United States Court of Appeals
For the First Circuit
No. 10-1907
UNITED STATES OF AMERICA,
Appellee,
v.
RAYMOND VARGAS-DÁVILA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Boudin, Selya and Lipez,
Circuit Judges.
Tamara A. Barney, by appointment of the court, on brief for
appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Chief, Appellate Division, and Julia M. Meconiates,
Assistant United States Attorney, on brief for appellee.
August 19, 2011
SELYA, Circuit Judge. Raymond Vargas-Dávila challenges
as substantively unreasonable a sentence imposed in connection with
the revocation of a term of supervised release. After careful
consideration, we affirm.
The facts are straightforward. After the appellant pled
guilty to a single count of conspiracy to distribute narcotics, see
21 U.S.C. §§ 841(a)(1), 846, the district court sentenced him to
eighty-four months in prison and a four-year term of supervised
release. The appellant began serving his supervised release term
on October 6, 2006.
Less than halfway through that term, he violated the
conditions of his supervised release. On January 13, 2009, the
district court revoked the grant of supervised release and
sentenced him to an additional eleven months in prison, to be
followed by a new two-year period of supervised release. The
appellant unsuccessfully appealed this disposition. United States
v. Vargas-Dávila, No. 09-1303 (1st Cir. March 10, 2010)
(unpublished judgment).
The appellant served the incarcerative portion of the
revocation sentence and began serving his new term of supervised
release. On May 12, 2010, a probation officer notified the
district court by motion that the appellant had again violated
release conditions. In this regard, the probation officer noted
the appellant's unauthorized departure from Puerto Rico and his
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failure to advise the probation department prior to changing his
place of residence.
The district court issued an arrest warrant, and the
authorities detained the appellant in Chicago, Illinois, on May 14,
2010. Ten days later, the probation officer, in a supplementary
filing, alleged that the appellant had committed yet another
violation by neglecting to notify the probation department of his
earlier May 7, 2010 arrest within the allotted time.
At the revocation hearing, the appellant conceded the
violations. He asked that, should his existing term of supervised
release be revoked, the court impose a sentence at the bottom of
the advisory guideline sentencing range (GSR). The court rejected
this entreaty, revoked the period of supervision, and sentenced the
appellant to a fresh twenty-four months in prison. In explaining
its rationale for eschewing the GSR (five to eleven months), the
court noted that the guidelines were merely advisory and, given the
appellant's "history of non-compliance," a sentence beyond the GSR
was appropriate.
This timely appeal followed. In it, the appellant
challenges his sentence as substantively unreasonable. Among other
things, he argues that the sentencing court improperly considered
certain information while failing to consider relevant sentencing
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factors. We review the sentence for abuse of discretion.1 United
States v. Santiago-Rivera, 594 F.3d 82, 84 (1st Cir. 2010); United
States v. McInnis, 429 F.3d 1, 4 (1st Cir. 2005). The touchstone
of abuse of discretion review in federal sentencing is
reasonableness. Gall v. United States, 552 U.S. 38, 46 (2007). In
this context, "reasonableness is a protean concept, not an
absolute." United States v. Martin, 520 F.3d 87, 92 (1st Cir.
2008). Thus, any one of several sentences may be reasonable in a
particular case. Id. Consequently, we will set aside a sentence
only if the district court's determination falls outside the
"expansive boundaries" of the entire range of reasonable sentences.
Id.
Typically, the first step in reviewing the reasonableness
of a sentence is an evaluation of its procedural orthodoxy. Gall,
552 U.S. at 51; United States v. Madera-Ortiz, 637 F.3d 26, 30 (1st
Cir. 2011). Here, however, the appellant makes no claim that the
district court either miscalculated the GSR or otherwise committed
a procedural error. Accordingly, we proceed directly to the
substantive reasonableness of the sentence.
An inquiry into the substantive reasonableness of a
sentence must "take into account the totality of the circumstances,
including the extent of any variance from the Guidelines range."
1
Of course, a material error of law invariably constitutes an
abuse of discretion. See United States v. Anon. Deft., 629 F.3d
68, 73 (1st Cir. 2010).
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Gall, 552 U.S. at 51. We glean the sentencing court's rationale
from the transcript of the sentencing hearing, see 18 U.S.C.
§ 3553(c), the court's written statement of reasons, id.
§ 3553(c)(2), and an examination of the points argued by the
parties (including those memorialized in the presentence
investigation report). See Martin, 520 F.3d at 93; United States
v. Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en banc).
Congress enacted a specific statute, 18 U.S.C. § 3583(e),
to guide a sentencing court in the exercise of its discretion to
modify or revoke a term of supervised release. This provision
explicitly incorporates by reference some — but not all — of the
sentencing factors described in 18 U.S.C. § 3553(a). The
enumerated factors include the nature and circumstances of the
offense, id. § 3553(a)(1); the history and characteristics of the
offender, id.; the need for adequate deterrence, id.
§ 3553(a)(2)(B); the need to protect the public, id.
§ 3553(a)(2)(C); and the penological needs of the offender, such as
the need for special care or treatment, id. § 3553(a)(2)(D). While
the court must consider all of the incorporated section 3553(a)
factors, it need not do so mechanically. United States v. Dixon,
449 F.3d 194, 205 (1st Cir. 2006).
In the case at hand, the record makes manifest that the
district court sufficiently considered the relevant factors. The
hearing transcript reveals that the court assessed the nature and
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circumstances of the violations using the probation officer's
filings and the appellant's statements. It also examined the
appellant's past history of substance abuse. Emphasizing the
appellant's record of repeated non-compliance with release
conditions, the court found a term of imprisonment justified. This
finding implicitly took into account the need to afford adequate
deterrence and the need to protect the public from further crimes.
Against this background, the court mulled the GSR (five
to eleven months), which was based on a Grade C violation and a
criminal history category of three.2 It concluded that the
appellant's checkered record of non-compliance called for a term of
immurement significantly beyond that contemplated by the GSR. It
settled upon a penalty of twenty-four months.
Given that this was the appellant's second series of
supervised release violations, we think that this sentence is well
within the universe of reasonable sentences. It is said that past
is prologue, William Shakespeare, The Tempest act 2, sc. 1 (1611),
and a sentencing court is entitled to give considerable weight to
a defendant's failure to abide by the conditions of previous
sentences. The length of an increased sentence is necessarily a
judgment call and, within wide limits, deference is due to the
trier's on-the-spot perceptions. Here, we are confident that the
2
The appellant does not dispute the accuracy of this
taxonomy.
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lower court appropriately tailored the twenty-four month sentence
to reflect both the past behavior of the offender and the other
realities of the situation.
Contrary to the appellant's protestations, the sentence
imposed does not offend section 3583(e)(3). The appellant's
underlying criminal conviction was for a Class B felony. See 18
U.S.C. § 3559(a)(2). Thus, section 3583(e)(3) permitted the
sentencing court to impose a prison sentence of up to three years.
See United States v. Eirby, 515 F.3d 31, 36 (1st Cir. 2008). The
sentence actually imposed was comfortably below this maximum.
The appellant also contends that his sentence is
unreasonable because the district court improperly considered the
government's statement at the revocation hearing that he had
"demonstrate[d] a lack of respect for the Court's order[s]."
Relatedly, he calumnizes the court's observation that he had a
"history of non-compliance with the supervised release conditions."
In his view, these points are off-limits because they substantially
overlap with section 3553(a)(2)(A)'s instruction "to promote
respect for the law" — an instruction not incorporated into the
compendium of factors specifically incorporated by reference in
section 3583(e).
This argument is unavailing. Although section 3583(e)(3)
incorporates by reference, and thus encourages, consideration of
certain enumerated subsections of section 3553(a), it does not
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forbid consideration of other pertinent section 3553(a) factors.
See United States v. Williams, 443 F.3d 35, 47 (2d Cir. 2006).
Moreover, one of the incorporated provisions — the command that a
sentencing court must consider the need "to afford adequate
deterrence," 18 U.S.C. § 3553(a)(2)(B) — leads inexorably to the
conclusion that a sentencing court properly may consider a
defendant's history of non-compliance with conditions of supervised
release. See Williams, 443 F.3d at 48.
In a last-ditch argument, the appellant relies on United
States v. Franquiz-Ortiz, 607 F.3d 280 (1st Cir. 2010) (per
curiam). This reliance is mislaid. There, we vacated a sentence
because the scant record provided no explanation for the district
court's decision to impose the maximum sentence permitted. Id. at
282. Here, by contrast, the record satisfactorily reveals the
basis for the sentence imposed and the court sufficiently explained
its sentencing rationale.
We need go no further. "Sentencing under an advisory
guidelines regime is more art than science." United States v.
Anon. Deft., 629 F.3d 68, 78 (1st Cir. 2010). In this instance,
the district court used its superior coign of vantage, its
familiarity with the appellant's case, and its experience in
sentencing to arrive at a sentence within the universe of
acceptable outcomes. Grounding its sentencing determination in the
totality of the circumstances at hand, the court articulated a
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plausible rationale and arrived at a sensible result. No more is
exigible. See, e.g., id.; United States v. Carrasco-De-Jesús, 589
F.3d 22, 30 (1st Cir. 2009).
Affirmed.
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