United States Court of Appeals
For the First Circuit
No. 10-1033
UNITED STATES OF AMERICA
Appellee,
v.
ANONYMOUS DEFENDANT,*
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Boudin, Selya and Stahl,
Circuit Judges.
Felicia H. Ellsworth, by appointment of the court, with whom
Paul R.Q. Wolfson and Wilmer Cutler Pickering Hale and Dorr LLP,
were on brief, for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief, for appellee.
December 22, 2010
*
Because much of the record in this case remains under seal,
we adhere to an arrangement to which the parties have agreed and
refrain from disclosing the defendant's identity.
SELYA, Circuit Judge. This appeal requires that we
perform two separate but related tasks. First, we must clarify the
effect of United States v. Booker, 543 U.S. 220 (2005), on our pre-
Booker case law that narrowly circumscribed the reviewability of
sentencing courts' discretionary departure decisions. Second, we
must assess the bona fides of a sentence that the defendant claims
is too harsh, even though it embodies a downward departure from the
guideline sentencing range (GSR) based on substantial assistance to
the authorities.
After careful consideration of these points, we conclude
that we have jurisdiction to hear and determine this appeal; that
the district court did not commit procedural error of any kind; that
the sentence was sufficiently explained and fell within the universe
of reasonable outcomes; and that, therefore, the sentence must
stand.
I. BACKGROUND
The district court sentenced the defendant following a
guilty plea. Consequently, we glean the relevant facts from the
presentence investigation report (PSI Report) and the transcript of
the disposition hearing. United States v. Fernández-Cabrera, 625
F.3d 48, 50 (1st Cir. 2010); United States v. Dietz, 950 F.2d 50,
51 (1st Cir. 1991). Because the linchpin of the appeal is the
defendant's fruitful cooperation with the authorities, we describe
his activities only in generalities.
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In the summer of 2006, federal authorities arrested the
defendant for drug trafficking and other illicit activities. Almost
immediately, he began cooperating. His assistance included
introductions to his quondam suppliers and providing corroborating
evidence in several cases. These actions culminated in the
apprehension and conviction of roughly a dozen participants in a
gallimaufry of drug-trafficking operations.
The defendant's fruitful cooperation prompted the
government to promise to move for a sentence reduction under a
provision of the sentencing guidelines that authorizes downward
departures based on substantial assistance to law enforcement
agencies. See USSG §5K1.1 (reproduced in the Appendix).
With this assurance in hand, the defendant agreed to
plead guilty to distributing and conspiring to distribute MDMA
(ecstasy) and illicit gambling activities. See 21 U.S.C.
§§ 841(a)(1), 846; 18 U.S.C. § 1955. On November 28, 2007, the
district court took the plea but deferred action on it until the
time of sentencing. The court nevertheless ordered the preparation
of a presentence report. When received, the PSI Report recommended
an offense level of 34, a criminal history category of VI, and a GSR
at 262-300 months. The probation office explained that the top end
of the proposed GSR would have been 327 months but for the combined
statutory maximums for the offenses of conviction.
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On December 19, 2008, the district court accepted the
defendant's plea and convened the disposition hearing. The hearing
itself lasted three days, spread out over many months.
A substantial assistance departure can be granted only if
the government moves for one. See Wade v. United States, 504 U.S.
181, 184 (1992) (discussing USSG §5K1.1); United States v. Sandoval,
204 F.3d 283, 285 (1st Cir. 2000) (same). The government filed such
a motion in the instant case. It sought a 13-level reduction in the
defendant's offense level as a reward for his substantial
assistance. Such a departure, if granted, would have reduced the
GSR to 77-96 months, and the government supported a sentence at the
bottom of this reconstituted range: 77 months. To bolster its
importunings, the government proffered testimony of a Drug
Enforcement Administration (DEA) agent who spoke to both the quality
of the defendant's information and the investigative difficulties
that the authorities would likely have encountered but for the
defendant's cooperation. For his part, the defendant indicated that
he would be satisfied with a departure of this magnitude.
The district court expressed openness to a sentence
reduction but had reservations about how large the reduction should
be. The court voiced a preference for a more modest departure — one
that would yield a sentence on the order of 135 months.
During the discourse, the court learned of an assault
charge pending against the defendant in a state court. The charge
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stemmed from the defendant's involvement in a barroom brawl while
he was free on bail in the federal case. The details of the
altercation were disputed: state prosecutors apparently believed
that the defendant was the instigator but defense counsel
represented that his client was not at fault and that he expected
the charge to be dismissed. Concerned by defense counsel's
explanation, the district court mused that the rationale for a
possible dismissal might have less to do with the defendant's
innocence and more to do with the prospect of a lengthy federal
sentence that would eclipse any state sentence. In the end, the
court continued the disposition hearing to give the defense time to
get the assault charge dismissed. The court advised counsel that
it would be interested in whether any such dismissal was based on
"evidentiary doubt rather than administrative convenience." Neither
side objected to this continuance.
The district court reconvened the disposition hearing on
April 2, 2009. Upon learning that no conclusive action had been
taken on the assault charge, the court advised the parties that it
would conduct its own inquiry into the matter.
On December 14, 2009, the hearing resumed. Without
objection, the court took evidence to ascertain the defendant's role
in the assault. Several witnesses testified, including the putative
victim, the barkeep, and the defendant. The court concluded that
the defendant was the aggressor and had instigated the fight.
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Next, the court rejected the criminal history score
proposed in the PSI Report. The newly calculated score lowered the
defendant's criminal history category to IV. The court thereafter
heard recapitulative arguments concerning the nature and value of
the defendant's cooperation.
The government reiterated the reasons behind its stated
preference for a 13-level downward departure and a 77-month
sentence. The defendant joined in these exhortations, arguing that
the factors relevant to a substantial assistance departure — known
in this circuit as the Mariano factors, see United States v.
Mariano, 983 F.2d 1150, 1156 (1st Cir. 1993) — favored an
exceptional degree of leniency. When the parties had finished, the
district court termed the defendant's cooperation "extremely
valuable" and proceeded to grant a seven-level offense level
reduction. In conjunction with the lowered criminal history
category, this yielded a GSR of 100-125 months. The court then
imposed a sentence of 120 months, citing the defendant's misconduct
while on bail (the assault) as the reason for choosing a sentence
near the upper end of the GSR. This timely appeal followed.
II. ANALYSIS
The defendant, ably represented by appointed counsel,
mounts a vigorous challenge to his sentence on both procedural and
substantive grounds. Before grappling with this asseverational
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array, however, we first must dispose of the government's
jurisdictional objection.
These points evoke differing standards of review. The
jurisdictional question turns on a purely legal point and, thus,
engenders de novo review. United States v. Ramos-Paulino, 488 F.3d
459, 463 (1st Cir. 2007); United States v. Alegría, 192 F.3d 179,
191 (1st Cir. 1999). Our review of the defendant's attack on his
sentence proceeds in two steps. We first must ensure that the
district court committed no significant procedural error. See
United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). If we
determine that the sentence is "procedurally sound," we then must
test its "substantive reasonableness." Id. Each of these two steps
is conducted under the auspices of a "deferential abuse-of-
discretion standard." Id. (quoting Gall v. United States, 552 U.S.
38, 41 (2007)). For this purpose, a material error of law
constitutes a per se abuse of discretion. See United States v.
Santiago-Rivera, 594 F.3d 82, 84 (1st Cir. 2010); United States v.
Snyder, 136 F.3d 65, 67 (1st Cir. 1998).
A. Appellate Jurisdiction.
In bygone days — when the federal sentencing guidelines
were thought to comprise a mandatory sentencing regime — this court
routinely held that discretionary departure decisions were not
reviewable unless the sentencing court misunderstood its authority
or committed an error of law. See, e.g., United States v. Dewire,
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271 F.3d 333, 337 (1st Cir. 2001); United States v. Vaknin, 112 F.3d
579, 585 (1st Cir. 1997); United States v. Pierro, 32 F.3d 611, 619
(1st Cir. 1994). This was a judge-made rule, not specifically
required by any statute or guideline provision. See United States
v. Pighetti, 898 F.2d 3, 4 (1st Cir. 1990); United States v. Ruiz-
Garcia, 886 F.2d 474, 476-77 (1st Cir. 1989). The government
insists that this judge-made rule bars review of the sentencing
court's discretionary decision not to depart more generously.
Developments in the law have overtaken this argument. In
2005, the Supreme Court decided Booker, which recharacterized the
federal sentencing guidelines as advisory. 543 U.S. at 245. As a
by-product, the Court's decision obligates federal appellate courts
to review appealed sentences for reasonableness. See id. at 261;
United States v. Carrasco-de-Jesús, 589 F.3d 22, 26 (1st Cir. 2009).
This obligation attaches regardless of whether a sentence adheres to
or varies from the GSR. See United States v. Turbides-Leonardo, 468
F.3d 34, 40 (1st Cir. 2006) ("We review sentences imposed under an
advisory guidelines regime for reasonableness, regardless of whether
they fall inside or outside the applicable GSR.").
Review for reasonableness is functionally equivalent to
review for abuse of discretion. Carrasco-de-Jesús, 589 F.3d at 26
(citing Gall, 552 U.S. at 51). This review encompasses virtually
the entire gamut of sentences imposed under the advisory guidelines,
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including sentences shaped by discretionary departure decisions.1
See United States v. Fernández, 443 F.3d 19, 26 (2d Cir. 2006);
United States v. McBride, 434 F.3d 470, 477 (6th Cir. 2006); United
States v. Vaughn, 433 F.3d 917, 923-24 (7th Cir. 2006); see also
United States v. Plouffe, 445 F.3d 1126, 1130 (9th Cir. 2006)
(explaining in an analogous context that "prior precedent
restricting jurisdiction made sense when the Guidelines were
considered mandatory," but that it makes no sense "to so restrict
jurisdiction on appeal now that the Guidelines must be viewed . . .
as merely advisory").
In arguing for the perpetuation of our earlier judge-made
restriction on appellate jurisdiction, the government cites our
decision in United States v. Meléndez-Torres, 420 F.3d 45 (1st Cir.
2005). There, we indicated that, as a general rule, discretionary
departure decisions remain unreviewable in the post-Booker era. But
when Meléndez-Torres was written, Booker had just been decided and
its import had not been fully digested.
During the following year, we authoritatively clarified
the matter. In United States v. Jiménez-Beltre, 440 F.3d 514 (1st
Cir. 2006) (en banc), we addressed the issue of whether a sentence
1
We say "virtually" because we exempt from this statement
sentences imposed pursuant to a statute that contains a mandatory
minimum term of imprisonment. We likewise exempt refusals to
depart in instances in which departure requires a government motion
that has not been forthcoming. There may be other exceptions, but
none is implicated here.
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within a properly calculated GSR remained, as before Booker,
"inherently unreviewable." Id. at 517. The government argued the
affirmative of this proposition, based in part on an analogy to pre-
Booker "case law governing review . . . of a refusal to depart."
Id. (emphasis omitted). We rejected the government's proposition,
concluding that Booker rendered it "hopeless." Id.
The logic of the en banc decision in Jiménez-Beltre must
prevail here. Under that logic, all sentences imposed under the
advisory guidelines (subject, however, to the exemption mentioned
above, see supra note 1) are open to reasonableness review,
including those that entail either a discretionary refusal to depart
or a departure whose extent is contested. No other rule will
satisfy what we have determined to be the Booker Court's mandate
that all "sentences would be reviewable for reasonableness whether
they fell within or without the guidelines." Jiménez-Beltre, 440
F.3d at 517; see also id. at 517 n.1.
This holding disposes of the government's jurisdictional
objection. Where, as here, a departure sentence is subject to
review for reasonableness under the advisory guidelines, the
jurisdictional restriction limned in our pre-Booker cases is of no
consequence. In following the dictates of Booker and deciding
whether the imposed sentence is reasonable, the reviewing court, in
effect, resolves any question as to whether the extent of the
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departure is reasonable. The authority to conduct that review is
sufficient to confer jurisdiction here.
B. Procedural Soundness.
We turn now to the claim of procedural error. The
defendant complains that the sentencing court erred by (i) failing
to cogitate the Mariano factors and (ii) delving too deeply into the
background of the assault charge. We consider these two claims
separately.
1. The Mariano Factors. Both the decision to depart
downward for substantial assistance and the related decision about
the extent of the departure rest within the sound discretion of the
sentencing court. Mariano, 983 F.2d at 1156. The so-called Mariano
factors inform those decisions; in United States v. Ahlers, we
summarized them:
[T]he court's evaluation of the significance
and usefulness of the defendant's assistance
. . . ; the reliability of any information or
testimony given by the defendant; the
timeliness, nature, and extent of the
assistance; and any danger to which the
defendant or members of his family were
exposed as a result of the assistance.
305 F.3d 54, 61 n.6 (1st Cir. 2002).
A sentencing court's discretion to assay these factors is
wide, but not unbounded. Although a sentencing court "must at a
bare minimum indicate its cognizance" of the Mariano factors,
Mariano, 983 F.2d at 1156, we have prescribed no particular formula
for evaluating and explicating these factors. In other words, a
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sentencing court is not required to use any magic words or chant any
special mantra to show that it has considered the five factors. See
Vaknin, 112 F.3d at 585.
In this instance, the record shows with conspicuous
clarity the sentencing court's awareness of the Mariano factors.
During the first day of the disposition hearing, the court noted
that it would "measure the [defendant's] cooperation" against the
factors and inquired into the role that the defendant's cooperation
had played in convicting other persons. The prosecutor confirmed
that assistance rendered by the defendant was "significant, useful,
truthful, complete and reliable," giving specific illustrations.
The transcript makes manifest that the court not only recognized the
salience of the Mariano factors but also understood the nature,
timeliness, veracity, and value of the defendant's aid.
Having grasped the situation on the first day of the
hearing, the court kept the defendant's assistance at the forefront.
On the last day of the hearing, the court gave each side an
opportunity to rehearse the case for a departure. This was done, in
the court's words, to ensure that it "had in mind the nature of the
defendant's cooperation." The parties availed themselves of this
opportunity in full. Of particular pertinence for present purposes,
the defendant walked the court through each of the five Mariano
factors and argued for no less than a two-level downward departure
referable to each one. It is, therefore, abundantly clear that the
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Mariano factors were squarely before the court when it excogitated
the extent of the departure.
To be sure, the court, in pronouncing sentence, could have
expounded upon the Mariano factors one by one, welding each to the
case at hand. But the law does not require such a level of
specificity. Where, as here, the court's reasoning is easily
inferred and there is nothing in the record to suggest that it
overlooked any pertinent factor, the claim of procedural error is
nothing more than hopeful speculation. Consequently, the claim
lacks force. See, e.g., United States v. Mills, 329 F.3d 24, 32
(1st Cir. 2003); United States v. Torres, 251 F.3d 138, 148-49 (3d
Cir. 2001); see also Mariano, 983 F.2d at 1156.
The defendant attempts to blunt the force of this
reasoning by noting that the guidelines instruct sentencing courts
to give substantial weight to "the government's evaluation of the
extent of the defendant's assistance, particularly where the extent
and value of the assistance are difficult to ascertain." USSG
§5K1.1, cmt. n.3. The defendant says that the court strayed too far
from the government's recommendation here.
We think, however, that the defendant overstates the
effect of this directive. A substantial assistance departure begins
with a government motion. Wade, 504 U.S. at 184. Once such a
motion is filed, the government's assessment of the defendant's
assistance deserves serious consideration. Withal, that assessment
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is neither a proxy for the sentencing court's exercise of discretion
nor a basis upon which the court can abdicate its responsibilities.
See United States v. Burns, 577 F.3d 887, 893 (8th Cir. 2009) (en
banc) (noting that "the government's recommendation is not
controlling . . . and it is the district court's responsibility to
determine an appropriate reduction") (citation and internal
quotation marks omitted). The directive to give substantial weight
to the government's evaluation was "never intended to rein in the
district court's discretion concerning the need for, and extent of,
a downward departure" under section 5K1.1. Mariano, 983 F.2d at
1156; see Vaknin, 112 F.3d at 585 (observing that "the sentencing
judge's role cannot be usurped by agreements between the prosecutor
and the defendant"). It follows inexorably that a court that
chooses not to accept a prosecutor's recommendation in full cannot,
for that reason alone, be deemed to have misweighed the Mariano
factors.
2. The Assault. Next, the defendant assails the
sentencing court's zealous attention to the assault charge. It was
error, he asserts, for the court to look behind the face of the
state-court record; and in any event, the lengthy evidentiary
hearing resulted in a peripheral matter (the assault) overshadowing
the central issue in the case (the defendant's substantial
assistance).
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This argument is unavailing. To begin, courts have long
been permitted to consider more than charged conduct in fashioning
sentences. See, e.g., United States v. Mays, 593 F.3d 603, 609-10
(7th Cir. 2010); United States v. Lombard, 102 F.3d 1, 4 (1st Cir.
1996). Moreover, a sentencing court is not bound by the face of a
record in a different criminal proceeding; indeed, a sentencing
court may even consider acquitted conduct, if proved by a
preponderance of the evidence. See, e.g., United States v. Watts,
519 U.S. 148, 157 (1997) (per curiam); United States v. Gobbi, 471
F.3d 302, 314 (1st Cir. 2006); see also United States v. Dorcely,
454 F.3d 366, 371 (D.C. Cir. 2006) (collecting cases). The
sentencing guidelines themselves contemplate incorporating allegedly
criminal conduct into the sentencing equation prior to any
conviction. See, e.g., USSG §4A1.3(a)(1). Similarly, the case law
allows sentencing courts to consider prior criminal conduct that has
not ripened into a conviction. See, e.g., United States v. Diaz-
Martínez, 71 F.3d 946, 952 (1st Cir. 1995); United States v. Diaz-
Villafane, 874 F.2d 43, 50 (1st Cir. 1989).
The defendant notes that the assault is not "relevant
conduct," USSG §1B1.3, but, rather, conduct unrelated to the
offenses of conviction. That is true as far as it goes, but it does
not take the defendant very far. The assault occurred while the
defendant was free on bail for the offenses of conviction, and cases
are legion in which sentencing courts have considered such conduct.
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See, e.g., United States v. Fadayini, 28 F.3d 1236, 1242 (D.C. Cir.
1994); United States v. Doe, 18 F.3d 41, 47-48 (1st Cir. 1994)
(Breyer, C.J.). It was, therefore, permissible for the court below
to inquire into the conduct underlying the assault charge.
The defendant's related claim — that the emphasis on the
assault charge overshadowed the merits of his substantial assistance
— is unpersuasive. Because the defendant did not object below to
the evidentiary hearing, this claim is at best reviewable for plain
error. See, e.g., United States v. Jiminez, 498 F.3d 82, 85 (1st
Cir. 2007); United States v. Duarte, 246 F.3d 56, 60 (1st Cir.
2001). There is no error here, plain or otherwise.
The decision to hold an evidentiary hearing at the time
of sentencing rests within the sentencing court's discretion.
United States v. Robles-Torres, 109 F.3d 83, 85 (1st Cir. 1997).
Given that the assault charge arose out of acts committed while the
defendant was free on bail, there was no abuse of discretion in
deciding to inquire into them.
In contending otherwise, the defendant misreads our
decision in United States v. Mateo, 271 F.3d 11 (1st Cir. 2001).
There, we held that a district court "ordinarily is not required to
look beyond the face of the state-court record" in deciding how to
factor a state charge into the federal sentencing equation. Id. at
16. But "not required" and "not permitted" are two very different
things.
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Proceeding to the substance of the defendant's argument,
nothing in the record supports a finding that the attention paid to
the assault charge drove other issues into obscurity. The
information about substantial assistance plainly remained front and
center. There is not so much as a hint that the assault charge came
to dominate the court's thinking.
This lack of dominance is made quite clear by the
sentencing court's limited use of the assault charge. The assault
played only a minor part in shaping the defendant's sentence. It
was not used to elevate the defendant's offense level, enhance his
criminal history score, discount his substantial assistance, or
circumscribe the extent of the downward departure. Instead, it came
into play only after the court effected the departure by shaping a
new GSR. Only then did the court use the assaultative conduct for
the narrow purpose of fixing a sentencing point within that newly
constituted range. This small adjustment was comfortably within the
court's discretion.
C. Substantive Reasonableness.
This brings us to the defendant's claim that his sentence
is substantively unreasonable. He maintains that the sentence does
not accord sufficient weight to the factors enumerated in 18 U.S.C.
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§ 3553(a).2 He singles out his history and characteristics, and the
need for the sentence to provide just punishment.
Determining the extent of a discretionary departure is
quintessentially a judgment call. "[A] sentencing court's ultimate
responsibility is to articulate a plausible rationale and arrive at
a sensible result." Carrasco-de-Jesús, 589 F.3d at 30.
We already have found that the sentencing court
appropriately considered the five Mariano factors. See supra Part
II(B)(1). Those factors to some extent inform the broader panoply
of factors limned in 18 U.S.C. § 3553(a). As to the remaining
statutory factors, the defendant's argument that the court
misweighed them is little more than a lament that the defendant
would weigh them differently. But it is the court, not the parties,
that holds the scales in gauging the extent of discretionary
departure decisions. After all, the sentencing court may choose to
curtail the extent of a substantial assistance departure based on
factors other than the Mariano factors. See Mariano, 983 F.2d at
2
Pertinently, these factors include:
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the
need for the sentence imposed (A) to reflect the
seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense; (B)
to afford adequate deterrence to criminal conduct; (C) to
protect the public from further crimes of the defendant;
and . . . (6) the need to avoid unwarranted sentence
disparities among defendants with similar records . . . .
18 U.S.C. § 3553(a).
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1157; see also United States v. McFarlane, 309 F.3d 510, 515 (8th
Cir. 2002).
The district court relied on such factors here. It
supportably found the defendant to be a "major drug dealer [who]
made a ton of money" from trafficking in controlled substances.
Taking these facts into account to cabin the extent of the departure
fits neatly within the encincture of judicial discretion.
In the last analysis, the sentencing court articulated
specific and cogent reasons for truncating the extent of the
departure. The court exhibited a similar degree of care in
fashioning the sentence. Citing considerations favorable to the
defendant, it reduced his criminal history category from VI to IV.3
The court also acknowledged the applicable value of the defendant's
assistance to the government and reduced his offense level
dramatically. It then explained the main reasons why it departed
less handsomely than the parties had requested: the seriousness of
the criminal enterprise and the leading role that the defendant
played in it. The court considered whether a departure of the
magnitude that it envisioned would send the right message to other
potential cooperators and concluded that it would. Finally, the
3
To the extent that the defendant argues that the career
offender designation (which accounted for his original placement in
criminal history category VI) artificially inflated his sentence,
that ship has sailed. Having failed to object below either to the
PSI Report or to the court's use of category VI as a starting
point, he cannot lodge such an objection for the first time on
appeal. See Turbides-Leonardo, 468 F.3d at 38.
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court determined that placing the defendant near the top of the
reconstituted GSR was warranted by his commission of an assault
while released on bail.
Sentencing under an advisory guidelines regime is more art
than science. A sentencing judge must weigh a variety of
considerations, filter them through his real-world experience and
his unique perspective on the case, and formulate a sentence that is
responsive to the facts. There is normally no single appropriate
sentence but, rather, a range of reasonable sentencing options.
Martin, 520 F.3d at 92; United States v. Dixon, 449 F.3d 194, 204
(1st Cir. 2006). Here, the district court sufficiently weighed the
history and characteristics of both the offense and the offender.
Its sentencing rationale was plausible and the sentence was within
the universe of acceptable outcomes. The sentence is, therefore,
substantively reasonable. See United States v. Bunchan, ___ F.3d
___, ___ (1st Cir. 2010) [No. 09-2144, slip op. at 13]; Carrasco-de-
Jesús, 589 F.3d at 30.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we reject the defendant's claims of sentencing error.
Affirmed.
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Appendix
§ 5K1.1. Substantial Assistance to Authorities (Policy Statement)
Upon motion of the government stating that the
defendant has provided substantial assistance
in the investigation or prosecution of another
person who has committed an offense, the court
may depart from the guidelines.
(a) The appropriate reduction shall be
determined by the court for reasons stated
that may include, but are not limited to,
consideration of the following:
(1) the court's evaluation of the significance
and usefulness of the defendant's assistance,
taking into consideration the government's
evaluation of the assistance rendered;
(2) the truthfulness, completeness, and
reliability of any information or testimony
provided by the defendant;
(3) the nature and extent of the defendant's
assistance;
(4) any injury suffered, or any danger or risk
of injury to the defendant or his family
resulting from his assistance;
(5) the timeliness of the defendant's
assistance.
USSG §5K1.1.
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