United States Court of Appeals
                      For the First Circuit

No. 15-1998

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                           PAUL MARINO,

                      Defendant, Appellant.



          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. William G. Young, U.S. District Judge]



                              Before
                  Thompson, Selya, and Kayatta,
                         Circuit Judges.




     James L. Sultan, with whom Audrey M. Grace and Rankin & Sultan
were on brief, for appellant.
     Francesco Valentini, Attorney, Criminal Division, United
States Department of Justice, with whom Leslie R. Caldwell,
Assistant Attorney General, Sung-Hee Suh, Deputy Assistant
Attorney General, and Carmen M. Ortiz, United States Attorney,
were on brief, for appellee.



                          August 9, 2016
            THOMPSON, Circuit Judge.

                                Stage Setting

            Paul Marino is a fraudster extraordinaire.                Back in the

early 2000s, for example, he ran a fairly elaborate scheme designed

to swindle New Yorkers out of their property.                  In one instance

Marino forged the rightful owners' signatures on documents so he

could transfer their property (without their consent, obviously)

to himself (under an alias).       He then transferred the property to

an entity called "RYDPHO Holdings" — with "RYDPHO" standing for

"Rip You Da Phuck Off," apparently.             Later he helped sell the

property for $185,000.          And he eventually wired some of the

proceeds through bank accounts of companies he controlled.                   Fresh

off the apparent success of this deception, he tried to do the

same thing to other property owners.          But they discovered what he

was up to before he could complete the transfers.

            Nabbed by law enforcement, Marino pled guilty in New

York federal court to a single count of wire fraud.              See 18 U.S.C.

§   1343.     Probation   filed    a   presentence-investigation             report

detailing his lengthy criminal record, which included convictions

for things like fraud, larceny (e.g., he had stolen a generator

while awaiting sentencing on the scheme described in the preceding

paragraph),    forgery,   and    conspiracy     to   use   —    and    use    of   —

unauthorized access devices, as well as revocation of supervised

                                    - 2 -
release   and   re-imprisonment       based      on   a    fraud   offense.       And

ultimately, a judge sentenced him to 14 months in prison, 36 months

of supervised release, and restitution of $185,000.                     Among the

conditions of supervised release were that he "notify" probation

"at least ten days prior to any" employment change and "within

seventy-two     hours   of   being    arrested        or   questioned   by    a   law

enforcement officer," pay restitution "at a rate of 10% of [his]

gross monthly income," and "not commit another federal, state, or

local crime."

            Marino served his jail time but soon found himself in

trouble again, with probation asking the Massachusetts federal

court to revoke his supervised release (that court had taken

jurisdiction over his supervised release).                    As relevant here,

probation   alleged     that   he    (1)   ran    a    construction     and   home-

inspection business from his house without telling probation;

(2) failed to notify probation within 72 hours of police contact

— like after he got stopped for speeding, for example; (3) did not

make the required restitution payments; (4) committed two new

crimes — defrauding Dell, Inc. (an electronics company) and the

Massachusetts Department of Transitional Assistance ("DTA," from

now on, a state agency that runs public-assistance programs like

food stamps and job training); and (5) tampered with electronic-

monitoring equipment probation installed in his house (a judge had

                                     - 3 -
imposed the no-tampering condition after police arrested him for

violating other supervised-release conditions).1

             Responding to probation's charges, Marino filed a memo

admitting to violating the first three violations, acknowledging

the judge should revoke his supervised release, and declaring no

need to "conven[e] protracted mini-trials" to address the other

infractions (the state courts should handle the fraud issues, he

wrote).   The judge held a revocation hearing.             And hoping to prove

the nonconceded-to charges as well, the government called four

witnesses:    Cheryl Fontaine, who had hired Marino as a contractor;

Officer Jeremy DeMello, who logged a fraud complaint received from

Scott Hudson of Dell's fraud unit — Hudson was based in Texas;

Detective    Raul   Espinal,    who     helped    search   Marino's     home   for

equipment stolen from Dell; and Probation Officer Fredrick Lawton,

who   testified     about   a   number    of     things,   including    Marino's

construction    work,   his     fraud    against    Dell   and   DTA,   and    his

tampering with his electronic-monitoring device.                 The government

also introduced documentary evidence, including photos of two

"return" boxes shipped back to Dell from Marino's home address

(boxes filled with construction materials or rocks, not Dell




      1The government alleged other violations.    But a district
judge concluded that the government failed to prove those charges.
So we say nothing further about them.
                                      - 4 -
products, we add); a list of items — with identifying serial

numbers    —    that      Dell   reported     stolen,   items    that      the    police

recovered from Marino's house; contracts and bank checks involving

Marino's   construction          work;    and   Marino's      application        for   DTA

benefits, plus his correspondence with DTA.                Marino, for his part,

did not testify or present evidence.

               At   the    end    of    the   hearing   the    judge    found      facts

confirming that Marino had committed new crimes by defrauding Dell

and DTA and that he had tampered with his electronic-monitoring

gadget.        So the judge revoked Marino's supervised release and

sentenced him to 12 months in prison (the top of the uncontested

sentencing      range      of    6-12    months)   followed     by    24   months       of

supervised release, with the judge imposing as a special condition

that he spend the first 12 months of his supervised release at

Coolidge House — a residential reentry center in Boston. The judge

also "reimpose[d]" "[a]ll previously imposed conditions."

               Marino now appeals, raising three broad arguments.                      His

lead claim is that the judge erred by admitting hearsay evidence

concerning Dell's fraud investigation of him.                        Next he insists

that insufficient evidence supported the judge's finding that he

had cheated Dell and DTA and that he had monkeyed around with the

electronic-monitoring equipment.                And last he contends that the

judge's sentence requiring him to spend a year at Coolidge House

                                          - 5 -
is    substantively     unreasonable.          We   analyze   these   arguments

sequentially, noting additional facts as needed.               And when all is

said and done, we affirm.

                                     Hearsay

            Marino thinks the judge slipped up by admitting two

groups of hearsay statements:          the first involves a list of items

— together with their serial numbers — that Dell reported stolen;

the    second       involves   Probation       Officer     Lawton's   testimony

summarizing     a    report    he   received    from     Hudson,   Dell's   fraud

investigator. As Marino sees things, the judge's actions infracted

the    "limited       confrontation     right"      in     federal    revocation

proceedings.        See United States v. Rondeau, 

, 48 (1st

Cir. 2005); see also Morrissey v. Brewer, 

, 489 (1972);

Fed. R. Crim. P. 32.1(b)(2)(C). Reviewing for abuse of discretion,

, we spy no error.

                               Guiding Principles

            A supervised releasee facing a revocation proceeding has

a qualified right "to . . . question any adverse witness unless

the [judge] determines that the interest of justice does not

require the witness to appear." See Fed. R. Crim. P. 32.1(b)(2)(C)

(emphasis added).        What this means is that hearsay testimony can

get in.   See, e.g., 

.             But the judge should

balance "the releasee's right to confront witnesses with the

                                      - 6 -
government's good cause for denying confrontation."            

that,   the   judge    should   consider       the   hearsay    testimony's

reliability and the government's rationale for not producing the

declarant (with "declarant" being legalese for the person who made

the statement).   See id.; see also United States v. Mulero-Díaz,

, 96 (1st Cir. 2016).

           On the reliability front, caselaw holds (so far as

relevant here) that "conventional substitutes for live testimony,"

like    "affidavits,   depositions,      and     documentary     evidence,"

ordinarily possess sufficient indicia of reliability, Gagnon v.

Scarpelli, 

, 782 n.5 (1973) — as does hearsay testimony

about statements that are corroborated by other evidence, are

detailed, or were repeated by the declarant without any material

changes, see 

-49; United States v. Portalla,

, 624 (1st Cir. 1993).              This is a nonexhaustive

catalog, as particular cases vary.       See 

.

Anyway, on the explanation front, caselaw recognizes that "concern

. . . with the difficulty and expense of procuring witnesses from

perhaps thousands of miles away" is a paradigmatic example of the

type of situation that might call for the admission of hearsay

evidence at a revocation proceeding.       See 

n.5.



                                 - 7 -
                             Reliability

            Over a hearsay objection by Marino's counsel, the judge

admitted a list of items, with serial numbers, that Dell reported

stolen to the police.    Officer DeMello, who had talked by phone

with Dell's Hudson about Marino's fraudulent orders, testified

that someone had given that list to "the detectives" — the fair

inference being that the "someone" was a Dell employee.     Marino

calls the list unreliable, pouncing on the fact that Officer

DeMello did not know key particulars, like who had compiled it.

But Detective Espinal's separate testimony helped confirm the

list's reliability:    As the police searched Marino's home with a

warrant in hand, Detective Espinal's colleague, Detective Scott

Brown, "had a list of all the items" the police were looking for,

along with the items' "serial numbers."    And, as Detective Brown

wrote in a section of his report (which the judge admitted into

evidence on Marino's lawyer's motion), the police found "[e]ach

and every" sought-after "item" at that locale.   This constellation

of corroborating evidence lends ample indicia of reliability to

the list.    See 

(noting how corroboration

helps with reliability).




                                - 8 -
          On to Marino's attack on the reliability of Probation

Officer Lawton's summary of Dell's fraud investigation.      And this

is what you need to know:

          Over another hearsay objection by Marino's attorney, the

judge let Probation Officer Lawton testify about how after he

caught wind of Dell's fraud report to the police, he called Dell's

Hudson.   Hudson told him, Probation Officer Lawton added, that

"Marino had been having" Dell ship expensive electronic equipment

"to his house" — though after getting the merchandise, Marino would

call Dell, say that he wanted to return the items, and then send

back instead boxes filled with "construction" materials (like

"sheetrock") or "rocks," without the equipment.        More, again

according to Probation Officer Lawton's testimony of what Hudson

said, Marino once told Dell that he did not get a computer monitor

that he had ordered, that it might have been stolen off his porch,

and that Dell should send him a new one.     Dell obliged.     But a

little later he told Dell that "he didn't want" the new "monitor,"

though the one he eventually "returned was the first monitor" —

i.e., the monitor he claimed had been stolen.

          Contesting   the   evidence's   trustworthiness,     Marino

stresses that "Hudson's putative statements regarding . . . the

alleged fraud were neither written nor sworn under oath."       True.

But we think this evidence nonetheless passes the reliability

                               - 9 -
threshold.           For one, the statements are packed with details.            See

  (explaining   that    "detail"    is   a

reliability indicator).                For another, they are corroborated by

evidence developed by the police — not only did law enforcement

find the items Dell had reported stolen at Marino's residence, but

Detective Brown's report (the part admitted at Marino's counsel's

behest) noted that Marino's wife had said during the search that

Marino "had ordered that stuff" from Dell.                 See 

(emphasizing that corroboration is a reliability indicator).

Also, Hudson consistently articulated the same version of events

—   he       spoke    to    Officer    DeMello   and   Probation   Officer    Lawton

separately, and their respective testimony about his comments

mirrored one another in every material way.2                 See 

         2   Here's a sampling of what Officer DeMello said Hudson had
said:
              So what had happened was [Hudson] called and he
         stated that [Dell] had been getting invoices from a . . .
         Mr. Marino in New Bedford, . . . and stated that he had
         shipped him TVs, computers, and computer-related
         equipment over a period of . . . a year, a year and a
         half, . . . and during that time there were several
         fraudulent transactions made, . . . one in which [Dell]
         had shipped a TV and when the TV was supposed to have
         arrived Mr. Marino contacted [Dell] and stated that he
         never received a TV and that it must have been stolen
         off of his front porch. And then [Dell] shipped him a
         second TV, . . . and then he had contacted [Dell] again
         and said that the second one wasn't . . . the one that
         he wanted . . ., so [Dell] told him to return it for a
         refund, however when he returned it for a refund he
         actually returned the original one that was reported as
                                  - 10 -
significant that the declarant "never changed her description" of

the key events).     And given this concatenation of circumstances,

Marino has no leg to stand on here.3

                               Explanation

             Marino complains that the government never explained at

the hearing why it chose not to produce any of the following:

(a) Hudson or another Dell witness, (b) an affidavit from Hudson

or another Dell employee, or (c) Dell business records — for

simplicity, we sometimes refer to this stuff as the "pined-for

evidence."    Anyhow, because of the government's failure (Marino's

argument     continues,   at   least   implicitly),   the   judge   never

performed the required balancing.          This argument has some bite.




     being stolen and not the second one [Dell] shipped him,
     which [Dell] had done I guess through matching the serial
     numbers.

          Also [Hudson] had stated that [Dell] shipped [Mr.
     Marino] several TVs and computers over a time, . . .
     amounting to somewhere over $20,000[,] and [Mr. Marino]
     would ask to return these items and when he returned
     them instead of [Dell] getting back a TV or computer
     equipment or whatever [Dell] had shipped him, [Dell]
     would instead get construction materials, sheetrock,
     slats of wood, things of that nature . . . .

     3  Marino argues against the           "reliability" of "hearsay
evidence" touching on the DTA fraud.        But he débuts that argument
in his reply brief.    So we deem it        waived.  See, e.g., United
States v. Eirby, 

, 36 n.4       (1st Cir. 2008).
                                  - 11 -
But given the specific circumstances of this case, it cannot

prevail.

               Yes, the government did not explain below why it relied

on hearsay testimony rather than, say, on Dell business records

(i.e., documents that fall within an exception to the hearsay rule)

or   on   an    affidavit   from    a    Dell    employee   (an    affidavit   is

substantially more reliable because it is both in writing —

eliminating reliance on the listener's memory — and sworn to).                 We

wish the government had:           such an explanation would undoubtedly

help in working through the balancing test.                 And we expect the

government to have an explanation of this sort at the ready in

future cases (prosecutors would do well to remember that warning,

obviously).

               But here is why we find no abuse of discretion in this

particular instance. Both sides played up the balancing test below

— the government (to cite just one example) reminded the judge

that he had to "balance" Marino's "right to confront witnesses

with the government's good cause for denying confrontation."                And,

after reading the relevant caselaw, the judge straight-out said

that he had done precisely that.             Again, the government did not

directly tell the judge what its good cause was.                  It focused its

energies instead on defending the evidence's reliability, perhaps

because Marino centered his attacks on reliability — he said

                                        - 12 -
nothing about the government's explanation (or lack of one), which

means that he did not (as he does now) fault the government for

not explaining why it passed on presenting the pined-for evidence.

But remember, the record shows that Hudson worked out of Texas.

And remember too, Marino copped to several infractions before the

hearing, conceded the judge should revoke his supervised release,

and declared no need for any "mini-trials" to deal with the other

alleged infractions.   Well, given these specific circumstances, we

accept the idea that it was reasonable for the government not to

incur "the difficulty and expense of procuring" Hudson "from . . .

thousands of miles away," see 

n.5, just so

he could testify at a hearing where Marino did not dispute the

need to revoke his supervised release and saw no grounds for "mini-

trials" — which pours cold water on his the-government-should-

have-produced-Hudson   argument.   Of   course,   there   remains   the

troubling fact that the government did not secure an affidavit

from Hudson.   While such a failure might in many cases tip the

balance against the government, here the numerous reliability

indicators — especially the self-confirming match between the

numbers on the list and the numbers on the items found in Marino's

residence — provide enough support to sustain the ruling as within

the judge's discretion.



                              - 13 -
            The    abuse-of-discretion        standard      is   not   "appellant-

friendly," to put it mildly, because it requires "strong evidence

that the . . . judge indulged a serious lapse in judgment."                   Texaco

P.R., Inc. v. Dep't of Consumer Affairs, 

, 875 (1st

Cir. 1995). And ultimately, despite the able arguments of Marino's

lawyer, we see nothing concerning the pined-for evidence that rises

to that level in this unique case — so we let the judge's ruling

stand.     See generally Dopp v. Pritzker, 

, 1253 (1st

Cir.     1994)    (stressing     that      most    "appellants     who    consider

themselves aggrieved by discretionary decisions of the district

court . . . are destined to leave this court empty-handed").

                         Sufficiency of the Evidence

            That takes us to Marino's sufficiency claims — claims

premised on his belief that the government offered insufficient

evidence to establish his Dell or DTA fraud or his tampering with

the electronic-monitoring gizmo.             Before tackling his arguments,

we briefly sketch the legal rules governing our review.

                               Guiding Principles

            The government must prove it is more likely true than

not (the usual preponderance standard) that the defendant violated

a condition of supervised release.            See United States v. Oquendo-

Rivera,    

,   66   (1st    Cir.    2009)   (citing      18   U.S.C.

§ 3583(e)(3)); see also United States v. Cruz, 

, 4 (1st

                                     - 14 -
Cir. 1997) (en banc) (describing the preponderance standard).                   If

the   government   meets     its    burden    and   the   judge      revokes    the

defendant's supervised release, we inspect his factual findings

for clear error — clear error (for those not in the know) means

the judge got things "wrong with the force of a 5 week old,

unrefrigerated, dead fish," Toye v. O'Donnell (In re O'Donnell),

, 46 (1st Cir. 2013) (quoting S Indus., Inc. v. Centra

2000, Inc., 

, 627 (7th Cir. 2001)); and we examine his

revocation decision only for abuse of discretion, see, e.g.,

.

            Sufficiency challenges are notoriously hard to win,

because   "(a)   the    evidence    must    be   viewed   in   the    light    most

agreeable to the government, (b) the judge's choice among competing

but plausible inferences from the evidence cannot as a matter of

law be clearly erroneous, and (c) credibility calls" are for the

judge — not for us.        United States v. Vixamar, 

, 29

(1st Cir. 2012); see also 

; 

.       No surprise, then, that Marino's challenges come

up short.

                                   Dell Fraud

            Evaluated     using    the     just-described      techniques,      the

record here features sufficient evidence to sustain the judge's

finding that Marino defrauded Dell. Recall first Officer DeMello's

                                     - 15 -
testimony:    He said that Dell's Hudson ID'd Marino as the suspect

in a merchandise-ordering scam, reporting conduct that bore the

hallmarks of fraud — e.g., he referenced Marino's false claims

that merchandise never showed up and discussed Dell's receipt of

"return" boxes containing construction materials or rocks instead

of Dell items.      And he added that Dell later gave a detailed

inventory of the pilfered products, complete with serial numbers

(a reasonably inferable inference, given that we take the evidence

in the light most flattering to the government).   Now also recall

Detective Espinal's testimony and Detective Brown's report:   Both

confirm that police found the items Dell reported stolen within

Marino's home, with Detective Brown's report also noting that when

he explained to Marino's wife that the police had a warrant to

search for Dell products that "were never paid for," she said,

"that's all Paul, he ordered the stuff."

             Unfortunately for Marino, his arguments against the

evidence's sufficiency are not difference makers.     He suggests,

for starters, that the judge did not admit Officer DeMello's

testimony for the truth.     The judge made this not-for-the-truth

comment after Marino's lawyer argued that the officer's testimony

about Hudson's report was "rank hearsay."   But once the government

concluded its case, the judge reviewed the pertinent precedent

(e.g., Rondeau), performed the required balancing, and deemed the

                               - 16 -
hearsay "reliable" enough to be admitted — which cuts the legs out

from under Marino's initial argument.     He also calls the evidence

unreliable.     But we have already explained why that argument is

not a winner.    Finally, he says nothing establishes that he "had

ordered any computers" or "that he returned any boxes to Dell."

But the record, read as it must be, in the light most amiable to

the government, shows otherwise.4

          Enough said about the sufficiency of the evidence on the

Dell-fraud charge.

                              DTA Fraud

          As for the DTA-fraud issue, Marino does not dispute that

he applied for public assistance with DTA, certifying under the

pains and penalties of perjury that he did not earn any income.

Neither does he dispute that he knew (thanks to the form he signed)

that he had to notify DTA "within 10 days" of any change in income.

Nor does he dispute that he never reported any income to DTA.

Instead he contends that the government provided insufficient

evidence to prove that he actually received public assistance from




     4 Marino says in his supplemental pro se brief that the "IP
address" used to purchase the Dell products is not associated with
his residence and that he did not "own" that "IP address." We see
no record support for either claim. And the evidence actually in
the record — read in the required light — is sufficient to link
him to the Dell fraud under the preponderance standard.
                               - 17 -
DTA or that he earned any income during his supervised release.

Neither contention is convincing.

           Taking the evidence and permissible inferences in the

light most flattering to the government, we think sufficient proof

supports the judge's finding that Marino got DTA public assistance.

Among other evidence, the government introduced a letter DTA sent

Marino during the relevant period warning him that his "benefits

may stop" if he "did not keep" a scheduled "appointment" with a

DTA official — the obvious inference from this is that Marino

collected public assistance from DTA.        Equally devastating to this

aspect of his claim, Marino concedes in his pro se supplemental

brief that he actually did get a "public assistance monthly

allowance."

           Viewed in the proper light, the evidence and reasonable

inferences also amply support the finding that Marino earned income

that he should have told DTA about.        Marino, recall, stipulated at

the   revocation   hearing   to   having   worked   in   the   construction

industry without probation's blessing.        And the evidence admitted

at the hearing showed that Cheryl Fontaine hired Marino as a

contractor and sent thousands of dollars' worth of checks to "CWD

Construction Company Inc." — a company she had contacted by email

after doing some online research.      Marino points out that Fontaine

made these checks payable to CWD, not to him.              But there was

                                  - 18 -
evidence that Marino "ran" CWD — Marino's own lawyer called CWD

"Mr. Marino's company."       From this evidence the judge could

reasonably count at least some of Fontaine's payments as income to

Marino, income that — the uncontested evidence shows — could have

caused DTA to reduce or even eliminate Marino's public-assistance

benefits.

                           Device Tampering

            Marino does not contest that a condition of release

required him to submit to "location monitoring technology as

directed by the . . . supervising officer" and "abide by all of

the program requirements and instructions provided by the . . .

supervising    officer   related    to   the   proper   operation   of   the

technology."    Nor does he contest that he put "glue or plastic

substance" on the base unit of his electronic-monitoring device

without permission.      Instead he says that he added the glue "to

protect the device from being separated from its power adapter

while [his] dog jump[ed] around playing with [his] daughter."            He

insists too that this no-tampering condition must require proof of

some "nefarious effect" to result in a violation — and, his

argument continues, the government provided no evidence that the

device "did not work properly."

            The simple answer to Marino's argument is that Probation

Officer Lawton instructed him not "to tamper" with the device,

                                   - 19 -
adding that if Marino "had some concerns about it" he had to bring

them up with probation.        Given this testimony, together with the

condition's clear-as-day language, the judge could supportably

conclude that the "program['s] requirements" barred Marino from

making    any   unauthorized    changes       to   the   device   —   not   just

"nefarious" changes that actually disabled the device.5

                                 Sentencing

            Marino last argues that the special condition that he

spend the first year of supervised release at Coolidge House makes

his sentence "substantively unreasonable" and is "unwarranted by

the evidence."      But this argument meets the same fate as his

preceding ones.

            When a judge revokes a defendant's supervised-release

term, the new sentence may include an additional supervised-

release stint, see 18 U.S.C. § 3583(h), including a requirement

that he live at a reentry center like Coolidge House, see 

   Of course, any supervised-release condition must

     be "reasonably related," 

to "the nature and

      circumstances    of      the    offense      and    the     history    and


      5Through his supplemental pro se missive, Marino argues — as
he did during his allocution at sentencing — that Probation Officer
Lawton had it in for him from the get-go and that this bias led to
his violations. But the judge rejected Marino's blame-shifting
theory.   And Marino gives us no persuasive reason to upset the
judge's conclusion.
                                     - 20 -
      characteristics of the defendant," 

and to

      the need to deter and protect others and to rehabilitate the

      defendant, see 

     "involve[]   no   greater   deprivation    of     liberty   than    is

      reasonably   necessary"     for   deterring      criminal    conduct,

      protecting the public, and rehabilitating the defendant, 

see also 

     be consistent with policy statements issued by the United

      States Sentencing Commission, see 

and

     "be supported by the record," United States v. Garrasteguy,

      

, 42 (1st Cir. 2009).

           A judge has "significant flexibility" in formulating

special conditions of supervised release.        

      And given

his front-row seat at the proceeding, we review his selection of

supervised-release conditions for abuse of discretion, knowing

that "[t]he touchstone of abuse of discretion review . . . is

reasonableness" and that "any one of several sentences may be

reasonable in a particular case."       United States v. Vargas-Dávila,

, 130 (1st Cir. 2011).         What this means is that we

will jettison the judge's sentencing decision "only if" it "falls

outside   the   'expansive   boundaries'    of   the    entire    range   of




                                  - 21 -
reasonable sentences."       

States v. Martin, 

, 92 (1st Cir. 2008)).6

           Marino insists that a one-year stay at Coolidge House is

"assuredly" excessive, given that he has "no convictions for crimes

of violence or drug offenses" and has "employable skills."           But he

has not shown us how these commonplace offender characteristics

outweigh the obvious need for deterrence, public protection, and

rehabilitation (a.k.a., the statutory sentencing goals):             As the

judge supportably found — based on the copious evidence presented

at the hearing — Marino has a "long history" as a "con man," a

history that includes (a) the wire-fraud conviction that led to

his original supervised-release term, as well as (b) the schemes

to   defraud   Dell   and    DTA   (proven   below)   that   triggered    the

supervised-release     revocation,    plus   (c)   his   many   larceny   and

forgery convictions.        Marino's recidivist ways show that ordinary

supervised-release conditions will not help achieve the statutory

goals of sentencing, making it reasonably necessary to impose




      6The parties fight over whether Marino said enough below to
preserve his substantive-reasonableness challenge.     But we need
not say who is right, because Marino's challenge fails under either
abuse-of-discretion or plain-error review. See United States v.
Ruiz–Huertas, 

, 228 & n. 4 (1st Cir.) (taking that
approach in a similar case after noting the uncertainly surrounding
whether a substantive-reasonableness claim must be preserved
below), cert. denied, 

, 258–59 (2015).
                                    - 22 -
greater restrictions.   Or so the judge reasonably could — and did

— conclude.

          Trying a slightly different tack, Marino argues that

Coolidge House is too restrictive, citing to the center's rules

controlling the residents' comings and goings and limiting their

cell-phone, internet, and computer use on the center's premises.

According to his pro se supplemental brief, he needs a job to earn

the "several thousand dollars a month" his family needs to sustain

its lifestyle.    And — his argument continues — the center's

restrictions will severely crimp his ability to find work.       He

also complains that Coolidge House is too far from his family,

noting how the center is about 60 miles from where his wife and

daughter live.   None of these arguments persuades, however.

          Take Marino's the-center-is-too-restrictive argument.

We agree that a judge should not lightly impose restrictions of

the type complained about here.   But the judge did not impose the

Coolidge House special condition lightly — again, he hit Marino

with it only after the earlier supervised-release conditions had

indisputably failed.

          Also, Marino's own counsel conceded at the revocation

hearing that the judge should "buil[d]" a "structured environment"

into the sentence.      And surely the center's coming-and-going

limitations are part and parcel of a "structured environment."   On

                              - 23 -
top of that, Marino's complaints about the center's cell-phone,

internet,    and    computer     restrictions       conveniently     ignore   that

residents in his shoes (i.e., residents not dealing with court-

imposed release conditions restricting their internet and computer

use) can use — repeat, can use — "the internet for job searching

purposes at a local career resource center, or as part of their

employment if required as part of their job responsibilities or

duties" (a quote lifted from the center's resident handbook that

Marino relies on).

             Marino is also wrong in suggesting that the special

condition denies him his fundamental right to associate with his

family because the Coolidge House is located about 60 miles from

his family's home.         Almost every supervised-release condition

restricts a felon's liberty.           See, e.g., United States v. Smith,

,   310   (1st    Cir.     2006).      The   line    separating    a

permissible    condition       from   an    impermissible      one    depends     on

whether, given the case's facts, the "particular restriction is

clearly unnecessary."       

House stay may be

inconvenient for him and his family.                But we cannot say that the

condition is "clearly unnecessary," especially given his proven

track record of backsliding into crime.7


      7 Marino thinks that rehabilitation would "best be
accomplished" by letting him live with his family and score work
in his home town.    But Marino has already shown that ordinary
                             - 24 -
            As     a   fallback,      Marino    argues     that     his     one-year

community-confinement term "directly contravenes" section 5F1.1 of

the   federal      Sentencing     Guidelines.      That     section       says   that

"[c]ommunity confinement may be imposed as a condition of probation

or supervised release."          Application note 2 to that section states

(emphasis ours) that "[c]ommunity confinement generally should not

be imposed for a period in excess of six months" and adds that

"[a] longer period may be imposed to accomplish the objectives of

a specific rehabilitative program, such as drug rehabilitation."

But   by   using    the   word    "generally"    the     Sentencing       Commission

injected some "flexibility" into this area — thus if a "judge has

specific rehabilitative goals in mind, and believes that those

goals cannot be accomplished within six months, the judge may

impose a longer period of community confinement."                      See United

States v. Stephens, 

, 430 (2d Cir. 2003) (citing United

States v. Lominac, 

, 

(4th Cir. 1994)

(per curiam) (unpublished)).           True, the judge here never said the

word "rehabilitative."            But we can infer that the judge had

Marino's    rehabilitation       in   mind,    especially    from     the    judge's

comments about how Marino needs "a structured environment" to set




conditions of supervised release will not do the trick, giving the
judge ample reason to conclude that he needs a more "structured
environment."
                                      - 25 -
him back on the straight and narrow and how Marino must stay at

Coolidge House for a year because "insofar as supervised release

goes, he's a failure."

            Accusing the judge of not really "consider[ing]" section

5F1.1,    Marino   calls    the     judge's    explanation   insufficient    to

justify   giving   him     double    the   "length   of   time   in   community

confinement . . . suggested by the Sentencing Commission."               But he

also insists that his lawyer said enough at the hearing to preserve

the section-5F1.1 issue for appeal.              And we can infer that the

judge considered and rejected Marino's points before settling on

one year of community confinement, with the judge's comments about

Marino's past failures justifying the need for a more "structured

environment" — which means the condition imposed is grounded in a

plausible view of the circumstances and culminates in a "defensible

overall result."     See United States v. Jiménez–Beltre, 

, 519 (1st Cir. 2006) (en banc) (emphasizing that the telltale

sign of a reasonable sentence is a defensible outcome supported by

a plausible rationale); see also United States v. Colón de Jesús,

No. 15-1962, 

, at *3 (1st Cir. July 29, 2016)

(emphasizing that even "an unexplained condition of supervised




                                      - 26 -
release may be upheld as long as the basis for the condition can

be inferred from the record").

                               Wrap Up

          Having   carefully   considered   all   of   Marino's   claims

(including some that merit no discussion), we affirm the judgment

below in all respects.




                               - 27 -