United States v. Ouellette

United States Court of Appeals
For the First Circuit
No. 19-2092
UNITED STATES OF AMERICA,
Appellee,
v.
DAMIAN A. OUELLETTE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Lance E. Walker, U.S. District Judge]
Before
Lynch, Barron, Circuit Judges.
Burroughs, District Judge.
Jon A. Haddow and Farrell, Rosenblatt & Russell, on brief for
appellant.
Noah Falk, Assistant United States Attorney, and Halsey B.
Frank, United States Attorney, on brief for appellee.
January 14, 2021

Of the District of Massachusetts, sitting by designation.
Burroughs, District Judge. Damian A. Ouellette pleaded
guilty to one count of possession of a firearm by a felon in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district
court sentenced Ouellette to seventy-two months of incarceration.
On appeal, Ouellette challenges his sentence, contending that the
district court miscalculated his base offense level under the
Sentencing Guidelines. Following our review of the Guidelines
calculation and the sentencing hearing transcript, we find that
the sentence imposed was reasonable and we therefore affirm.
I.
Because Ouellette pleaded guilty, we draw the relevant
facts from the undisputed portions of the presentence
investigation report ("PSR") and the transcript of the sentencing
hearing. See United States v. Benoit, 975 F.3d 20, 21 (1st Cir.
2020).
On November 2, 2018, while Ouellette was on probation
following a state conviction for theft, local police officers were
called to his home to respond to a domestic violence disturbance.
Once there, the officers learned that Ouellette had assaulted and
choked his wife until she nearly lost consciousness. His wife
told the officers that her child had found a gun that Ouellette
had been hiding in their bedroom. The officers then searched the
home pursuant to a warrant and found a loaded firearm. Because
Ouellette was a convicted felon, he was prohibited from possessing
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a firearm.
On January 30, 2019, Ouellette pleaded guilty to one
count of being a felon in possession of a firearm. In its PSR,
Probation determined that Ouellette had a base offense level
("BOL") of fourteen because he was a "prohibited person" as defined
by the Guidelines when he committed the offense. The Government
objected, arguing that because Ouellette had a prior felony
conviction for a crime of violence under U.S.S.G.
§ 2K2.1(a)(4)(A), namely robbery with a dangerous weapon, his BOL
should be twenty. Before sentencing, after briefing by both
sides, the district court issued a written opinion in which it
agreed with the Government that the prior conviction qualified as
a crime of violence, resulting in a BOL of twenty.
Given Ouellette's lengthy criminal history, a BOL of
fourteen, as initially recommended by Probation, would have
resulted in an advisory Guidelines sentence range of forty-one to
fifty-one months, whereas a BOL of twenty increased the advisory
range to seventy-seven to ninety-six months.
At sentencing, the district court reiterated its finding
on the enhancement, found that the total adjusted offense level
was twenty-one after accounting for an obliterated serial number
on the firearm and Ouellette's acceptance of responsibility, and
then reviewed various 18 U.S.C. § 3553(a) factors, including
Ouellette's youth, difficult upbringing, long criminal history,
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and serious history of substance abuse. In particular, the
district court, noting that the charge arose out of a domestic
violence incident, stated that "the nature and circumstance of
this particular offense strikes me as something significantly more
severe than what we might refer to as a garden variety prohibited
person in possession of a firearm, and that concerns me." The
district court also referenced the briefing relative to
determining the BOL and said that it was "not enthused" about the
"methodology" prescribed to determine whether the state robbery
offense was a crime of violence for purposes of the Sentencing
Guidelines.
The district court then announced that it was going to
"give a below guideline sentence" and ultimately sentenced
Ouellette to seventy-two months' incarceration. In varying from
the Guidelines, the district court made the following remarks:
I've carefully considered the objections to
the guideline analysis as they would affect
the defendant's total offense level. And even
if I had accepted or come out to -- arrived at
a different conclusion regarding those
objections, the sentence I have announced
today is untethered from the guidelines. I
would impose precisely the same sentence even
if the applicable sentencing guideline range
would have been reduced by any or all of the
objections made for the reasons that I have
articulated in some detail.
II.
Ouellette, in his timely filed appeal, argues that the
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district court misapplied the Guidelines in determining that his
prior conviction for armed robbery was a crime of violence for
purposes of calculating his BOL. The Government contends first
that any alleged error was harmless because the sentence imposed
was independent of the Guidelines, and second that there was no
error.1
When reviewing sentencing appeals, "[w]e first consider
whether the sentence is procedurally reasonable, and then consider
whether it is substantively reasonable." United States v.
Hassan-Saleh-Mohamad, 930 F.3d 1, 6 (1st Cir. 2019) (quoting United
States v. Rodríguez-Reyes, 925 F.3d 558, 562-63 (1st Cir. 2019)).
A. Procedural Reasonableness
Where, as here, preserved claims of procedural error are
under review, we
ensure that the district court committed no
significant procedural error, such as failing
to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C.]
§ 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. Ayala-Vazquez, 751 F.3d 1, 29 (1st Cir. 2014)
1 Ouellette did not address the Government’s first argument
in his opening brief, but responded to it in his reply brief,
stating that even if the district court varied from the Guidelines,
the BOL of twenty was still the improper starting point for that
variance.
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(alteration in original) (quoting Gall v. United States, 552 U.S.
38, 51 (2007)). "When mulling the procedural reasonableness of a
sentence, we afford de novo review to the sentencing court's
interpretation and application of the sentencing guidelines, assay
the court's factfinding for clear error, and evaluate its judgment
calls for abuse of discretion." United States v. Ruiz-Huertas,
792 F.3d 223, 226 (1st Cir. 2015).
An error in calculating the Guidelines range can result
in remand when the incorrect Guidelines calculation is used as the
baseline for arriving at a sentence, even if the sentence
ultimately varies from the Guidelines range. See Molina-Martinez
v. United States, 136 S. Ct. 1338, 1345–46 (2016). "There may be
instances," however, "when, despite application of an erroneous
Guidelines range, a reasonable probability of prejudice does not
exist." Id. at 1346. For example, we have consistently held that
when a sentencing court makes clear that it would have entered the
same sentence regardless of the Guidelines, any error in the
court's Guidelines calculation is harmless. See United States v.
Ortiz-Álvarez, 921 F.3d 313, 319 (1st Cir. 2019) ("That independent
justification shows that the district court, while cognizant of
the dueling guidelines calculations, 'intended to untether' its
sentence from the guidelines calculations presented to him (and
any errors in them), refuting [appellant's] claim of prejudice."
(quoting United States v. Hudson, 823 F.3d 11, 19 (1st Cir.
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2016))); United States v. Acevedo-Hernández, 898 F.3d 150, 172
(1st Cir. 2018) ("In light of this clear indication in the record
that the court would have imposed the same sentence even without
any of the alleged errors, we find that any errors in calculating
[appellant's] GSR would have been harmless."); United States v.
Marsh, 561 F.3d 81, 86 (1st Cir. 2009) ("[T]he district court
stated that it would have imposed the same sentence as a non-
Guideline sentence under 18 U.S.C. § 3553(a). If we find an
alleged Guideline error would not have affected the district
court's sentence, we may affirm." (citation omitted)).
It was within the district court's discretion to impose
a sentence outside of the Guidelines range. Because the district
court made clear that it would have imposed the same sentence
regardless of the Guidelines, any alleged error in calculating
Ouellette's BOL is harmless. See United States v. Tavares, 705
F.3d 4, 25–27 (1st Cir. 2013) ("An error is harmless if it 'did
not affect the district court's selection of the sentence
imposed.'" (quoting Williams v. United States, 503 U.S. 193, 203
(1992))).2
B. Substantive Reasonableness
Ouellette did not object to the reasonableness of his
2 We note that Ouellette makes no argument in his opening brief
to us that the district court's failure to expressly justify the
variance from the alternative Guidelines range precludes us from
finding harmless error.
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sentence during the sentencing hearing, nor has he explicitly
challenged the substantive reasonableness of his sentence on
appeal. "However, even if we are satisfied that an error did not
affect the district court's determination of the sentence, we still
must review the sentence for substantive reasonableness." Id. at
27.
"A sentence is substantively reasonable if the district
court provided a 'plausible sentencing rationale and reached a
defensible result.'" United States v. Gomera-Rodríguez, 952 F.3d
15, 20 (1st Cir. 2020) (quoting United States v. Coffin, 946 F.3d
1, 8 (1st Cir. 2019)). Under the totality of the circumstances,
including the district court's concern with Ouellette's long
pattern of repeated convictions and probation violations, as well
as the underlying domestic violence incident connected to his
conviction in this case, the seventy-two-month sentence is a
defensible result, supported by a plausible rationale.
III.
For the reasons given, we find that the sentence imposed
was reasonable.
Affirmed.
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