United States Court of Appeals
For the First Circuit
No. 01-2060
UNITED STATES OF AMERICA,
Appellee,
v.
ALBERTO DE JESUS, A/K/A
ALBERTO DE JESUS MERCADO, A/K/A/ TITO KAYAK,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
Linda Backiel for appellant.
Frank J. Bustamante, Special Assistant United States
Attorney, with whom Guillermo Gil, United States Attorney, and
Jorge E. Vega-Pacheco, Chief, Criminal Division, were on brief,
for appellee.
January 28, 2002
SELYA, Circuit Judge. In a three-count information,
the government charged defendant-appellant Alberto de Jesús
Mercado with two counts of trespassing at Camp Garcia (a
military installation situated on the island of Vieques, Puerto
Rico) in violation of 18 U.S.C. § 1382, and one count of simple
assault (allegedly committed during the second trespass) in
violation of 18 U.S.C. §§ 7, 113(a)(4). The district court
denied the appellant's motion to dismiss the information, United
States v. de Jesús, 108 F. Supp. 2d 68 (D.P.R. 2000), and
thereafter found him guilty of all charges. The court sentenced
the appellant to time served (approximately 34 days), together
with a one-year term of probation. The probationary term
encompassed, inter alia, the following conditions: the
appellant was directed to (1) refrain from committing any
criminal act, (2) stay away from Vieques, and (3) observe all
the standard conditions of probation (such as notifying the
Probation Department before leaving the jurisdiction or in the
event of an arrest).1
The appellant proved to be a serial probation violator.
Within a matter of weeks, he traveled to New York without
1
The court originally imposed a special condition of
probation requiring psychological counseling. Upon
reconsideration, however, the court vacated that condition. See
United States v. de Jesús, 116 F. Supp. 2d 256, 257 (D.P.R.
2000).
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notifying his probation officer; engaged in criminal conduct
there on November 5, 2000 (adorning the Statue of Liberty with
a protest banner reading "Peace for Vieques"); and failed to
advise the probation officer of his ensuing arrest. The
incident resulted in the appellant's conviction in a New York
court on a charge of criminal trespass, for which he paid a $500
fine. In addition to these activities, the appellant traveled
to Vieques at least twice, in direct contradiction of the
conditions of his probation. He was arrested, but again failed
to inform his probation officer.
The appellant's antics eventually were brought to the
attention of the district court. The court issued a violation
warrant and conducted a probation revocation hearing on June 20,
2001. It found that the appellant had violated the conditions
of his probation in myriad respects. This brought into play the
penalty provisions of the original charges, see United States v.
Bynoe, 562 F.2d 126, 129 (1st Cir. 1977) (explaining that "the
court may, upon revocation of probation, impose any sentence it
might originally have imposed"), and the court sentenced the
appellant to imprisonment for a term of six months on each of
the two original trespassing counts (those sentences to run
concurrently) and for a further term of six months on the
original assault count (that sentence to be served consecutively
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to the sentences imposed on the other two counts). This appeal
followed.
The statutes of conviction each authorize incarceration
of an offender for a maximum period of six months. In this
case, then, the three counts, in the ensemble, exposed the
appellant to an overall total of eighteen months behind bars.
Because the offenses limned in these counts constitute Class B
misdemeanors, see 18 U.S.C. § 3559(a)(7), the court's sentencing
determinations are not subject to the federal sentencing
guidelines. See USSG § 1B1.9; see also United States v. Burgos-
Andujar, ___ F.3d ___, ___ (1st Cir. 2001) [No. 01-2062, slip
op. at 5]. Accordingly, appellate review ordinarily will be
limited to ascertaining whether a particular sentence is
"plainly unreasonable." 18 U.S.C. § 3742(e)(4); see also United
States v. Sharpton, 252 F.3d 536, 540 (1st Cir. 2001) (per
curiam). That standard governs for sentences imposed following
revocation of probation in respect to Class B misdemeanor
convictions.
Under any circumstances, the "plainly unreasonable"
standard is extremely deferential. United States v. Underwood,
880 F.2d 612, 620 (1st Cir. 1989). Here, however, the degree of
deference due is magnified because the appellant refused to
acknowledge the sentencing court's jurisdiction and, thus,
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eschewed any attempt to secure leniency. Inasmuch as the
arguments advanced on appeal were not raised below, the
sentences imposed can be set aside only for plain error. See
United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).
How the "plain error" doctrine interacts with the
"plainly unreasonable" standard of review presents a potentially
interesting legal question. In this instance, however, we need
not pursue so fine a point. The short of it is that the
sentencing record reflects no error, plain or otherwise. We
explain briefly.
At the initial sentencing hearing, the district court
imposed a term of probation, thus leaving the matter of further
punishment very much in the appellant's hands. The appellant
did not capitalize on this opportunity. He chose not to abide
by the conditions of his probation, but, rather, traveled
outside of Puerto Rico without authorization, committed a
further criminal offense, neglected to notify his probation
officer of the ensuing arrest, journeyed to Vieques (a
specifically forbidden destination) at least twice, and failed
to inform the probation officer of his arrest there.
These multiple violations of the conditions of
probation forge a solid predicate for the district court's
finding that the appellant was unrepentant and demonstrated
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"blatant disregard for the law and for the rule of the law."
The court's conclusion that it should sentence the appellant
with a view toward "achiev[ing] the statutory objective of
promoting respect for the law and affording . . . adequate
deterrence" follows logically from this finding. These are
proper purposes, see 18 U.S.C. § 3553(a), and the aggregate
sentence imposed — twelve months' immurement — seems amply
justified by the appellant's obduracy. After all, the
appellant's persistent pattern of violative conduct, especially
when coupled with his continued display of defiance at the
probation revocation hearing itself, gave the court every reason
to consider a punishment severe enough to get his attention.
The appellant's rejoinder is unpersuasive. He neither
denies that he violated the conditions of his probation nor
challenges the lower court's decision to revoke the probationary
term in favor of a period of incarceration. He contends instead
that the sentences imposed, while within the statutory maxima,
are in the aggregate plainly unreasonable. To support this
contention, however, he offers only rank conjecture, arguing
that, notwithstanding the district court's carefully articulated
statement of its concerns, the court had either a hidden agenda
or an imperfect view of the law.
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It would serve no useful purpose to answer the
appellant's charges in exegetic detail. The probation
revocation hearing was meticulously conducted, and there is not
so much as a hint of legal error. By the same token, the record
offers no basis for doubting the court's statement of the
reasons underlying its sentencing determinations. Those reasons
are not only plausible on their face but also responsive to the
circumstances of the case — and we are unwilling to disregard
them on the strength of arguments woven entirely out of
speculation and surmise. Put bluntly, there is no credible
foundation on which to rest a conclusion that the district
court's sentencing judgments were influenced by an unspoken
premise, driven by some improper purpose, or shaped by a
mistaken view of the applicable legal principles. On this
record, the aggregate sentence was not unreasonable to any
degree.
We need go no further. We understand, as did the
district court, that the appellant acted out of conviction — but
allegiance to a cause, no matter how deeply grounded, does not
require endless leniency in sentencing. When a criminal
defendant, subject to unambiguous conditions of probation,
deliberately flouts them, the rule of law consequences must
attach. So it is here — and the cumulative twelve-month
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sentence imposed by the district court appears to be a
reasonable response to the appellant's stubborn insistence on
continuing his chosen course of conduct notwithstanding the
constraints imposed by the conditions of his probation.
Affirmed.
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