United States v. Davila-Bonilla

United States Court of Appeals
For the First Circuit
No. 18-1774
UNITED STATES OF AMERICA,
Appellee,
v.
ORLANDO DÁVILA-BONILLA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Torruella, Dyk,* and Thompson,
Circuit Judges.
Jessica E. Earl, Assistant Federal Public Defender, with whom
Eric Alexander Vos, Federal Public Defender, and Vivianne M.
Marrero, Assistant Public Defender, Supervisor, Appeals Section,
were on brief, for appellant.
Jonathan L. Gottfried, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Thomas F. Klumper, Assistant United States
Attorney, Senior Appellate Counsel, were on brief, for appellee.
* Of the Federal Circuit, sitting by designation.
July 29, 2020
THOMPSON, Circuit Judge.
Preface
Orlando Dávila-Bonilla ("Dávila") is no stranger to the
criminal justice system, as his record of drug-law and supervised-
release violations shows. During his most recent supervised-
release stint, Dávila got federally indicted on two crimes — Count
One essentially accused him of intimidating or interfering with
U.S. probation officers, see 18 U.S.C. § 111(a)(1), and Count Two
basically accused him of influencing U.S. probation officers by
threat, see id. § 115(a)(1)(B). He pled guilty to both charges
without a plea agreement. And, as relevant here, Judge Besosa
sentenced him to concurrent prison terms of 12 months on Count One
and 48 months on Count Two.
Before us, Dávila complains that his 48-month sentence
is both procedurally and substantively unreasonable. Convinced
that it is neither, we affirm.
How the Case Came to Us
We draw the background information from the materials on
appeal, particularly the uncontested parts of the probation
office's presentence report and the transcripts of the important
court hearings. See, e.g., United States v. Barrios-Miranda, 919
F.3d 76, 77 n.1 (1st Cir. 2019).
- 3 -
After doing time in prison for violating federal drug
laws, Dávila began an eight year term of supervised release.1 But
he later violated a condition of his release by (among other
things) using controlled substances. So Judge Fusté (who had
imposed the original sentence) revoked Dávila's release and
sentenced him to 4 months in prison followed by 48 months of
supervised release.
Eventually back on supervised release, Dávila had two
different probation officers in charge of his case — first Gabriel
Feliciano and then Mariela Fernández. After replacing Feliciano,
Fernández one day got a text from Dávila saying that he had
received an automated message telling him to report to probation
for mandatory testing — but he thought that was a mistake. Within
minutes, Fernández called him up to say that he had in fact been
randomly selected to provide a urine sample. An upset Dávila
1As a side note, Congress years ago replaced parole in federal
sentencing with supervised release. See United States v. O'Neil,
11 F.3d 292, 298 (1st Cir. 1993); see also Pub. L. No. 98-473, 98
Stat. 2177 (1984). Both parole and supervised release involve
restrictions on persons once they get out of prison. But parole
restrictions
end when the term of imprisonment to which the defendant
was sentenced ends; so if he was sentenced to five years
in prison and released on parole after three years, the
restrictions that parole imposes on him expire after two
years. A term of supervised release is specified
separately in the sentence; it is not a function of the
prison term imposed by the sentence.
United States v. Williams, 739 F.3d 1064, 1065 (7th Cir. 2014)
(Posner, J.).
- 4 -
responded that he had given a sample the day before and now had no
way to get back to probation. Fernández asked to speak with
Dávila's mother, whom he lived with at the time. Dávila put his
mother on the phone. But he quickly took the phone back and
"threaten[ed] and insult[ed]" Fernández, calling her a "fucking
bitch," accusing her of "trying to fuck" with him and of wanting
him to "fail," and saying he would "make a scene" if he had to
return to probation so soon (spoiler warning: he kept his promise,
as we shall shortly see). He continued slinging insults at her
until she finally hung up.
Dávila then called Orlando Rullán, a supervisory
probation officer, to complain about Fernández. After this call,
Dávila phoned Fernández to apologize. But he started complaining
about her again, telling her that he would rather go to prison
than have her as a supervisor. And he said that if he had to go
to probation today, he would simply "surrender" to federal
marshals.
Later that day, Dávila did go to probation. Once there,
he began acting "erratic[ally]" and "aggressive[ly]." Hoping to
diffuse the situation, Alejandro Martínez, a probation officer
assigned as the duty officer, took Dávila from the office's waiting
room to the laboratory area. Dávila told Martínez that if he saw
Fernández he would "beat [her] up." Continuing to call her a
"fucking bitch," Dávila also "bragg[ed] about his prior domestic
- 5 -
violence offenses and about beating a woman with a fire
extinguisher."
While Martínez was trying to calm Dávila down, Rullán
got a call from the office's receptionist saying Dávila was
"agitated and aggressively arguing" with probation personnel.
Arriving at the scene, Rullán heard Dávila claim that he would
"beat" Fernández if he saw her. And he then heard Dávila "brag[]"
about "his multiple domestic violence convictions," how "he loved
beating women," and that "he enjoyed being in jail where he could
sexual[ly] assault other inmates." An unnamed probation employee
also heard Dávila blame Fernández "for his trip to the office,"
say he would "take her down" if he saw her, and "brag[] about his
history of domestic violence" and how "he enjoyed hitting women
and was not afraid to do it again."
Rullán took Dávila to his office. Concerned that Dávila
might become violent, Martínez made sure the office door stayed
open and hung around while Rullán and Dávila talked. Still
"agitated," Dávila said he had "had it" with Fernández and "was
going to harm someone." Pointing at Rullán, Dávila also said that
"[i]f you mess with me I will mess with you more."2 Convinced that
2 At a hearing in this case, the government stated that the
literal translation of what Dávila said was "[i]f you fuck with
me, I will fuck with you more."
- 6 -
"an assault was imminent," Martínez had the receptionist call the
marshals — who arrived and arrested Dávila.
A 14-year veteran of the probation department, Rullán
called his interaction with Dávila "the most aggressive and
threatening confrontation" he had ever experienced. And Martínez
said he had "never seen behavior this bad" in his 12 years with
the department.
A federal grand jury later indicted Dávila on two
charges. Count One alleged that he "knowingly did forcibly resist,
oppose, impede, intimidate or interfere with officers of the United
States Probation Office . . . while they were engaged in, or on
account of the performance of, their official duties." See 18
U.S.C. § 111(a)(1). And Count Two alleged that he "knowingly did
threaten to assault officers of the United States Probation Office
. . . with the intent to impede, intimidate and interfere with,
and to retaliate against, those officers while they were engaged
in their official duties." See 18 U.S.C. § 115(a)(1)(B).
Represented by counsel, Dávila ultimately pled guilty to
both counts without a plea deal. At the change-of-plea hearing,
Judge Besosa read the indictment and got Dávila's acknowledgment
(among others) that he had committed both crimes. By the hearing's
end, the judge accepted his plea.
Acting on Dávila's motion, Judge Besosa ordered that "an
experienced probation officer from [another] probation office in
- 7 -
one of the districts in First Circuit" draft a presentence report
(the purpose of which was to aid the judge in sentencing).3 And a
probation officer in the District of Massachusetts did just that.
Here is an overview of her sentencing math.4
 After setting out the facts as just described (and using the
2016 version of the guidelines), she estimated Dávila's total
3Dávila's motion argued that the victims of the crimes are
probation officers in the district, leading to "an apparent
conflict of interest" and "the appearance of impropriety" if a
local probation officer prepared the report. He filed a separate
motion for a change of venue, raising similar concerns. Judge
Besosa denied the venue-change request, however. Dávila
challenged the venue-change denial in his appellate papers but
waived that issue at oral argument — so no more need be said on
that subject.
4For those new to this area, Congress enacted sentencing
guidelines that set up formulas for creating sentencing ranges —
which, while not mandatory, are highly influential:
Sentencing under the . . . guidelines starts with the
base offense level — i.e., a point score for a specified
offense or group of offenses. The guidelines then make
adjustments for any aggravating or mitigating factors in
the defendant's case, thus arriving at a total offense
level. The guidelines also assign points based on the
defendant's criminal history — points that get converted
into various criminal history categories, designated by
Roman numerals I through VI. Armed with this info, the
judge turns to the guidelines's sentencing table. And
by plotting the defendant's total offense level along
the table's vertical axis and his criminal history
category along the table's horizontal axis, the judge
ends up with an advisory prison range. From there, the
judge sees if any departures are called for, considers
various sentencing factors, and determines what sentence
(whether within, above, or below the suggested range)
seems appropriate.
United States v. Martínez-Benítez, 914 F.3d 1, 2 n.2 (1st Cir.
2019) (citations omitted).
- 8 -
offense level at 17. This accounted for a base offense level
of 12, see USSG § 2A6.1(a)(1); a couple of enhancements worth
8 levels — including a 6-level increase because the offense
was motived by the victim's being "a government officer," see
id. § 3A1.2(a) and (b);5 and a 3-level mark down for timely
acceptance of responsibility, see id. § 3E1.1(a), (b).
 She pegged Dávila's criminal history category at III —
although she listed four dismissed local charges from about
ten years earlier, including three for domestic abuse, she
did not factor them into the calculation (the significance of
these charges will become clear later).
 And with a total offense level of 17 and a criminal history
category of III, Dávila faced an advisory imprisonment range
of 30 to 37 months — or so she wrote.
Dávila filed objections to the presentence report (the
government did not). Relevantly, he contested the 6-level
enhancement on the ground that application note 2 of the commentary
to § 2A6.1(a)(1) says § 3A1.2(b) applies when a defendant is
convicted under 18 U.S.C. § 1521, which basically criminalizes the
filing or attempted filing of a false lien or encumbrance to
5The government bears the burden of proving sentencing
enhancements by a preponderance of the evidence, see United States
v. Ilarraza, 963 F.3d 1, 8 (1st Cir. 2020) — which is a "more
likely true than not" rule, see United States v. Marino, 833 F.3d
1, 8 (1st Cir. 2016).
- 9 -
retaliate against a federal officer or employee — a statute
different from the one he pled guilty to: 18 U.S.C. § 115. And
he challenged the enhancement on the further ground that he has
"problems involving lack of respect towards others, not limited to
only government employees" — so (his argument continued) his
"threatening words" were not "motivated by th[e] person's status
as a probation officer."
Both Dávila and the government submitted sentencing
memos. It is enough for current purposes to say that Dávila's
document spotlighted his mental-health challenges, history of drug
abuse, and lack of family support (among other difficulties). He
requested a bottom-of-the-range prison sentence, while the
government requested a top-of-the-range one.
In the midst of all this, Dávila faced (in a different
courtroom) revocation of the supervised release he received in his
drug case. He did not challenge the new allegations against him.
And Judge Cerezo (who took over that case after Judge Fusté
retired) revoked his release as punishment for the violation and
sentenced him to 18 months in prison, to run consecutively to any
time imposed in the case before Judge Besosa.
Two days before the sentencing hearing here, Judge
Besosa (apparently on his own initiative) continued the matter
"[b]ecause the translations of the documents pertaining to
[Dávila's] prior criminal offenses [were] not ready." The
- 10 -
government later submitted certified translations of various
charging documents from several criminal cases filed against
Dávila in a Puerto Rico local court. And of those cases, three
are noteworthy here (again, for reasons that will soon become
apparent).
The first involved a criminal complaint — "based on
[p]robable [c]ause" and signed by a prosecutor — that accused
Dávila of punching the mother of one of his sons and then
tightening a chain around her neck, all while screaming "[s]kank,
you are worthless." The second involved a criminal complaint —
also "based on [p]robable [c]ause" and signed by a prosecutor —
that accused Dávila of hitting the same woman in the face, grabbing
her hair, spitting on her, and calling her a "whore." And the
third involved a criminal complaint — likewise "based on [p]robable
[c]ause" and signed by a prosecutor — that accused Dávila of
assaulting another woman with a pipe.6 The presentence report
mentioned the first two incidents. Anyway, the Puerto Rico local
court dismissed each case for violations of Dávila's right to a
speedy trial. See P.R. Laws Ann. tit. 34, Ap. II, § 64(n).
6 The first two complaints say they were "based on Probable
Cause pursuant to Rule 23 of Criminal Procedure" — a rule that
discusses probable-cause determinations by "magistrate[s]." See
P.R. Laws Ann. tit. 34, Ap. II, § 23 (providing that a person
charged with a felony has a right to a preliminary hearing where
a magistrate decides whether probable cause exists to believe the
person committed the charged crime). The third complaint says it
was "based on Probable Cause determined by a magistrate."
- 11 -
A lot happened at the sentencing hearing. But again, we
emphasize only those events most relevant to this appeal.
Judge Besosa made clear that he had reviewed the parties'
sentencing memos. And he gave both sides a final chance to make
their sentencing pitch. Arguing first, Dávila's lawyer again
challenged application of the official-victim enhancement, USSG
§ 3A1.2(b). As defense counsel saw it, Dávila's actions were not
"motivated by the status of the probation officer['s] being a
[g]overnment officer." But that argument went nowhere. "[I]t's
obvious that he threatened Ms. Fernández and Mr. Rullán because
they are probation officers," Judge Besosa said in rejecting the
challenge — to which defense counsel responded: "Understood, Your
Honor."
Dávila's attorney then asked Judge Besosa to sentence
his client "to the lower end of the guidelines." To justify the
request, counsel talked about Dávila's "difficult" childhood, how
his "common-law wife" would "spit in his face" when "she was upset
with him," his "bipolar" diagnosis, and his long struggle with
drug addiction. And counsel acknowledged that Dávila's
"interactions" with his "girlfriend" show he still "has to learn
things that he never learned before as to how to ad[a]pt to basic
social norms." And counsel suggested that this was why Dávila had
"an outburst over the phone with Probation Officer Fernández" and
"again had an outburst" at the probation office. But counsel also
- 12 -
blamed Dávila's "aggressive" behavior on "the effects of synthetic
marijuana."
Judge Besosa asked defense counsel why, if synthetic
marijuana was to blame, did Dávila not have an outburst the day
before when he went to probation for the first urine test. To the
judge, it seemed that Dávila threatened the probation officers
because "he was upset . . . he was called in the second day."
Answering, Dávila's attorney said "[o]ne of the issues with
synthetic marijuana is the lack of predictability" when it comes
to "outburst[s]." The judge did not buy that response. Nor did
he buy the bipolar argument that Dávila "was low the day before
and high the next day."
The government argued against the defense's lower-end-
of-the-guidelines request, stressing how Dávila had called
Fernández a "fucking bitch," conceded "he enjoyed beating up
women," and boasted about his "multiple domestic violence cases."
Adamant that the guidelines here failed to "take into account the
gender motivated nature of this offense," the government insisted
that Dávila could not "control himself" despite probation's and
the court's best efforts to address his drug and mental-health
concerns (the prosecutor noted that the government had referred
him to programs to help him with those issues). All of which,
according to the government, underscored the need for Dávila to
get "an upper guideline[s] sentence."
- 13 -
Judge Besosa turned back to Dávila's lawyer for a
response. Counsel said that perhaps this was "not the best time"
for Dávila to have a woman probation officer given his possible
"prejudice." But the judge pointed out that Dávila "admitted that
he enjoyed beating up women, and I have here three examples." The
judge then referenced the docket numbers for the three dismissed
domestic-violence cases. Defense counsel wanted "the record to
reflect that [Dávila] was not convicted for any of those cases."
"I know he wasn't," the judge said, "but he admitted that he
enjoyed beating up on women, and these are three examples." Adding
that the cases were all "based on probable cause," the judge said
that he could take this "conduct . . . into consideration."
Unconvinced, defense counsel argued that Judge Besosa
could "only use" the documents as proof that Dávila "was charged
with those [crimes] and that the [crimes] were dismissed." But
the judge said, "[R]emember what probable cause is. That a crime
was committed, and that he committed it."
Dávila then spoke directly to Judge Besosa (in legalese,
Dávila "allocuted"). See Fed. R. Crim. P. 32(i)(4)(A)(ii).
Apologizing for his actions and begging the probation officers'
forgiveness, he claimed that he was "undergoing a bad moment" at
the time and "was failing again with the use of synthetic
marijuana." He also said that just because he said something while
- 14 -
"mad" did not mean that he "would go through with it." And he
asked the judge to assign him a "friendlier" probation officer.
Judge Besosa indicated that he agreed with the
presentence report's guidelines calculations, which (recall)
resulted in an advisory prison range of 30 to 37 months. He then
said that he had considered the statutory sentencing factors in 18
U.S.C. § 3553(a) (factors that guide a sentencer's sentencing
discretion), the lawyers' sentencing memos and in-court arguments,
and Dávila's in-court statement. He also noted aspects of Dávila's
background, including his history of drug use. And he discussed
the nature of the crimes to which Dávila pled guilty, focusing on
how he (Dávila) had called Fernández a "fucking bitch" and had
showed "erratic and aggressive behavior" at the probation office
by (among other things) threatening to "beat [Fernández] up" if
"he saw her," boasting "about his prior domestic violence
offenses," and trying "to intimidate" Fernández and Rullán, "and
perhaps the entire probation office." After detailing some of the
facts of the dismissed domestic-violence cases, the judge
commented how in this case Dávila had said that he would "take
[Fernández] down," that he had a "history of domestic violence,"
and that he liked "hitting women and was not afraid to do so
again." Convinced that only an above-guidelines sentence would
account for the seriousness of Dávila's offense, deter him and
others from similar criminal conduct, and protect the community,
- 15 -
the judge gave him a 60-month prison sentence — consisting of 12
months on Count One and 48 months on Count Two, to run concurrent
with each other and consecutive to the 18-month revocation-prison
sentence Judge Cerezo imposed. See generally USSG § 5G1.3(d) cmt.
4(c) ("recommend[ing] that the sentence for the instant offense be
imposed consecutively to the sentence imposed for the
revocation").
Objecting, Dávila's lawyer called the sentence
"substanti[ve]ly and procedurally unreasonable . . . and . . .
based on non-reliable information" — namely, the dismissed local-
court complaints. This timely appeal followed.
Arguments and Analysis
Parties' Positions on Appeal
We briefly summarize each side's arguments.
Dávila thinks Judge Besosa procedurally erred first by
relying on the dismissed local charges, because (he writes) "the
allegations contained in the complaint[s] are just that:
allegations"; and second by applying the official-victim
enhancement, because (he insists) the judge did not "adequately
consider the arguments" against the enhancement's "applicability."
He also thinks the judge substantively erred by giving him 48
months on Count Two, because (he claims) that sentence is overly
harsh under a proper view of the "mitigating factors."
- 16 -
The government takes a diametrically opposite view of
things. Among other arguments, the government contends that Judge
Besosa rightly considered the dismissed local charges, because (it
writes) "Dávila's confession to the probation officers that he had
committed domestic violence offenses and loved to beat or hit
women" infused the charges with sufficient "reliability." The
government also sees no problem with the judge's application of
the official-victim enhancement, because (in its words) the record
amply demonstrates "that Dávila's offense was motivated by the
victims' status as probation officers." And the government last
claims that the 48-month term on Count Two is substantively
reasonable, because (in its telling) the judge "offered a plausible
and defensible [sentencing] rationale."
After setting out the standard of review, we address
Dávila's arguments — bringing additional specificity to the
factual background as needed to resolve each claim.
Standard of Review
We analyze preserved objections to a sentence's
procedural and substantive reasonableness under the deferential
abuse-of-discretion standard. See, e.g., United States v. Rivera-
Morales, 961 F.3d 1, 15 (1st Cir. 2020). Within this standard, we
review issues of law de novo and findings of fact for clear error.
See United States v. Bater, 594 F.3d 51, 54 n.1 (1st Cir. 2010);
see also Rivera-Morales, 961 F.3d at 15. We organize our thoughts
- 17 -
as follows: first we see if "the sentence is procedurally
reasonable (that is, free from non-harmless procedural error)" and
then we see if "it is substantively reasonable." See United States
v. Nuñez, 840 F.3d 1, 4 (1st Cir. 2016).
Procedural-Unreasonableness Claims
Dávila's first procedural-reasonableness challenge is
his most serious one. Citing United States v. Marrero-Pérez, 914
F.3d 20 (1st Cir. 2019), he insists that Judge Besosa
"inappropriately considered [the] dismissed local charges" in
fashioning his prison sentence. See generally United States v.
Díaz-Rivera, 957 F.3d 20, 26 (1st Cir. 2020) (calling a similar
challenge a procedural-reasonableness attack). Clarifying his
position, Dávila writes that he "does not suggest that a district
court can never consider sworn criminal complaints in making
sentencing decisions." He just thinks (emphasis ours) that "even
under the preponderant proof standard," a district judge's
"reliance on dismissed state court conduct, based on a one-sided
criminal complaint, without more, is impermissible to justify the
upward variance imposed here." And he believes the transcript
shows (to quote his reply brief) that Judge Besosa thought the
local magistrate's probable-cause findings concerning the
complaints "meant . . . Dávila must have committed the conduct
alleged therein."
- 18 -
Marrero-Pérez forcefully and emphatically held that "no
weight should be given in sentencing to arrests not buttressed by
convictions or independent proof of conduct," see 914 F.3d at 22
— so, for example, a district judge errs by "rel[ying] on an arrest
report, without some greater indicia of reliability that the
conduct underlying the arrest took place," id. at 24 (emphasis
added). We implore the bench and bar in this circuit to be ever
mindful of those words — and not for the first time, for "we've
repeatedly cautioned" judges and lawyers alike "against relying on
mere charges to 'infer unlawful behavior unless there is proof by
a preponderance of the evidence of the conduct initiating [those]
arrests and charges.'" See United States v. Colón-Maldonado, 953
F.3d 1, 9 (1st Cir. 2020) (quoting United States v. Rondón-García,
886 F.3d 14, 25-26 (1st Cir. 2018)).7
7 The government spends some energy making an argument that
runs like this: (a) Marrero-Pérez involved an upward departure
under USSG § 4A1.3, not an upward variance under 18 U.S.C.
§ 3553(a) — and § 4A1.3(a)(3) says that "[a] prior arrest record
itself shall not be considered for purposes of an upward departure
under this policy statement." See generally United States v.
Miranda-Díaz, 942 F.3d 33, 40 (1st Cir. 2019) (explaining the
difference between a departure and a variance). (b) Judge Besosa
imposed an upward variance. (c) Ergo (to quote the government's
brief) "Marrero-Pérez does not apply."
Without "squarely deciding" the point, a few cases have
intimated "that Marrero-Pérez does not make it plain error to rely
on bare arrest reports to impose an upward variance," though other
cases have "questioned whether the 'departure-variance
distinction' would hold up '[i]f some future case turned on it'"
— the thought being "that Marrero-Pérez 'rest[s] on [the] basic
principle' that 'a bare arrest or charge does not prove the
defendant committed the crime.'" See Díaz-Rivera, 957 F.3d at 26
- 19 -
The words in Marrero-Pérez that we italicized for
emphasis — "some greater indicia of reliability" — are the key to
our evaluation of Dávila's case, as we now explain.
Dávila criticizes Judge Besosa for telling defense
counsel, "[R]emember what probable cause is. That a crime was
committed, and that he committed it." Defending the judge's
remarks to the hilt, the government argues that unlike arrests
reports, which police generate for investigatory purposes, a
magistrate's probable-cause finding — that the defendant committed
the charged crime — in and of itself provides the requisite
reliability. But we fail to see how that view can prevail, given
our recent statement (in a related context) that "a district court
may not rely on another (federal or state) judge's probable cause
determination to find that the government's proof met the higher
'preponderance' standard." Colón-Maldonado, 953 F.3d at 13
(emphasis added); see also id. n.11.
Still, however, we find that Judge Besosa's probable-
cause comments were at worst harmless error. And that is because,
as the government also argues, Dávila's own admissions about his
history of domestic abuse provide the required reliability
indicators. As reflected in the undisputed parts of the
(discussing and quoting Colón-Maldonado, 953 at 9 n.8). But
following Díaz-Rivera's lead, we assume — favorably to Dávila —
"that Marrero-Pérez applies both in the upward variance and
departure contexts." See 957 F.3d at 26.
- 20 -
presentence report, Dávila copped to having committed "prior
domestic violence offenses" and to beating "a woman with a fire
extinguisher"; to having "enjoyed hitting women"; and to his "not
[being] afraid to do it again" — something the judge mentioned in
his sentencing analysis. Sentencers have "'wide discretion to
decide whether particular evidence is sufficiently reliable to be
used at sentencing'" — evidence that "includes information
contained in a presentence report." Rodríguez-Reyes, 925 F.3d at
563-64 (quoting United States v. Cintrón-Echautegui, 604 F.3d 1,
6 (1st Cir. 2010)). And under controlling precedent, Dávila's
unobjected-to admissions to the preparer's report "provide[] 'some
greater indicia of reliability'" that the actions triggering the
arrests occurred. See id. at 565 (quoting Marrero-Pérez, 914 F.3d
at 24). Which takes all the wind out of his first procedural-
reasonableness challenge.
Dávila's second procedural-reasonableness challenge
attacks Judge Besosa's use of the official-victim enhancement
under USSG § 3A1.2(b). That enhancement (recall) applies if the
victim was "a government officer or employee" and the offense "was
motivated by such status." See USSG § 3A1.2(a)-(b).
Dávila concedes that a probation officer "qualifies as
a government employee" — he just thinks "the facts of the case do
not indicate that [his] threatening words against a [probation
officer] were motivated by that person's status as a probation
- 21 -
officer." What he overlooks is that the official-victim
enhancement "is designed to protect government officers in the
performance of their official duties." United States v. Watts,
798 F.3d 650, 655 (7th Cir. 2015) (Posner, J.). And the record
shows that Dávila threatened the probation officers because of the
actions they took in their official role — e.g., because they
insisted that he take the random drug test. He also expressly
agreed during the change-of-plea hearing that he had "knowingly
threatened to assault [probation] officers . . . with the intent
to impede, intimidate, interfere with, and to retaliate against
those officers while they were engaged in their official duties."
In other words, he himself admitted that the threats were motivated
by the officers' being government employees. So we cannot say
Judge Besosa clearly erred in finding Dávila's offense was
motivated by their status as "government officers or employees."
See generally Toye v. O'Donnell (In re O'Donnell), 728 F.3d 41, 46
(1st Cir. 2013) (explaining that clear error means the judge's
finding was "wrong with the force of a 5 week old, unrefrigerated,
dead fish" (quoting S Indus., Inc. v. Centra 2000, Inc., 249 F.3d
625, 627 (7th Cir. 2001))).
Dávila next notes that the commentary to § 2A6.1 — the
section that sets the base offense level for crimes involving
threatening or harassing communications — says that judges should
add the official-victim enhancement "if the defendant is convicted
- 22 -
under 18 U.S.C. § 1521," a provision (remember) that he did not
violate. See USSG § 2A6.1, cmt. 2. Using this as a springboard,
he argues that if the "intent" of the guidelines' drafters "was to
contemplate additional 'official victim adjustments' for other
charges," they would have "included" those statutes "in the
application note."
The guidelines, however, are pretty clear when they want
to exclude application of a particular enhancement. See United
States v. McCarty, 475 F.3d 39, 46 (1st Cir. 2007). The
commentaries to USSG § 2A2.4 (pertaining to instructing or impeding
an officer) and § 2H3.1 (relating to eavesdropping or interception
of communications) specifically exclude application of § 3A1.2.
See USSG § 2A2.4, cmt. 2; USSG § 2H3.1, cmt. 3. Not so the with
commentaries to § 2A6.1.
Also, the sentencing commission (the agency that issues
and updates the guidelines) amended § 2A6.1's commentary to make
clear that the § 3A1.2 enhancement applies if the defendant
violates 18 U.S.C. § 1512. See United States v. Nickerson, 782 F.
App'x 377, 382 (6th Cir. 2019) (discussing USSG suppl. to app. C
at 288-89, amend. 718, reason for amend. (2008)). But the
amendment does not suggest that the enhancement applies only when
the defendant violates § 1512. See id. And a quick Westlaw search
turns up circuit-level cases issued after the amendment that
applied the enhancement to threat offenses other than § 1512, see,
- 23 -
e.g., id. at 378, 382; United States v. Manns, 690 F. App'x 347,
350, 354 (6th Cir. 2017); United States v. Conway, 713 F.3d 897,
899, 903 (7th Cir. 2013) — a point the government made in its brief
and Dávila left uncontradicted in his reply brief.8
Substantive-Unreasonableness Claim
Having found no reversible procedural defect, we turn to
Dávila's substantive-unreasonableness challenge — i.e., that in
giving him a 48-month term on Count Two, consecutive to the 18-
month revocation sentence, Judge Besosa did not "adequately
consider the arguments" the defense made in support of a lower
sentence. We note that the 48-month term fell significantly below
the 72-month statutory maximum for that offense. See 18 U.S.C.
§ 115(b)(4). Ultimately what Dávila has is an "uphill" fight, for
"there is no single 'reasonable' sentence in any one case but
rather a range of sensible outcomes," see United States v. Vixamar,
679 F.3d 22, 29 (1st Cir. 2012) (quoting United States v. Clogston,
662 F.3d 588, 592 (1st Cir. 2011)) — and if the judge "gave a
8
One final matter before we leave procedural reasonableness.
Dávila writes (comma omitted) that "the relevant guideline for the
base-offense level for a charge under 18 U.S.C. § 115 already
contemplates the relevant enhancements to be included for said
charge if the victim is an official employee." His suggestion is
essentially a double-counting claim. See generally United States
v. Zapata, 1 F.3d 46, 47 (1st Cir. 1993) (observing that in the
criminal "sentencing context, double counting is a phenomenon that
is less sinister than the name implies" and "is often perfectly
proper"). But by raising the issue only in passing without
developing it in any meaningful way, Dávila has waived it. See,
e.g., United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
- 24 -
plausible explanation" for the selected sentence and "reached a
defensible result," a substantive-unreasonableness challenge
cannot succeed, see United States v. Chisholm, 940 F.3d 119, 132
(1st Cir. 2019).
Despite what Dávila argues, Judge Besosa did consider
the mitigating factors he highlights in his brief — involving his
drug addictions, mental health, and upbringing. After all, the
judge had read the defense's sentencing memo and had heard the
defense's leniency plea (through counsel's in-court arguments and
Dávila's in-court statement) — all of which put his mitigation
theory front and center. See United States v. Garay-Sierra, 832
F.3d 64, 68 (1st Cir. 2016) (explaining that we can infer that the
district judge considered a defendant's sentencing claims by
comparing what the parties argued and what was in the presentence
report with what the judge did). That Judge Besosa decided "not
to attach to certain of the mitigating factors the significance
that [Dávila] thinks they deserved does not make the sentence
unreasonable." See Clogston, 662 F.3d at 593. The bottom line is
that nothing Dávila says persuades us that the challenged sentence
is implausible or indefensible.
Final Words
All that is left to say is: affirmed.
- 25 -