Filed: Jun. 27, 2016
Latest Update: Mar. 02, 2020
Summary: sentence on each count of conviction was twenty years).court lowered the appellant's base offense level to 28.wrongdoings.1 The district court disagreed, and so do we.history score.supported explanation for its ultimate sentencing determination.United States v. Dixon, 449 F.3d 194, 204 (1st Cir.
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 15-1603
UNITED STATES OF AMERICA,
Appellee,
v.
ANDRE HUNTER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Kayatta, Circuit Judges.
Clifford B. Strike and Strike, Goodwin & O'Brien on brief for
appellant.
Thomas E. Delahanty II, United States Attorney, and Julia M.
Lipez, Assistant United States Attorney, on brief for appellee.
June 27, 2016
SELYA, Circuit Judge. Defendant-appellant Andre Hunter
challenges his 235-month sentence, raising three discrete claims
of error. After careful consideration, we affirm.
Since this appeal follows a guilty plea, we draw the
facts from the change-of-plea colloquy, the undisputed portions of
the presentence investigation report (PSI Report), and the
transcript of the disposition hearing. See United States v.
Almonte-Nuñez, 771 F.3d 84, 86 (1st Cir. 2014). In mid-2014, the
Drug Enforcement Administration along with local law enforcement
agencies began investigating the appellant's activities in and
around Portland, Maine. The investigation confirmed that the
appellant was trafficking both heroin and cocaine, and that he
commanded a number of underlings. The appellant was arrested in
September, and a search of his home turned up drug paraphernalia
and around $30,000 in cash.
In due season, a federal grand jury returned an
indictment. A superseding indictment charged the appellant with
one count of conspiring to distribute heroin and cocaine and two
related specific-offense counts. See 21 U.S.C. §§ 841(a)(1),
846. The appellant eventually pled guilty to all three counts,
with no plea agreement.
The PSI Report recommended a base offense level of 30
(tied to drug quantity), see USSG §2D1.1(c)(5); a two-level
enhancement for the appellant's leadership role, see id.
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§3B1.1(c); a further two-level enhancement for engaging in a
pattern of criminal activity as a livelihood, see
id.
§2D1.1(b)(15)(E); and a final two-level enhancement for
obstruction of justice, see
id. §3C1.1. The appellant's extensive
criminal history — including a string of sex-related offenses and
two separate convictions for non-payment of child support — placed
him in criminal history category (CHC) V. Based on these findings,
the PSI Report calculated the applicable guideline sentencing
range (GSR) at 292 to 365 months (even though the statutory maximum
sentence on each count of conviction was twenty years).
At the disposition hearing, the appellant objected to
these guideline calculations, arguing, inter alia, that his early
guilty plea and overall recognition of the severity of his actions
qualified him for a three-level downward adjustment for acceptance
of responsibility. See id. §3E1.1. He also argued that his two
convictions for non-payment of child support should be counted
together as one conviction, thus yielding only a single criminal
history point and shrinking his CHC accordingly.
The district court convened the disposition hearing on
May 15, 2015. Premised on a revised drug-quantity finding, the
court lowered the appellant's base offense level to 28. The court
then accepted the probation office's recommended enhancements,
declined to credit the appellant for acceptance of responsibility,
and assessed a separate criminal history point for each of the two
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non-payment of child support convictions. Calculating the GSR to
be 235 to 293 months, the court imposed a bottom-of-the-range
sentence: 235 months. This timely appeal ensued.
Review of sentencing decisions is generally approached
through a two-step process. See United States v. Madera-Ortiz,
637 F.3d 26, 30 (1st Cir. 2011); United States v. Martin,
520 F.3d
87, 92 (1st Cir. 2008). "We begin by examining allegations of
procedural error." United States v. Rivera-González,
776 F.3d 45,
48 (1st Cir. 2015). Next, we consider challenges to the
substantive reasonableness of the sentence. See
id. A sentencing
court's interpretations of the sentencing guidelines trigger de
novo review, though its findings of fact are evaluated only for
clear error. See United States v. Walker,
665 F.3d 212, 232 (1st
Cir. 2011). Where a sentencing court's "decision is based on
reasonable inferences drawn from adequately supported facts," that
decision is not clearly erroneous. United States v. Santos,
357
F.3d 136, 142 (1st Cir. 2004).
It is a bedrock proposition that procedural
reasonableness requires that a district court accurately calculate
the GSR. See Gall v. United States, 552 U.S. 38, 51 (2007); United
States v. Vázquez-Martínez,
812 F.3d 18, 22-23 (1st Cir. 2016).
This makes sense because "[t]he Guidelines provide a framework or
starting point . . . for the judge's exercise of [sentencing]
discretion." Freeman v. United States,
564 U.S. 522, 529 (2011).
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Here, the appellant's first claim of procedural error implicates
the district court's guideline calculations: he laments the
court's denial of a three-level downward adjustment for acceptance
of responsibility.
The guidelines instruct that if a defendant "clearly
demonstrates acceptance of responsibility for his offense," he may
receive a two-level downward adjustment. USSG §3E1.1(a). "If the
defendant receives this first-tier adjustment and if his offense
level, calculated without reference to the first-tier adjustment,
is 16 or more, [a] second tier comes into play." United States v.
Meléndez-Rivera, 782 F.3d 26, 29 (1st Cir. 2015). That second
tier provides an opportunity for an additional offense-level
reduction, contingent "upon motion of the government stating that
the defendant has assisted authorities in the investigation or
prosecution of his own misconduct by timely notifying authorities
of his intention to enter a plea of guilty, thereby permitting the
government to avoid preparing for trial and permitting the
government and the court to allocate their resources efficiently."
USSG §3E1.1(b).
The appellant maintains that he qualifies for both of
these reductions owing to his guilty plea and acknowledgment of
wrongdoings.1 The district court disagreed, and so do we.
The appellant claims an entitlement to both the first-tier
1
and the second-tier reductions even though the government never
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To begin, a defendant has no automatic entitlement to a
downward adjustment for acceptance of responsibility. See United
States v. Franky-Ortiz, 230 F.3d 405, 408 (1st Cir. 2000). Here,
moreover, the district court supportably determined that the
appellant had obstructed justice. The court grounded this
determination on two primary justifications: a finding that the
appellant, after his arrest, had instructed another individual to
dispose of drugs stored in his residence; and a finding that the
appellant had lied to the probation office about the sale of his
motorcycle and then encouraged his girlfriend to help him cover up
the lie.2
The Sentencing Commission has explained that "[c]onduct
resulting in an enhancement [for obstruction of justice]
ordinarily indicates that the defendant has not accepted
responsibility for his criminal conduct." USSG §3E1.1, comment.
(n.4). Nevertheless, the imposition of such an enhancement does
not automatically place a downward adjustment for acceptance of
responsibility beyond a defendant's reach. "Ordinarily" does not
mean "always," and the guidelines recognize that such a reduction
made the gate-opening motion needed to reach the second tier.
Because his assignment of error fails on more substantive grounds,
we do not dwell on this irregularity.
2 Although the appellant attempts to challenge those findings
and the ensuing enhancement, that challenge is empty. After all,
the appellant admitted below that he had committed the obstructive
acts, and he also admitted that he had done so deliberately.
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may be appropriate in "extraordinary cases." USSG §3E1.1, comment.
(n.4); see United States v. Cash, 266 F.3d 42, 45 (1st Cir. 2001).
Such cases, though, are "hen's-teeth rare." United States v.
Maguire,
752 F.3d 1, 6 (1st Cir. 2014).
At any rate, the burden of proving acceptance of
responsibility rests with the defendant. See United States v.
Deppe, 509 F.3d 54, 60 (1st Cir. 2007). In this instance, the
appellant offers nothing in the way of persuasive evidence to
mitigate his blatant and twice-repeated obstruction of justice.
Actions have consequences, and this obstructive conduct was
antithetic to any meaningful acceptance of responsibility.
Accordingly, the sentencing court did not clearly err in viewing
the appellant's case as run-of-the-mine rather than extraordinary.
It follows that the court did not clearly err in declining to
adjust the appellant's offense level for acceptance of
responsibility.
The appellant's second claim of procedural error also
implicates the sentencing guidelines — more specifically, the
propriety of his placement in CHC V. This claim centers on his
two prior convictions for failing to pay child support. Although
the district court assigned separate criminal history points for
each of these convictions, the appellant contends that those two
convictions, collectively, should have counted for only one
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criminal history point. This contention runs headlong into the
actual language of the guidelines.
Some background is helpful to place this claim of error
in perspective. Determining a defendant's CHC is an essential
step in calculating his GSR. Here, the probation office assigned
the appellant eleven criminal history points (including one point
for each of his two non-payment of child support convictions).
This proposed criminal history score situated the appellant in CHC
V. See USSG 5, Pt. A. While retaining the two points for the two
non-payment of child support convictions, the district court
reduced the appellant's criminal history score to ten; but this
revised score still left the appellant in CHC V. See id.
The appellant challenges the district court's ruling,
arguing that the non-payment of child support convictions,
collectively, should have yielded only one criminal history point,
which would have reduced his criminal history score to nine and
situated him in CHC IV. In mounting this argument, the appellant
emphasizes a specific guideline provision, which states in
pertinent part that sentences separated by an intervening arrest
are to be counted separately in computing a defendant's criminal
history score. See
id. §4A1.2(a)(2). The appellant asserts that
the record does not show that his prior convictions were separated
by an intervening arrest and, therefore, suggests that they should
not be treated separately. That suggestion leads nowhere.
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Here, the offenses underlying the non-payment of child
support convictions were not brought in the same charging document,
and the sentences corresponding to those offenses were not imposed
on the same day. These facts are important because the guidelines
further provide that "[i]f there is no intervening arrest, prior
sentences are counted separately unless (A) the sentences resulted
from offenses contained in the same charging instrument; or (B)
the sentences were imposed on the same day." Id. So — regardless
of whether or not there was an intervening arrest — the guidelines
plainly dictate that the appellant's two convictions must be
treated separately. See, e.g., United States v. Gonzalez,
739
F.3d 420, 423 (9th Cir. 2013); United States v. Jones,
698 F.3d
1048, 1050-51 (8th Cir. 2012). It follows inexorably that the
district court's allocation of two criminal history points for
these two convictions was not error at all.
This brings us to the appellant's asseveration that his
235-month sentence is substantively unreasonable. Assuming,
without deciding, that our review is for abuse of discretion, see
United States v. Pérez, 819 F.3d 541, 547 (1st Cir. 2016); United
States v. Ruiz-Huertas,
792 F.3d 223, 226 (1st Cir.), cert. denied,
136 S. Ct. 258 (2015), the asseveration necessarily questions
whether the sentence is the product of "a plausible sentencing
rationale and a defensible result,"
Martin, 520 F.3d at 96. "In
assessing the substantive reasonableness of a sentence, it is
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significant that the sentence falls within the GSR," Madera-Ortiz,
637 F.3d at 30 — and here, the challenged sentence fell at the
nadir of the GSR.
In addition, the record reflects that the district court
thoroughly considered the sentencing factors identified by
Congress, see 18 U.S.C. § 3553(a), and offered a cogent and well-
supported explanation for its ultimate sentencing determination.
That explanation emphasized the especially harmful nature of the
appellant's criminal activities and the predictably dire
consequences of those criminal activities for the community. The
court added that the appellant's crimes were all the more
blameworthy because he was motivated by greed rather than by
addiction.
Faced with the district court's careful analysis
(including the court's recognition of positive factors, such as
the appellant's strong relationship with his mother and his
professed contrition), the appellant's primary rejoinder is that
the sentence is excessive because his crimes were "non-violent"
and, thus, merited a more "rehabilitative" approach. This
rejoinder fails for two reasons. First, the GSR itself took into
account the non-violent nature of the appellant's crimes. See
United States v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008).
Second, the appellant's argument overlooks the verity that "courts
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of appeals must grant district courts wide latitude in making
individualized sentencing decisions." Martin, 520 F.3d at 91.
The short of it is that "[r]easonableness entails a range
of potential sentences, as opposed to a single precise result."
United States v. Dixon, 449 F.3d 194, 204 (1st Cir. 2006). On
appeal, a sentence will be deemed substantively unreasonable if —
and only if — it "falls outside the expansive boundaries of that
universe."
Martin, 520 F.3d at 92. This highly deferential
perspective leaves no room for us to disturb the sentence fashioned
by the court below. Simply put, there was no abuse of discretion
here.
We need go no further. For the reasons elucidated above,
the sentence is
Affirmed.
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