United States v. Marino , 833 F.3d 1 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-1998
UNITED STATES OF AMERICA,
Appellee,
v.
PAUL MARINO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Thompson, Selya, and Kayatta,
Circuit Judges.
James L. Sultan, with whom Audrey M. Grace and Rankin & Sultan
were on brief, for appellant.
Francesco Valentini, Attorney, Criminal Division, United
States Department of Justice, with whom Leslie R. Caldwell,
Assistant Attorney General, Sung-Hee Suh, Deputy Assistant
Attorney General, and Carmen M. Ortiz, United States Attorney,
were on brief, for appellee.
August 9, 2016
THOMPSON, Circuit Judge.
Stage Setting
Paul Marino is a fraudster extraordinaire. Back in the
early 2000s, for example, he ran a fairly elaborate scheme designed
to swindle New Yorkers out of their property. In one instance
Marino forged the rightful owners' signatures on documents so he
could transfer their property (without their consent, obviously)
to himself (under an alias). He then transferred the property to
an entity called "RYDPHO Holdings" — with "RYDPHO" standing for
"Rip You Da Phuck Off," apparently. Later he helped sell the
property for $185,000. And he eventually wired some of the
proceeds through bank accounts of companies he controlled. Fresh
off the apparent success of this deception, he tried to do the
same thing to other property owners. But they discovered what he
was up to before he could complete the transfers.
Nabbed by law enforcement, Marino pled guilty in New
York federal court to a single count of wire fraud. See 18 U.S.C.
§ 1343. Probation filed a presentence-investigation report
detailing his lengthy criminal record, which included convictions
for things like fraud, larceny (e.g., he had stolen a generator
while awaiting sentencing on the scheme described in the preceding
paragraph), forgery, and conspiracy to use — and use of —
unauthorized access devices, as well as revocation of supervised
- 2 -
release and re-imprisonment based on a fraud offense. And
ultimately, a judge sentenced him to 14 months in prison, 36 months
of supervised release, and restitution of $185,000. Among the
conditions of supervised release were that he "notify" probation
"at least ten days prior to any" employment change and "within
seventy-two hours of being arrested or questioned by a law
enforcement officer," pay restitution "at a rate of 10% of [his]
gross monthly income," and "not commit another federal, state, or
local crime."
Marino served his jail time but soon found himself in
trouble again, with probation asking the Massachusetts federal
court to revoke his supervised release (that court had taken
jurisdiction over his supervised release). As relevant here,
probation alleged that he (1) ran a construction and home-
inspection business from his house without telling probation;
(2) failed to notify probation within 72 hours of police contact
— like after he got stopped for speeding, for example; (3) did not
make the required restitution payments; (4) committed two new
crimes — defrauding Dell, Inc. (an electronics company) and the
Massachusetts Department of Transitional Assistance ("DTA," from
now on, a state agency that runs public-assistance programs like
food stamps and job training); and (5) tampered with electronic-
monitoring equipment probation installed in his house (a judge had
- 3 -
imposed the no-tampering condition after police arrested him for
violating other supervised-release conditions).1
Responding to probation's charges, Marino filed a memo
admitting to violating the first three violations, acknowledging
the judge should revoke his supervised release, and declaring no
need to "conven[e] protracted mini-trials" to address the other
infractions (the state courts should handle the fraud issues, he
wrote). The judge held a revocation hearing. And hoping to prove
the nonconceded-to charges as well, the government called four
witnesses: Cheryl Fontaine, who had hired Marino as a contractor;
Officer Jeremy DeMello, who logged a fraud complaint received from
Scott Hudson of Dell's fraud unit — Hudson was based in Texas;
Detective Raul Espinal, who helped search Marino's home for
equipment stolen from Dell; and Probation Officer Fredrick Lawton,
who testified about a number of things, including Marino's
construction work, his fraud against Dell and DTA, and his
tampering with his electronic-monitoring device. The government
also introduced documentary evidence, including photos of two
"return" boxes shipped back to Dell from Marino's home address
(boxes filled with construction materials or rocks, not Dell
1The government alleged other violations. But a district
judge concluded that the government failed to prove those charges.
So we say nothing further about them.
- 4 -
products, we add); a list of items — with identifying serial
numbers — that Dell reported stolen, items that the police
recovered from Marino's house; contracts and bank checks involving
Marino's construction work; and Marino's application for DTA
benefits, plus his correspondence with DTA. Marino, for his part,
did not testify or present evidence.
At the end of the hearing the judge found facts
confirming that Marino had committed new crimes by defrauding Dell
and DTA and that he had tampered with his electronic-monitoring
gadget. So the judge revoked Marino's supervised release and
sentenced him to 12 months in prison (the top of the uncontested
sentencing range of 6-12 months) followed by 24 months of
supervised release, with the judge imposing as a special condition
that he spend the first 12 months of his supervised release at
Coolidge House — a residential reentry center in Boston. The judge
also "reimpose[d]" "[a]ll previously imposed conditions."
Marino now appeals, raising three broad arguments. His
lead claim is that the judge erred by admitting hearsay evidence
concerning Dell's fraud investigation of him. Next he insists
that insufficient evidence supported the judge's finding that he
had cheated Dell and DTA and that he had monkeyed around with the
electronic-monitoring equipment. And last he contends that the
judge's sentence requiring him to spend a year at Coolidge House
- 5 -
is substantively unreasonable. We analyze these arguments
sequentially, noting additional facts as needed. And when all is
said and done, we affirm.
Hearsay
Marino thinks the judge slipped up by admitting two
groups of hearsay statements: the first involves a list of items
— together with their serial numbers — that Dell reported stolen;
the second involves Probation Officer Lawton's testimony
summarizing a report he received from Hudson, Dell's fraud
investigator. As Marino sees things, the judge's actions infracted
the "limited confrontation right" in federal revocation
proceedings. See United States v. Rondeau, 430 F.3d 44, 48 (1st
Cir. 2005); see also Morrissey v. Brewer, 408 U.S. 471, 489 (1972);
Fed. R. Crim. P. 32.1(b)(2)(C). Reviewing for abuse of discretion,
Rondeau, 430 F.3d at 48, we spy no error.
Guiding Principles
A supervised releasee facing a revocation proceeding has
a qualified right "to . . . question any adverse witness unless
the [judge] determines that the interest of justice does not
require the witness to appear." See Fed. R. Crim. P. 32.1(b)(2)(C)
(emphasis added). What this means is that hearsay testimony can
get in. See, e.g., Rondeau, 430 F.3d at 48. But the judge should
balance "the releasee's right to confront witnesses with the
- 6 -
government's good cause for denying confrontation." Id. In doing
that, the judge should consider the hearsay testimony's
reliability and the government's rationale for not producing the
declarant (with "declarant" being legalese for the person who made
the statement). See id.; see also United States v. Mulero-Díaz,
812 F.3d 92, 96 (1st Cir. 2016).
On the reliability front, caselaw holds (so far as
relevant here) that "conventional substitutes for live testimony,"
like "affidavits, depositions, and documentary evidence,"
ordinarily possess sufficient indicia of reliability, Gagnon v.
Scarpelli, 411 U.S. 778, 782 n.5 (1973) — as does hearsay testimony
about statements that are corroborated by other evidence, are
detailed, or were repeated by the declarant without any material
changes, see Rondeau, 430 F.3d at 48-49; United States v. Portalla,
985 F.2d 621, 624 (1st Cir. 1993). This is a nonexhaustive
catalog, as particular cases vary. See Rondeau, 430 F.3d at 48.
Anyway, on the explanation front, caselaw recognizes that "concern
. . . with the difficulty and expense of procuring witnesses from
perhaps thousands of miles away" is a paradigmatic example of the
type of situation that might call for the admission of hearsay
evidence at a revocation proceeding. See Gagnon, 411 U.S. at 782
n.5.
- 7 -
Reliability
Over a hearsay objection by Marino's counsel, the judge
admitted a list of items, with serial numbers, that Dell reported
stolen to the police. Officer DeMello, who had talked by phone
with Dell's Hudson about Marino's fraudulent orders, testified
that someone had given that list to "the detectives" — the fair
inference being that the "someone" was a Dell employee. Marino
calls the list unreliable, pouncing on the fact that Officer
DeMello did not know key particulars, like who had compiled it.
But Detective Espinal's separate testimony helped confirm the
list's reliability: As the police searched Marino's home with a
warrant in hand, Detective Espinal's colleague, Detective Scott
Brown, "had a list of all the items" the police were looking for,
along with the items' "serial numbers." And, as Detective Brown
wrote in a section of his report (which the judge admitted into
evidence on Marino's lawyer's motion), the police found "[e]ach
and every" sought-after "item" at that locale. This constellation
of corroborating evidence lends ample indicia of reliability to
the list. See Rondeau, 430 F.3d at 48 (noting how corroboration
helps with reliability).
- 8 -
On to Marino's attack on the reliability of Probation
Officer Lawton's summary of Dell's fraud investigation. And this
is what you need to know:
Over another hearsay objection by Marino's attorney, the
judge let Probation Officer Lawton testify about how after he
caught wind of Dell's fraud report to the police, he called Dell's
Hudson. Hudson told him, Probation Officer Lawton added, that
"Marino had been having" Dell ship expensive electronic equipment
"to his house" — though after getting the merchandise, Marino would
call Dell, say that he wanted to return the items, and then send
back instead boxes filled with "construction" materials (like
"sheetrock") or "rocks," without the equipment. More, again
according to Probation Officer Lawton's testimony of what Hudson
said, Marino once told Dell that he did not get a computer monitor
that he had ordered, that it might have been stolen off his porch,
and that Dell should send him a new one. Dell obliged. But a
little later he told Dell that "he didn't want" the new "monitor,"
though the one he eventually "returned was the first monitor" —
i.e., the monitor he claimed had been stolen.
Contesting the evidence's trustworthiness, Marino
stresses that "Hudson's putative statements regarding . . . the
alleged fraud were neither written nor sworn under oath." True.
But we think this evidence nonetheless passes the reliability
- 9 -
threshold. For one, the statements are packed with details. See
Portalla, 985 F.2d at 624 (explaining that "detail" is a
reliability indicator). For another, they are corroborated by
evidence developed by the police — not only did law enforcement
find the items Dell had reported stolen at Marino's residence, but
Detective Brown's report (the part admitted at Marino's counsel's
behest) noted that Marino's wife had said during the search that
Marino "had ordered that stuff" from Dell. See Rondeau, 430 F.3d
at 48 (emphasizing that corroboration is a reliability indicator).
Also, Hudson consistently articulated the same version of events
— he spoke to Officer DeMello and Probation Officer Lawton
separately, and their respective testimony about his comments
mirrored one another in every material way.2 See id. (finding it
2 Here's a sampling of what Officer DeMello said Hudson had
said:
So what had happened was [Hudson] called and he
stated that [Dell] had been getting invoices from a . . .
Mr. Marino in New Bedford, . . . and stated that he had
shipped him TVs, computers, and computer-related
equipment over a period of . . . a year, a year and a
half, . . . and during that time there were several
fraudulent transactions made, . . . one in which [Dell]
had shipped a TV and when the TV was supposed to have
arrived Mr. Marino contacted [Dell] and stated that he
never received a TV and that it must have been stolen
off of his front porch. And then [Dell] shipped him a
second TV, . . . and then he had contacted [Dell] again
and said that the second one wasn't . . . the one that
he wanted . . ., so [Dell] told him to return it for a
refund, however when he returned it for a refund he
actually returned the original one that was reported as
- 10 -
significant that the declarant "never changed her description" of
the key events). And given this concatenation of circumstances,
Marino has no leg to stand on here.3
Explanation
Marino complains that the government never explained at
the hearing why it chose not to produce any of the following:
(a) Hudson or another Dell witness, (b) an affidavit from Hudson
or another Dell employee, or (c) Dell business records — for
simplicity, we sometimes refer to this stuff as the "pined-for
evidence." Anyhow, because of the government's failure (Marino's
argument continues, at least implicitly), the judge never
performed the required balancing. This argument has some bite.
being stolen and not the second one [Dell] shipped him,
which [Dell] had done I guess through matching the serial
numbers.
Also [Hudson] had stated that [Dell] shipped [Mr.
Marino] several TVs and computers over a time, . . .
amounting to somewhere over $20,000[,] and [Mr. Marino]
would ask to return these items and when he returned
them instead of [Dell] getting back a TV or computer
equipment or whatever [Dell] had shipped him, [Dell]
would instead get construction materials, sheetrock,
slats of wood, things of that nature . . . .
3 Marino argues against the "reliability" of "hearsay
evidence" touching on the DTA fraud. But he débuts that argument
in his reply brief. So we deem it waived. See, e.g., United
States v. Eirby, 515 F.3d 31, 36 n.4 (1st Cir. 2008).
- 11 -
But given the specific circumstances of this case, it cannot
prevail.
Yes, the government did not explain below why it relied
on hearsay testimony rather than, say, on Dell business records
(i.e., documents that fall within an exception to the hearsay rule)
or on an affidavit from a Dell employee (an affidavit is
substantially more reliable because it is both in writing —
eliminating reliance on the listener's memory — and sworn to). We
wish the government had: such an explanation would undoubtedly
help in working through the balancing test. And we expect the
government to have an explanation of this sort at the ready in
future cases (prosecutors would do well to remember that warning,
obviously).
But here is why we find no abuse of discretion in this
particular instance. Both sides played up the balancing test below
— the government (to cite just one example) reminded the judge
that he had to "balance" Marino's "right to confront witnesses
with the government's good cause for denying confrontation." And,
after reading the relevant caselaw, the judge straight-out said
that he had done precisely that. Again, the government did not
directly tell the judge what its good cause was. It focused its
energies instead on defending the evidence's reliability, perhaps
because Marino centered his attacks on reliability — he said
- 12 -
nothing about the government's explanation (or lack of one), which
means that he did not (as he does now) fault the government for
not explaining why it passed on presenting the pined-for evidence.
But remember, the record shows that Hudson worked out of Texas.
And remember too, Marino copped to several infractions before the
hearing, conceded the judge should revoke his supervised release,
and declared no need for any "mini-trials" to deal with the other
alleged infractions. Well, given these specific circumstances, we
accept the idea that it was reasonable for the government not to
incur "the difficulty and expense of procuring" Hudson "from . . .
thousands of miles away," see Gagnon, 411 U.S. at 782 n.5, just so
he could testify at a hearing where Marino did not dispute the
need to revoke his supervised release and saw no grounds for "mini-
trials" — which pours cold water on his the-government-should-
have-produced-Hudson argument. Of course, there remains the
troubling fact that the government did not secure an affidavit
from Hudson. While such a failure might in many cases tip the
balance against the government, here the numerous reliability
indicators — especially the self-confirming match between the
numbers on the list and the numbers on the items found in Marino's
residence — provide enough support to sustain the ruling as within
the judge's discretion.
- 13 -
The abuse-of-discretion standard is not "appellant-
friendly," to put it mildly, because it requires "strong evidence
that the . . . judge indulged a serious lapse in judgment." Texaco
P.R., Inc. v. Dep't of Consumer Affairs, 60 F.3d 867, 875 (1st
Cir. 1995). And ultimately, despite the able arguments of Marino's
lawyer, we see nothing concerning the pined-for evidence that rises
to that level in this unique case — so we let the judge's ruling
stand. See generally Dopp v. Pritzker, 38 F.3d 1239, 1253 (1st
Cir. 1994) (stressing that most "appellants who consider
themselves aggrieved by discretionary decisions of the district
court . . . are destined to leave this court empty-handed").
Sufficiency of the Evidence
That takes us to Marino's sufficiency claims — claims
premised on his belief that the government offered insufficient
evidence to establish his Dell or DTA fraud or his tampering with
the electronic-monitoring gizmo. Before tackling his arguments,
we briefly sketch the legal rules governing our review.
Guiding Principles
The government must prove it is more likely true than
not (the usual preponderance standard) that the defendant violated
a condition of supervised release. See United States v. Oquendo-
Rivera, 586 F.3d 63, 66 (1st Cir. 2009) (citing 18 U.S.C.
§ 3583(e)(3)); see also United States v. Cruz, 120 F.3d 1, 4 (1st
- 14 -
Cir. 1997) (en banc) (describing the preponderance standard). If
the government meets its burden and the judge revokes the
defendant's supervised release, we inspect his factual findings
for clear error — clear error (for those not in the know) means
the judge got things "wrong with the force of a 5 week old,
unrefrigerated, dead fish," Toye v. O'Donnell (In re O'Donnell),
728 F.3d 41, 46 (1st Cir. 2013) (quoting S Indus., Inc. v. Centra
2000, Inc., 249 F.3d 625, 627 (7th Cir. 2001)); and we examine his
revocation decision only for abuse of discretion, see, e.g.,
Oquendo-Rivera, 586 F.3d at 66.
Sufficiency challenges are notoriously hard to win,
because "(a) the evidence must be viewed in the light most
agreeable to the government, (b) the judge's choice among competing
but plausible inferences from the evidence cannot as a matter of
law be clearly erroneous, and (c) credibility calls" are for the
judge — not for us. United States v. Vixamar, 679 F.3d 22, 29
(1st Cir. 2012); see also Oquendo-Rivera, 586 F.3d at 67; Portalla,
985 F.2d at 622. No surprise, then, that Marino's challenges come
up short.
Dell Fraud
Evaluated using the just-described techniques, the
record here features sufficient evidence to sustain the judge's
finding that Marino defrauded Dell. Recall first Officer DeMello's
- 15 -
testimony: He said that Dell's Hudson ID'd Marino as the suspect
in a merchandise-ordering scam, reporting conduct that bore the
hallmarks of fraud — e.g., he referenced Marino's false claims
that merchandise never showed up and discussed Dell's receipt of
"return" boxes containing construction materials or rocks instead
of Dell items. And he added that Dell later gave a detailed
inventory of the pilfered products, complete with serial numbers
(a reasonably inferable inference, given that we take the evidence
in the light most flattering to the government). Now also recall
Detective Espinal's testimony and Detective Brown's report: Both
confirm that police found the items Dell reported stolen within
Marino's home, with Detective Brown's report also noting that when
he explained to Marino's wife that the police had a warrant to
search for Dell products that "were never paid for," she said,
"that's all Paul, he ordered the stuff."
Unfortunately for Marino, his arguments against the
evidence's sufficiency are not difference makers. He suggests,
for starters, that the judge did not admit Officer DeMello's
testimony for the truth. The judge made this not-for-the-truth
comment after Marino's lawyer argued that the officer's testimony
about Hudson's report was "rank hearsay." But once the government
concluded its case, the judge reviewed the pertinent precedent
(e.g., Rondeau), performed the required balancing, and deemed the
- 16 -
hearsay "reliable" enough to be admitted — which cuts the legs out
from under Marino's initial argument. He also calls the evidence
unreliable. But we have already explained why that argument is
not a winner. Finally, he says nothing establishes that he "had
ordered any computers" or "that he returned any boxes to Dell."
But the record, read as it must be, in the light most amiable to
the government, shows otherwise.4
Enough said about the sufficiency of the evidence on the
Dell-fraud charge.
DTA Fraud
As for the DTA-fraud issue, Marino does not dispute that
he applied for public assistance with DTA, certifying under the
pains and penalties of perjury that he did not earn any income.
Neither does he dispute that he knew (thanks to the form he signed)
that he had to notify DTA "within 10 days" of any change in income.
Nor does he dispute that he never reported any income to DTA.
Instead he contends that the government provided insufficient
evidence to prove that he actually received public assistance from
4 Marino says in his supplemental pro se brief that the "IP
address" used to purchase the Dell products is not associated with
his residence and that he did not "own" that "IP address." We see
no record support for either claim. And the evidence actually in
the record — read in the required light — is sufficient to link
him to the Dell fraud under the preponderance standard.
- 17 -
DTA or that he earned any income during his supervised release.
Neither contention is convincing.
Taking the evidence and permissible inferences in the
light most flattering to the government, we think sufficient proof
supports the judge's finding that Marino got DTA public assistance.
Among other evidence, the government introduced a letter DTA sent
Marino during the relevant period warning him that his "benefits
may stop" if he "did not keep" a scheduled "appointment" with a
DTA official — the obvious inference from this is that Marino
collected public assistance from DTA. Equally devastating to this
aspect of his claim, Marino concedes in his pro se supplemental
brief that he actually did get a "public assistance monthly
allowance."
Viewed in the proper light, the evidence and reasonable
inferences also amply support the finding that Marino earned income
that he should have told DTA about. Marino, recall, stipulated at
the revocation hearing to having worked in the construction
industry without probation's blessing. And the evidence admitted
at the hearing showed that Cheryl Fontaine hired Marino as a
contractor and sent thousands of dollars' worth of checks to "CWD
Construction Company Inc." — a company she had contacted by email
after doing some online research. Marino points out that Fontaine
made these checks payable to CWD, not to him. But there was
- 18 -
evidence that Marino "ran" CWD — Marino's own lawyer called CWD
"Mr. Marino's company." From this evidence the judge could
reasonably count at least some of Fontaine's payments as income to
Marino, income that — the uncontested evidence shows — could have
caused DTA to reduce or even eliminate Marino's public-assistance
benefits.
Device Tampering
Marino does not contest that a condition of release
required him to submit to "location monitoring technology as
directed by the . . . supervising officer" and "abide by all of
the program requirements and instructions provided by the . . .
supervising officer related to the proper operation of the
technology." Nor does he contest that he put "glue or plastic
substance" on the base unit of his electronic-monitoring device
without permission. Instead he says that he added the glue "to
protect the device from being separated from its power adapter
while [his] dog jump[ed] around playing with [his] daughter." He
insists too that this no-tampering condition must require proof of
some "nefarious effect" to result in a violation — and, his
argument continues, the government provided no evidence that the
device "did not work properly."
The simple answer to Marino's argument is that Probation
Officer Lawton instructed him not "to tamper" with the device,
- 19 -
adding that if Marino "had some concerns about it" he had to bring
them up with probation. Given this testimony, together with the
condition's clear-as-day language, the judge could supportably
conclude that the "program['s] requirements" barred Marino from
making any unauthorized changes to the device — not just
"nefarious" changes that actually disabled the device.5
Sentencing
Marino last argues that the special condition that he
spend the first year of supervised release at Coolidge House makes
his sentence "substantively unreasonable" and is "unwarranted by
the evidence." But this argument meets the same fate as his
preceding ones.
When a judge revokes a defendant's supervised-release
term, the new sentence may include an additional supervised-
release stint, see 18 U.S.C. § 3583(h), including a requirement
that he live at a reentry center like Coolidge House, see id.
§ 3563(b)(11). Of course, any supervised-release condition must
 be "reasonably related," id. § 3583(d)(1), to "the nature and
circumstances of the offense and the history and
5Through his supplemental pro se missive, Marino argues — as
he did during his allocution at sentencing — that Probation Officer
Lawton had it in for him from the get-go and that this bias led to
his violations. But the judge rejected Marino's blame-shifting
theory. And Marino gives us no persuasive reason to upset the
judge's conclusion.
- 20 -
characteristics of the defendant," id. § 3553(a)(1), and to
the need to deter and protect others and to rehabilitate the
defendant, see id. § 3553(a)(2)(B)-(D);
 "involve[] no greater deprivation of liberty than is
reasonably necessary" for deterring criminal conduct,
protecting the public, and rehabilitating the defendant, id.
§ 3583(d)(2); see also id. § 3553(a)(2)(B)-(D);
 be consistent with policy statements issued by the United
States Sentencing Commission, see id. § 3583(d)(3); and
 "be supported by the record," United States v. Garrasteguy,
559 F.3d 34, 42 (1st Cir. 2009).
A judge has "significant flexibility" in formulating
special conditions of supervised release. Id. at 41. And given
his front-row seat at the proceeding, we review his selection of
supervised-release conditions for abuse of discretion, knowing
that "[t]he touchstone of abuse of discretion review . . . is
reasonableness" and that "any one of several sentences may be
reasonable in a particular case." United States v. Vargas-Dávila,
649 F.3d 129, 130 (1st Cir. 2011). What this means is that we
will jettison the judge's sentencing decision "only if" it "falls
outside the 'expansive boundaries' of the entire range of
- 21 -
reasonable sentences." Id. (quoting United States v. Martin, 520
F.3d 87, 92 (1st Cir. 2008)).6
Marino insists that a one-year stay at Coolidge House is
"assuredly" excessive, given that he has "no convictions for crimes
of violence or drug offenses" and has "employable skills." But he
has not shown us how these commonplace offender characteristics
outweigh the obvious need for deterrence, public protection, and
rehabilitation (a.k.a., the statutory sentencing goals): As the
judge supportably found — based on the copious evidence presented
at the hearing — Marino has a "long history" as a "con man," a
history that includes (a) the wire-fraud conviction that led to
his original supervised-release term, as well as (b) the schemes
to defraud Dell and DTA (proven below) that triggered the
supervised-release revocation, plus (c) his many larceny and
forgery convictions. Marino's recidivist ways show that ordinary
supervised-release conditions will not help achieve the statutory
goals of sentencing, making it reasonably necessary to impose
6The parties fight over whether Marino said enough below to
preserve his substantive-reasonableness challenge. But we need
not say who is right, because Marino's challenge fails under either
abuse-of-discretion or plain-error review. See United States v.
Ruiz–Huertas, 792 F.3d 223, 228 & n. 4 (1st Cir.) (taking that
approach in a similar case after noting the uncertainly surrounding
whether a substantive-reasonableness claim must be preserved
below), cert. denied, 136 S. Ct. 258, 258–59 (2015).
- 22 -
greater restrictions. Or so the judge reasonably could — and did
— conclude.
Trying a slightly different tack, Marino argues that
Coolidge House is too restrictive, citing to the center's rules
controlling the residents' comings and goings and limiting their
cell-phone, internet, and computer use on the center's premises.
According to his pro se supplemental brief, he needs a job to earn
the "several thousand dollars a month" his family needs to sustain
its lifestyle. And — his argument continues — the center's
restrictions will severely crimp his ability to find work. He
also complains that Coolidge House is too far from his family,
noting how the center is about 60 miles from where his wife and
daughter live. None of these arguments persuades, however.
Take Marino's the-center-is-too-restrictive argument.
We agree that a judge should not lightly impose restrictions of
the type complained about here. But the judge did not impose the
Coolidge House special condition lightly — again, he hit Marino
with it only after the earlier supervised-release conditions had
indisputably failed.
Also, Marino's own counsel conceded at the revocation
hearing that the judge should "buil[d]" a "structured environment"
into the sentence. And surely the center's coming-and-going
limitations are part and parcel of a "structured environment." On
- 23 -
top of that, Marino's complaints about the center's cell-phone,
internet, and computer restrictions conveniently ignore that
residents in his shoes (i.e., residents not dealing with court-
imposed release conditions restricting their internet and computer
use) can use — repeat, can use — "the internet for job searching
purposes at a local career resource center, or as part of their
employment if required as part of their job responsibilities or
duties" (a quote lifted from the center's resident handbook that
Marino relies on).
Marino is also wrong in suggesting that the special
condition denies him his fundamental right to associate with his
family because the Coolidge House is located about 60 miles from
his family's home. Almost every supervised-release condition
restricts a felon's liberty. See, e.g., United States v. Smith,
436 F.3d 307, 310 (1st Cir. 2006). The line separating a
permissible condition from an impermissible one depends on
whether, given the case's facts, the "particular restriction is
clearly unnecessary." Id. Marino's Coolidge House stay may be
inconvenient for him and his family. But we cannot say that the
condition is "clearly unnecessary," especially given his proven
track record of backsliding into crime.7
7 Marino thinks that rehabilitation would "best be
accomplished" by letting him live with his family and score work
in his home town. But Marino has already shown that ordinary
- 24 -
As a fallback, Marino argues that his one-year
community-confinement term "directly contravenes" section 5F1.1 of
the federal Sentencing Guidelines. That section says that
"[c]ommunity confinement may be imposed as a condition of probation
or supervised release." Application note 2 to that section states
(emphasis ours) that "[c]ommunity confinement generally should not
be imposed for a period in excess of six months" and adds that
"[a] longer period may be imposed to accomplish the objectives of
a specific rehabilitative program, such as drug rehabilitation."
But by using the word "generally" the Sentencing Commission
injected some "flexibility" into this area — thus if a "judge has
specific rehabilitative goals in mind, and believes that those
goals cannot be accomplished within six months, the judge may
impose a longer period of community confinement." See United
States v. Stephens, 347 F.3d 427, 430 (2d Cir. 2003) (citing United
States v. Lominac, 36 F.3d 1095, 1994 WL 510242 (4th Cir. 1994)
(per curiam) (unpublished)). True, the judge here never said the
word "rehabilitative." But we can infer that the judge had
Marino's rehabilitation in mind, especially from the judge's
comments about how Marino needs "a structured environment" to set
conditions of supervised release will not do the trick, giving the
judge ample reason to conclude that he needs a more "structured
environment."
- 25 -
him back on the straight and narrow and how Marino must stay at
Coolidge House for a year because "insofar as supervised release
goes, he's a failure."
Accusing the judge of not really "consider[ing]" section
5F1.1, Marino calls the judge's explanation insufficient to
justify giving him double the "length of time in community
confinement . . . suggested by the Sentencing Commission." But he
also insists that his lawyer said enough at the hearing to preserve
the section-5F1.1 issue for appeal. And we can infer that the
judge considered and rejected Marino's points before settling on
one year of community confinement, with the judge's comments about
Marino's past failures justifying the need for a more "structured
environment" — which means the condition imposed is grounded in a
plausible view of the circumstances and culminates in a "defensible
overall result." See United States v. Jiménez–Beltre, 440 F.3d
514, 519 (1st Cir. 2006) (en banc) (emphasizing that the telltale
sign of a reasonable sentence is a defensible outcome supported by
a plausible rationale); see also United States v. Colón de Jesús,
No. 15-1962, 2016 WL 4056033, at *3 (1st Cir. July 29, 2016)
(emphasizing that even "an unexplained condition of supervised
- 26 -
release may be upheld as long as the basis for the condition can
be inferred from the record").
Wrap Up
Having carefully considered all of Marino's claims
(including some that merit no discussion), we affirm the judgment
below in all respects.
- 27 -