Filed: Jul. 24, 2018
Latest Update: Mar. 03, 2020
Summary: Clifford B. Strike and Strike, Gonzales & Butler Bailey on, brief for appellant.Assistant United States Attorney, on brief for appellee.appeal is Tosi's sentence.sentence above the guideline range.district court did not sufficiently justify the departure.States v. King, 741 F.3d 305, 308 (1st Cir.
United States Court of Appeals
For the First Circuit
No. 17-1340
UNITED STATES OF AMERICA,
Appellee,
v.
PRIMO TOSI,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Thompson, Boudin, and Barron,
Circuit Judges.
Clifford B. Strike and Strike, Gonzales & Butler Bailey on
brief for appellant.
Halsey B. Frank, United States Attorney, and Julia M. Lipez,
Assistant United States Attorney, on brief for appellee.
July 24, 2018
BOUDIN, Circuit Judge. Primo Tosi was convicted of
possessing a firearm while subject to a qualifying court order.
18 U.S.C. § 922(g)(8). After pleading guilty, the only issue on
appeal is Tosi's sentence.
On May 16, 2016, officers of the Scarborough, Maine
Police Department received a call from a woman who said that, the
night before, Tosi put a pillow over her face, pressed a firearm
up against the pillow, and said "bang, bang."
During a search of Tosi's residence, police found a
Remington 12-gauge shotgun. At the time of the incident, Tosi was
subject to a state court order aimed at protecting his child and
his child's mother. Tosi pled guilty to a one-count information,
charging him with violating 18 U.S.C. § 922(g)(8) based on his
possession of the shotgun.
The Probation Office's pre-sentence report ("PSR")
proposed a total offense level of twelve--which included a
two-level decrease for the defendant's acceptance of
responsibility--and a criminal history category ("CHC") of III,
resulting in an initial guideline range of fifteen to twenty-one
months. U.S.S.G. §§ 2K2.1(a)(6)(A), 3E1.1(a); id. ch. 5, pt. A.
In its sentencing memorandum, the government argued for
an upward departure as to Tosi's CHC--urging the court to adopt a
CHC of V. The government also sought an upward variance,
ultimately requesting a term of sixty months' imprisonment.
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Tosi, by contrast, sought a sentence below the PSR's
recommended guideline range of fifteen to twenty-one months'
imprisonment, downplaying his criminal past and citing his
difficult family background, personal medical problems, and
history of substance abuse. At the sentencing hearing, defense
counsel repeated these arguments before suggesting that a sentence
"within the [guideline range], or slightly below" would be
appropriate.
The district court at sentencing adopted one of the
government's proposals when it departed and assigned Tosi a CHC of
V. The court refused, however, to vary upwards and instead
sentenced Tosi to thirty-three months' imprisonment--a term at the
top of, but still within, the range set by a final total offense
level of twelve and CHC of V. Id. at ch. 5, pt. A.
On appeal, Tosi challenges his sentence on both
substantive and procedural grounds, categories themselves somewhat
elastic and defined in terms that can depart from common usage.
See, e.g., United States v. Crespo-Ríos, 787 F.3d 34, 37 n.3 (1st
Cir. 2015).
It simplifies the discussion without changing the
outcome to assume that the alleged errors were all preserved and
all subject to review under a deferential standard, see United
States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013)--save
for certain specific issues raised for the first time in Tosi's
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reply brief, which are barred, United States v. Carbajal-Váldez,
874 F.3d 778, 785 n.2 (1st Cir. 2017). Such deference does not
protect legal rulings, but no such legal errors are asserted here.
See
Flores-Machicote, 706 F.3d at 20.
Tosi alleges that the district court "haphazardly tossed
aside" the 18 U.S.C. § 3553(a) factors without "due consideration"
and failed to give significant weight to his mitigating personal
characteristics. But the district judge did address these factors
before discussing how some of them, such as the nature of the
offense--including the "domestic violence overlay"--and the need
to "protect[] the public" applied to Tosi's sentence.
The court also took seriously the supposedly mitigating
factors pressed by the defense, including Tosi's family and medical
history, but concluded that while some of these factors explained
Tosi's past conduct, a "risk of future conduct" also had to be
given weight. The defense says that the court should have more
heavily focused on Tosi's employment record, management of his
psychiatric issues, and alleged good relationship with his own
children (we note that one of Tosi's protective orders was issued
to protect his child and the child's mother).
Here, the district court weighed the mitigating factors
carefully, concluding (to Tosi's benefit) that the threat Tosi
poses was not so far above the average as to require a variant
sentence above the guideline range. Adopting the top of the fully
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justified range (with a total offense level of twelve and CHC of
V), but going scarcely over halfway to the government's goal,
represented a compromise between factors weighing for and against
Tosi. Here this compromise worked largely in Tosi's favor. This
also answers fully Tosi's claim that the judge should have adopted
a sentence below the guideline range.
A sentencing court is obliged to focus on the uniqueness
of the individual person and case before it. United States v.
Ayala-Vazquez, 751 F.3d 1, 31 (1st Cir. 2014) (citing Gall v.
United States,
522 U.S. 38, 52 (2007)). The district judge did
just that--properly and carefully conducting an individualized
sentencing as required by case law. The judge's focus throughout
was on Tosi's own conduct and history and was in no way abstract
or mechanical.
Tosi attacks the choice of CHC V, claiming that the
district court did not sufficiently justify the departure. The
guideline resulting in the PSR's calculation of CHC III held down
artificially Tosi's criminal history points by capping the count
of one-point crimes to four points. U.S.S.G. § 4A1.1(c). As a
result, Tosi's ten criminal history points, which would correspond
to CHC V, were capped at six.
The Sentencing Guidelines state that an upward departure
may be warranted when a defendant's CHC "substantially under-
represents the seriousness of the defendant's criminal history or
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the likelihood that the defendant will commit other crimes."
Id. § 4A1.3(a)(1). After describing Tosi's "reoccurring pattern
of convictions," the court found that a CHC of III indeed failed
to reflect both Tosi's full criminal history and the likelihood
that he would engage in future criminal conduct. That history
included domestic violence incidents, violations of conditions of
release, drug possession, and various other offenses.
Tosi raises some more specific procedural arguments in
his reply brief--e.g., he complains that the district court upped
his CHC to V without "cit[ing] reliable information indicating
that [his] criminal history or likelihood to recidivate most
closely resembles CHC V defendants rather than CHC IV or CHC III
defendants." But, as already noted, arguments available at the
outset but raised for the first time in a reply brief need not be
considered. Carbajal-Váldez, 874 F.3d at 785 n.2.
Lastly, the sentence of thirty-three months falls easily
"within the expansive universe of reasonable sentences." United
States v. King, 741 F.3d 305, 308 (1st Cir. 2014) (citation
omitted). Nothing in Tosi's arguments (which essentially rehash
his already-rejected procedural-reasonableness claims) makes the
choice of this within-guidelines sentence vulnerable.
Tosi was sentenced by a district judge who, buttressed
by much experience, provided here a model of how to sentence a
defendant, showing both skill and sensitivity in his conduct of
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the proceeding and the calibration of his judgments. Tosi has
shown no error in his sentence.
Affirmed.
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