United States v. Soto-Soto

United States Court of Appeals
For the First Circuit
No. 16-1444
UNITED STATES OF AMERICA,
Appellee,
v.
JOSUE SOTO-SOTO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Stahl, Circuit Judges.
Eric Alexander Vos, Federal Public Defender, Vivianne M.
Marrero, Assistant Federal Public Defender, Supervisor, Appeals
Section, Eleonora C. Marranzini, Assistant Federal Public
Defender, and Franco L. Perez-Redondo, Research and Writing
Specialist, on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Juan Carlos Reyes-Ramos, Assistant United
States Attorney, on brief for appellee.
May 1, 2017
SELYA, Circuit Judge. Defendant-appellant Josue Soto-
Soto appeals from a two-year sentence imposed following the
revocation of a term of supervised release. He complains that the
district court erred both in stating that it had granted him "two
previous opportunities" to reform his ways and in fashioning a
substantively unreasonable sentence. Finding his plaints
unpersuasive, we affirm.
I. BACKGROUND
The relevant facts are largely uncontested. On October
18, 2013, the appellant entered a guilty plea to a charge of being
a felon in possession of a firearm. See 18 U.S.C. §§ 922(g)(1),
924(a)(2). The district court sentenced him to eighteen months'
imprisonment, to be followed by three years of supervised release.
The appellant served the incarcerative portion of the sentence and
began serving his term of supervised release on November 3, 2014.
The appellant's new status got off to a rocky start: at
an intake interview, he disobeyed instructions to wait in the
reception area and fled from the probation office. Several months
later, the appellant was apprehended; and, on May 19, 2015, the
district court held a hearing to consider revocation of his
supervised release. In the end, the court did not revoke
supervised release but, rather, attached an additional condition
requiring cognitive behavioral treatment. Nevertheless, the court
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took pains to warn the appellant "that any future non-compliance
[would] result in the revocation of his [supervised release]."
On July 7, 2015, the probation officer, by motion,
informed the district court that the appellant had again violated
the conditions of his supervised release. The motion noted that,
on July 4, the appellant had been charged with aggravated domestic
abuse, domestic abuse by means of threats, and unlawful carrying
and use of bladed weapons in derogation of Puerto Rico law. See
P.R. Laws Ann. tit. 8, §§ 632(d), 633; id. tit. 25, § 458d. Even
though a local magistrate found probable cause to believe that
these charges were well-founded, the parties agreed to dispose of
the motion by adding anger management and domestic violence
counseling to the existing conditions of the appellant's
supervised release.
The matter came before the district court on January 15,
2016. Although the court made no express findings as to whether
the conditions of supervised release had been violated, it declared
that the appellant had "demonstrated a disregard and lack of
commitment towards the Court and the supervision conditions." Even
so, the court accepted the parties' agreement, allowed the existing
supervised release term to continue, and added anger management
and domestic violence counseling as additional conditions. The
court took the occasion, though, to issue "a stern warning,"
telling the appellant bluntly that this was his "last opportunity"
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and admonishing him that if he again failed to comply with his
supervised release conditions, the court would "not hesitate in
revoking [his] term of supervision." (Emphasis in original).
The third time was not the charm. Less than a month
after the January 15 hearing, the probation officer learned that
a participant in the appellant's transitional housing program
claimed that the appellant had supplied him with synthetic
marijuana. Moreover — after being asked to consent to a search —
the appellant had left the program without authorization. Though
the probation officer made arrangements for the appellant to re-
enter the program, the appellant absconded.
Once the appellant was back in custody, the probation
officer moved for revocation of his supervised release. On April
6, 2016, the district court convened a hearing. The appellant
admitted the allegations contained in the probation officer's
motion and asked the court to sentence him either to time served
or — if the court was unwilling to do so — to no more than five
months' imprisonment (the low end of the guideline sentencing
range), without any further term of supervised release. The
government demurred, pointing out that the appellant had
repeatedly flouted both the probation officer's instructions and
the supervised release conditions. With this tarnished record in
mind, the government proposed that the court choose between two
alternative dispositions. In the first instance, it recommended
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imposition of the statutory maximum term of immurement — two years,
see 18 U.S.C. § 3583(e)(3) — with no further period of supervised
release. Should that proposal not suit the court, the government
recommended, as an alternative, a sentence at the high end of the
guideline sentencing range (eleven months), to be followed by a
fresh term of supervised release. The probation officer agreed
with the suggestion for a two-year term of immurement, counselling
against a new term of supervised release because the appellant had
demonstrated that he "would not follow instructions."
The district court determined that the appellant had
violated the conditions of his supervised release. Relatedly, the
appellant had "demonstrated that he is unable to comply with the
conditions of his supervision." The court added that even though
the appellant had been "granted two previous opportunities and was
allowed to continue on supervision in an effort to assist him in
his reintegration to the community, he did not abide by the
supervision conditions." Consequently, the court revoked the
existing term of supervised release.
The court then turned to sentencing. Based on the
appellant's criminal history category (III) and the fact that the
original offense of conviction (felon in possession) was a grade
C violation, see USSG §7B1.1(a)(3), the court set the guideline
sentencing range at five to eleven months, see id. §7B1.4(a). The
court abjured the guideline range, however, and sentenced the
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appellant to two years' imprisonment (the statutory maximum), with
no new term of supervised release. This timely appeal followed.
II. ANALYSIS
The appellant makes both a procedural and a substantive
challenge to his sentence. We discuss them in order.
A.
The appellant's claim of procedural error assails the
district court's characterization of the second revocation
proceeding as a second chance for the appellant to get his act
together. This misperception, he says, adversely affected the
court's sentencing calculus. Preserved claims of sentencing error
are typically reviewed for reasonableness, under an abuse of
discretion rubric. See Gall v. United States, 552 U.S. 38, 41
(2007); United States v. Montero-Montero, 817 F.3d 35, 37 (1st
Cir. 2016). Here, however, the appellant did not preserve the
claim of procedural error that he now advances.1 Our review,
1To be sure, the appellant's counsel stated, at the end of
the disposition hearing, that the appellant objected to the
sentence as "procedurally . . . unreasonable." No objection was
raised, however, to the court's "two previous opportunities"
comments. A general objection to the procedural reasonableness of
a sentence is not sufficient to preserve a specific challenge to
any of the sentencing court's particularized findings. To preserve
a claim of error for appellate review, an objection must be
sufficiently specific to call the district court's attention to
the asserted error. See United States v. Ríos-Hernández, 645 F.3d
456, 462 (1st Cir. 2011); United States v. Holmquist, 36 F.3d 154,
168 (1st Cir. 1994); United States v. Boylan, 898 F.2d 230, 249
(1st Cir. 1990).
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therefore, is for plain error. See United States v. Duarte, 246
F.3d 56, 60 (1st Cir. 2001). Under the plain error standard, the
appellant 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." Id.
Plain error is plainly absent here.
The short of it is that the record supports the district
court's characterization. The appellant's first opportunity to
avoid a new prison sentence came during the May 19, 2015 revocation
hearing, when the district court decided not to revoke supervised
release despite the appellant's admission that he had violated
some of the pertinent conditions. Instead of ordering revocation,
the court allowed the appellant to remain free on supervised
release. The appellant does not dispute that this outcome
constituted an "opportunity," afforded to him by the court, to
remain out of prison.
The crux of the matter, though, is the January 15, 2016
revocation hearing, which the district court characterized as the
appellant's second blown opportunity to remain at liberty. The
appellant contends that this characterization was incorrect
because there was no finding that a factual or legal basis existed
to revoke his supervision and send him back to prison at that time.
The appellant's premise is sound: the court made no actual finding.
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But the conclusion that the appellant draws from that premise does
not follow.
To begin, the district court's characterization was not
a post hoc afterthought: the minutes of the January 15 hearing
reflect that the court expressly stated that it was granting the
appellant "a last opportunity."2 The court's contemporaneous
characterization of its own order is entitled to some weight. Cf.
Lefkowitz v. Fair, 816 F.2d 17, 22 (1st Cir. 1987) (explaining
that "uncertainty as to the meaning and intendment of a district
court order can sometimes best be dispelled by deference to the
views of the writing judge").
In all events, the appellant cabins the word
"opportunity" in a way that defies both common usage and common
sense. It is apodictic that appellate courts should "'allow a
good deal of leeway' in reviewing the adequacy of a district
court's explanation" of a sentencing determination. United States
v. Ofray-Campos, 534 F.3d 1, 38-39 (1st Cir. 2008) (quoting United
States v. Gilman, 478 F.3d 440, 446 (1st Cir. 2007)). Viewing the
outcome of the January 15 hearing as affording the appellant an
opportunity to redeem himself comports with common linguistic
usage. See, e.g., Opportunity, Merriam-Webster's Collegiate
Dictionary (11th ed. 2003) (defining "opportunity" broadly as "a
2 The appellant did not object to this portion of the minutes
(even though he objected to a different portion of the minutes).
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favorable juncture of circumstances"). It likewise comports with
common sense. After all, the court exercised its discretion to
accept a recommended outcome that permitted the appellant to remain
free on supervised release without having to defend himself against
the probation officer's charges. Had the court pressed ahead with
those charges, the appellant would have been at risk of revocation
(and, thus, of being returned to prison).
A district court, particularly when ruling from the
bench, cannot be expected to use language that is "precise to the
point of pedantry." Lenn v. Portland Sch. Comm., 998 F.2d 1083,
1088 (1st Cir. 1993). As long as the court's words reflect a
correct understanding of the law, the facts, and the state of
proceedings, no more is exigible. See United States v. Pelletier,
469 F.3d 194, 204 (1st Cir. 2006) (finding no error, even though
district court's word choice was "an awkward locution," since court
clearly understood the law); cf. Dopp v. Pritzker, 38 F.3d 1239,
1244 n.5 (1st Cir. 1994) (acknowledging that trial courts need not
be "letter-perfect in their syntax"). The court below satisfied
this standard. When all is said and done, we find no error, plain
or otherwise, in the court's characterization of the outcome of
the January 15 hearing as an "opportunity" afforded to the
appellant.3
3For the sake of completeness, we note that the appellant
actually received a third opportunity when — less than a month
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B.
This leaves the appellant's claim that his two-year
sentence is substantively unreasonable. Inasmuch as this claim
was raised below, our review is for abuse of discretion. See
United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir.), cert.
denied, 136 S. Ct. 258 (2015).
The touchstone of abuse of discretion review in federal
sentencing is reasonableness. See Gall, 552 U.S. at 46. In this
context, "reasonableness is a protean concept, not an absolute."
United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). An
inquiry into the substantive reasonableness of a sentence must
"take into account the totality of the circumstances, including
the extent of any variance from the Guidelines range." Gall, 552
U.S. at 51. The test is whether the sentence reflects "a plausible
sentencing rationale and a defensible result." Martin, 520 F.3d
at 96.
Here, our analysis starts with the relevant statutory
framework. Congress enacted 18 U.S.C. § 3583(e) to guide a
sentencing court in the exercise of its discretion when imposing,
inter alia, a sentence following the revocation of a term of
after the January 15 revocation hearing — he flouted his supervised
release conditions and left his transitional housing program
without authorization. Rather than notifying the court of this
lapse, the probation officer simply arranged for the appellant to
re-enter the program.
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supervised release. "The maximum sentence for a person who
violates the conditions of his supervised release varies based on
the severity of 'the offense that resulted in the term of
supervised release.'" United States v. Fontanez, 845 F.3d 439,
445 (1st Cir. 2017) (quoting 18 U.S.C. § 3583(e)(3)). For this
purpose, offenses are grouped in various categories. See 18 U.S.C.
§ 3583(e)(3). The parties agree that the underlying offense in
this case (felon in possession) is a class C violation, which bears
a maximum two-year sentence upon revocation of supervised release.
See id.
Section 3583 incorporates by reference some, but not
all, of the sentencing factors limned in 18 U.S.C. § 3553(a). See
United States v. Vargas-Dávila, 649 F.3d 129, 131 (1st Cir. 2011).
These incorporated factors include the nature of the offense, 18
U.S.C. § 3553(a)(1); the offender's history and characteristics,
id.; the need for deterrence, id. § 3553(a)(2)(B); and the need to
protect the public, id. § 3553(a)(2)(C). Although the court must
mull all of the incorporated factors, "it need not do so
mechanically." Vargas-Dávila, 649 F.3d at 131.
In the case at hand, the appellant asseverates that his
sentence is substantively unreasonable because his supervised
release was never before revoked and the sentencing record shows
no "plausible explanation" for the sentence. The force of this
asseveration is undercut to a significant extent by the appellant's
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course of conduct. Actions have consequences, and the appellant's
actions gave the district court ample reason to believe that only
a substantial sentence would deter him from his wayward practices.
By the same token, the appellant's actions showed that he was a
particularly poor candidate for a further term of supervised
release. As the court observed, from the very beginning, the
appellant "demonstrated that he [was] unable to comply with the
conditions of his supervision." This assessment was borne out by
the probation officer, who recommended that the appellant not be
given any term of supervised release because "he [did] not
cooperate or commit[] to the terms at all."
Even without any consideration of the incidents that
prompted the second revocation hearing,4 the record makes manifest
that the appellant was a serial violator of the conditions of
supervised release. He repeatedly left his transitional housing
program without authorization and failed, on several occasions, to
follow his probation officer's instructions. What is more, the
appellant was explicitly warned, during both the first and second
hearings, that any further violations would result in the
4 The district court's sentencing rationale did not address
whether or not the appellant actually committed the infractions
alleged in the motion that sparked the January 15 revocation
hearing. Instead, the court relied mainly on facts such as that
the appellant showed "poor judgment" and "repeated[ly] failed to
cooperate with the probation officer, the supervision strategies
and the work plan set out for him." Those discerned facts find
firm footing in the record.
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revocation of his supervised release (and, thus, in additional
prison time). These warnings went unheeded, and the court acted
well within its discretion in giving heavy weight to this checkered
history.
The court's rationale plainly justified a substantial
sentence. We recognize that the court proceeded to impose a
statutory maximum two-year sentence, notwithstanding that the
guideline sentencing range topped out at eleven months of
incarceration. See USSG §7B1.4(a). But the guideline ranges with
respect to sentences for revocation of supervised release are
merely advisory, see United States v. Work, 409 F.3d 484, 492 (1st
Cir. 2005) (citing USSG §§7B1.1-7B1.5), and the court had the
authority to vary upward from the applicable range so long as the
circumstances justified such a variance. We think that they did:
a high-end guideline sentence would in all likelihood have carried
with it a new supervised release term, see 18 U.S.C. § 3583(h),
and the appellant had given the court reason to believe that a new
term of supervised release would be fruitless. In view of the
appellant's demonstrated unwillingness to comply with conditions
of supervised release, the court's decision to eschew a new term
of supervision and instead impose a lengthier sentence seems
altogether appropriate.
The upshot, then, is that the court articulated a
plausible sentencing rationale and reached a defensible result.
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It considered the proper mix of sentencing factors (including the
appellant's history and characteristics, the seriousness of the
offense, promoting respect for the law, providing just punishment,
and furthering deterrence) and concluded that the "statutory
maximum term in this case [was] warranted." On this record, the
two-year sentence — though severe — did not "fall[] outside the
'expansive boundaries' of the entire range of reasonable
sentences." Vargas-Dávila, 649 F.3d at 130 (quoting Martin, 520
F.3d at 92).
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the sentence is
Affirmed.
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