United States v. Rossignol , 780 F.3d 475 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-1072
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT ROSSIGNOL,
Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lynch, Chief Judge,
Howard and Kayatta, Circuit Judges.
Mary Davis and Tisdale & Davis, P.A. on brief for appellant.
Thomas E. Delahanty II, United States Attorney, and Renée M.
Bunker, Assistant United States Attorney, on brief for appellee.
March 16, 2015
HOWARD, Circuit Judge. Defendant-Appellant Robert
Rossignol pled guilty to conspiracy to possess with intent to
distribute cocaine and to failing to report the importation of more
than $10,000 in United States currency. Both charges stemmed from
Rossignol's role in an international drug smuggling conspiracy
stretching from New Brunswick, Canada to Houston, Texas. The
district court imposed a below guidelines sentence of 120 months in
prison. On appeal, Rossignol contends that his sentence is
substantively unreasonable. We affirm his sentence.
I.
Because Rossignol pled guilty, our discussion of the
facts is drawn from the change-of-plea colloquy, the Presentence
Report (PSR), and the transcript of the sentencing hearing. See
United States v. Cintrón-Echautegui, 604 F.3d 1, 2 (1st Cir. 2010).
From at least January 1, 2011 until June 28, 2012,
Rossignol was a member of a conspiracy to distribute cocaine that
spanned the Canadian-United States border. Because he was a well-
known member of the Van Buren, Maine border community, Rossignol
was responsible for transporting cash and drugs across the border.
A typical transaction in that conspiracy occurred as follows. In
Canada, a co-conspirator, "A", would provide Rossignol with
considerable amounts of cash. Rossignol would then transport that
cash across the border into the United States, delivering it to a
third member of the conspiracy. That third person, "B", in turn,
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would transport the money to Texas where he would meet up with "A".
"A" would then secure multiple kilograms of cocaine from suppliers
in Texas, which "B" would transport by car back to northern Maine.
Those drugs were handed off to Rossignol, who resumed his border-
crossing role and would drive the drugs into Canada for delivery to
"A" or "B". Rossignol was compensated for each successful round of
cross-border smuggling.
The last successful trip before Rossignol's arrest took
place in February or March of 2012 and involved the transport of
eight kilograms of cocaine from Maine into Canada. During the
subsequent, stymied trip that led to his arrest, Rossignol entered
the United States from Canada at Hamlin, Maine while carrying some
$300,000 in United States and Canadian currency, which he failed to
report.
Over the course of their investigation, federal agents
learned that Rossignol was also involved in the transportation of
firearms, providing the basis of a sentencing enhancement the
district court later imposed. "A" and "B" purchased several
handguns from members of the conspiracy in Texas and transported
those guns to Maine. Pursuant to a "side agreement" between
Rossignol and "B", Rossignol took those guns into Canada at "B"'s
request for an additional $200. Rossignol separately carried
another gun into Canada for "A"'s personal use.
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Rossignol was indicted on one count of conspiracy to
possess with intent to distribute five kilograms or more of
cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and one
count of failing to report the importation of more than $10,000 in
United States currency, in violation of 31 U.S.C. §§ 5316(a)(1)(B),
5316(b), and 5322. He pled guilty to both counts. The PSR
calculated a guidelines sentencing range of 135 to 168 months,
which included a two-level dangerous weapons enhancement under
U.S.S.G. § 2D1.1(b)(1). At sentencing, the district court adopted
the PSR's guidelines calculation and sentenced Rossignol to 120
months in prison, below the guidelines range.1 Rossignol timely
appealed.
II.
Rossignol argues that his sentence is unreasonable. Our
two-step framework for assessing the reasonableness of a
defendant's sentence is well-traveled ground. We first examine
whether the district court committed any procedural missteps and,
if the sentence is procedurally sound, we then ask whether the
sentence is substantively reasonable. See United States v. King,
741 F.3d 305, 307-08 (1st Cir. 2014). The "linchpin" of our
substantive reasonableness assessment is determining whether the
sentence reflects "a plausible sentencing rationale and a
1
Rossignol's counsel recommended an 84-month sentence, while
the government requested a 150-month sentence.
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defensible result." United States v. Martin, 520 F.3d 87, 96 (1st
Cir. 2008). We owe "considerable deference" to the district court
and our review is limited to determining whether its sentence, "in
light of the totality of the circumstances, resides within the
expansive universe of reasonable sentences." King, 741 F.3d at
308. Overall, we review the district court's "discretionary
sentence determinations for abuse of discretion, findings of fact
for clear error, and conclusions of law de novo." United States v.
Reverol-Rivera, __ F.3d __, No. 12–1991, 2015 WL 727966, at *2 (1st
Cir. Feb. 20, 2015). Having carefully reviewed the record here,
with particular emphasis on the sentencing colloquy, we are unable
to conclude that Rossignol's sentence is unreasonable.
Rossignol makes no procedurally-based argument, so we
proceed directly to his substantive plaint.2 He cites four
considerations which, he claims, the district court gave
insufficient weight to or ignored altogether. He contends that the
court: (1) ignored his age (61 years), (2) discounted the fact that
he had no prior criminal record, (3) gave insufficient weight to
the fact that (except for the instant offense) he was an upstanding
2
Rossignol briefly remarks on appeal that it was
"substantively unreasonable" for the district court to apply the
dangerous weapons enhancement to him, "who only carried the guns
for the owners," and not to "A" and "B", "the actual users of the
guns." Rossignol withdrew his initial objection to the enhancement
well before sentencing, however, and expressly indicated at the
sentencing hearing that he had no objection to the PSR.
Accordingly, any procedural argument has been waived. See United
States v. Escobar-Figueroa, 454 F.3d 40, 49-50 (1st Cir. 2006).
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member of society, and (4) created an unwarranted sentencing
disparity by applying the dangerous weapons enhancement to his
sentence but not to the sentences of other members of the
conspiracy. The record suggests otherwise.
In fact, the record reveals that the court placed
particular emphasis on "the history and characteristics of the
defendant, the nature and circumstances of the offense, and the
need to avoid unwarranted sentencing disparities" -- in other
words, the exact factors Rossignol now recites. Far from ignoring
them, the sentencing transcript makes plain that the district court
specifically considered each of these factors but viewed many as
cutting against Rossignol in the context of this drug conspiracy.
Most tellingly, the court emphasized:
. . . [T]his is an unusual situation
because of the respect that the defendant had
garnered in the Van Buren-Madawaska community.
This was not your typical drug smuggler. This
was a former police officer; this was a former
veteran, member of the United States Army, a
man who carried the colors of this country;
according to the parish priest, an active
church member, somebody who could be counted
on to be present at religious services; a
coach.
This is clearly a double-edged sword
because although it indicates, as [defense
counsel] said, the conduct seems to be
aberrational, it's also conduct that is the
height of hypocrisy and conduct that as a
consequence of the defendant's long-term
community involvement provided a cover for his
criminal activity. And I agree with [the
government] this -- based on this defendant's
history and characteristics, he would
literally be the last person you would expect
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to be smuggling drugs, firearms, and cash
across the border.
Beyond this overarching rationale, it is evident that the
district court amply considered each particular point the defendant
now raises. First, the above demonstrates that the district court
identified Rossignol's strong community ties and considerable civic
service but, instead of weighing those factors in favor of
leniency, viewed them as evidencing a particularly acute breach of
the public trust in Rossignol's close-knit border community. This
assessment "is grounded on a sensible (though not obligatory) view
of the circumstances." Martin, 520 F.3d at 96.
Second, the court likewise invoked Rossignol's stature in
the community as one reason he received a longer sentence than
several co-conspirators,3 noting that "the other people involved in
this conspiracy . . . would not have been waved through customs
like this defendant was." And the record reveals additional
reasons why Rossignol's claim that the district court failed to
avoid unwarranted sentence disparities among the co-conspirators
fails.4 The court acknowledged that Rossignol received a longer
3
The court had separately sentenced "B" to 48 months, "A" to
104 months, and another member of the conspiracy, "C", to 120
months.
4
In any event, the comparison to individual co-defendants is
not particularly relevant for purposes of 18 U.S.C. § 3553(a)(6).
That section is "primarily concerned with national disparities,"
although we have considered arguments that "a sentence was
substantively unreasonable because of the disparity with the
sentence given to a co-defendant." Reverol-Rivera, 2015 WL 727966,
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sentence than three other members of the conspiracy, but noted that
he, unlike the others, had not cooperated. As the court explained,
the others testified at the trial of a particular co-conspirator
which "resulted in a conviction in large part because of their
testimony." In light of this critical difference, the district
court did not abuse its discretion in giving Rossignol a longer
sentence than other members of the conspiracy which included a
dangerous weapons enhancement the others did not receive. A
defendant's sentence is not "unreasonable simply because his co-
defendants agreed to help the government in exchange for reduced
sentences." United States v. Vázquez-Rivera, 470 F.3d 443, 449
(1st Cir. 2006).
Third, that Rossignol had no prior criminal history was
also acknowledged by the district court. In fact the court based
its decision to grant a sentence below the guidelines range -- and
well below the government's 150-month recommendation -- on its view
that it is "highly unlikely that [the defendant is] going to be
doing criminal conduct when [he] get[s] out of prison." At the
same time, however, the court referenced a countervailing
consideration. Notwithstanding the defendant's limited criminal
history, the court explained that this offense was "not a one-off
event" and that Rossignol's involvement was "escalating," not
"decreasing" as the amounts of cocaine shuttled across the border
at *3.
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increased over the course of his involvement. As the court
emphasized, Rossignol smuggled drugs and money "again and again and
again," and stopped not "of his own volition," but only when he was
caught.
Finally, the district court pointed out that Rossignol's
age, among other considerations, made him a "highly unlikely and
improbable federal drug trafficking defendant." We "credit the
district court's statement that it considered all of the relevant
sentencing factors," including Rossignol's age. United States v.
Clogston, 662 F.3d 588, 592 (1st Cir. 2011). Given the importance
it placed on the defendant's abuse of his community ties, however,
it is understandable that the court did not further discuss this
particular consideration.
Ultimately, the district court here concluded that
imposing a more lenient sentence "would send a terrible message to
the people of the St. John River Valley that if they abuse the
trust of their friends and neighbors on both sides of the border,
that they'll be treated gently." In so deciding, it is "readily
apparent" that the court elected to focus on certain considerations
and "to give less weight to other allegedly mitigating factors";
this is a "choice of emphasis, not a sin of omission," and so is
"not a basis for a founded claim of sentencing error." United
States v. Deppe, 509 F.3d 54, 62 (1st Cir. 2007). The district
court took account of each purportedly mitigating factor Rossignol
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recites, and its decision is substantively reasonable and amply
supported. That the defendant would prefer an alternative weighing
of the circumstances does not undermine the district court's
sentencing decision.5 See United States v. Goergen, 683 F.3d 1, 5
(1st Cir. 2012).
III.
Finding no abuse of discretion, we affirm the defendant's
sentence.
5
Rossignol also invokes the parsimony principle -- the
"statutory directive that sentences should be no higher than
necessary to achieve the statutory goals of sentencing." United
States v. Turbides-Leonardo, 468 F.3d 34, 41 (1st Cir. 2006); see
18 U.S.C. § 3553(a) (stating that district courts should impose a
sentence "sufficient, but not greater than necessary"). This claim
is simply an effort to dress up his reasonableness arguments in
different clothing. Because we conclude that Rossignol's sentence
"falls 'within the expansive universe of reasonable sentences,'" it
follows that his sentence "does not offend this principle." United
States v. Narváez-Soto, 773 F.3d 282, 289 (1st Cir. 2014) (quoting
King, 741 F.3d at 308).
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