United States v. Brown

United States Court of Appeals
For the First Circuit
No. 20-1959
UNITED STATES OF AMERICA,
Appellee,
v.
EDWARD BROWN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. George Z. Singal, U.S. District Judge]
Before
Thompson and Kayatta, Circuit Judges,
and Katzmann,* Judge.
Benjamin L. Falkner, with whom Krasnoo, Klehm & Falkner LLP
was on brief, for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
John L. Farley, Acting United States Attorney, was on brief, for
appellee.
February 16, 2022
* Of the United States Court of International Trade, sitting
by designation.
THOMPSON, Circuit Judge. Before us a second time, Edward
Brown, who has been in prison for the last thirteen years for tax
fraud and his role in a well-publicized armed standoff with the
U.S. Marshals Service, appeals from his lengthy, but shorter-than-
original, sentence of 300 months in prison. Lodging claims of
both constitutional and sentencing error, he seeks to have his new
sentence tossed in exchange for a sentence of time served. After
careful review, we disagree, and so affirm.
BACKGROUND
I. The Crimes
The story of this case begins back in 2006.1 Then,
Edward Brown and his wife, Elaine Brown, were indicted by a federal
grand jury on charges related to their failure to pay taxes.2 They
went to trial, although Edward attended only a few days before he
decided to stop showing up. Their defense was that the government
had no legal authority to collect the taxes. Eventually, a jury
convicted both Edward and Elaine. But neither showed up for
sentencing. They were each sentenced, in absentia, to 63 months
1 In considering the defendant's challenge to his sentence,
we take the facts from the trial record, the undisputed portions
of the presentence investigation report, and the transcript of the
sentencing hearing. See United States v. Rivera-Morales, 961 F.3d
1, 5 (1st Cir. 2020).
2 Because these individuals both play a key role in this case
and share the same surname, we will refer to them by their given
names and mean no disrespect in doing so.
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in prison. Neither Edward nor Elaine surrendered to the federal
authorities to serve their sentences.
It is that failure to surrender which leads us to the
crimes of conviction at issue in Edward's appeal today.3 Warrants
for the Browns' arrest issued. Meanwhile, Edward was holed up at
his New Hampshire residence along with Elaine. Though the U.S.
Marshals Service knew where the Browns were, getting them into
custody proved less than straightforward (to say the least). For
about eight months, Edward made violent threats toward the
government officials attempting to arrest them, such as (as one of
the Marshals recalled at trial): "If anything happens to my wife
or I, then everybody associated with this case will get theirs."
As another Marshal recalled at trial, Edward said he thought the
police were afraid to arrest him and that, if the authorities
arrested him, "people are going to die. The Marshal is going to
die. . . . It's going to be a war." The Browns also made repeated
public statements about their standoff, welcoming into their
fortified home a number of supporters who agreed to help them out,
including Daniel Riley, Jason Gerhard, Cirino Gonzalez, and Robert
Wolffe.4
3 If the reader thirsts for a more detailed account of the
events, we've detailed them twice before. See United States v.
Brown, 669 F.3d 10, 14–17 (1st Cir. 2012); United States v.
Gerhard, 615 F.3d 7, 12–18 (1st Cir. 2010).
4All four of these helpers were later arrested and charged.
Three went to trial, were convicted, and received considerable
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Realizing that a standard arrest wouldn't do for this
high-risk circumstance, the Marshals began to develop plans to try
to safely arrest the Browns. In the first attempt, officers tried
to move clandestinely onto the property and arrest Edward on his
routine of grabbing the mail at the end of his driveway. That
attempt, though, failed when Riley, who was out walking a dog,
encountered hidden officers. Riley was taken into custody, and
when Edward heard the commotion, he was seen ascending a tower on
top of his home and brandishing a .50-caliber rifle, pointing it
toward the driveway.
After that failed attempt, the Marshals backed off for
a few months while they hatched a new plan. In the meantime, they
began to round up some of the Browns' soon-to-be convicted co-
conspirators, who Marshals, for strategic reasons, had up to that
point allowed to enter and exit the compound. And those arrests
yielded a wealth of information about what the Marshals were facing
inside the Brown enclave.
For example, Riley told the Marshals that he purchased
twelve pounds of Tannerite, an explosive amalgam, at Edward's
request. Gonzalez, Riley relayed, had brought firearms to the
sentences of imprisonment: 432 months for Riley, 240 months for
Gerhard, and 96 months for Gonzalez. Gerhard, 615 F.3d at 12.
Wolffe was handed a 30-month sentence after pleading guilty.
Judgment, United States v. Wolffe, No. 07-cr-189-04 (D.N.H. Aug.
1, 2008), ECF No. 497.
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compound and had performed armed patrols around the property with
an assault rifle. Riley also told the Marshals that numerous
handguns and rifles were stashed throughout strategic locations in
the house. And he noted at least two black-powder explosive
devices were in the home, plus he believed there were ten-to-
twenty more of them in there. While detained, Riley also admitted
to another inmate that he had assembled spring guns and placed
explosive containers on trees around the home. Wolffe told the
Marshals about the cache of firearms in the home, and that Edward
and Riley had tested which firearms were best suited to make the
biggest explosions when fired at the Tannerite devices.
Flash forward to October 2007, and it was time for the
Marshals to test their newest game plan for seizing the Browns.
The new strategy began with undercover Marshals contacting the
Browns through a confidential informant. Along with the informant,
three undercover Marshals retrieved some property from Elaine's
dental office (which she had requested) and brought it to the
Browns at their compound. After the delivery was complete, Edward
brought beer onto the porch for the four retrievers and for a
fourth undercover Marshal who had since arrived. After using the
agreed-upon time-to-make-a-move codeword the Marshals had
established, the undercover officers grabbed Edward, tasered him,
and took him into custody. Other Marshals seized Elaine, and
everyone walked away unscathed.
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After the arrest, authorities searched the Browns'
property. Numerous improvised explosive devices were scattered
thereabout, which experts from the Bureau of Alcohol, Tobacco,
Firearms and Explosives had to remove. Officials also found trip
wires, shotgun shells from spring guns, and Tannerite bombs and
plastic bags containing propane cans nailed to trees around the
property. Inside the house, officials recovered eighteen firearms
ranging from pistols to .50-caliber rifles. They also turned up
approximately 60,000 rounds of live ammunition, including armor-
piercing and incendiary rounds. In a single closet in the Browns'
master bedroom, agents located twenty-two assembled and active
pipe bombs. Elsewhere in the house, they found nine fully
assembled spring guns, including evidence that they at one point
had been mounted in the tree line. Agents also recovered cans of
gun powder, some of which had nails taped to them. And, if all of
that wasn't enough, even more explosive-making materials were
recovered in various spots in the home.
II. The Resulting Proceedings
Following their capture, a federal grand jury indicted
Edward and Elaine, charging Edward on seven counts. Count I
charged conspiracy to prevent officers of the United States from
discharging their duties, in violation of 18 U.S.C. § 372. Count
II -- conspiracy to commit an offense against the United States,
in violation of 18 U.S.C. §§ 371 and 111(a) & (b). Count III
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charged him with carrying and possessing a firearm in connection
with a crime of violence, in violation of 18 U.S.C. § 924(c)(1).
Count V -- being a felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g)(1). Count VII -- obstruction of justice, in
violation of 18 U.S.C § 1503. Count IX charged Edward with failing
to appear for his tax-fraud trial, in violation of 18 U.S.C.
§ 3146. And Count X -- failing to appear for sentencing in the
tax-fraud case, in violation of 18 U.S.C. § 3146.5 Edward and
Elaine went to trial, and they both were convicted on all counts.
Following on from his occasional outbursts at the trial,
Edward was rather combative at his original sentencing and
accompanying competency proceeding. Throughout the proceedings,
he often lodged his own objections, even though he was represented
by counsel. He butted in to argue about a competency witness's
testimony while he was still on the stand, interrupted the
government's counsel (one time, for example, to call him a liar),
and interrupted the judge to argue with him and call him
"beautiful." At one point when he was being removed from the
courtroom, Edward accused the judge of being a "criminal" and a
"communist." After being returned to the courtroom following a
"timeout," Edward even told the judge that the district court
5Counts IV, VI, and VIII charged only Elaine, but the parties
often describe the counts as they are numerated in the indictment,
so we will follow the same trend.
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readying to sentence him was "not a court." After Edward exercised
his allocution rights, the judge proceeded to explain the sentence
he imposed. But interjecting himself during that process, Edward
demanded to be taken out of the courtroom again, as in his telling,
he had "had enough of this trash." The court obliged his request.
Speaking of his allocution, Edward went on an extended
rant about what he sees as a crisis of our country. Edward revealed
to the court that he is a member of a group called the United
States Constitution Rangers, whose goal is to "defend[] the
Constitution and the people of the United States Republic."
According to Edward, one core principle of the Rangers' philosophy
is that its members "will ignore . . . any laws or orders that
violate" certain constitutions and their Bill of Rights. And he
openly questioned the authority of the federal laws, suggesting
that the United States Constitution from 1789 was illegally
replaced in 1879. Edward further informed the court that he
intended to "expose a [criminal] cell in the government."
Addressing his crimes, Edward told the court that he "could have
killed all five of those agents [who came to arrest him] easily
and lawfully."
In handing down the sentence, the district court
explained its rationale. Noting that Edward had "engaged in a
long period of lawlessness and endangered multiple government
officials in the discharge of their duties," the court found Edward
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(who, recall, was no longer in the courtroom at his own request)
to be "entirely unrepentant" and concluded Edward "would have
killed multiple marshals if they hadn't dealt with him so
effectively." The court went on to note how Edward had recruited
others into his beliefs, all of whom ended up with lengthy prison
sentences. And the court explained that it was imposing a "severe
punishment . . . to promote respect for the law and to deter others
who attempted to engage in this type of conduct."
Ultimately, and considering the severity of Edward's
conduct, the judge handed down a sentence as follows: 72 months
total on Counts I, V, and VII; 60 months on Count II, to run
concurrently with the sentence on Counts I, V, and VII; 12 months
total on Counts IX and X;6 and then the mandatory-minimum 360
months on Count III, the charge under § 924(c), to be served
consecutively to the other sentences. As the court tallied that
up, it meant a "total term of 444 months['] imprisonment." And
that "term of imprisonment" was to run consecutively to the term
6The transcript of the sentence orally announced by the court
reflects that the 12-month sentence on Counts IX and X ran
concurrently to the sentences on Counts I, II, V, and VII. The
written judgment, though, specified that the 12-month sentence ran
consecutively -- not concurrently -- to those other counts. More
on that later.
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that Edward was already serving for the tax-fraud convictions,
which had begun running on October 4, 2007.7
Flash forward to 2016, when Edward filed his second
motion to vacate, set aside, or correct his sentence under 28
U.S.C. § 2255. We granted him leave (and his wife, too) in 2019
to file this second or successive § 2255 motion, see 28 U.S.C.
§ 2255(h), attacking his § 924(c) conviction based on Johnson v.
United States, 576 U.S. 591 (2015). The district court granted
Edward's motion with the government's assent, vacated the § 924(c)
count based on United States v. Davis, 139 S. Ct. 2319 (2019), and
ordered resentencing.8
Before resentencing, Dr. Jill Durand, a licensed
psychologist retained by Edward, evaluated him and issued a report.
In it, Dr. Durand described Edward as "self-confident, grandiose
and strong in his convictions." Recounting her interviews with
Edward, she noted that he "maintained and expressed his unchanging
beliefs regarding the US Government, distrust of the Court system,
7The court also sentenced Edward to three years of supervised
release.
8 In Davis, the Supreme Court held that the residual clause
of 18 U.S.C. § 924(c) (i.e., the clause defining a "crime of
violence" as felonies "that by their nature, involve a substantial
risk that physical force against the person or property of another
may be used in the course of committing the offense," 139 S. Ct.
at 2323–24 (cleaned up)) is unconstitutionally vague, id. at 2336.
Johnson found a similarly worded provision of the Armed Career
Criminal Act unconstitutionally vague. 576 U.S. at 606.
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and his position that he did not have a proper hearing in Court."
Edward also described the court as "unethical and immoral" and
part of a criminal justice system that is a "racketeering
organization with instructions from a European cartel," and stated
that he views judges as unconstitutional. Regarding his crimes,
he maintained that he "didn't do anything wrong" concerning his
failure to pay his taxes. Edward, she noted, "believes that he
has been the victim of an unjust system and that his actions were
warranted, justified or not unlawful." Nonetheless, Dr. Durand
opined that there is "little concern" that Edward would pose a
danger to others if released. Still, she cautioned of the
possibility that Edward would ignore or evade a probation officer's
attempts to supervise him upon his release from prison.
Edward, represented by counsel, objected to being
resentenced. He argued that it would violate the Double Jeopardy
and Due Process Clauses of the Constitution to sentence him again,
as, according to his math, he had already served the complete time
he was sentenced on all but the § 924(c) sentence, which was
vacated. We'll get into that more later, but the district judge
rejected his argument. And putting that argument aside, Edward
asked in the alternative that he be sentenced to time served.
Conversely, the government sought a Guidelines-range sentence of
between 360 months to life.
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At the resentencing hearing, Edward, at the court's
invitation, allocuted anew, with a couple of his recitals invoking
a sense of déjà vu. He said he was investigating a "criminal
element within the government" and that the U.S. government remains
beholden to a European cartel. He also debuted a new claim -- the
Department of Justice is a "terrorist organization." When probed
about the circumstances of his standoff with the Marshals, he told
the court that he was "going to defend [him]self," including with
his .50-caliber rifle if he had to. When asked directly whether
he thought he was violating the law with the months-long standoff,
he responded "No." Nor did he violate the law when he failed to
pay his taxes, proclaiming those laws invalid. And, falling back
on an old refrain, he questioned the authority of the judge to
pass sentence on him under the criminal laws.
Notwithstanding his views about the validity of the
proceedings, Edward disavowed any intent to hurt anyone in the
standoff and told the judge that he did not want or need his
firearms anymore. And though he denied the validity of the laws,
he conceded that he had no choice but to follow them and committed
to the court to doing so.
In the end, the district judge imposed a 300-month
sentence -- that is, 144 months below the prior sentence and 60
months below the Guidelines range. The court explained that
sentence was warranted due to the nature and seriousness of the
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crime, the characteristics of Edward, the need to deter Edward and
others from committing the same crime, the need for just punishment
and to promote respect for the law, and the need to protect the
public from any further crimes committed by Edward. Specifically,
the judge focused on the fact that Edward not only harbors his
beliefs about the validity of the government and the laws, but he
went further, acting on those avowals and putting others in danger.
Edward, he observed, was the ringleader of the standoff, recruiting
others and "brainwash[ing]" one, leading them to incur lengthy
prison sentences. Finally, the judge emphasized that Edward did
not appear to show remorse for his actions. Rather, he continues
to believe that he never did anything wrong.
Standing at 78 years old at the time of resentencing,
Edward objected to the substantive reasonableness of his sentence.
His timely appeal followed.
DISCUSSION
I. The Constitutional Challenges
Edward first raises two constitutional objections to his
sentence. He claims that his new sentence violated the Double
Jeopardy and Due Process Clauses of the Constitution because he
had already served the entirety of all sentences imposed for all
counts except for the final sentence on the § 924(c) count. And,
because the § 924(c) conviction was vacated, he says that the
district court could not have resentenced him on the counts as to
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which he had already served his sentences. We review these
preserved issues of constitutional law de novo. United States v.
Szpyt, 785 F.3d 31, 36 (1st Cir. 2015).
A. Double Jeopardy
The Double Jeopardy Clause of the Fifth Amendment
provides that "[n]o person shall . . . be subject for the same
offence to be twice put in jeopardy of life or limb." U.S. Const.,
amend. V. The guarantee against double jeopardy "has been said to
consist of three separate constitutional protections." United
States v. DiFrancesco, 449 U.S. 117, 129 (1980) (quoting North
Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other
grounds by Alabama v. Smith, 490 U.S. 794 (1989)). First, the
clause "protects against a second prosecution for the same offense
after acquittal." Pearce, 395 U.S. at 717. Second, it "protects
against a second prosecution for the same offense after
conviction." Id. And third, as particularly relevant here, "it
protects against multiple punishments for the same offense." Id.The Supreme Court has limited the application of double-
jeopardy principles in some respects, concluding, for example,
that a successful appeal does not, in general, bar a defendant
from being retried, Bullington v. Missouri, 451 U.S. 430, 438
(1981), or from receiving a harsher sentence, Pearce, 395 U.S. at
723. Particularly with sentencing, the Court has made clear that
criminal sentences do not carry the same constitutional finality
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and conclusiveness as attaches with a jury's verdict of acquittal.
DiFrancesco, 449 U.S. at 132-33. Thus, the touchstone for the
double-jeopardy analysis is whether the defendant had a legitimate
"expectation of finality in the original sentence." See id. at
139; see also Evans v. Michigan, 568 U.S. 313, 319-20 (2013)
(explaining that double jeopardy does not preclude retrial after
a properly granted mistrial because "no expectation of finality
attaches to a properly granted mistrial"); United States v.
Pimienta-Redondo, 874 F.2d 9, 16 (1st Cir. 1989) (en banc).
In conducting that analysis, we remain mindful that
generally, as the Supreme Court has noted, "[a] criminal sentence
is a package of sanctions that the district court utilizes to
effectuate its sentencing intent." Pepper v. United States, 562
U.S. 476, 507 (2011) (quoting United States v. Stinson, 97 F.3d
466, 469 (11th Cir. 1996) (per curiam)). Indeed, the sentencing
factors of 18 U.S.C. § 3553(a) "are used to set both the length of
separate prison terms and an aggregate prison term comprising
separate sentences for multiple counts of conviction." Dean v.
United States, 137 S. Ct. 1170, 1175 (2017). Thus, the so-called
sentencing-package doctrine comes into the fold in cases that
"typically involve multicount indictments and a successful attack
by a defendant on some but not all of the counts of conviction."
Greenlaw v. United States, 554 U.S. 237, 253 (2008). And in those
circumstances, "[b]ecause a district court's 'original sentencing
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intent may be undermined by altering one portion of the calculus,'"
Pepper, 562 U.S. at 507 (quoting United States v. White, 406 F.3d
827, 832 (7th Cir. 2005)), appeals courts "may vacate the entire
sentence on all counts so that, on remand, the trial court can
reconfigure the sentencing plan to assure that it remains adequate
to satisfy the sentencing factors" of § 3553(a), Greenlaw, 554
U.S. at 253.
Applying that doctrine, we have held that "where the
Guidelines contemplate an interdependent relationship between the
sentence for the vacated conviction and the sentence for the
remaining convictions -- a sentencing package -- a district court
may, on a petition under 28 U.S.C. § 2255, resentence on the
remaining convictions." United States v. Rodriguez, 112 F.3d 26,
30-31 (1st Cir. 1997) (footnote omitted). We, as have our judicial
superiors, have recognized that "when a defendant is found guilty
on a multicount indictment, there is a strong likelihood that the
district court will craft a disposition in which the sentences on
the various counts form part of an overall plan." Pimienta-
Redondo, 874 F.2d at 14. And, "[w]hen the conviction on one or
more of the component counts is vacated, common sense dictates
that the judge should be free to review the efficacy of what
remains in light of the original plan, and to reconstruct the
sentencing architecture upon remand, within applicable
constitutional and statutory limits, if that appears necessary in
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order to ensure that the punishment still fits both crime and
criminal." Id.; see United States v. García-Ortiz, 657 F.3d 25,
31 (1st Cir. 2011) ("When a defendant successfully challenges one
of several interdependent sentences, the proper course often is to
remand for resentencing on the other (non-vacated) counts.").
Further, we have previously concluded that a district
court does not offend double jeopardy when it resentences, in
forming a sentencing package anew, on counts surviving appeal or
a § 2255 petition. See Pimienta-Redondo, 874 F.2d at 16. In
Pimienta-Redondo, we faced two defendants' double-jeopardy
challenge to their resentencing after one of their two counts of
conviction was vacated. Id. There, the defendants were initially
sentenced to consecutive terms of imprisonment on each of the two
counts of conviction. Id. at 11. On appeal, we affirmed one
count, vacated the other, and remanded. Id. at 11–12. On remand,
the district court gave each defendant the same aggregate sentence
-- just via a longer sentence on a single count. Id. at 12.
On appeal again from resentencing, the defendants
contended that increasing their sentence on the surviving count of
conviction violated their double-jeopardy protections. Id. at 16.
Relying on the sentencing-package doctrine, we rejected their
argument and concluded there is no double-jeopardy violation in
the district court's resentencing a defendant to a longer sentence
on counts unaffected by appeal. Id. Indeed, we recognized that
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"[w]here the defendant challenges one of several interdependent
sentences (or underlying convictions) he has, in effect,
challenged the entire sentencing plan." Id. (quoting United States
v. Shue, 825 F.2d 1111, 1115 (7th Cir. 1987)). Thus, we said, a
defendant "can have no legitimate expectation of finality in any
discrete portion of the sentencing package after a partially
successful appeal," and thus no double-jeopardy claim. Id.(quoting Shue, 825 F.2d at 1115). Instead, the trial court may
resentence a defendant on the remaining counts "to effectuate [its]
original sentencing intentions." Id.Edward says Pimienta-Redondo actually commands that his
resentencing violated the Double Jeopardy Clause. He clings to
our statement there that a "defendant 'has no legitimate
expectation of finality in the original sentence[s] when he has
placed those sentences in issue by direct appeal and has not
completed serving a valid sentence.'" Id. (emphasis added)
(alteration in original) (quoting United States v. Andersson, 813
F.2d 1450, 1461 (9th Cir. 1987)). According to Edward then, he,
unlike the defendants in Pimienta-Redondo, has completed the valid
sentences on all but the now-vacated § 924(c) conviction. Indeed,
no matter how you calculate the original sentence (whether
accepting that the sentence on Counts IX and X ran concurrently or
consecutively to the sentences on Counts I, II, V, and VII), it is
undisputed that Edward had served at least 84 months on the counts
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of conviction in this case by the time he was sentenced.9 Thus,
Edward says, he completed the entirety of the constituent sentences
on Counts I, II, V, VII, IX, and X -- leaving only the 360-month
consecutive sentence on the § 924(c) conviction remaining to
serve.
The problem with that distinction, though, is that
Pimienta-Redondo does not clarify what the "valid sentence" to be
served is: a string of constituent sentences or the aggregate
sentencing package. And on top of that, Pimienta-Redondo itself
recognized explicitly that when a vacated count tears apart the
overall sentencing plan, "common sense dictates that the judge
should be free to review the efficacy of what remains in light of
the original plan, and to reconstruct the sentencing architecture
upon remand." 874 F.3d at 14. Pimienta-Redondo thus does not
control the outcome here.
And when we look to our sister circuits around the
country, they are nearly uniform in their conclusion that a
defendant has no legitimate expectation of finality for double-
9 Recall that the court's oral sentence stated that 12-month
sentence on Counts IX and X ran concurrently to the sentences on
Counts I, II, V, and VII. The written judgment, though, specified
that the 12-month sentence ran consecutively -- not concurrently
-- to those other counts. As stated, the discrepancy is irrelevant
here because even if the sentence on Counts IX and X did run
consecutively, the total on Counts I, II, V, VII, IX, and X would
be 84 months. And it is undisputed that Edward had served at least
that amount before resentencing.
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jeopardy purposes even where she served the entirety of a
constituent sentence in a sentencing package. See United States
v. Triestman, 178 F.3d 624, 631–32 (2d Cir. 1999) (Sotomayor, J.);
United States v. Smith, 115 F.3d 241, 247 (4th Cir. 1997); United
States v. Benbrook, 119 F.3d 338, 340–41 (5th Cir. 1997);
Pasquarille v. United States, 130 F.3d 1220, 1222–23 (6th Cir.
1997); United States v. Smith, 103 F.3d 531, 535 (7th Cir. 1996);
United States v. Alton, 120 F.3d 114, 116 (8th Cir. 1997); United
States v. McClain, 133 F.3d 1191, 1192–94 (9th Cir. 1998); United
States v. Easterling, 157 F.3d 1220, 1223–24 (10th Cir. 1998);
United States v. Townsend, 178 F.3d 558, 569-70 (D.C. Cir. 1999).
In fact, the only circuit Edward points to that in theory
has accepted his argument -- the Fourth Circuit -- quickly
distinguished its prior holding and reached the opposite
conclusion on the same issue less than a year later. Compare
United States v. Silvers, 90 F.3d 95, 101 (4th Cir. 1996) ("As the
government concedes, reimposition of sentence on counts upon which
Silvers had fully satisfied his sentence violated the Double
Jeopardy Clause."), with Smith, 115 F.3d at 247 (distinguishing
Silvers where the defendant had not "fully discharged" his
aggregate sentence). And subsequent panels of the Fourth Circuit
have considered themselves bound by Smith -- not Silvers. See
United States v. Douthit, 133 F.3d 918, at *1 n.* (4th Cir. 1998)
(unpublished table decision) ("[B]ecause Smith recognized the
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apparent conflict and distinguished Silvers, we are bound as a
panel of the court by its holding." (citation omitted)); United
States v. Butler, 122 F.3d 1063, at *1 n.* (4th Cir. 1997)
(unpublished table decision) (same).
Our sister circuits have reasoned that if a sentence is
properly viewed as a package -- that is, "one unified term of
imprisonment," Townsend, 178 F.3d at 570 (quoting Easterling, 157
F.3d at 1224) -- then a defendant cannot have a legitimate
expectation in finality where she "ha[s] not satisfied [her]
sentence on the remaining counts in any meaningful sense," id.;
see Pasquarille, 130 F.3d at 1223–24 ("Because the defendant has
no legitimate expectation of finality in any discrete part of an
interdependent sentence after a partially successful appeal or
collateral attack, there is no double jeopardy bar to enhancing an
unchallenged part of an interdependent sentence to fulfill the
court's original intent." (quoting United States v. Harrison, 113
F.3d 135, 138 (8th Cir. 1997))). Thus, "the legal interdependence
of sentences under the Guidelines permits a court to reconsider
related sentences in the context of a collateral attack."
Triestman, 178 F.3d at 631 (cleaned up) (quoting United States v.
Mata, 133 F.3d 200, 202 (2d Cir. 1998)).
That is so because, in general, defendants do not
"receive[] separate and distinct sentences" for related
convictions -- they "receive[] one aggregate sentence for th[e]
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interdependent offenses." Benbrook, 119 F.3d at 340. Thus, by
attacking one portion of a sentencing package, a defendant
"necessarily attack[s] the whole." Id. Defendants "cannot
selectively craft the manner in which the court corrects th[e]
judgment" to dismember the sentencing package favorably to them.
Alton, 120 F.3d at 116 (quoting Gardiner v. United States, 114
F.3d 734, 736 (8th Cir. 1997)). Nor does resentencing in any real
way disadvantage the defendant: Rather than enacting a double
punishment for the non-§ 924(c) counts, a full resentencing to
restructure the original sentencing package does "nothing more
than put [the defendant] in the same position [she] would have
occupied had [she] not been convicted under [§] 924(c) in the first
place." Triestman, 178 F.3d at 631 (quoting Mata, 133 F.3d at
202).10
10 Trying to dodge the onslaught of circuits rejecting his
theory, Edward claims his view is commanded by Supreme Court
precedent, citing to Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873).
There, the defendant was convicted on one count and erroneously
sentenced to both one year in prison and a fine, though the statute
only authorized either punishment, not both. Id. at 175. The
defendant paid his fine and then began to serve the sentence for
five days. Id. Realizing the error, the court tried to resentence
the defendant to one year in prison, this time without a fine.
The Supreme Court reversed, observing that the new sentence would
have the prisoner pay the fine and be imprisoned for a year and
five days. Id. The Court said that by the defendant's "fully
suffer[ing] one of the alternative punishments . . . the power of
the court to punish further was gone." Id. at 176.
Yet the Supreme Court has since cabined Lange's reach only to
"the uncontested proposition that the Double Jeopardy Clause
prohibits punishment in excess of that authorized by the
legislature," and clarified that it does not stand "for the broader
- 22 -
So it follows, we echo our sister circuits in concluding
that "[w]hen a defendant elects to challenge one part of a
sentencing package whose constituent parts are truly
interdependent," reconstituting "the entire sentencing package
does not constitute a double jeopardy violation." Id. (internal
quotation marks omitted) (quoting Mata, 133 F.3d at 202); see also
United States v. Cain, 837 F. App'x 853, 856 (2d Cir. 2021)
(continuing to apply this rule post-Davis).
Edward's double-jeopardy claim thus rises and falls with
whether his original sentence is properly considered a package.
We have acknowledged that a total aggregate sentence on multiple
counts does not always mean there is a true sentencing package.
See Rodriguez, 112 F.3d at 30 n.1. To determine whether a true
sentencing package exists, we look to whether "the guidelines
establish an interdependent relationship between the sentence
vacated or subject to amendment and the sentence for the remaining
convictions." United States v. Jordan, 162 F.3d 1, 6 (1st Cir.
rule suggested by its dictum," referring specifically to the quoted
language Edward harps on. Jones v. Thomas, 491 U.S. 376, 382-83
(1989). Moreover, even accepting Lange's dictum, it does not
change the analysis here because the "punishment" to be "fully
suffered" by Edward is not any single sentence (as it was in
Lange), but the total sentencing package. See Townsend, 178 F.3d
at 570 (recognizing that distinction). And that's particularly so
where, as here, some of the defendant's original constituent
sentences were reduced in light of the now-vacated portion of the
package. The defendant can have no legitimate expectation of
finality in those constituent sentences when she seeks to upset
other portions of the package.
- 23 -
1998). And we search for whether "the same basic course of conduct
underlies both the vacated count and the count on which the
conviction is affirmed." Rodriguez, 112 F.3d at 30; see also
United States v. Lassiter, 1 F.4th 25, 30 (D.C. Cir. 2021) (noting
that "[o]ne indicator of the sentencing judge's intent [regarding
a sentencing package] is the substantive relationship between the
various counts").
Applying this framework, we are quite confident that
Edward's original 444-month sentence was one package. For one,
all the counts of conviction arise out of the same events:
Edward's failure to appear for his trial and sentencing in the
tax-fraud case, his subsequent walling off in his booby-trapped
New Hampshire property with a host of firearms and explosives, and
his threats against the law-enforcement agents trying to wrangle
him out of his fortress to serve his sentence on the tax-fraud
counts. See also Townsend, 178 F.3d at 567 ("Sentences which
include § 924(c) counts are particularly well suited to be treated
as a package.").
For another, it is quite clear that the mandatory-
minimum sentence on the § 924(c) count substantially influenced
the judge's initial sentence on the remaining counts. Under the
2008 Sentencing Guidelines in effect at Edward's original
sentencing, he faced an effective Guidelines range of 570 to 622
months. See U.S.S.G. §§ 3D1.1(a), 3D1.1(b)(1), 3D1.3(a), 5G1.2(a)
- 24 -
(2008) (providing that the offense level is determined by taking
the highest offense level of the counts in the group of charges,
and then adding it consecutively to the mandatory-minimum
sentence). Edward's sentence was substantially lower than the
government's suggested Guidelines sentence of 570 to 622 months.
And although Edward received statutory-maximum sentences on Counts
I and II, see 18 U.S.C. § 372; id. § 371, he received sentences
well below the maximums on the remaining counts, see id.
§ 924(a)(2) (maximum ten years' imprisonment for Count V); id.
§ 1503(b)(3) (same for Count VII); id. § 3146(b)(1)(A)(ii)
(maximum five years' imprisonment for Counts IX and X). Had the
district court thought the mandatory-minimum sentence on the
§ 924(c) count too harsh, it could have always departed even lower
than it did and sentenced Edward to a single day on the remaining
counts. See Dean, 137 S. Ct. at 1177; United States v. Sanders,
197 F.3d 568, 573 (1st Cir. 1999) (noting that a mandatory-minimum
consecutive sentence does not break apart a sentencing package;
rather, the mandatory minimum requires the sentencing court to
"consider[] how far it want[s] to go above" that mandatory
minimum). The court's decision in the first go-round to sentence
Edward to a prison term at least 126 months less than the
Guidelines range -- even when the judge emphasized that Edward was
"entirely unrepentant," that his actions were "reprehensible," and
that the judge "had no doubt in [his] mind that Mr. Brown would
- 25 -
have killed multiple marshals" -- further reveals that the initial
sentence operates as one package. See Lassiter, 1 F.4th at 31
(noting that it is "especially" appropriate to presume a sentencing
package "when the judge imposed a below-guidelines sentence for
the violent felony").
On top of that, the Guidelines range Edward faced on the
non-§ 924(c) counts was lower than it would have been had he not
been charged under § 924(c). The § 924(c) conviction helped keep
certain Specific Offense Characteristic enhancements off the non-
§ 924(c) charges. See U.S.S.G. § 2k2.4 app. note 4 (2008). And
that further bespeaks the interrelatedness of the sentences in the
package. See Rodriguez, 112 F.3d at 28, 30-31 (noting that
sentences were interrelated where the § 924(c) count prohibited
adding certain enhancements to other counts).
To cinch things, Edward has made no attempt to rebut the
interrelatedness of the various sentences making up his original
444-month total term of imprisonment. Rather, he put all his eggs
in the basket of the contention that the completion of a
constituent sentence gave him a legitimate expectation of finality
in the original sentence on that particular count, and thus "the
'sentencing package doctrine' does not apply to him." Concluding,
as we do, that a defendant has no legitimate expectation of
finality until she has served the entire package of interrelated
sentences, his argument thus founders. Edward's rights under the
- 26 -
Double Jeopardy Clause were not violated here, particularly where
he received a new aggregate sentence substantially below the
aggregate sentence initially imposed: 300 months compared to the
original 444. See Triestman, 178 F.3d at 632 (noting the defendant
"could not legitimately have expected a better result" where he
received a "significantly reduced" aggregate sentence on
resentencing).
B. Due Process
Given that conclusion, Edward's due-process claim fares
no better. Edward contends that his due-process rights were
violated because he "had a right to rely on the validity of the
original sentences and to expect that when he had served his time
behind bars, those sentences were complete." Notwithstanding the
fact that his formulation of this claim is nearly identical to how
he portrayed his double-jeopardy claim, Edward contends the due-
process claim is entirely separate. But see United States v.
Davis, 112 F.3d 118, 123-24 (3d Cir. 1997) (characterizing the
due-process inquiry, too, as whether the defendant had a legitimate
expectation of finality).
To make out his claim, Edward points to our discussion
in Breest v. Helgemoe, 579 F.2d 95 (1st Cir. 1978). There,
addressing a due-process challenge to a resentencing, we
acknowledged the "real and psychologically critical importance" a
prospective date of release may play for a defendant. Id. at 101.
- 27 -
Thus, we said that "[a]fter a substantial period of time . . . ,
it might be fundamentally unfair, and thus violative of due process
for a court to alter even an illegal sentence in a way which
frustrates a prisoner's expectations by postponing his parole
eligibility or release date far beyond that originally set." Id.;
see also Rodriguez, 112 F.3d at 31 & n.4 (acknowledging there could
be due-process concerns with resentencing a defendant after, for
example, long delay or actual release from custody). And we've
since clarified:
[T]here may be limits on the right to correct
an erroneous sentence in cases "with extreme
facts: a long delay, actual release of the
defendant from custody based on the shorter
sentence, singling out of the defendant for a
belated increase apparently because of his
commission of another offense for which parole
revocation would have been available, and
other troubling characteristics."
Rodriguez, 112 F.3d at 31 n.4 (quoting United States v. Goldman,
41 F.3d 785, 789 (1st Cir. 1994)).
Edward reminds us that he had served over seven years of
his standoff-related convictions in prison at the time of
resentencing (and about thirteen years in total including the tax-
fraud convictions). Thus, his argument goes, he has served a
"substantial period of time" -- including actually "complet[ing]
sentences of incarceration" -- resulting in his having a right to
rely on the original length of the sentences on the non-§ 924(c)
counts.
- 28 -
The problem for Edward, though, is that his argument
presumes that he can have a legitimate right to rely on the length
of constituent sentences in a sentencing package -- which we just
rejected in his double-jeopardy argument. And, to boot, he cannot
identify any other court that has accepted his argument. Instead,
the courts of appeals have rejected his argument in short order.
See, e.g., Townsend, 178 F.3d at 570 (rejecting due-process claim
"[b]ecause [the defendant] could not expect finality of his
sentence on some counts even while he challenged others, [and thus]
resentencing was not fundamentally unfair"); Easterling, 157 F.3d
at 1223–24 (rejecting due-process argument for the same reason as
the double-jeopardy claim). Indeed, the Fourth Circuit has
described this argument as "merely a rehash" of the double-jeopardy
argument and concluded that, since the defendant did not receive
separate sentences but rather one package, he could have no right
to rely on those sentences where he challenged one piece of the
sentencing puzzle. Smith, 115 F.3d at 248.
We similarly reject Edward's contention that he had a
right to rely on the length of his non-§ 924(c) sentences that
built part of his sentencing package. Since Edward was sentenced
to "a total term of 444 months['] imprisonment," he could have no
reliance interest in the length of those constituent sentences.
We think that particularly so where, as here, Edward had served
just about a fifth of that total sentence by the time of
- 29 -
resentencing. See Rodriguez, 112 F.3d at 27–28, 31 (finding no
fundamental unfairness where the defendant had served more than
three years of an about 10-year sentence and he received a 45-
month reduction at resentencing). And it was Edward -- not the
government -- who petitioned to have his § 924(c) conviction
vacated. What's more, in the end, Edward's new sentence was 144
months shorter than his original sentence.11 Thus, Edward
effectively received the same sentence as he would have had the
§ 924(c) count never been charged in the first place. See
Pasquarille, 130 F.3d at 1223 (finding no due-process violation
where "the defendant's total sentence ha[d] been reduced and he
was resentenced according to the court's original sentencing
plan," thus "put[ting] him back in the position he would have
faced" without the § 924(c) conviction). That was not
fundamentally unfair.
II. Sentencing Reasonableness
Constitutional concerns quenched, we turn to review the
sentence's reasonableness. To do so, we engage in our familiar
bifurcated inquiry. United States v. Maldonado-Peña, 4 F.4th 1,
55 (1st Cir. 2021). We start by checking the procedural
reasonableness of the sentence. Id. After we do so, we then turn
We acknowledge that, even with this reduced sentence,
11
Edward will be 91 years old by the time he is slated for release.
- 30 -
to evaluate a defendant's arguments that his sentence is also
substantively unreasonable. Id.A. Procedural Reasonableness
So we begin with Edward's procedural-reasonableness
challenge. "A sentence is procedurally unreasonable when the
district court commits a procedural error such as 'failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence --
including an explanation for any deviation from the Guidelines
range.'" United States v. Pupo, 995 F.3d 23, 28 (1st Cir. 2021)
(quoting United States v. Díaz-Rivera, 957 F.3d 20, 25 (1st Cir.
2020)).
In assessing preserved claims of procedural
reasonableness, we apply a "multifaceted abuse-of-discretion
standard whereby we afford de novo review to the sentencing court's
interpretation and application of the sentencing guidelines,
examine the court's factfinding for clear error, and evaluate its
judgment calls for abuse of discretion." Maldonado-Peña, 4 F.4th
at 55–56 (cleaned up) (quoting United States v. Arsenault, 833
F.3d 24, 28 (1st Cir. 2016)). For judgment calls, we chalk the
district court's decision up to an abuse of discretion only when
we're "left with a definite conviction that 'no reasonable person
- 31 -
could agree with the judge's decision.'" Id. (quoting United
States v. McCullock, 991 F.3d 313, 317 (1st Cir. 2021)). If a
defendant fails to preserve his procedural-reasonableness claim,
though, we then apply the "quite formidable" plain-error standard.
McCullock, 991 F.3d at 317.
Edward lodges a single attack on the procedural
reasonableness of his sentence. He contends the district court
violated his First Amendment rights to maintain and express his
beliefs when it relied on those beliefs to increase Edward's
sentence. Specifically, Edward takes issue with the district
court's emphasis of the fact that, even after his time already
served in prison, he continues to believe that the criminal laws
are not valid and denies any wrongdoing.
Edward's counsel argued to the district court that it
was inappropriate for the court to rely on Edward's beliefs in
fashioning a sentence. Edward's counsel did not, however, lodge
any formal objection to the procedural reasonableness of the
sentence on that ground.12 Nonetheless, even assuming favorably
to Edward that he preserved his claim of procedural reasonableness,
12 We have also seemed to imply that this particular ground
of sentencing error is related to substantive -- not procedural --
reasonableness. See United States v. Alvarez-Núñez, 828 F.3d 52,
55 (1st Cir. 2016); but see United States v. Williamson, 903 F.3d
124, 136 (D.C. Cir. 2018) (lumping this ground in as a procedural
error). We assume without deciding that a sentencing judge's
improper reliance on a defendant's protected First Amendment
activity can make out a claim of procedural unreasonableness.
- 32 -
his claim fails under even the more-defendant-friendly abuse-of-
discretion framework.
In determining how best to fashion a criminal sentence,
"the sentencing authority has always been free to consider a wide
range of relevant material." United States v. Alvarez-Núñez, 828
F.3d 52, 55 (1st Cir. 2016) (quoting Payne v. Tennessee, 501 U.S.
808, 820–21 (1991)). This gives the sentencing judge room to
conduct "an inquiry broad in scope, largely unlimited either as to
the kind of information [it] may consider, or the source from which
it may come." Id. (quoting United States v. Tucker, 404 U.S. 443,
446 (1972)).
There are limits to that general rule, though. As
relevant here, one of those limits is that "a defendant's abstract
beliefs, however obnoxious to most people, may not be taken into
consideration by a sentencing judge." Wisconsin v. Mitchell, 508
U.S. 476, 485 (1993). However, as with most legal propositions,
context is key. "[T]he Constitution does not erect a per se
barrier to the admission of evidence concerning one's beliefs and
associations at sentencing simply because those beliefs and
associations are protected by the First Amendment." Dawson v.
Delaware, 503 U.S. 159, 165 (1992). Accordingly, though the
Supremes have found First Amendment error in a sentencing court's
review of merely "abstract beliefs," see Dawson, 503 U.S. at 167,
the Court has also readily permitted consideration of a defendant's
- 33 -
beliefs when they are "relevant to the issues involved," id. at
164; see Alvarez-Núñez, 828 F.3d at 55 ("The upshot is that conduct
protected by the First Amendment may be considered in imposing
sentence only to the extent that it is relevant to the issues in
a sentencing proceeding."). For example, the Court has found no
error where a sentencing judge considered "the elements of racial
hatred" in the defendant's crime as well as the defendant's "desire
to start a race war" when relevant to the sentencing metrics.
Barclay v. Florida, 463 U.S. 939, 949 (1983) (plurality opinion);
see id. at 970 & n.18 (Stevens, J., concurring in the judgment).
But it has assigned error to the consideration of a defendant's
membership in the Aryan Brotherhood when it had no relevance to
the crimes at issue. Dawson, 503 U.S. at 166–67.
As we've explained, a defendant's beliefs may become
relevant at sentencing "in a multiplicity of ways." Alvarez-
Núñez, 828 F.3d at 55-56. Beliefs and associations "may
legitimately be used to rebut mitigating evidence proffered by the
defendant." Id. at 56. Protected conduct may also become relevant
to evaluate a defendant's remorse, likelihood of reoffending, or
the extent of punishment needed for deterrence. Id. (collecting
cases); see United States v. Williamson, 903 F.3d 124, 136 (D.C.
Cir. 2018) (finding no First Amendment violation in considering
protected activity that bore on "the seriousness of [the] offense
and on the need to protect the public generally . . . from harm").
- 34 -
Given that framework, Edward's claim readily fails.
Though Edward thinks the district court could not fashion a
sentence relying on his beliefs about the authority of the
government or the criminal laws, those beliefs are highly relevant
to the § 3553(a) factors. See Alvarez-Nunez, 828 F.3d at 55-56.
Regarding his crimes, Edward maintained that he "didn't do anything
wrong" concerning his failure to pay taxes, and he said that "the
law is wrong." When asked directly whether he thought he was
violating the law with the months-long standoff, he said no. He
told the judge that the laws are not valid. He also questioned
the authority of the judge to pass sentence on him under the
criminal laws. And Dr. Durand noted in her evaluation that Edward
"believes that he has been the victim of an unjust system and that
his actions were warranted, justified or not unlawful."
As the district court amply explained, Edward's
statements go "beyond simply his beliefs." Rather, the judge saw
Edward's statements as "a recipe for trouble," suggesting that
Edward may be dangerous when released from prison. Those beliefs
also, in the judge's view, reflected that Edward did not intend to
obey the law. And, as the district judge put it, the problem is
not that Edward holds these abstract beliefs: "The problem is
that he acts on his beliefs, and, by acting on his beliefs, he put
in danger multiple individuals." And those concerns played into
the court's consideration of the relevant sentencing factors,
- 35 -
which it said included (among others) the need to promote respect
for the law, the need to deter Edward and others from committing
the same crimes, and the need to protect the public from further
crimes committed by Edward. See 18 U.S.C. § 3553(a)(2).
We find no procedural error in the district court's
reliance on Edward's beliefs in considering these sentencing
factors. See, e.g., United States v. Schmidt, 930 F.3d 858, 868
(7th Cir. 2019) ("[T]he court properly considered Mr. Schmidt's
white supremacist ideas and hatred for the United States as
evidence that he presents a threat of future dangerousness to the
community." (cleaned up)); United States v. DeChristopher, 695
F.3d 1082, 1098 (10th Cir. 2012) ("Defendant's statements that he
would 'continue to fight' and his view that it was 'fine to break
the law' were highly relevant to the[] sentencing factors.");
United States v. Smith, 424 F.3d 992, 1016–17 (9th Cir. 2005) (no
error in considering the defendant's allocution statements,
including about the district court's "lack of jurisdiction,"
because they were relevant to the defendant's remorse and threat
to the public on release); United States v. Simkanin, 420 F.3d
397, 417–18 (5th Cir. 2005) (finding no constitutional error where
the district court relied on the defendant's "specific beliefs
that the tax laws are invalid and do not require him to withhold
taxes or file returns . . . [because they] are directly related to
- 36 -
the crimes in question and demonstrate a likelihood of
recidivism").
Edward further contends that the district court erred in
relying on these personal, strongly held beliefs because he, at
other points, appeared to show that there should be no concern
that he would follow the law upon release. For example, Edward
told the court that he "will follow" the criminal laws even though
"they're not valid" because he has "no choice." And he emphasized
his good behavior in prison as showing that he has submitted to
the government's authority notwithstanding his beliefs.
We will not second-guess the sentencing judge's
determination of the sincerity of Edward's statements absent a
finding of clear error. See United States v. Ubiles-Rosario, 867
F.3d 277, 292 n.15 (1st Cir. 2017); United States v. Cortés-Medina,
819 F.3d 566, 573 (1st Cir. 2016) ("[T]he district court is in the
best position to weigh the credibility of a claim of rehabilitation
and to balance the sentencing scales in light of such a claim.").
Edward has made no effort to demonstrate that standard here, and
we at any rate find no error in the district court's assessment.
The district court considered Edward's statements and
rejected them. Though the judge acknowledged Edward's seemingly
good behavior in prison, he suggested that it was not very
applicable to determining Edward's potential behavior after
release to society because prison is "designed to eliminate
- 37 -
resistance." And the judge also acknowledged Edward's statements
that he "will follow" the law, but emphasized that it was "hard to
accept" that Edward wouldn't break the law again or would follow
conditions of release since Edward "indicate[d] to this minute
that . . . they're not valid laws" and that he does not accept the
authority of the court. From our vantage, that appraisal was not
clearly erroneous.
B. Substantive Reasonableness
Satisfying the procedural-reasonableness probe, we turn
now to test the sentence's substantive reasonableness.
"A sentence is substantively reasonable if the
'sentencing court has provided a plausible sentencing rationale
and reached a defensible result.'" Pupo, 995 F.3d at 29 (quoting
United States v. Flores-Quiñones, 985 F.3d 128, 133 (1st Cir.
2021)). This review is highly deferential. United States v.
Fuentes-Moreno, 954 F.3d 383, 396 (1st Cir. 2020). We evaluate
the reasonability of the overall sentence "in light of the totality
of the circumstances." United States v. Flores-Machicote, 706
F.3d 16, 20 (1st Cir. 2013). And we recognize that we owe deference
to the sentencing court's informed discretion in fashioning an
appropriate sentence, ever cognizant of the fact that "[t]here is
more than one reasonable sentence in virtually any case." Fuentes-
Moreno, 954 F.3d at 396 (quoting United States v. Matos-de-Jesús,
856 F.3d 174, 179 (1st Cir. 2017)). Thus, we will find a sentence
- 38 -
substantively unreasonable "only if it falls beyond the expansive
universe of reasonable sentencing outcomes." United States v.
Benoit, 975 F.3d 20, 24 (1st Cir. 2020) (quoting United States v.
Rodríguez-Torres, 939 F.3d 16, 43 (1st Cir. 2019)). In other
words, "we do not reverse simply because we would have sentenced
the defendant differently." Id.Edward submits four reasons his sentence was
unreasonable: (1) the district court's reliance on Edward's
beliefs; (2) the total sentence as compared to the sentences given
his co-defendants; (3) the total sentence considering his advanced
age; and (4) the total sentence, taking everything into account,
was longer than necessary to achieve the sentencing goals of
§ 3553(a). We take each in turn, though mindful that a sentence's
substantive reasonableness must be eyeballed in light of the
totality of the circumstances. See Flores-Machicote, 706 F.3d at
20.
1. Belief system
First, Edward contends, tacking on to his procedural-
reasonableness argument, that the district court's reliance on his
beliefs resulted in a substantively unreasonable sentence. But,
for the same reasons this failed as a procedural-reasonableness
argument, it fails as a substantive-reasonableness argument, too.
Onward.
- 39 -
2. Co-defendant disparity
Next, Edward contends that there was an unwarranted
disparity between the sentence he received and the sentences his
co-conspirators received on resentencing. In imposing sentence,
a district court must consider "the need to avoid unwarranted
sentence disparities among defendants with similar records who
have been found guilty of similar conduct." 18 U.S.C.
§ 3553(a)(6). Though that is typically concerned with national
disparities, we have also considered claims that a sentence is
substantively unreasonable because of a disparity relative to a
co-defendant's sentence. See United States v. Grullon, 996 F.3d
21, 35 (1st Cir. 2021).
Not all co-defendant disparities in sentencing yield a
substantively unreasonable sentence. As we've explained, "[t]he
key word is 'unwarranted' -- that is, § 3553(a)(6) does not ban
all disparities, just 'unwarranted' ones." United States v.
Romero, 906 F.3d 196, 211 (1st Cir. 2018). A defendant "is not
entitled to a lighter sentence merely because his co-defendants
received lighter sentences." United States v. Dávila-González,
595 F.3d 42, 50 (1st Cir. 2010) (quoting United States v. Wallace,
573 F.3d 82, 97 (1st Cir. 2009)). To make out a well-founded claim
of sentencing disparity, a defendant must compare apples to apples.
United States v. Mateo-Espejo, 426 F.3d 508, 514 (1st Cir. 2005).
Among other things that may throw off a direct comparison, we have
- 40 -
looked at a co-defendant's cooperation, the nature of her
cooperation, and her choice to plead guilty instead of going to
trial, see United States v. Reyes-Santiago, 804 F.3d 453, 467 (1st
Cir. 2015) (collecting cases), as well as her relative culpability
or role in the crime, see United States v. Reverol-Rivera, 778
F.3d 363, 366 (1st Cir. 2015). In the end, cases of identically
situated defendants "are unusual to say the least." Grullon, 996
F.3d at 35-36.
Applying those principles here, Edward's challenge
fails. Edward clamors that his co-defendants each received
sentences of time served on resentencing even though their original
sentences were substantially higher than what they had to that
point served.13 Yet Edward fails to grapple with the reasons the
sentencing judge gave for the disparity.
First, the judge explained that Elaine, Riley, and
Gerhard each showed that they had "learned" during their prison
terms that what they had done was wrong. As the judge put it,
"[t]hey appeared broken by the period of incarceration," leaving
13 At the time of resentencing, Elaine had served 85 months
of her 420-month sentence. Mot. on Resentencing at 1 & n.2, United
States v. Brown, No. 09-cr-30 (D.N.H. Jan. 16, 2020), ECF No. 311.
Riley had served, as best we can tell, around 12 years of his 36-
year sentence. And Gerhard, too, had served over 12 years of his
original 20-year prison sentence. Def.'s Obj. to Resentencing &
Sentencing Mem. at 3, United States v. Gerhard, No. 07-cr-189
(D.N.H. Jan. 20, 2020), ECF No. 713.
- 41 -
the judge with no doubt that there was "no risk" that any of them
would engage in the same behavior. Edward, though, didn't give
the judge the same confidence given his comments that he still
thinks he did nothing wrong, and about the authority of the law
and the courts.
Second, Edward acknowledges that he "may have been more
culpable" than his co-defendants but suggests he wasn't more-
culpable enough to justify serving almost double time in prison.
Yet the district court disagreed. It noted that Edward was "the
leader and instigator of the entire standoff." It also emphasized
that Edward dragged others into his crime to support his standoff,
"brainwash[ing]" one of the co-defendants. Both rationales were
supported by the record.
Ultimately, the sentencing judge assessed Edward's
greater culpability, combined with all the other factors relevant
to his sentencing (including his continued belief he did nothing
wrong), and concluded that he merited a substantially higher
sentence than his co-defendants. He gave a plausible rationale
and reached a defensible result relative to Edward's co-
defendants, so we find no abuse of discretion. See Grullon, 996
F.3d at 36; Reverol-Rivera, 778 F.3d at 367.
3. Age
Finally, Edward appears to contend that the district
court failed to consider his advanced age and the fact that, under
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the average life-expectancy, he has received "[i]n effect" a life
sentence. This argument, too, fails.
True, a sentencing court is required to consider a
defendant's age as a potential mitigating factor. See 18 U.S.C.
§ 3553(a)(1) (identifying as a sentencing factor "the history and
characteristics of the defendant"). Also true, "in general, '[t]he
propensity to engage in criminal activity declines with age,' and
so persons convicted of a crime late in life may be unlikely to
recidivate." United States v. Pacheco-Martinez, 791 F.3d 171, 180
(1st Cir. 2015) (alteration in original) (quoting United States v.
Johnson, 685 F.3d 660, 661–62 (7th Cir. 2012)).
But even accepting that, a defendant's age is but one of
many factors a sentencing court must consider. See United States
v. Rivera-Morales, 961 F.3d 1, 21 (1st Cir. 2020); see also 18
U.S.C. § 3553(a). The judge here surveyed all the relevant factors
(including the seriousness of the crime, Edward's continued lack
of remorse, and his continued rejection of the authority of the
laws and the court) and concluded they outweighed this mitigating
factor. Indeed, even considering Edward's advanced age, this could
well be a case where Edward's crimes (committed when he was already
64 years old), as well as his continued rejection of the authority
of the criminal laws, revealed that he "may be one of the few
oldsters who will continue to engage in criminal activity until he
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drops." Pacheco-Martinez, 791 F.3d at 180 (cleaned up) (quoting
Johnson, 685 F.3d at 662).
As we have explained time and again, a sentence is not
rendered unreasonable simply because the sentencing court didn't
apply as much emphasis to some mitigating factors as the defendant
hoped. See, e.g., Pupo, 995 F.3d at 32; United States v. Dávila-
Bonilla, 968 F.3d 1, 12 (1st Cir. 2020). And as we've explained
specifically in the context of a nearly identical argument, a
weighty sentence given to a defendant of advanced age is not
substantively unreasonable where the sentencing judge, considering
all the relevant factors, offers a plausible rationale and delivers
a defensible result. See Pacheco-Martinez, 791 F.3d at 180
(finding no substantive unreasonableness in spite of the
defendant's age because, in part, he "ha[d] shown no sign of
changing his ways" and, at sentencing, expressed no remorse but
instead "assert[ed] that the court lacked jurisdiction over him");
United States v. Angulo-Hernández, 565 F.3d 2, 13 (1st Cir. 2009)
(no substantive unreasonableness where the defendant's advanced
age "was outweighed by the severity of [his] current offense and
history of drug crimes"). The judge did so here.
4. Zooming out
All told, the district court, in light of all the
circumstances here, provided a plausible rationale and delivered
a defensible result. In fact, the result it delivered was a
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sentence substantially below the Guidelines range. See United
States v. Cameron, 835 F.3d 46, 52 (1st Cir. 2016) ("It is a rare
below-the-range sentence that will prove vulnerable to a
defendant's claim of substantive unreasonableness." (quoting
United States v. King, 741 F.3d 305, 310 (1st Cir. 2014)).
Considering all of Edward's arguments as a whole, we spy no error.
CONCLUSION
Our work complete, the judgment below is affirmed.
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