United States v. Coombs

United States Court of Appeals
For the First Circuit
No. 16-1246
UNITED STATES OF AMERICA,
Appellee,
v.
CHRISTOPHER COOMBS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lynch, Selya and Kayatta,
Circuit Judges.
James S. Hewes for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.
May 19, 2017
SELYA, Circuit Judge. Defendant-appellant Christopher
Coombs strives to persuade us that the district court erred both
in denying his multiple motions to suppress incriminating evidence
and in fashioning his sentence. We are not convinced and,
therefore, affirm.
I. BACKGROUND
We rehearse the facts as supportably found by the
district court following an omnibus hearing on the appellant's
several motions to suppress. See United States v. Gamache, 792
F.3d 194, 196 (1st Cir. 2015); United States v. Paneto, 661 F.3d
709, 711-12 (1st Cir. 2011).
In the wake of his 2009 conviction on drug-trafficking
charges, the appellant was sentenced to a fifteen-month term of
immurement to be followed by a five-year term of supervised
release. He served his prison sentence but, during his final six
months under supervision, he again found himself on the wrong side
of the law.
In October of 2014, Customs and Border Protection (CBP)
agents intercepted a package at John F. Kennedy International
Airport in New York. An air waybill — a document completed by the
sender that includes the package's origin, destination, and a
description of its contents — accompanied the package. The air
waybill indicated that the package was from "Marry" in Shanghai
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and was to be delivered at the appellant's residence in Westbrook,
Maine. The contents were described as "[p]olycarbonate."
Inspection of the contents revealed an amber-colored
crystal (a rock-like substance). The agents conducted a chemical
field test and received a reading that was positive for
methylenedioxymethamphetamine (MDMA), commonly known as ecstasy.
A second analysis, conducted in Portland, Maine, at a Department
of Homeland Security (DHS) facility, detected alpha-
pyrrolidinopentiophenone (alpha-PVP), a type of synthetic
cathinone. Synthetic cathinones are colloquially known as bath
salts.1
On October 31, DHS agents and local police, in
conjunction with the U.S. Postal Service, executed a controlled
delivery of the package (with the contents safely removed) to the
appellant at his Westbrook address.
While the controlled delivery was underway, the officers
sought an anticipatory search warrant for the appellant's
1 Bath salts are a relatively new phenomenon in the drug
enforcement arena. See Nat'l Drug Intelligence Ctr., U.S. Dep't
of Justice, Synthetic Cathinones (Bath Salts): An Emerging
Domestic Threat 5 (2011). They have come into use as surrogates
for better-known drugs such as ecstasy, methamphetamine, and
cocaine. See id. Of late, bath salts have become a particular
problem in Maine. See, e.g., McCue v. City of Bangor, 838 F.3d
55, 57-60 (1st Cir. 2016); United States v. Ketchen, No. 1:13-cr-
00133, 2016 WL 3676150, at *7-9 (D. Me. July 6, 2016); Skoby v.
United States, Nos. 1:11-cr-00208, 1:14-cv-00352, 2015 WL 4250443,
at *3 (D. Me. July 13, 2015).
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residence. In support of probable cause, they represented, inter
alia, that the substance in the package had tested positive for
MDMA and alpha-PVP. A state magistrate issued the search warrant,
with the caveat that it should be executed only if the appellant
took the parcel inside his home.
As matters turned out, the appellant accepted the parcel
while standing outside the building, and the officers promptly
took him to the ground. He was arrested on the spot and never
brought the package into his home. The officers described the
appellant's manner at the time of the detention as "nerved up" but
cooperative. By the time that news of the warrant arrived at the
scene, the appellant already had consented to a search of his
residence and had signed a form to that effect.
Following the appellant's arrest, officers transported
him to the police station and read him his Miranda rights. See
Miranda v. Arizona, 384 U.S. 436, 478-79 (1966). The appellant
stated that he had ordered the package and some other shipments
from China on behalf of a third party. When packages arrived, the
appellant would deliver them to the requesting individual and would
be paid for his trouble. The intercepted parcel, he said,
represented the largest order that he had placed. When asked if
alpha-PVP "sounded familiar," he responded in the affirmative.
During a search of the appellant's residence, officers
seized a computer, a tablet, and five cell phones. Thereafter,
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the appellant — still in custody — exchanged telephone calls with
his wife. A standard recording at the beginning of each call
warned him that the conversations would be recorded and monitored.
When his wife noted that the authorities had taken his electronic
gear, he asked her to delete receipts from two e-mail accounts and
supplied her with the passwords. In a subsequent conversation,
the appellant sought to confirm that his wife had not only deleted
the receipts but also had emptied the trash folders to "make sure
they were deleted securely."
In due course, the government sought and received
warrants authorizing the search of the five cell phones found at
the appellant's residence and the two e-mail accounts that he had
mentioned to his wife. The search of the e-mails disclosed several
exchanges between the appellant and overseas pharmaceutical
companies, in which the appellant, in his own words, solicited
"apvp (or similar products)." In addition, he made inquiries as
to pricing and quantities and placed several orders.
Subsequent to the issuance of the last of the warrants,
the seized amber-colored crystal was subjected to more
sophisticated laboratory testing. This testing was conducted at
a Drug Enforcement Administration (DEA) laboratory. It revealed,
for the first time, that the substance was alpha-
pyrrolidinohexanophenone (alpha-PHP) rather than alpha-PVP.
Although these substances were (and are) both regulated as
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controlled substances — illegal bath salts — the two have different
chemical compositions.
At the time of the appellant's offensive conduct, alpha-
PVP was regulated pursuant to the Attorney General's authority to
designate controlled substances temporarily, as needed, in order
to "avoid imminent hazards to public safety."2 21 U.S.C. § 811(h);
see Schedules of Controlled Substances: Temporary Placement of 10
Synthetic Cathinones Into Schedule I, 79 Fed. Reg. 12,938, 12,938
(Mar. 7, 2014). On the other hand, alpha-PHP was (and is)
regulated as a controlled substance analogue, meaning that it is
"substantially similar" to a controlled substance, 21 U.S.C.
§ 802(32)(A), and thus may be regulated as such if intended for
human consumption, see id. § 813; see also McFadden v. United
States, 135 S. Ct. 2298, 2302 (2015) (explicating relevant
statutory scheme).
On January 15, 2015, a federal grand jury sitting in the
District of Maine handed up a two-count indictment against the
appellant. Count one charged possession with intent to distribute
alpha-PHP, a schedule I controlled substance analogue. See 21
U.S.C. §§ 802(32)(A), 813, 841(a)(1). Count two, which focused on
2Although it makes no difference for present purposes, alpha-
PVP has since been permanently designated as a schedule I
controlled substance. See Schedules of Controlled Substances:
Placement of 10 Synthetic Cathinones Into Schedule I, 82 Fed. Reg.
12,171, 12,172 (Mar. 1, 2017) (codified at 21 C.F.R.
§ 1308.11(d)(61)).
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the appellant's instructions to his wife to delete certain e-
mails, charged obstruction of justice. See 18 U.S.C.
§ 1512(b)(2)(B).
The appellant maintained his innocence and filed five
separate motions to suppress. Following an omnibus hearing, the
district court — ruling in an electronic order — deemed the first
suppression motion moot3 and denied the four remaining motions.
The appellant thereafter entered a conditional guilty plea to
counts one and two, see Fed. R. Crim. P. 11(a)(2), reserving the
right to appeal the denial of his quartet of motions to suppress.
Without objection, the district court calculated the
appellant's guideline sentencing range as fifty-seven to seventy-
one months. The court then sentenced the appellant to a concurrent
five-year incarcerative term on each count of conviction, to be
followed by five years of supervision. At the same time, the court
dealt with the appellant's admitted violation of his earlier
supervised release and imposed a 366-day incarcerative sentence
for that violation. The court decreed that the revocation-of-
3 The first suppression motion sought to challenge the
anticipatory search warrant, which had no effect unless and until
the appellant brought the package inside his residence. See
generally United States v. Ricciardelli, 998 F.2d 8, 10-11 (1st
Cir. 1993) (explaining use of anticipatory search warrants for
controlled deliveries of contraband). As events played out, the
officers detained the appellant before he brought the package
inside. Consequently, the government agreed to withdraw the
warrant and to disregard it as a basis for the search of the
appellant's home.
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supervised-release sentence would run consecutively to the
concurrent sentences imposed with respect to the offenses of
conviction.
The appellant moved to modify the judgment.
Pertinently, he sought to reduce his new term of supervision from
five years to three years. The court granted this entreaty in
part, reducing the supervised release term for count two to three
years (the statutory maximum for that count, see 18 U.S.C.
§§ 3559(a)(3), 3583(b)(2)). This timely appeal followed.
II. ANALYSIS
In this venue, the appellant challenges the denial of
four of his motions to suppress. We address the first two of these
motions together and then examine the other two motions separately.
Thereafter, we scrutinize the appellant's claims of sentencing
error.
A. Suppression.
We review a district court's findings of fact on a motion
to suppress for clear error. See United States v. Zapata, 18 F.3d
971, 975 (1st Cir. 1994). This standard requires us to accept not
only the court's factual findings but also the reasonable
inferences drawn from those discerned facts. See Paneto, 661 F.3d
at 711. Questions of law engender de novo review. See Zapata, 18
F.3d at 975.
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1. The Second and Third Motions to Suppress. The
appellant's second motion to suppress sought to exclude evidence
obtained from the five cell phones found in his residence, and the
third motion sought to exclude messages recovered from the
appellant's two e-mail accounts. The appellant argues that there
was no showing of probable cause sufficient to justify the search
of his cell phones and e-mails.
A finding of probable cause does not demand proof beyond
a reasonable doubt. See United States v. Hoffman, 832 F.2d 1299,
1305-06 (1st Cir. 1987). As relevant here, it demands proof
sufficient to support a fair probability that a crime has been
committed and that evidence of that crime is likely to be found
within the objects to be searched. See United States v. Clark,
685 F.3d 72, 75-76 (1st Cir. 2012); United States v. Ricciardelli,
998 F.2d 8, 10-11 (1st Cir. 1993). The district court concluded
that the government's proffer passed through this screen. The
appellant's challenge to this conclusion rests on the assertion
that the affidavits accompanying the warrant applications
contained false information: that the amber-colored crystal in the
mailed package was alpha-PVP when, in fact, it was alpha-PHP.
A criminal defendant may impugn the veracity of an
affidavit supporting a search warrant if he can show that a false
statement, necessary to a finding of probable cause, was included
in the affidavit "knowingly and intentionally, or with reckless
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disregard for the truth." Franks v. Delaware, 438 U.S. 154, 155-
56 (1978). Evidence obtained as a result of a warrant will be
suppressed if "the defendant proves intentional or reckless
falsehood by preponderant evidence and the affidavit's
creditworthy averments are insufficient to establish probable
cause." United States v. Tanguay, 787 F.3d 44, 49 (1st Cir. 2015).
In this instance, the challenged affidavits were signed
by DHS Special Agent Gary Moulton. Moulton submitted two
affidavits: one in support of the search of the five cell phones
and the other in support of the search of the two e-mail accounts.
Each of Moulton's affidavits incorporated an earlier affidavit
from a member of the Westbrook Police Department, Augustin
Rodriguez, originally prepared in support of the application for
the anticipatory search warrant. See supra note 3. The appellant
does not allege that either Moulton or Rodriguez intentionally
misled the magistrate in order to obtain search warrants. The
question reduces, then, to whether the challenged statements in
the affidavit were made "with reckless disregard for the truth."
United States v. Ranney, 298 F.3d 74, 78 (1st Cir. 2002).
Hindsight is always 20/20 and, when viewed in
retrospect, the affidavits at some points mis-described the
contents of the package. As matters turned out, the package did
not contain alpha-PVP but alpha-PHP. It is apodictic, though,
that "[e]ven if a warrant issues upon an insufficient showing of
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probable cause, suppression may be inappropriate if the officers
involved have exhibited objective good faith." United States v.
Floyd, 740 F.3d 22, 32 (1st Cir. 2014). This makes perfect sense:
the purpose of suppression is to deter police misconduct, see
United States v. Leon, 468 U.S. 897, 918-21 (1984), and when law
enforcement officers have obtained a search warrant in good faith
and acted within its scope, there is "nothing to deter," id. at
921.
Even so, recklessness can defeat a claim of good faith.
We have explained that when an affiant "in fact entertained serious
doubts as to the truth" of his statements or when "circumstances
evincing obvious reasons to doubt the veracity of the allegations"
were present, the affiant can be said to have crossed the line
into recklessness. Ranney, 298 F.3d at 78 (quoting United States
v. Williams, 737 F.2d 594, 602 (7th Cir. 1984)); accord Tanguay,
787 F.3d at 52. In contrast, small inaccuracies in a warrant
affidavit do not invalidate the warrant if those inaccuracies
result from good-faith mistakes. See, e.g., United States v.
Capozzi, 347 F.3d 327, 332-33 (1st Cir. 2003) (emphasizing
importance of leeway for affidavits drafted by nonlawyers "under
significant time pressure"); United States v. Brunette, 256 F.3d
14, 20 (1st Cir. 2001) (holding that statement that "all" seized
images were pornographic when at least two of thirty-three were
not was misleading, but did not justify suppression). So, too,
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incorrect assertions made in good faith reliance on a third party's
errors, or even lies, do not demand suppression. See United States
v. Tzannos, 460 F.3d 128, 138 (1st Cir. 2006). Nor does sincere
reliance on incorrect technical data, even when law enforcement
officers themselves are to blame for the bevue. See United States
v. Barnett, 989 F.2d 546, 556-57 (1st Cir. 1993).
Here, the government's first line of defense is that
there was no false statement at all: read together, the affidavits
simply stated that the amber-colored crystal had tested positive
for MDMA and alpha-PVP (which was in fact true). But this is only
part of the story: the affidavits referred, several times, to the
substance itself as alpha-PVP.4 Neither the government nor the
defendant is entitled to cherry-pick an affidavit, focusing only
on portions of the affidavit that are helpful to that party's cause
and ignoring the remainder. See Clark, 685 F.3d at 76 (stating
that the probable cause analysis requires reading supporting
affidavits "as a whole"). By the time of the suppression hearing,
the government knew that the amber-colored crystal had been
identified definitively as alpha-PHP. Yet, a fair reading of the
affidavits as a whole shows, with conspicuous clarity, that they
4
For example, Rodriguez's affidavit specifically discussed
"remov[ing] a quantity of the Alpha-PVP" from the package before
the controlled delivery. Similarly, one of Moulton's affidavits
references the appellant's "receipt of a large quantity of Alpha
PVP" on the date of the controlled delivery.
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featured the assertion, later revealed to be mistaken, that the
amber-colored crystal was alpha-PVP. We therefore reject the
government's claim that there was no false statement at all.
To be sure, the affidavits did misstate a fact. Even
so, that the affidavits, in hindsight, misstated a fact does not
resolve the matter. Rodriguez signed his affidavit on October 31,
2014. Moulton signed the first of his two affidavits on November
6, 2014. He signed the second affidavit on November 14, 2014.
But the amber-colored crystal was not accepted for testing at the
DEA laboratory until November 14, and the results of that testing
were not made available to the DHS until December 9 (long after
all of the search warrants had been issued).
There is not a shred of evidence that, when the
affidavits were executed and submitted, either affiant knew (or
for that matter had any reason to believe) that the amber-colored
crystal was not alpha-PVP. The affiants' mistaken assertion was
made neither knowingly nor with reckless disregard for the truth.
Quite the opposite: the affiants relied on the only laboratory
test results then available to them — results that indicated,
albeit preliminarily, the presence of MDMA and alpha-PVP. The
appellant does not allege that these preliminary tests were
conducted negligently or that the affiants acted recklessly in
relying upon those results.
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When all is said and done, the record in this case
contains nothing that shows that either affiant had the slightest
reason to entertain serious doubts about the accuracy of the
available test results. For aught that appears, the affiants
incorporated into their affidavits the best information known to
them. Law enforcement officers who prepare warrant affidavits are
expected to use care, but they are not expected to be clairvoyant.
That a small portion of the information contained in these
affidavits ultimately proved to be mistaken does not vitiate the
affiants' good faith. See Barnett, 989 F.2d at 556-57.
We could stop here but, for the sake of completeness, we
proceed to consider whether the affidavits, even without the
statements incorrectly referring to the amber-colored crystal as
alpha-PVP, would still demonstrate probable cause. We think that
they do.
To begin, the initial laboratory test results would not
need to be edited out of the Rodriguez affidavit. Regardless of
what the substance eventually proved to be, it is not false to say
that the initial tests returned positive readings for MDMA and
alpha-PVP. Thus, the Rodriguez affidavit, incorporated in the
later Moulton affidavits, would still be read to assert,
truthfully, that the contents of the package addressed to the
appellant tested positive for controlled substances.
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Moreover, Moulton's affidavits would continue to state,
truthfully, that the appellant accepted delivery of the package
and that he asked his wife to delete receipts from his e-mail
accounts after learning that the police had seized his computer.
Given these and other statements, we are satisfied that the
affidavits, stripped of the false assertion, would still contain
enough true facts to establish a fair probability that evidence of
a crime would be found through a search of the appellant's cell
phones and e-mail accounts. See Tanguay, 787 F.3d at 50.
That ends this aspect of the matter. In the
circumstances of this case, the officers' good faith is manifest.
They gained no advantage by describing the amber-colored crystal
as alpha-PVP rather than alpha-PHP. Both were regulated as
controlled substances and, thus, we conclude that the officers
reasonably believed that they were dealing with an illicit drug
and identified that drug in a way that, though mistaken, did not
materially mislead the magistrate. Put another way, had the
affidavits referred exclusively to alpha-PHP, their force would
not have been diminished. To cinch the matter, the affidavits,
stripped of the false assertion, still make out a robust showing
of probable cause. It follows that no error, clear or otherwise,
tainted the district court's order denying the appellant's second
and third motions to suppress.
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2. The Fourth Motion to Suppress. Consent is a well-
recognized exception to the requirement that police must have a
warrant to search one's home. See Schneckloth v. Bustamonte, 412
U.S. 218, 219 (1973); United States v. Laine, 270 F.3d 71, 74-75
(1st Cir. 2001). Here, the appellant challenges the denial of his
fourth motion to suppress, which sought to invalidate his consent
to the search of his residence and exclude the evidence gathered
as a result of that search.
The validity of a defendant's consent must be gauged
under the totality of the circumstances. See United States v.
Stierhoff, 549 F.3d 19, 23 (1st Cir. 2008). When evaluating the
totality of the circumstances, an inquiring court must look for
evidence of coercion, duress, confusion, and the like. See
Schneckloth, 412 U.S. at 227. A consenting party's mental
frailties may have a bearing upon this analysis. See United States
v. Watson, 423 U.S. 411, 424-25 (1976). But such frailties are
entitled to little weight in the abstract. See United States v.
Richards, 741 F.3d 843, 849 (7th Cir. 2014) (explaining that "a
person is not precluded from consenting to a warrantless search
simply because he or she suffers from a mental disease"); cf.
United States v. Palmer, 203 F.3d 55, 61-62 (1st Cir. 2000) ("In
the context of the voluntariness of a confession, a defendant's
mental state by itself and apart from its relation to official
coercion never disposes of the inquiry into constitutional
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voluntariness."). For weight to attach, there must be evidence of
some nexus between, say, the individual's mental condition and the
giving of consent, see United States v. Reynolds, 646 F.3d 63, 73-
74 (1st Cir. 2011), or some evidence that officers obtained consent
by exploiting a known vulnerability, cf. United States v. Hughes,
640 F.3d 428, 438-39 (1st Cir. 2011) (making same point in context
of allegedly coerced confession). When the evidence shows that
the consenting party was "responsive, lucid, and cooperative with
the police officers," post hoc claims of incompetency inspire
suspicion. Reynolds, 646 F.3d at 74.
In the case at hand, the appellant acknowledges that he
read and signed a consent form authorizing the search of his
residence. That form, among other things, specifically advised
him that he had a right not to consent to the search. He
nonetheless maintains that his consent was not voluntarily given.
He says that he had just been thrown to the ground and arrested,
and suggests that he was intimidated and under intense stress.
The record, however, undermines this suggestion: Moulton (whose
testimony was credited by the district court) stated that more
than twenty minutes elapsed between the appellant's arrest and his
consent to the search. The appellant appeared cooperative and
lucid throughout, even if a bit "nerved up." What is more, no
officer's weapon was drawn and no threats were uttered.
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The appellant also argues that his history of mental
illness — anxiety, depression, and bipolar disorder — vitiated his
consent. But the record contains nothing in the way of persuasive
evidence that might show a nexus between the appellant's
psychiatric history and the giving of consent. Importantly, the
officers who testified observed no evidence of mental incapacity
during their interactions with the appellant. Overall, he seemed
calm, albeit nervous, and was "able to carry on a conversation."
In the last analysis, the voluntariness of the
appellant's consent presented an issue of fact for the district
court. We have said before that "[w]here the evidence supports
two plausible but conflicting inferences, the factfinder's choice
between them cannot be clearly erroneous." Laine, 270 F.3d at 76.
So it is here: there was ample record support for the district
court's conclusion that the appellant, even given his afflictions,
was not so stressed by the circumstances that his consent could be
regarded as either coerced or otherwise involuntary. We therefore
uphold the denial of the appellant's fourth motion to suppress.
3. The Fifth Motion to Suppress. Finally, the appellant
complains that the district court should have granted his fifth
motion to suppress and excluded his statements at the police
station following his arrest. In this regard, he notes that there
is no documentation either of the Miranda warning or of his
purported waiver of his Miranda rights. He does not deny, however,
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that the officers advised him of his Miranda rights before
interrogating him.
The appellant's argument gains no headway because
neither a signed waiver of Miranda rights nor any other form of
documentation is required.5 See Berghuis v. Thompkins, 560 U.S.
370, 384-85 (2010); see also United States v. Guzman, 603 F.3d 99,
106 (1st Cir. 2010) ("Oral waivers of Miranda rights are sufficient
. . . ."). Here, the government produced evidence that the
officers not only read the appellant his rights but also received
his verbal assurances that he understood those rights. To be sure,
the appellant again points to his history of mental illness to
suggest that his waiver of rights was not voluntary. The officers
testified, though, that he was cooperative and responsive during
the interview and that there was no reason to doubt the
voluntariness of his waiver. On a cold appellate record, we cannot
second-guess the district court's decision to credit the officers'
testimony. We therefore uphold the denial of the appellant's fifth
motion to suppress. See United States v. Pelletier, 469 F.3d 194,
5
We note, though, that the officers had recording equipment
available at the time of the interview but opted not to use it.
That decision was unfortunate: recording suspects' interviews is
a salutary way to eliminate future questions that may arise both
about how a particular interview was conducted and about what was
said. See United States v. Houlihan, 92 F.3d 1271, 1289 (1st Cir.
1996) (decrying policy of deliberately avoiding recording or
taking notes during pretrial interviews and explaining that
maintaining contemporaneous records safeguards against witnesses
changing their stories over time).
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201 (1st Cir. 2006) (indicating that findings of voluntariness
hinge on credibility determinations).
B. Sentencing.
This brings us to the appellant's claims of sentencing
error. As a general matter, we review such claims for abuse of
discretion. See Gall v. United States, 552 U.S. 38, 41 (2007);
United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). We first
resolve any claims of procedural irregularity and then address any
challenge to the substantive reasonableness of the sentence. See
United States v. Demers, 842 F.3d 8, 12 (1st Cir. 2016); Martin,
520 F.3d at 92.
Here, the appellant musters both procedural and
substantive claims. First, he assigns error to the district
court's decision to run his 366-day sentence for the violation of
his earlier supervised release term consecutively to his
concurrent five-year sentences for the offenses of conviction.
Second, he insists that those concurrent five-year sentences are
substantively unreasonable. We address these claims separately.6
1. Consecutive Sentence. The appellant assails the
district court's decision to run his 366-day sentence for violating
his earlier supervised release term consecutively to the
6In his appellate brief, the appellant advanced yet another
claim of sentencing error, challenging the five-year term of
supervised release imposed on count one. At oral argument in this
court, the appellant abandoned that claim.
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concurrent five-year sentences for the offenses of conviction. In
support, the appellant relies on 18 U.S.C. § 3584(a), which draws
a distinction between "terms of imprisonment imposed at the same
time" and those "imposed at different times." The sentences here
fell into the former classification and, with respect to that
classification, the statute provides that such sentences should
run concurrently "unless the court orders" otherwise. Id.
A decision as to whether to run sentences concurrently
or consecutively normally rests in the sentencing court's informed
discretion. See United States v. Román-Díaz, 853 F.3d 591, 597
(1st Cir. 2017); United States v. Carrasco-de-Jesús, 589 F.3d 22,
29 (1st Cir. 2009). Section 3584(a) does not create an exception
to this standard. The plain language of the statute makes pellucid
that a sentencing court has discretion to run sentences imposed at
the same time for different crimes either concurrently or
consecutively. In such a situation, the statute makes concurrent
sentences the default rule but gives the sentencing court
discretionary authority to deviate from that rule. See United
States v. García-Ortiz, 792 F.3d 184, 194 (1st Cir. 2015).
The appellant's challenge runs headlong into the abuse-
of-discretion standard of review. Given the district court's
concerns about the appellant's cavalier attitude toward the law,
see infra Part II(B)(2), we think that its decision to run the
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sentences consecutively fits comfortably within the compass of its
discretion.
Relatedly, the appellant argues that the imposition of
consecutive sentences in this case amounts to double-counting. In
his view, he is being punished twice for the same act because the
conduct underlying the counts of conviction forms the basis for
the revocation of his supervised release term. This argument,
too, lacks force.
Where, as here, conduct committed by a person while on
supervised release transgresses the criminal law as well as the
conditions of supervision, there is no legal impediment in
sentencing the defendant both as a criminal and as a supervised
release violator. See United States v. Chapman, 241 F.3d 57, 61
(1st Cir. 2001). Were the rule otherwise, a defendant would
effectively escape meaningful punishment for violating his
supervised release conditions. See id.
By the same token, there is no legal impediment to
imposing the sentences to run consecutively. See United States v.
Quinones, 26 F.3d 213, 216 (1st Cir. 1994). Indeed, the sentencing
guidelines envision precisely such a scenario:
[a]ny term of imprisonment imposed upon the
revocation of probation or supervised release
shall be ordered to be served consecutively to
any sentence of imprisonment that the
defendant is serving, whether or not the
sentence of imprisonment being served resulted
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from the conduct that is the basis of the
revocation of probation or supervised release.
USSG §7B1.3(f).
2. Substantive Reasonableness. The appellant's last
plaint is that his concurrent five-year sentences are
substantively unreasonable. Specifically, he complains that these
sentences offend the "parsimony principle" because they are
"greater than necessary to achieve the purposes of sentencing."
United States v. Dunston, 851 F.3d 91, 100 (1st Cir. 2017); see 18
U.S.C. § 3553(a). Even though this plaint was not voiced below,
our standard of review is unsettled. See Demers, 842 F.3d at 14;
United States v. Ruiz-Huertas, 792 F.3d 223, 228 & n.4 (1st Cir.),
cert. denied, 136 S. Ct. 258 (2015). Here, however, the claim of
error fails regardless of which standard of review obtains.
Consequently, we assume — favorably to the appellant — that review
is for abuse of discretion.
A claim that a sentence offends the parsimony principle
is typically treated, for all practical purposes, as a claim that
the challenged sentence is substantively unreasonable. See
Dunston, 851 F.3d at 100. The appellant characterizes his claim
as such, and we will treat it accordingly.
With respect to a claim that a sentence is substantively
unreasonable, the key inquiry is whether the sentencing court has
articulated a plausible rationale and reached a defensible result.
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See Martin, 520 F.3d at 96. "There is more than one reasonable
sentence in virtually any case, and we will vacate a procedurally
correct sentence as substantively unreasonable only if it lies
'outside the expansive boundaries' that surround the 'universe' of
reasonable sentences." United States v. Matos-de-Jesús, ___ F.3d
___, ___ (1st Cir. 2017) [No. 16-1695, slip op. at 10] (quoting
Martin, 520 F.3d at 92). This formulation presents an appellant
with an uphill climb, and that climb is even steeper when, as in
this case, the challenged sentence is within a properly calculated
guideline sentencing range. See United States v. Clogston, 662
F.3d 588, 592-93 (1st Cir. 2011).
The appellant catalogues a litany of factors that, in
his view, justify greater leniency. As a youth, he endured sexual
and physical abuse, which led to homelessness when his mistreatment
proved too much. He has experienced a number of health-related
problems, including bipolar disorder, depression, anxiety, chronic
back pain, and hepatitis C. In addition, his family will suffer
from his absence: he is a father figure to his three stepchildren
(ages nine to twelve at the time of sentencing), and his wife
suffers from fibromyalgia.
We do not gainsay that this litany of mitigating factors
weighs in favor of leniency. The district court, though, took
pains to note that it gave these factors due weight. It then
mentioned several countervailing considerations and — having
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constructed a balance — set forth cogent reasons for nonetheless
imposing a mid-range sentence. For example, the court — which had
sentenced the appellant for his original drug-trafficking offenses
— expressed concern that his relatively short prison term for his
prior drug convictions already had taken the mitigating factors
into consideration. The court was entitled to weigh in the balance
the fact that it had given the appellant "a significant break" in
his earlier case. Following that lenient treatment, the appellant
had neither turned his life around nor learned to "obey the law."
Moreover, the court worried that the appellant continued to have
a "mentality that he [could] get away with something." The court
expressed particular skepticism about the appellant's claim that
he did not know that alpha-PHP was illegal.
The short of it is that the district court weighed all
of the relevant sentencing factors, see 18 U.S.C. § 3553(a), and
wove those factors into a plausible sentencing rationale. That it
did not weigh the factors as the appellant would have liked does
not undermine the plausibility of this rationale. See Clogston,
662 F.3d at 593 ("A sentencing court is under a mandate to consider
a myriad of relevant factors, but the weighting of those factors
is largely within the court's informed discretion.").
The district court also achieved a defensible result.
On this issue, the fact that the concurrent five-year sentences
were within the guideline range is deserving of some weight. See
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Rita v. United States, 551 U.S. 338, 347 (2007); United States v.
Rodríguez-Adorno, 852 F.3d 168, 178 (1st Cir. 2017). To complete
the picture, the sentences were "responsive to the nature and
circumstances of the offense, the characteristics of the offender,
the importance of deterrence, and the need for condign punishment."
Matos-de-Jesús, ___ F.3d at ___ [No. 16-1695, slip op. at 11]. So
viewed, the sentences were within the universe of reasonable
sentences for the offenses of conviction.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the judgment is
Affirmed.
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