Filed: Sep. 22, 2009
Latest Update: Feb. 21, 2020
Summary: , Todd E. Newhouse, Assistant U.S. Attorney, and Michael K., Loucks, Acting United States Attorney, on motion for summary, disposition.sentencing range.-2-, plain error. United States v. Peralta, 457 F.3d 169, 171 (1st Cir.under the career [offender] guideline, .convictions.instant drug offenses;
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 09-1055
UNITED STATES OF AMERICA,
Appellee,
v.
LARRY MACK,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Torruella, Lipez and Howard,
Circuit Judges.
Jean C. LaRocque and Shea and LaRocque, on brief for
appellant.
Todd E. Newhouse, Assistant U.S. Attorney, and Michael K.
Loucks, Acting United States Attorney, on motion for summary
disposition.
September 22, 2009
Per Curiam. In this direct appeal from his sentence, the
defendant argues that the district court plainly erred in finding
him to be an armed career criminal and abused its discretion in
giving excessive weight to deterrence in sentencing him to 262
months' imprisonment, the low end of the applicable guideline
sentencing range. The government has moved for summary
disposition. As further explained below, we grant the motion and
summarily affirm the sentence because any error in determining the
defendant's armed career criminal status was harmless since the
same guideline range resulted from the defendant's career offender
status, which he does not challenge, and because the defendant's
sentence was not substantively unreasonable under the applicable
standards of appellate review.
With respect to his armed career criminal designation,
the defendant objects to the use of his prior convictions for
assault and battery and larceny from a person as predicates
because, he argues, those convictions were not for "violent
felon[ies]" within the meaning of 18 U.S.C. ยง 924(e). He also
argues that another conviction was erroneously used as a predicate
"prior" conviction because that conviction occurred after part of
the instant offense conduct. As the defendant acknowledges,
because he did not object to his armed career criminal designation
below, his challenges to that designation are reviewable only for
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plain error. United States v. Peralta, 457 F.3d 169, 171 (1st Cir.
2006) (per curiam).
We need not determine whether those purported errors
satisfy the first two prongs of that demanding standard--i.e.,
whether an error occurred, United States v. Olano, 507 U.S. 725,
733-34 (1993), and, if so, whether it was sufficiently "clear" or
"obvious,"
id. at 734--because, as the government argues, any
errors in categorizing the defendant as an armed career criminal
did not affect the defendant's substantial rights,
Olano, 507 U.S.
at 734. That is so because, as in United States v. Rivera,
448
F.3d 82 (1st Cir. 2006), "his sentence was independently justified
under the career [offender] guideline, . . . , which yields the
same sentencing range [as] the armed career criminal guideline, and
which [the defendant] does not challenge."
Id. at 86 n.1.
Nor was his sentence substantively unreasonable. The
defendant's only argument in that regard is that the court gave
excessive weight to the need for general deterrence. That
contention lacks factual or legal support. Although the court did
emphasize that factor, it also expressly considered the "extremely
serious" nature of the offense, particularly the defendant's
possession of two high-caliber handguns with "hundreds of rounds of
ammunition[]," which "will blow a hole in you as big as your fist,"
and his criminal record, which contained "a lot of prior
convictions." The court also considered, but either discredited or
-3-
discounted, the defendant's family ties and responsibilities; his
employment history; his asserted benign motives for committing the
instant drug offenses; and his potential to be a successful member
of society. Under the deferential abuse-of-discretion standard
that applies to a district court's procedurally sound sentencing
decisions,1 United States v. Martin, 520 F.3d 87, 92, 96 (1st Cir.
2008), it is not for this appellate court to second-guess the
weight given to particular factors. Rather, absent a procedural
error or an abuse of discretion, neither of which is present here,
such balancing is for the sentencing court, United States v.
Rodriguez,
525 F.3d 85, 110 (1st Cir. 2008), particularly where, as
here, the ultimate sentence falls at the bottom of the applicable
guideline range, United States v. Smith,
531 F.3d 109, 111 (1st
Cir. 2008).
Accordingly, the government's motion for summary
disposition is granted and the defendant's sentence is summarily
affirmed. See 1st Cir. R. 27.0(c).
1
The defendant does not challenge the sentence on procedural
grounds.
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