United States v. Lasalle-Gonzalez , 857 F.3d 46 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 15-1619
United States of America,
Appellee,
v.
Samuel Lasalle González,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Howard, Chief Judge,
Thompson, and Dyk,* Circuit Judges.
Alejandra Bird López for appellant.
Julia M. Meconiates, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.
May 15, 2017
* Of the Federal Circuit, sitting by designation.
THOMPSON, Circuit Judge. Samuel Lasalle González
("Lasalle") pled guilty to being a felon in possession of a firearm
with an agreed sentencing range of thirty to thirty-seven months.
But after the district court tallied all the points for what
Lasalle did with that firearm--burgling a house then shooting a
police officer as he tried to flee the scene--the court landed on
a sentence of ten years, the statutory maximum. Lasalle calls
foul, claiming the offense-level increases are invalid, his
sentence is unreasonable, and his lawyer should have told him to
back out of the deal. Finding only smoke but no fire to his
claims, we affirm.
BACKGROUND
On October 15, 2014, a grand jury charged Lasalle, a
convicted felon, with knowingly and illegally possessing a firearm
in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and he pled
guilty to the charge shortly thereafter. So, we draw these facts
from his plea agreement, the undisputed sections of the presentence
investigation report ("PSR"), and the transcripts of his change-
of-plea and sentencing hearings. United States v. Rivera-
González, 776 F.3d 45, 47 (1st Cir. 2015). Here's what happened.
According to the plea agreement's Stipulation of Facts
--these are facts that Lasalle agrees the government could prove
beyond a reasonable doubt at trial--on October 8, 2014, two police
officers responded to a call that a "suspicious unknown male" (who
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turned out to be Lasalle) was walking through the caller's
backyard. When Lasalle saw the officers, he ran and the officers
gave chase in different directions. One of the officers yelled,
"Police, do not move." The second officer heard four or five
gunshots, then found his patrol partner lying on the ground
wounded. When he saw Lasalle approaching from the woods, the
second officer commanded Lasalle to stop; when Lasalle ignored the
command and continued to approach, the second officer shot Lasalle
in the leg. Both the wounded officer and Lasalle were
hospitalized.
The PSR tells a more colorful tale. "Based on the
Reports of Investigation and all other available information,"
some of the gunshots the second officer heard came from Lasalle's
illegally-possessed firearm: he stopped when the first officer
told him to, but rather than surrender his gun, Lasalle shot the
officer in the jaw and again in the torso. Hours later, in an
interview with a police officer at the hospital, Lasalle said that
he found the gun (a revolver that police later discovered was
stolen back in January 2014) on the side of the road; admitted
that he broke into a house that night and stole some jewelry and
frozen chicken because he was hungry and had no money; and admitted
that he exchanged fire with the officers. (We note here that at
the change-of-plea hearing, the government confirmed that the
wounded officer would testify that it was Lasalle who shot him.)
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Although the only charge before the federal grand jury was
illegally possessing the gun, Lasalle was charged in a Puerto Rico
state court with attempted murder and aggravated burglary, among
other crimes stemming from the events of that night. Lasalle's
lawyer reports that sometime after the change of plea hearing but
before his federal-court sentencing, Lasalle pled guilty to
aggravated assault in the state court. The specifics of the
resolution of the Puerto Rico charges are unknown, but Lasalle
received a ten-year sentence.
Now, in the plea agreement, the parties calculated that
Lasalle's total offense level was seventeen, and recommended the
court sentence Lasalle to thirty months in prison--a figure at the
bottom of the proposed Guidelines sentencing range of thirty to
thirty-seven months. The PSR calculated a significantly higher
sentencing range after bumping up his offense level by twelve:
(1) two more levels because the firearm was stolen, (2) four more
levels because Lasalle possessed the gun in connection with another
felony, and (3) six more levels because Lasalle injured a law
enforcement officer in connection with the offense. All told,
Lasalle's range was 108 to 135 months, though the PSR reduced the
upper boundary of that range to 120 months because that is the
statutory maximum sentence for the offense. See 18 U.S.C. §
924(a)(2); U.S. Sentencing Guidelines Manual § 5G1.1(c)(1) (U.S.
Sentencing Comm'n 2014) [hereinafter "U.S.S.G."].
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Lasalle objected to the PSR's Guidelines calculations on
essentially the same grounds he raises before us today (with a
couple of notable exceptions that we will get to below), claiming
the offense-level increases are invalid and their application
violated his Sixth Amendment and due process rights. The judge
reached the opposite conclusion. He then sentenced Lasalle to ten
years' imprisonment, to be served concurrently with his ten-year
state court sentence. This appeal followed.
ANALYSIS
Lasalle seeks safe harbor for an armada of arguments. He
claims: (1) the offense-level increase for using a stolen firearm
is invalid because it does not include an element of mens rea, (2)
all of the offense-level increases are invalid and violate his
Sixth Amendment and due process rights because they are based on
uncharged conduct not found by a jury or proven beyond a reasonable
doubt, (3) the sentence is procedurally and substantively
unreasonable, and (4) his attorney was ineffective for failing to
advise him to back out of his plea agreement when it became clear
that his sentence would far exceed the recommended range.1 Finding
1 One more thing: Lasalle argues that by defending the
district court's sentence here on appeal, the government is in
breach of the plea agreement. But the plea agreement does not bar
the government from defending an appeal, "[s]o this argument is a
nonstarter." United States v. Figueroa–Rivera, 665 F. App'x 1, 3
n.3 (1st Cir. 2016).
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we cannot give Lasalle safe harbor, we torpedo each of his
arguments in turn.
Mens Rea
On to Lasalle's first claim. He argues that the
Sentencing Guidelines' § 2K2.1(b)(4) two-level increase for using
a stolen firearm (what Lasalle calls the stolen-firearm
enhancement) is invalid because it does not include an element of
mens rea, meaning the court applied the offense-level increase
even though the government never had to prove Lasalle knew his gun
was stolen. (He claimed he found it on the side of the road.)
Lasalle says this flaw invalidates the enhancement for three
reasons: (1) it violates his due process rights, (2) it is
contrary to the congressional intent expressed in the Gun Control
Act of 1968, and (3) it is contrary to the purposes of the
Sentencing Reform Act of 1984. These are legal arguments that we
address de novo. See United States v. Flores-Machicote, 706 F.3d
16, 20 (1st Cir. 2013). We break down and knock down each argument
in turn.
1) Due Process
We turn first to his lead argument--that without an
element of mens rea, the application of the offense-level increase
violated his Fifth Amendment due process rights. Lasalle couches
this argument in more abstract language: "[T]hat an injury can
amount to a crime only when inflicted by intention," he points
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out, "is [a principle] as universal and persistent in mature
systems of law as belief in freedom of the human will and a
consequent ability and duty of the normal individual to choose
between good and evil." Morissette v. United States, 342 U.S.
246, 250 (1952). But in the end it boils down to this: Due
process protects the right to fair notice, meaning notice to an
individual that his conduct does not conform to the law. See
Staples v. United States, 511 U.S. 600, 615-16 (1994); United
States v. Ford, 821 F.3d 63, 70 (1st Cir. 2016). Generally,
criminal statutes provide that notice by including an element of
mens rea, and so a mens-rea-less statute can violate a defendant's
due process rights. Staples, 511 U.S. at 605-06; Ford, 821 F.3d
at 70. Lasalle says the same mens-rea reasoning applies to his
Guidelines enhancement, so the mens-rea-less enhancement violates
his due process rights, too.
The government does not address Lasalle's due process
notice argument on his terms. Instead, it reasons that the
offense-level increase is valid by process of elimination: the
increase does not violate Lasalle's constitutional rights because
it does not alter the minimum or maximum penalty for Lasalle's
crime, create a separate offense with a separate penalty, alter
the burden of proof, or negate Lasalle's presumption of innocence.
See Alleyne v. United States, 133 S. Ct. 2151, 2158 (2013);
McMillan v. Pennsylvania, 477 U.S. 79, 87 (1986). So, the offense-
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level increase neither creates a separate crime, nor functions as
an element of a crime. We take the government's argument to mean
that because the stolen-gun offense-level increase is
"fundamentally distinct" from a crime, it is no different from any
other factor a court may constitutionally consider in formulating
a defendant's sentence--mens-rea requirement or not. United
States v. Murphy, 96 F.3d 846, 849 (6th Cir. 1996) (distinguishing
Staples, finding mens-rea-less offense-level increase did not
violate due process). Besides, says the government, every other
circuit that has considered Lasalle's due process notice argument
has rejected it, and so it urges us to reject the argument, too.2
See United States v. Thomas, 628 F.3d 64, 69 (2d Cir. 2010); United
States v. Mobley, 956 F.2d 450, 454 (3d Cir. 1992) (defendant's
due process argument is "constitutional wishful thinking"); United
States v. Singleton, 946 F.2d 23, 26 (5th Cir. 1991); Murphy, 96
F.3d at 849; United States v. Schnell, 982 F.2d 216, 220 (7th Cir.
1992); United States v. Goodell, 990 F.2d 497, 499 (9th Cir. 1993);
United States v. Richardson, 8 F.3d 769, 770 (11th Cir. 1993); see
2
Although we have not previously addressed the question at
issue here, we have applied mens-rea-less offense-level increases
in the past over similar arguments that we should not. See United
States v. Evano, 553 F.3d 109, 112 (1st Cir. 2009) (rule of lenity
does not require addition of mens-rea requirement to identity theft
enhancement); United States v. Figuereo, 404 F.3d 537, 541 (1st
Cir. 2005) (no plain error in applying mens-rea-less Guidelines
offense-level increase for being found in the United States because
it was not an element of the offense, and other circuits had found
the increase constitutional).
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also United States v. Taylor, 659 F.3d 339, 343-44 (4th Cir. 2011)
(stolen firearm offense-level increase not "inconsistent with
federal law").
Here's our take. Lasalle argues that the same due
process notice principles that apply to criminal statutes should
apply to the Sentencing Guidelines' enhancements, but he gives us
no reason to believe the two are analogous. The closest thing to
guiding authority he cites is Staples, 511 U.S. at 605--a case
about a criminal statute--where the Court read an element of mens
rea into a statute to avoid a notice-based due process violation
like the one Lasalle says he suffered here. The statute at issue
in Staples prohibited the ownership of unregistered machineguns,
but did not require the government to prove the defendant knew his
gun was a machinegun to convict. Congress can omit an element of
mens rea when it makes clear that's what it intended to do, the
Court reasoned, but the Staples statute was ambiguous on this
point.3 And without an element of mens rea, the statute "would
3 Indeed, in the case of so-called "public welfare" or
"regulatory" offenses, even "congressional silence concerning the
mental element of the offense [may] be interpreted as dispensing
with conventional mens rea requirements." Staples, 511 U.S. at
607. Where a statute regulates inherently dangerous objects--like
hand grenades, narcotic drugs, or toxic waste--congressional
silence on the element of mens rea is often understood to mean
that the defendant should be on notice that his conduct is subject
to regulation, and that Congress intended to put the burden on the
defendant to figure out the nature and extent of that regulation.
Id. In its kitchen-sink response to Lasalle's appeal, the
government argues that the stolen-firearm Guidelines provision is
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impose criminal sanctions on a class of persons whose mental
state--ignorance of the characteristics of weapons in their
possession[, that they were machineguns]--makes their actions
entirely innocent." Id. at 614–15. So, without a mens-rea
element, the defendant would not have notice that his actions would
break the law, and importantly, would have no opportunity to
conform his conduct to the law.
The problem for Lasalle is that the Staples rationale
does not apply to the Sentencing Guidelines because the Guidelines
are advisory. That means that no matter the defendant's Guidelines
range, "the sentencing court retains discretion to impose [an]
enhanced [or reduced] sentence" within the statutory range set by
the defendant's crime of conviction. Beckles v. United States,
137 S. Ct. 886, 894 (2017); see Singleton, 946 F.2d at 26. This
Guidelines provision has no effect on that statutory sentencing
range; it only guides the "sentencing court's quest to formulate
a proper sentence." Murphy, 96 F.3d at 849 (quoting Singleton,
946 F.2d at 26). The statute defining the crime limits the
also a "public welfare" regulatory measure. Of course, Staples
itself was about a firearm (a machinegun, at that). And the
Staples court expressly rejected the argument that a firearm is
the type of inherently dangerous object that should put a defendant
on notice that his possession of it would be subject to regulation.
Id. at 609-612 ("[G]uns generally can be owned in perfect
innocence."). So, even if the Staples reasoning applied to the
Guidelines, we think this argument would be doomed.
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sentencing court's discretion and provides "[a]ll of the notice
required" by the due process clause. Beckles, 137 S. Ct. at 894.
That makes sense--after all, by the time the Guidelines
appear on the horizon, the defendant has already been convicted of
(or like Lasalle, pled guilty to) a crime that itself includes an
element of mens rea. Indeed, "[c]riminal intent is an element of
the crime of possession of a gun by a convicted felon, and this
element was established by [Lasalle's] guilty plea of knowing
possession of the gun." Singleton, 946 F.2d at 26 (emphasis
omitted). So unlike a mens-rea-less criminal statute, "the
Guidelines 'may compound the punishment for the offense, but [they]
fall far short of criminalizing apparently innocent conduct.'"
United States v. Ray, 704 F.3d 1307, 1312 (10th Cir. 2013) (quoting
United States v. Saavedra, 523 F.3d 1287, 1289 (10th Cir. 2008));
accord Murphy, 96 F.3d at 848-49. This is no novel conclusion:
as the government correctly notes, every other circuit to consider
this Guidelines sentencing enhancement agrees that the mens-rea-
less increase applies without running afoul of a defendant's
constitutional rights.
One more thing. Even if we assumed that the Staples
rationale applied to the Guideline, it would not help Lasalle
because whereas the statute in Staples was ambiguous on its mens-
rea requirement, the mens-rea requirement in the offense-level
increase here was intentionally omitted. See Staples, 511 U.S. at
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605 (considering plain language of the statute first). According
to its Application Note, the increase "applies regardless of
whether the defendant knew or had reason to believe that the
firearm was stolen." U.S.S.G. § 2K2.1, cmt. 8(B). This commentary
is "authoritative unless it violates the Constitution or a federal
statute"--and as we explained above it does not violate the former,
and as we explain below it does not violate the latter. United
States v. LaBonte, 520 U.S. 751, 757 (1997) (citation omitted).
The history of the Guideline itself confirms that the omission was
intentional: it once applied only when the defendant "knew or had
reason to believe" the firearm was stolen, but the requirement was
eliminated in subsequent amendments. Goodell, 990 F.2d at 499 n.2
(noting that 1989 amendments eliminated scienter requirement from
the Guideline's text); accord Mobley, 956 F.2d at 452.
The stolen-firearm offense-level increase does not
violate Lasalle's due process rights.
2) The Gun Control Act
Undeterred, Lasalle floats his next argument about the
stolen-firearm offense-level increase: without a mens-rea
requirement, it is arbitrary and capricious because it is contrary
to the congressional intent demonstrated in the Gun Control Act.
Lasalle points out that the Act criminalized a slew of gun-related
acts, and these crimes almost always include an element of mens
rea. So, he says, the Act evidences a congressional policy
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requiring an element of mens rea in gun-related crimes. Indeed,
even the Act's stolen-firearm provisions, 18 U.S.C. § 922(i) and
§ 922(j), require the government to prove mens rea to convict.
Because the Guidelines' stolen-gun enhancement does not include an
element of mens rea, Lasalle says it is contrary to Congress'
intent, and so it is invalid. The government, on the other hand,
says that the mens-rea-less offense-level increase is "not
inconsistent" with the intent behind the Gun Control Act because
it advances Congress' objective of controlling firearms. Schnell,
982 F.2d at 221. We think so, too.
The purpose of the Gun Control Act is to keep "firearms
out of the hands of categories of potentially irresponsible
persons, including convicted felons." Barrett v. United States,
423 U.S. 212, 220 (1976); Mobley, 956 F.2d at 453. The Act imposes
additional penalties to halt the trade of stolen guns, which, as
the government points out, are more likely to be used to commit
crimes and harder for police to trace. See 18 U.S.C. § 922(i),
(j); Mobley, 956 F.2d at 454. Thus a defendant who has just been
convicted of (or pled guilty to) a crime he committed using a
stolen gun poses a "heightened danger," and the stolen-firearm
offense-level increase advances the Act's purpose by imposing an
additional penalty consistent with that danger. Mobley, 956 F.2d
at 454; accord Schnell, 982 F.2d at 220. The offense-level
increase is not contrary to the purpose of the Gun Control Act.
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3) The Sentencing Reform Act
In his last argument about the stolen-gun offense-level
increase, Lasalle reprises his arbitrary-and-capricious tune, but
this time he says the enhancement is contrary to the purposes of
a second federal statute--the Sentencing Reform Act. Under the
Act, the Sentencing Commission must establish Guidelines that
provide "fairness" in meeting the basic aims of sentencing: "(a)
'just punishment' (retribution), (b) deterrence, (c)
incapacitation, [and] (d) rehabilitation." Rita v. United States,
551 U.S. 338, 348 (2007) (citing 18 U.S.C. § 3553(a)); 28 U.S.C.
§ 991(b)(1)(B). Lasalle claims the stolen-gun enhancement is not
fair because it treats defendants who knew their guns were stolen
the same as defendants like Lasalle who did not. And, he claims
the enhancement does not meet any of the aims of the Act.
Specifically, he says it does not meet the goal of deterrence
because a defendant who does not know his gun was stolen cannot be
deterred from using a stolen gun. (As to the other aims of
sentencing, he doesn't bother to develop his argument, so we don't
bother to address it. United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived.").) The government counters that there are good
reasons for the offense-level increase--stolen guns are especially
dangerous in the hands of criminals--so the increase is not
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arbitrary and capricious. Once again, we think the government has
the better argument.
The offense-level increase is not arbitrary or contrary
to the Act's purpose of fairness in sentencing because it is
related to the defendant's culpability. See Mobley, 956 F.2d at
456. As we explained above, stolen firearms present special
dangers, especially in the hands of convicted felons (like Lasalle)
who cannot legally own any gun. "One, especially a convicted
felon, is thus expected to exercise caution in the purchase of
firearms and to inquire as to the gun's origin. One can check
easily whether or not a gun has been stolen, and the failure to do
so reasonably may add to the purchaser's punishment." Id. The
Sentencing Commission could reasonably conclude that a defendant
in possession of a stolen gun is more culpable than a defendant in
possession of a legitimate one.
And, contrary to Lasalle's claims, we think the mens-
rea-less application of the stolen-gun offense-level increase
advances the deterrence component of the sentencing calculus.
"[A]s criminals . . . learn that [they may face a higher Guidelines
range, and likely] additional punishment for possessing a stolen
gun, regardless of whether they knew the gun was stolen, they will
be further deterred from possessing any gun." Thomas, 628 F.3d at
70 (emphasis omitted). The Guidelines provision is not contrary
to the purposes of the Sentencing Reform Act.
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To sum up, the application of the mens-rea-less stolen-
gun offense-level increase did not violate Lasalle's due process
rights. And, the increase is not contrary to the purposes of the
Gun Control Act or the Sentencing Reform Act, so it is not
arbitrary or capricious. These arguments down, we move on to
Lasalle's next claim.
Relevant Conduct
Lasalle next takes aim at the application of all three
of his Guidelines offense-level increases. (As a reminder, they
are the stolen-firearm increase we just described, plus one for
the use of a firearm in connection with another felony under
U.S.S.G. § 2K2.1(b)(6), and another for injuring a police officer
under U.S.S.G. § 3A1.2(c)(1).) He gives three reasons why the
offense-level increases are invalid, all stemming from the fact
that the increases were based on conduct not charged in his
indictment or included in the plea agreement: they (1) violate
the purposes of the Sentencing Reform Act, (2) must be proven
beyond a reasonable doubt, and (3) accounted for such a
disproportionate part of his sentence that they violated his Sixth
Amendment and due process rights. We consider all three legal
arguments de novo, United States v. Doe, 741 F.3d 217, 235 (1st
Cir. 2013), and reject each in turn.
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1) The Sentencing Reform Act
Lasalle's first argument--that the enhancements are
contrary to the language and purpose of the Sentencing Reform Act--
is another variation on a theme we just discussed above. According
to Lasalle, the Act requires the Guidelines to provide just
punishment for "the offense," meaning the offense of conviction
(Lasalle's offense was being a felon in possession of a firearm).
18 U.S.C. § 3553(a)(1), (a)(2)(A). But, the so-called "relevant
conduct" offense-level increases allow punishment for uncharged
crimes that are different than the offense of conviction (in
Lasalle's case, using a stolen gun, using a gun in the commission
of another felony, and injuring a police officer). So, he
concludes, the relevant conduct enhancements are inconsistent with
the plain language and the purpose of the Act: to appropriately
punish only the substantive offense. For its part, the government
argues that the relevant conduct offense-level increases punish a
defendant "only for the fact that the present offense[, the offense
of conviction,] was carried out in a manner that warrants increased
punishment, not for a different offense (which that related conduct
may or may not constitute)." Witte v. United States, 515 U.S.
389, 403 (1995) (emphasis omitted).
Once again, we believe the government has the better
argument. Indeed, we have previously rejected Lasalle's claim
that the relevant conduct provisions are contrary to the
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Guidelines' history and purpose. United States v. Lombard, 72
F.3d 170, 176 (1st Cir. 1995). As we have explained, and reaffirm
now, "[t]he Guidelines were not intended to discontinue the courts'
historical practice of considering the relevant circumstances of
the defendant's real conduct, whether those circumstances were
specifically charged or not." Id. Indeed, a sentencing court may
consider relevant conduct that constitutes another offense, even
if the defendant has been acquitted of that offense, so long as it
can be proven by a preponderance of the evidence. Id.; United
States v. Watts, 519 U.S. 148, 154, 167 (1997) (Guidelines permit
consideration of acquitted conduct consistent with the Sentencing
Reform Act). The plain language of the Act likewise provides that
a defendant's sentence should reflect "the circumstances under
which the offense was committed which mitigate or aggravate the
seriousness of the offense." 28 U.S.C. § 994(c)(2). That is what
Lasalle's relevant conduct increases do. Lasalle's offense-level
increases are not contrary to the plain language or the purpose of
the Sentencing Reform Act.
2) Beyond a Reasonable Doubt Standard
As for his second argument about the relevant conduct
offense-level increases--that they must be proven beyond a
reasonable doubt--we have already rejected this argument, too.
Facts underlying Guidelines offense-level increases need only be
proven by a preponderance of the evidence. United States v.
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Malouf, 466 F.3d 21, 26 (1st Cir. 2006). Lasalle says we must
reconsider our position in light of Peugh v. United States, 133 S.
Ct. 2072 (2013). Peugh, 133 S. Ct. at 2088, holds that the
retroactive application of revised Guidelines that results in a
higher sentencing range violates the Ex Post Facto Clause and a
defendant's due process rights because it creates a "significant
risk" of a higher sentence. Lasalle seizes onto the fact that,
like the retroactive application of a higher Guidelines range, the
application of Guidelines enhancements based on uncharged conduct
also creates a "significant risk" of a higher sentence. So
reasoning by analogy, Lasalle claims that Peugh means his due
process rights were violated, too. The government disagrees, and
so do we.
In Malouf, we found that due process and the Sixth
Amendment are satisfied where sentencing facts are found by a
preponderance of the evidence because "sentencing courts have
always operated without constitutionally imposed burdens of
proof"; only facts that change the statutory sentencing range or
create a separate offense with a separate penalty must be proven
beyond a reasonable doubt. 466 F.3d at 26-27 (quoting McMillan,
477 U.S. at 92 n.8). Peugh does not undermine this holding. In
fact, Peugh rejected the argument that its Ex Post Facto analysis
had any bearing on "when a given finding of fact is required to
make a defendant legally eligible for a more severe penalty," the
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question at issue in Malouf. 133 S. Ct. at 2088. And post-Peugh
developments in sentencing law show that the preponderance
standard is still afloat. See, e.g., Alleyne, 133 S. Ct. at 2163(holding, one week after Peugh, that facts that do not increase
minimum or maximum punishment need not be found beyond a reasonable
doubt). Peugh provides no reason at all for us to believe the
Malouf panel would "change its collective mind," so Lasalle's ship
is sunk. Malouf, 466 F.3d at 27 (quoting United States v. Guzmán,
419 F.3d 27, 31 (1st Cir. 2005)).
3) The Tail Which Wags the Dog
In his third argument, Lasalle claims the relevant
conduct offense-level increases accounted for such a
disproportionate part of his sentence that they overshadow the
punishment for his crime and have become the "tail which wags the
dog of the substantive offense." McMillan, 477 U.S. at 88. He
urges us to reject what he calls the "narrow and formulaic" reading
of Alleyne and Apprendi, under which only facts that change the
statutory sentencing range are elements that must be proven beyond
a reasonable doubt. Instead, he believes we should read these
cases to mean that any enhancement for an uncharged or unconvicted
crime that dramatically increases a defendant's Guidelines range
should be proven beyond a reasonable doubt. The facts underlying
Lasalle's offense-level increases were not so proven: the
preponderance-found facts resulted in a significant increase in
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his sentence over what was recommended in the plea bargain,
therefore Lasalle claims the offense-level increases violate his
Sixth Amendment and due process rights. The government, for its
part, emphasizes that Alleyne itself rejected the very argument
Lasalle floats here: "broad sentencing discretion, informed by
judicial factfinding," the Court stressed, "does not violate the
Sixth Amendment." Alleyne, 133 S. Ct. at 2163.
Here's what we think. At the outer limits, Guidelines
offense-level increases based on uncharged crimes might violate a
defendant's Sixth Amendment and due process rights if the
additional increases are responsible for such a disproportionate
share of the sentence that they become the "tail which wags the
dog of the substantive offense." Lombard, 72 F.3d at 176 (quoting
McMillan, 477 U.S. at 88). But as far as we can tell, we have
recognized this concern only once before, in Lombard, 72 F.3d at
175, and Lasalle has absolutely nothing in common with that
defendant. The Lombard defendant was convicted of a firearms
offense with no statutory maximum, and his relevant conduct was a
murder. Although most relevant conduct provisions increase the
base offense level, the Lombard Guideline required the court to
calculate the base offense level "as if his offense of conviction
had been murder." Id. at 177 (emphasis in original). The result:
instead of 262 to 327 months, the Guidelines dictated life in
prison. What's more, the district court thought it lacked the
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authority to impose anything less than a life sentence (remember,
Lombard was decided before United States v. Booker, 543 U.S. 220,
245 (2005), made clear that the Guidelines are advisory). We found
U.S.S.G. § 5K2.0 permitted the district court to consider a
downward departure in an "extraordinary case," and the due process
implications of the defendant's life sentence under the
circumstances made Lombard extraordinary, so we vacated the
sentence and remanded the case so the district court could
reconsider the defendant's sentence. Lombard, 72 F.3d at 183-87.
But we made clear that Lombard was "at the boundaries of
constitutional sentencing law." Id. at 187. Lombard warranted
resentencing only because of the extraordinary confluence of
factors that ratcheted up his Guidelines range, plus the district
court's failure to recognize that it could consider a downward
departure from the constitutionally suspect range. "Absent
[these] special circumstances . . . no comparable concerns would
be raised by cases involving even sizeable sentence increases based
on . . . uncharged or acquitted conduct." Id. at 186–87.
Lasalle's sentencing range was not determined by an
extraordinary confluence of factors like we saw in Lombard.
Lasalle's base offense level was set by the crime he pled guilty
to, being a felon in possession of a firearm. His offense-level
increases only upped his base offense level; they did not displace
his pled-to crime in the calculations. U.S.S.G. §§ 2K2.1(b)(4)(A),
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2K2.1(b)(6), 3A1.2(c)(1). Most critically, his crime came with a
ten-year statutory maximum, and that is the sentence he received.
Furthermore, unlike Lombard, Lasalle was sentenced long after
Booker, and the district court recognized its discretion to
sentence Lasalle outside of the Guidelines range. Lasalle's
situation does not compare--indeed he makes no effort to explain
how he might be similarly-situated to Lombard--so Lombard helps
Lasalle not one jot.
That leaves Lasalle's now much-rehashed argument that we
should expand our understanding of Alleyne and Apprendi to require
a beyond-a-reasonable-doubt finding of facts that enhance the
Guidelines range. Yet we have repeatedly considered and rejected
this argument. United States v. Cox, 851 F.3d 113, 120 (1st Cir.
2017) (preponderance standard does not violate Fifth Amendment due
process or Sixth Amendment rights); United States v. Ramírez-
Negrón, 751 F.3d 42, 48 (1st Cir. 2014) (Alleyne-based argument
that sentencing facts must be found beyond a reasonable doubt is
"meritless"); Doe, 741 F.3d at 234 n.12 (defendant's "tail which
wags the dog" argument was foreclosed by Alleyne and Apprendi
because judicial factfinding did not change statutory sentencing
range). Alleyne and Apprendi do not require sentencing facts that
do not change the statutory sentencing range to be found beyond a
reasonable doubt.
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To recap, the relevant conduct offense-level increases
are not arbitrary or contrary to the purposes of the Sentencing
Reform Act. And, neither Peugh nor Lasalle's take on Alleyne and
Apprendi require the facts supporting relevant conduct offense-
level increases to be found beyond a reasonable doubt. Lasalle's
relevant conduct offense-level increases did not violate his Sixth
Amendment or due process rights. With that, we turn to his next
argument.
Reasonableness of the Sentence
Lasalle takes his next pitch at the procedural and
substantive reasonableness of his sentence. The district court
committed procedural error, he says, because (1) the court erred
in relying on the unreliable PSR to support the offense-level
increases, and (2) the court inadequately explained its reasons
for the sentence. He continues, his sentence is substantively
unreasonable because it violates the parsimony principle, meaning
it is greater than necessary to achieve the goals of sentencing.
The government, for its part, takes the opposite position on each
point. To do our job in assessing the reasonableness of a
sentence, we check for procedural error first, and if none is
found, we move on to substantive reasonableness. United States v.
Politano, 522 F.3d 69, 72 (1st Cir. 2008).
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1) Procedural Reasonableness
Lasalle first complains that the PSR was unreliable
because its author did not identify the specific sources (the who-
said-what) of the information relied on, opting instead to describe
the sources as "Reports of Investigation and all other available
information." And if this allegedly unreliable PSR gets
jettisoned, he says the enhancements--for using a stolen firearm,
in connection with another felony, and injuring a police officer--
are not supported by a preponderance of the evidence. The
government contends that the PSR--that is, the unobjected-to PSR--
was reliable enough to support the application of the offense-
level increases. We agree. Keeping in mind that we generally
review factual findings at sentencing for clear error, we espy
none here.4 See Cox, 851 F.3d at 124; United States v. Occhiuto,
784 F.3d 862, 868 (1st Cir. 2015).
At sentencing, traditional rules of evidence do not
apply and the court has broad discretion to consider any
4
Lasalle did object to the PSR below, but his challenges
largely echo the constitutional challenges he presents before us,
and indeed his counsel conceded at sentencing that his objections
were "legal arguments about the application" of the offense-level
increases, not the PSR's factual recitation. The parties now
dispute whether Lasalle's objections below encompassed the point
he raises on appeal. If they did not, we would review for plain
error. See United States v. Dunbar, 553 F.3d 48, 64 (1st Cir.
2009). But despite their dispute, both parties assume the less-
stringent clear error standard of review applies. So, we give
Lasalle the benefit of the doubt and review this claim for clear
error.
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information that has "sufficient indicia of reliability to support
its probable accuracy." United States v. Brewster, 127 F.3d 22,
27 (1st Cir. 1997) (quoting U.S.S.G. § 6A1.3); accord United States
v. Cintrón-Echautegui, 604 F.3d 1, 6 (1st Cir. 2010). "Generally,
a PSR bears sufficient indicia of reliability to permit the
district court to rely on it at sentencing." United States v.
Cyr, 337 F.3d 96, 100 (1st Cir. 2003) (citation omitted). The
defendant bears the burden of disputing the PSR's factual findings,
and absent an objection "[]supported by countervailing proof," the
district court usually may accept the findings in the PSR without
further inquiry. Occhiuto, 784 F.3d at 868 (quoting Cyr, 337 F.3d
at 100); see Fed. R. Crim. P. 32(i)(3)(A) (sentencing court "may
accept any undisputed portion of the [PSR] as a finding of fact");
United States v. Morillo, 8 F.3d 864, 872-73 (1st Cir. 1993) ("A
defendant who accepts the probation department's configuration of
the sentencing record without contesting the facts set forth in
the [PSR] can scarcely be heard to complain when the sentencing
court uses those facts in making its findings."), superseded in
part by rule, Fed. R. App. P. 4(b)(5), as recognized in United
States v. Gonzalez-Rodriguez, 777 F.3d 37, 38 (1st Cir. 2015).
Against this backdrop, Lasalle's claim founders. As we
already noted, he did not lodge an objection "[]supported by
countervailing proof" (or otherwise object to the PSR's
reliability below), Occhiuto, 784 F.3d at 868, and we think
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Lasalle's PSR bears sufficient indicia of reliability that the
sentencing court was on solid ground in relying on it. Contrary
to Lasalle's position, the use of the phrase "Reports of
Investigation and all other available information" does not
undercut the presumptive reliability of the PSR's findings because
the sources of most of the information in the report are obvious.
Specifically, the PSR relies heavily on Lasalle's morning-after
confession to police at the hospital, where Lasalle admitted the
following: he broke into a house after dusk, stole some jewelry
and chicken, encountered police and "exchanged fire" with them,
and was wounded in the right leg.
Moreover, although the PSR does not explicitly identify
the injured officer as the source of the information that Lasalle
was the shooter, it is apparent from that section of the PSR that
the story was related by the injured officer, and when the
sentencing court inquired, the government confirmed that the
injured officer would testify to these facts. Plus, the PSR's
account is corroborated in large part by the statement of facts
from the plea agreement, also summarized in the PSR, which explains
that the police announced their presence and ordered Lasalle to
stop, he did not, one of the police officers was shot, and the
other shot Lasalle. The PSR also found that the same revolver
Lasalle used that day, described in the police reports and the
plea agreement, was stolen. We reiterate here that Lasalle did
- 27 -
not object to the factual basis of any of these findings. Under
these circumstances, the sentencing court was entitled to rely on
the PSR. That means the court's factual findings in support of
Lasalle's offense-level increases were not clearly erroneous.
In his second procedural reasonableness claim, Lasalle
argues that the court inadequately explained its sentencing
reasoning. The government urges us to draw the opposite
conclusion. We review Lasalle's unpreserved argument for plain
error, meaning he must show "(1) that an error occurred (2) which
was 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. Vargas-García, 794 F.3d 162, 166
(1st Cir. 2015) (quoting United States v. Duarte, 246 F.3d 56, 60
(1st Cir. 2001)).
Upon review of the sentencing proceedings, we find no
error, and certainly not one that was clear or obvious. A
sentencing court must "state in open court the reasons for its
imposition of the particular sentence." 18 U.S.C. § 3553(c). But,
"[i]t is clear beyond peradventure that the . . . court need only
identify the main factors behind its decision." Vargas-García,
794 F.3d at 166 (citing United States v. Turbides–Leonardo, 468
F.3d 34, 40-41 (1st Cir. 2006)). It need not be "precise to the
point of pedantry"--indeed, even a "skimpy" explanation will do--
- 28 -
so long as "the record permits a reviewing court to identify both
a discrete aspect of an offender's conduct and a connection between
that behavior and the aims of sentencing." Id. (quoting United
States v. Fernández–Cabrera, 625 F.3d 48, 54 (1st Cir. 2010)).
That is what happened here. The sentencing court focused on
"discrete aspect[s]" of Lasalle's conduct--how the offense was
committed, including the fact that he shot a police officer with
the gun in his possession--as well as his extensive criminal
history. The court touched on the importance of respect for the
law, one of the aims of sentencing, in its explanation of reasons.
See 18 U.S.C. § 3553(a)(2)(A). And in light of the court's focus
on how the offense was committed, it is also apparent to us from
the transcript as a whole that it acted with a second aim of
sentencing in mind: the need for the sentence to reflect the
seriousness of Lasalle's offense. See id. We see no error here--
that claim also capsizes.
The sentencing court did not clearly err in relying on
the PSR, and it did not commit an error (let alone a "clear or
obvious" one) in explaining its sentencing rationale. So, we turn
to Lasalle's substantive reasonableness claim.
2) Substantive Reasonableness
Lasalle contends that his sentence was substantively
unreasonable because it violates the parsimony principle, meaning
it is longer than necessary to achieve the aims of sentencing.
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The government replies that the sentence is long enough, but not
too much. We review Lasalle's substantive reasonableness claim
for abuse of discretion, but find none. United States v. Ruiz-
Huertas, 792 F.3d 223, 228 (1st Cir.), cert. denied, 136 S. Ct.
258 (2015).5
A sentence is substantively reasonable if the court
gives a "plausible rationale" and reaches a "defensible result,"
United States v. Díaz-Arroyo, 797 F.3d 125, 129 (1st Cir. 2015),
cert. denied, 136 S. Ct. 272 (2015), and here we find both. As to
the sentencing court's rationale, Lasalle received a sentence
within a properly calculated Guidelines range, so to prevail he
"must adduce fairly powerful mitigating reasons and persuade us
that the district court was unreasonable in balancing pros and
cons." United States v. Cortés-Medina, 819 F.3d 566, 572 (1st
Cir.), cert. denied, 137 S. Ct. 410 (2016) (quoting United States
v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011)). Lasalle has not.
As we just explained, the sentencing court's rationale was
plausible. What's more, the result reached here is defensible. A
sentencing court must "impose a sentence sufficient, but not
5The parties dispute whether Lasalle's objections below were
adequate to preserve his substantive reasonableness claim. We
review preserved substantive reasonableness claims for abuse of
discretion. Ruiz-Huertas, 792 F.3d at 228. But if unpreserved,
it is unclear whether abuse of discretion or the more stringent
plain error standard applies. Id.; Díaz-Arroyo, 797 F.3d 128. We
need not decide that question today because Lasalle cannot prevail
under either standard.
- 30 -
greater than necessary" to achieve the goals of sentencing. 18
U.S.C. § 3553(a). But, "[i]n most cases, there is not a single
appropriate sentence but, rather, a universe of reasonable
sentences." Rivera-González, 776 F.3d at 52. Under the totality
of the circumstances, including the fact that Lasalle's Guidelines
range initially exceeded ten years but was reduced to the crime's
statutory maximum, we cannot say Lasalle's sentence falls outside
of that universe. The district court did not abuse its discretion.
See, e.g., United States v. Vega-Salgado, 769 F.3d 100, 105 (1st
Cir. 2014) (eight-and-a-half-year sentence for 18 U.S.C. §
922(g)(1) violation not unreasonable); United States v. Stebbins,
523 F. App'x 1, 6 (1st Cir. 2013) (ten-year § 922(g) sentence not
substantively unreasonable in light of higher Guidelines range,
circumstances of offense, and recidivism); United States v.
Taylor, 540 F. App'x 16, 18 (1st Cir. 2013) (ten-year § 922(g)
sentence not substantively unreasonable, despite being almost
twice defendant's Guidelines range, given criminal history and
nature of offense).6
6Lasalle also argues the sentence is substantively
unreasonable for all of the reasons described above--in short,
because it accounts for uncharged relevant conduct that was not
described in the plea agreement. But as we have already explained,
it was not error for the district court to apply the offense-level
increases, which means they could be factored into the Guidelines
range calculation. Discerning no other reason to further address
these claims, we leave it at that. So, too, his claim that the
parsimony principle is violated by the imposition of offense-level
increases for conduct for which a sentence was imposed in state
- 31 -
Ineffective Assistance of Counsel
In his final plunge, Lasalle claims his counsel was
ineffective because he failed to advise Lasalle to withdraw his
guilty plea "while there was still an opportunity to do so" under
Federal Rule of Criminal Procedure 11(d)(2), which allows for a
plea to be withdrawn before the district court imposes its
sentence. The argument goes like this: (1) Lasalle's plea bargain
recommended a sentencing range of thirty to thirty-seven months,
but (2) he got the statutory maximum because the sentencing judge
applied offense-level increases that were not included in the plea,
so (3) he might have been better off at trial because he might
have been acquitted, ergo (4) his attorney was ineffective for
failing to tell him to ditch the plea and roll the dice.
We cannot resolve his ineffective-assistance-of-counsel
claim now, however, because he did not press this fact-specific
claim to the district court. "We have held with a regularity
bordering on the monotonous that fact-specific claims of
ineffective assistance cannot make their debut on direct review of
criminal convictions, but, rather, must originally be presented
to, and acted upon by, the trial court." United States v. Ofray-
Campos, 534 F.3d 1, 34 (1st Cir. 2008) (quoting United States v.
court. As we have repeatedly explained, it is not error for the
district court to consider the circumstances of the offense. E.g.,
Cox, 851 F.3d at 121.
- 32 -
Mala, 7 F.3d 1058, 1063 (1st Cir. 1993)). That is so because "a
trial judge is in the best position to evaluate the quality of
legal representation in the first instance. Such an evaluation
typically requires the resolution of factual issues as well as
inquiries into other evidentiary matters that cannot effectively
be handled for the first time by a court of appeals." United
States v. Costa, 890 F.2d 480, 483 (1st Cir. 1989). Here, for
instance, the government points out that the district court advised
Lasalle that the plea bargain range was not binding, so Lasalle
could be sentenced to the statutory maximum. But Lasalle points
to nothing in the record to show what his attorney said about that
fact. He only says that, at the very least, his attorney should
have taken a break during the sentencing proceedings to ask if
Lasalle wanted to withdraw his plea, but his attorney did not.
The absence of a break is not enough for us to tell whether his
attorney's performance fell below an objective standard of
reasonableness. So, we dismiss his claim without prejudice to his
right to raise it again later under 28 U.S.C. § 2255. See United
States v. Jones, 778 F.3d 375, 390 (1st Cir. 2015).
CONCLUSION
Lasalle's arguments do not persuade us to break from our
precedents, nor do they persuade us that the law was incorrectly
applied by the district court. So, we affirm Lasalle's sentence,
- 33 -
without prejudice to his right to raise his ineffective-
assistance-of-counsel claim in a collateral proceeding.
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