United States v. Montero-Montero , 817 F.3d 35 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-1405
UNITED STATES OF AMERICA,
Appellee,
v.
NARCISO MONTERO-MONTERO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Lynch, Selya and Lipez,
Circuit Judges.
Irma R. Valldejuli on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Thomas F. Klumper, Assistant United States Attorney,
Senior Appellate Counsel, on brief for appellee.
March 23, 2016
SELYA, Circuit Judge. In this sentencing appeal, the
appellant claims both that his sentence is procedurally infirm
(because the district court failed adequately to explain its sharp
upward variance) and that it is substantively unreasonable
(because the district court did not articulate a plausible
rationale sufficient to make the length of the sentence
defensible). For present purposes, these claims are two sides of
the same coin. After careful consideration, we conclude that the
district court's utter failure to explain its sharp upward variance
requires vacation of the sentence.
A detailed canvass of the facts and travel of the case
would serve no useful purpose. It suffices to say that defendant-
appellant Narciso Montero-Montero was before the district court
for sentencing in connection with a violation of the conditions of
his supervised release (a supervised release term having been
imposed following an earlier conviction for conspiracy to possess
with intent to distribute narcotics). See 21 U.S.C. §§ 841(a)(1),
846.
Applying the advisory sentencing guidelines to the
facts, the guideline sentencing range for this offense was 6 to 12
months. See USSG §§7B1.1(a)(2), 7B1.4(a). Nevertheless, the
district court sentenced the appellant to a 60-month term of
immurement (the statutory maximum for the supervised release
violation, see 18 U.S.C. § 3583(e)(3)). The court offered no
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coherent explanation for its dramatic upward variance, and this
timely appeal ensued.
Claims of sentencing error are customarily reviewed for
abuse of discretion. See Gall v. United States, 552 U.S. 38, 51
(2007); United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008).
That review typically starts with claims of procedural error. See
Martin, 520 F.3d at 92. But where the appellant has failed to
preserve a claim of procedural error below, review is for plain
error. See United States v. Duarte, 246 F.3d 56, 60 (1st Cir.
2001). To succeed under plain error review, an appellant must
show "(1) that an error occurred (2) which was clear or obvious
and which not only (3) affected the [appellant's] substantial
rights, but also (4) seriously impaired the fairness, integrity,
or public reputation of judicial proceedings." Id.In its procedural aspect, the claim of error here is
that the district court did not adequately state its reasons for
imposing a sentence that exceeded the top of the applicable
guideline range by a multiple of five (that is, a 500% upward
variant). Since the appellant did not advance this claim below,
our review is for plain error.
Congress has instructed every sentencing court to "state
in open court the reasons for its imposition of the particular
sentence." 18 U.S.C. § 3553(c). Although the sentencing court's
explanation need not "be precise to the point of pedantry," United
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States v. Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 2006), the
explanation ordinarily must "identify the main factors driving
[the court's] determination." United States v. Sepúlveda-
Hernández, ___ F.3d ___, ___ (1st Cir. 2016) [No. 15-1293, slip
op. at 5]; see United States v. Vargas-García, 794 F.3d 162, 166
(1st Cir. 2015).
If the district court imposes a sentence that falls
within the guideline sentencing range, the burden of adequate
explanation is lightened. See United States v. Ruiz-Huertas, 792
F.3d 223, 227 (1st Cir.), cert. denied, 136 S. Ct. 258 (2015);
United States v. Ocasio-Cancel, 727 F.3d 85, 91 (1st Cir. 2013).
Conversely, if the district court imposes a sentence that either
ascends above or descends below the guideline sentencing range,
the burden of adequate explanation grows heavier. See Gall, 552
U.S. at 50; United States v. Ofray-Campos, 534 F.3d 1, 43 (1st
Cir. 2008). And that burden increases in proportion to the extent
of the court's deviation from the guideline range: the greater the
deviation, the greater the burden of justifying the sentence
imposed. See United States v. Smith, 445 F.3d 1, 4 (1st Cir.
2006); United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005).
In this instance, the variance from the peak of the
guideline range is unusually steep. Thus, the need for some
explication of the sentencing court's rationale was acute. The
sentencing transcript, though, does not contain any such
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explication — there is nothing that remotely resembles an adequate
explanation of the sharply variant sentence.
To be sure, a sentencing court's rationale sometimes may
be inferred from the sentencing colloquy and the parties' arguments
(oral or written) in connection with sentencing. See United States
v. Rivera-Clemente, ___ F.3d ___, ___ (1st Cir. 2016) [No. 13-
2275, slip op. at 13]. Here, however, the record offers very few
clues as to what was in the sentencing court's mind. Given the
marked extent of the variance, we are reluctant to guess at what
the court was thinking.
We summarize succinctly. When, as now, a sentencing
court imposes a variant sentence, that sentence must be explained,
either explicitly or by fair inference from the sentencing record.
In this case, the variant sentence is at the statutory maximum and
represents a five-fold increase over the high end of the guideline
range. Yet, we are confronted with the virtually complete absence
of any meaningful explanation for what appears, on its face, to be
an uncommonly harsh sentence. We are, moreover, unable to backfill
the gaps by drawing reasonable inferences from other parts of the
sentencing record.
Plain error review is not appellant-friendly. But the
plain error barrier, though formidable, is not insurmountable. We
conclude that the appellant has scaled that barrier and shown plain
error. See, e.g., United States v. Rivera-Gonzalez, 809 F.3d 706,
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711-12 (1st Cir. 2016) (vacating, under plain error standard,
inadequately explained sentence that constituted six-fold increase
over top of guideline range). After all, the district court's
failure to make anything resembling an adequate explanation of the
appellant's variant sentence was a clear and obvious error,
especially given the Brobdingnagian extent of the variance. That
error may well have affected the appellant's substantial rights.
In such circumstances, it would cast a shadow over the courts'
reputation for fairness to enforce the sentence blindly.
We need go no further.1 For the reasons elucidated
above, we vacate the appellant's 60-month sentence and remand for
resentencing consistent with this opinion. We take no view as to
the length of the sentence to be imposed on remand.
Vacated and Remanded.
1 We have said that a sentence is substantively reasonable as
long as it rests on a "plausible sentencing rationale" and embodies
a "defensible result." Martin, 520 F.3d at 96. Here, the
appellant also argues that his sentence fails this test because
the district court did not articulate a "plausible sentencing
rationale" sufficient to show that a statutory maximum sentence
was a "defensible result." Because we vacate the sentence and
remand for resentencing on a different (though related) ground, we
do not reach this claim of error.
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