing of the
    various § 3553(a) factors, his argument does not take into account
    the degree of deference we afford the district court.           Although "a
    sentencing court may commit procedural error by failing to consider
    the § 3553(a) factors, . . . the weighing of relevant factors is
    largely within the court's informed discretion."         United States v.
    Santiago-Rivera, 
    744 F.3d 229
    , 232 (1st Cir. 2014) (citations
    omitted); see also United States v. Rivera-González, 
    776 F.3d 45
    ,
    50 (1st Cir. 2015) ("The defendant's real complaint is not that
    the   court     overlooked   [the   defendant's    personal   history    and
    characteristics] but that it weighed those factors less heavily
    than he would have liked.       But that type of balancing is, within
    wide limits, a matter for the sentencing court.").
    - 17 -
    The court chose to focus on the features of the crime
    that made it particularly terrifying to the victims and that
    demonstrated Stile's degree of forethought and preparation.                       On
    this record, the court did not abuse its discretion in giving less
    weight to Stile's drug addiction and more weight to the possibility
    of general deterrence.          See United States v. Vélez-Soto, 
    804 F.3d 75
    ,   79–80     (1st     Cir.   2015)      ("A   sentencing      court   need    not
    'specifically        address    all   of   the   §     3553(a)    factors   in   its
    explanation, nor . . . give each of the factors equal prominence
    in its determination.'" (quoting United States v. Zapata, 
    589 F.3d 475
    , 487 (1st Cir. 2009))); United States v. Gibbons, 
    553 F.3d 40
    ,
    47 (1st Cir. 2009) ("We will not disturb a well-reasoned decision
    to give greater weight to particular sentencing factors over
    others . . . .").
    D.    Substantive Reasonableness
    Stile's argument that his sentence is substantively
    unreasonable essentially duplicates his argument that the district
    court improperly weighed the § 3553(a) factors.                  "Ultimately, 'the
    linchpin   of    a     reasonable     sentence    is    a   plausible    sentencing
    rationale and a defensible result.'"                   United States v. Rivera-
    Gonzalez, 
    626 F.3d 639
    , 647 (1st Cir. 2010) (citation omitted).
    For the reasons given above, the duration of Stile's sentence was
    not substantively unreasonable.
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    III. Conclusion
    For the foregoing reasons, we affirm Stile's sentence.
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