United States Court of Appeals
For the First Circuit
No. 13-2216
UNITED STATES OF AMERICA,
Appellant,
v.
FERNANDO CRESPO-RÍOS,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Thompson, Circuit Judges.
Jenifer Yois Hernández-Vega, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellant.
Rachel Brill for appellee.
May 22, 2015
LYNCH, Chief Judge. This is a sentencing appeal by the
government. On January 11, 2012, defendant Fernando Crespo-Ríos,
then aged 46, pled guilty to two crimes: (1) transferring obscene
material to a minor, and (2) possessing child pornography. The
Probation Office calculated a guideline sentencing range between 70
and 87 months, and a term of supervised release between 5 years and
life. On August 15, 2013, the district court sentenced the
defendant to imprisonment for the time that he had already served
-- which amounted to 13 days -- and 15 years of supervised release.
The government appeals this sentence as substantively unreasonable.
Because the district court failed to provide an adequate
explanation as required by law for this extraordinary variance, we
vacate the sentence and remand the matter for resentencing. Of
course, in remanding, we do not express any opinion as to what the
sentence should be.
I.
From August 2007 to April 2008, the defendant
communicated online with a Special Agent of the FBI, who was posing
as a twelve-year-old Puerto Rican girl. Despite being informed of
her age, the defendant's conversations were explicitly sexual in
nature. The defendant "used a web camera to transmit to the
'minor' on several occasions apparently live images of his genital
area and his erect penis." He also "repeatedly encourage[d] the
'minor' to engage in sexual activities with him or for him." He
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suggested that the minor "masturbate, model a g-string for him,
exchange underwear with him, bathe him, engage in sex or oral sex
with him, watch pornographic films before having sex, and have his
child." He asked the minor to meet him, or to transmit images of
herself.
Based on information learned from these chats, federal
agents secured a search warrant for the defendant's home and
computer. During their search, the FBI found between 300 and 600
images of child pornography. "[T]he images contained bondage, oral
sex with ejaculation, adults penetrating children and children
performing sex with other children." In addition, the FBI found a
video that "shows a girl of approximately thirteen (13) years old,
that has been tied by her neck, ankles and wrists, while an adult
performed oral, vaginal and anal sex."
The defendant was indicted on May 29, 2008, for knowingly
possessing both still images and movie files of minors engaged in
sexually explicit conduct, and knowingly attempting to transfer
obscene material to someone who was under the age of 16. He was
arrested the next day, and remained in jail until he posted a
secured bond of $100,000 on June 13, 2008, when he was released to
home incarceration. On September 16, 2008, the magistrate judge
modified the conditions of the defendant's release from home
incarceration to home detention with electronic monitoring. On
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August 3, 2010, the magistrate judge eliminated home detention and
electronic monitoring, and imposed a curfew.
On January 11, 2012, Crespo-Ríos entered a straight plea
to both counts of the indictment.1 The district court held a
sentencing hearing over a year later, on January 30, 2013. In the
Presentence Investigation Report ("PSR"), the Probation Office had
calculated a guideline sentencing range between 70 and 87 months
imprisonment, and identified no bases for a departure or a
variance. Crespo-Ríos requested a downward variant sentence of
time served, arguing that he had a low risk of recidivism, that
registering as a sex offender is a significant additional
punishment, and that U.S.S.G. § 2G2.2 is an "extremely flawed
Guideline." In response, the government asked the court to
sentence the defendant in accordance with the applicable sentencing
guidelines, between 70 and 87 months.
At the sentencing hearing, the defendant introduced a
psychological evaluation from Dr. José Méndez, dated August 22,
2009. The district court ordered an updated psychosexual report
1
The three and a half years that elapsed between the
defendant's indictment and plea is due in part to litigation
concerning his motion to suppress. On February 23, 2009, the
defendant filed a motion to suppress the evidence of child
pornography found at his home. On April 13, 2009, the magistrate
judge recommended denying the motion. On June 5, 2009, the
district court rejected the magistrate's recommendation, and
granted the motion to suppress. On June 8, 2011, we reversed the
district court's order and remanded with instructions to deny the
motion to suppress. United States v. Crespo-Ríos, 645 F.3d 37 (1st
Cir. 2011). The defendant pled guilty seven months later.
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"[b]ecause the only way that I'm going to be able to either depart
or go to a variance in this case is for me to be satisfied at this
time that defendant does not pose a threat to society in the sense
of coming forward and doing anything to children." The sentencing
hearing was rescheduled as a result.
The second sentencing hearing was held on August 15,
2013. Dr. Vanessa Berríos Méndez, who completed the requested
psychosexual report, testified about her findings. When the court
asked about the defendant's risk of recidivism, Dr. Berríos
responded: "I believe that the risk is low as long as he goes to
treatment . . . . [a]nd if he controls his substance abuse." The
defendant re-iterated his arguments for a sentence of time served,
particularly emphasizing the evidence of his low risk of
recidivism. The government asked the district court to consider
the other factors in 18 U.S.C. § 3553(a), including the need to
consider the seriousness of the offenses, to promote respect for
the law, to provide just punishment, and to avoid sentencing
disparities among similarly situated individuals.
Ultimately, the district court granted the requested
variance and sentenced the defendant to the time that he had
already served -- 13 days. The defendant was also sentenced to 15
years of supervised release with, among other conditions, no access
to the internet, a requirement that he register as a sex offender,
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and a requirement that he participate in sex offender treatment.2
By way of explanation, the district court stated:
[T]he Court considers that there are some
factors in this case that are salient, and
those are the personal history and
characteristics of the defendant as well as
the potential for rehabilitation. And in view
of this conclusion of the psychosexual
assessment report, the Court in this case will
enter into or grant a variance in this case.
The court's exclusive focus was on the personal history and
characteristics of the defendant. Although the court later
mentioned that the "offense" was "very serious," it did not explain
how it had factored that into its § 3553(a) analysis. And the
court offered no explanation about its ultimate view on the need
for general deterrence or the potential for sentencing disparities.
When the government objected, the district court explained that it
"ha[d] taken into consideration all the evidence that is really on
the record, and it consider[ed] that in this particular case and
taking into account the individualization of this defendant, the
sentence [was] justified." Although district courts must provide
a written statement of reasons for any sentence outside the
recommended guideline range, see 18 U.S.C. § 3553(c)(2), the
district court did not do so here. The government now appeals,
arguing that the defendant's sentence is substantively
unreasonable.
2
The defendant has made no objection to the conditions of
supervised release imposed in this case.
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II.
We review the substantive reasonableness of the sentence
imposed for abuse of discretion. Gall v. United States, 552 U.S.
38, 51 (2007). "There is rarely, if ever, a single correct
sentence in any specific case." United States v. Santiago-Rivera,
744 F.3d 229, 234 (1st Cir. 2014). Instead, we ask "whether the
sentence, in light of the totality of the circumstances, resides
within the expansive universe of reasonable sentences." United
States v. King, 741 F.3d 305, 308 (1st Cir. 2014). Generally
speaking, a sentencing court must explain the reasoning behind the
sentence it chooses.3 See United States v. Fernández-Cabrera, 625
F.3d 48, 53 (1st Cir. 2010). And, we will find no abuse of
discretion if "the court has provided a plausible explanation, and
the overall result is defensible." United States v. Torres-
Landrúa, 783 F.3d 58, 68 (1st Cir. 2015) (citation and internal
quotation marks omitted).
3
The lack of an adequate explanation can be characterized as
either a procedural error or a challenge to the substantive
reasonableness of the sentence. Compare United States v.
Rodríguez-Castro, 492 F. App'x 137, 142 (1st Cir. 2012) (analyzing
the adequacy of the explanation as a procedural claim), with United
States v. Madera-Ortiz, 637 F.3d 26, 30-31 (1st Cir. 2011)
(analyzing the same under substantive reasonableness). Although
procedurally required, the explanation is also relevant to the
substantive reasonableness inquiry. Cf. United States v.
McDonough, 727 F.3d 143, 165 n.15 (1st Cir. 2013) (considering
nominally procedural issue "to the extent that it bears on the
reasonableness of [the defendant's] sentence").
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There is no dispute that a district court can vary, even
dramatically, from a guideline sentencing range based on the
factors enumerated in § 3553(a). See Gall, 552 U.S. at 49-50.
Nevertheless, "the fact that a sentencing court possesses the raw
power to deviate from the guidelines does not mean that it can (or
should) do so casually." United States v. Martin, 520 F.3d 87, 91
(1st Cir. 2008).
Importantly, if the district court "decides that an
outside-Guidelines sentence is warranted, [it] must consider the
extent of the deviation and ensure that the justification is
sufficiently compelling to support the degree of the variance."
Gall, 552 U.S. at 50. The justification presented should be
commensurate with the degree of the variance such that "a major
departure should be supported by a more significant justification
than a minor one." Id.; see also Martin, 520 F.3d at 91 (noting "a
certain 'sliding scale' effect . . . in the penumbra of modern
federal sentencing law"); cf. United States v. Ofray-Campos, 534
F.3d 1, 42-44 (1st Cir. 2008) (vacating and remanding for
resentencing because the district court's explanation -- while
sufficient to warrant a variance -- "was not sufficiently
compelling to support" a sentence more than 24 years above the
guideline range). When faced with an inadequate explanation, "it
is incumbent upon us to vacate, though not necessarily to
reverse[,] the decision below to provide the district court an
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opportunity to explain its reasoning at resentencing." United
States v. Gilman, 478 F.3d 440, 446-47 (1st Cir. 2007) (citations
and internal quotation marks omitted).
In this case, the district court varied from 70 months
(the low end of the guideline range) to 13 days (the time already
served) for two serious crimes. When explaining its decision to
impose an extreme variance to an essentially non-incarcerative
sentence, the district court focused exclusively on the defendant's
potential for rehabilitation and low risk of recidivism. The
district court did not explain how it had weighed the other factors
laid out in § 3553(a), or why this particular sentence was
appropriate in light of these factors. Critically, there is no
explanation of how this sentence reflects the seriousness of the
crimes committed, avoids sentencing disparities, promotes general
deterrence, or promotes respect for the law.
These factors cannot be left out of the sentencing
calculus in cases like this. In United States v. Milo, 506 F.3d 71
(1st Cir. 2007), for example, we explained:
Full contrition and even a zero risk of re-
offense engage major concerns of sentencing;
incarceration is then perhaps not needed to
reform that individual, to protect the
community from him and to deter him from
committing new offenses. But punishment is
also meant to deter others, affirming the
seriousness of the crime and the penalties
that others will likely face and the
difficulty of avoiding punishment.
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Id. at 76. There, we held that the weight given to contrition, an
indicator for rehabilitation, could not justify the district
court's decision to sentence the defendant to time served (18 days)
when the PSR calculated a guideline sentencing range of 151 to 188
months for a drug trafficking offense. Id. at 72-73, 76-77; see
also Martin, 520 F.3d at 94 (citing Milo as an example of the
limits on a district court's reliance on rehabilitation).
To be clear, we do not decide whether the sentence
imposed in this case is substantively unreasonable. We reach only
the antecedent question of whether the district court provided an
adequate explanation for such a large variance. It did not.4 The
court's explanation focused on the defendant's own potential for
rehabilitation to the exclusion of other important sentencing
factors. The district court's explanation is incomplete, and hence
inadequate, to justify the extent of the variance imposed.
In other circumstances, we have filled in the gaps in a
district court's reasoning by looking to the arguments made by the
parties or laid out in the PSR. See United States v. Turbides-
Leonardo, 468 F.3d 34, 40-41 (1st Cir. 2006); see also United
States v. Dávila-González, 595 F.3d 42, 48-49 (1st Cir. 2010).
4
For the same reason, this is not a case in which the
district court simply gave more weight to some sentencing factors
over others. Cf. United States v. Clogston, 662 F.3d 588, 592-93
(1st Cir. 2011). We cannot defer to the district court's decision
concerning the relative weight of relevant factors when these
factors are left unexplained.
-10-
Nevertheless, "there are limits." Gilman, 478 F.3d at 446; see
also United States v. Perazza-Mercado, 553 F.3d 65, 75 (1st Cir.
2009). We are unwilling to infer that the court adequately
considered the other § 3553(a) sentencing factors from the record
in this case for two reasons.
First, and consistent with Supreme Court precedent in
this area, the extent of the variance requires a more significant
justification that must be made explicit. See Gall, 552 U.S. at
50. We note that there is no "mathematical formulation" to apply
in this analysis. See id. at 49. Nor is there a presumption that
such variances are unreasonable. See id. at 47. Rather, we hold,
as did the Supreme Court, that major variances in either direction
must be accompanied by an adequate explanation of the reasoning.
See id. at 50; see also Peugh v. United States, 133 S. Ct. 2072,
2084 (2013) (citing Gall, 552 U.S. at 51).
Accordingly, we have repeatedly advised sentencing courts
that "[t]he level of detail required varies depending on the
circumstances." United States v. Madera-Ortiz, 637 F.3d 26, 31
(1st Cir. 2011) (citation and internal quotation marks omitted).
A "sentence[] that fall[s] inside a properly calculated guideline
sentencing range require[s] a lesser degree of explanation than
those that fall outside the guideline sentencing range." Turbides-
Leonardo, 468 F.3d at 41. The greater explanation required for a
greater variance must be made on the record "to allow for
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meaningful appellate review and to promote the perception of fair
sentencing." See Gall, 552 U.S. at 50; see also United States v.
Arango, 508 F.3d 34, 47 (1st Cir. 2007) (stating that "[a]n
explanation in open court also furthers the weighty goals of
transparency and credibility for the justice system").
This explanation requirement applies regardless of the
direction of the variance -- up or down. See Turbides-Leonardo,
468 F.3d at 41. In this case, a more thorough explanation was
required since the district court varied so dramatically to a non-
incarcerative sentence without explicitly articulating its
evaluation of factors other than rehabilitation. The same would
hold true if, for example, a district court varied upwards despite
a much lower guideline sentencing range without an adequate
explanation of its consideration of all relevant factors. See,
e.g., United States v. Franquiz-Ortiz, 607 F.3d 280 (1st Cir. 2010)
(per curiam). Indeed, in United States v. Medina, 779 F.3d 55 (1st
Cir. 2015), we have just vacated two of a defendant's conditions of
supervised release and remanded for resentencing since the
conditions of release were inadequately justified. See id. at 62-
64, 71-73.
Second, the district court's consideration of the
neglected factors is far from self-evident from the record here.
Indeed, at the second sentencing hearing, the government argued
that "the focus should not only be rehabilitation," and asked that
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the sentence imposed "be one that also promotes respect for the
law, takes into consideration the seriousness of this offense, and
considers what is the just punishment that should be provided for
the offense." The district court did not conduct an on-the-record
evaluation of these factors, which are explicitly set forth in
§ 3553(a). Rather, it agreed only that "you have to take into
account the personal history and characteristics of the defendant,"
and did not repeat the other factors. It erroneously stated that
it was "not so sure that [the message sent to society] is one of
the criteria." Yet, "public confidence in enforcement of the law
is itself a value" recognized in § 3553(a). See Milo, 506 F.3d at
76; see also 18 U.S.C. § 3553(a)(2) (requiring sentences "to
promote respect for the law" and "to afford adequate deterrence to
criminal conduct"). Indeed, when discussing general deterrence,
the Sentencing Guidelines expressly refer to the need for "a clear
message [to] be sent to society." U.S.S.G. ch. 4, pt. A,
introductory cmt.
In addition, the government argued that the sentence
should "avoid potential sentencing disparities among similarly
situated individuals." The government advocated comparing the
defendant to others who had pled guilty to possession of child
pornography pursuant to a plea agreement. The government added
that relevant sentences in the District of Puerto Rico had ranged
from 30 months to 120 months. In response, the district court
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noted that it had "done variances and . . . given long supervised
release terms and no incarceration" in similar cases. Moreover,
the district court expressed its belief that, "when there is a plea
agreement, the issue of sentencing disparity is not as great as
when you have trials." Although defendants who plead guilty are
not similarly situated to those who do not, see United States v.
Rodríguez-Lozada, 558 F.3d 29, 45 (1st Cir. 2009), sentencing
disparities among only defendants who plead guilty are still
important. In this analysis, "consideration of sentencing
disparity primarily targets disparities among defendants
nationally." United States v. Ayala-Vázquez, 751 F.3d 1, 32 (1st
Cir. 2014) (citation and internal quotation marks omitted).
Finally, the district court mentioned the seriousness of
"the offense" once, in boilerplate fashion, after announcing the
sentence. The seriousness of these two crimes cannot be
understated. The possession of child pornography is far from a
"victimless crime." See Paroline v. United States, 134 S. Ct.
1710, 1727 (2014). Children are subjected to abuse, degradation,
and rape for the prurient perusal of those who keep purveyors of
these images in business. And, this defendant was also convicted
of transferring obscene material to a minor. Specifically, he
attempted to lure an apparent 12-year-old female victim into a
sexual relationship over the course of eight months. Beyond the
serious harm inherent in the possession of child pornography, this
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particular crime bore the potential to directly destroy a young
victim's normal life. Yet, the district court provided no
explanation as to how any of this weighed in its sentencing
decision.
In sum, there is an inadequate justification for the
extreme variance imposed since the district court did not explain
its consideration, if any, of several critical sentencing factors.
These include the need for the sentence imposed to reflect the
seriousness of the crimes committed, to promote respect for the
law, to deter others, and to avoid sentencing disparities
nationwide. We cannot and will not infer the district court's
reasoning on these factors based on the record in this case and the
degree of the variance imposed. We do not decide whether the
sentence imposed would be reasonable if supported by a fuller
explanation. We vacate the sentence and remand for resentencing
with instructions for the district court to consider, and explain,
all relevant sentencing factors for any sentence it imposes.
So ordered.
- Dissenting Opinion Follows -
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TORRUELLA, Circuit Judge, Dissenting. With due respect
to the majority, I am forced to dissent because I cannot support
what, in my view, is a selective reading of the record. Applying
the highly deferential standard of review mandated, I find the
district court's explanation adequate. Thus, I would affirm
defendant's sentence.
The majority states that the "court's exclusive focus was
on the personal history and characteristics of the defendant" to
the exclusion of the other § 3553(a) factors, and that the district
court did not "explicitly articulat[e] its evaluation of factors
other than rehabilitation." Moreover, it concludes that the
district court's explanation of the sentence "focused exclusively
on the defendant's potential for rehabilitation and low risk of
recidivism." However, a careful review of the entire record
reveals that the district court considered all the § 3553(a)
factors, explicitly articulated its evaluation of these factors,
and, in adequately explaining its chosen sentence, emphasized the
factors that it considered salient.
The majority's reading of the record is selective even
regarding the importance given by the district court to defendant's
rehabilitation and low risk of recidivism. In this regard, the
majority nowhere mentions other considerations to which the
district court gave substantial weight, as is evident from its
explanation, such as the defendant's mental health (his severe
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depression) and his high suicidal risk, defendant's progressive
recovery from these conditions, and the extent to which future
imprisonment may have a detrimental effect in this recovery
process. For example, the majority mentions that Dr. Vanessa
Berríos testified at the second sentencing hearing about the
defendant's low risk of recidivism. Yet, Dr. Berríos's psychosexual
assessment report, as well as her testimony, was far more
comprehensive than that. It covered defendant's battle with
depression since a young age, his high suicidal risk, his remorse,
and the lack of evidence suggesting sexual attraction to minors or
pedophile tendencies. Also, Dr. Berríos testified that the mental
health treatment the defendant would receive while incarcerated
would be inadequate as it would not be sex-offender treatment. Nor
does the majority mention that a Forensic Polygraph Report provided
to the court concluded that defendant had not engaged in deception
during his examination when he answered that he had never chatted
with any other minor about sex and that he had never violated any
court condition.
As recognized by the majority, the court stated that it
"ha[d] taken into consideration all the evidence that is really on
the record." This inevitably included the two psychosexual
assessment reports, the Forensic Polygraph Report, the testimony of
Dr. Berríos, and the sentencing memoranda from the parties, which
included a discussion of all the sentencing factors. This
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statement should be given "significant weight." See United States
v. Torres-Landrúa, 783 F.3d 58, 69 n.12 (1st Cir. 2015) (quoting
United States v. Santiago Rivera, 744 F.3d 229, 233 (1st Cir.
2014)).
Also, contrary to what the majority states, the district
court did consider and articulate its evaluation of the seriousness
of the offense in this case. The district judge clearly stated
that he was "not going to belittle the offense. It's a very
serious offense." He further stated that "given the offense
conduct, the court is at a crossroads as to the potential for this
defendant to replicate this kind of conduct in the future. I read
this offense conduct, and I was somewhat shocked." In addition,
the district judge also stated that he wanted to be sure "that the
defendant [did] not pose a threat to society in the sense of coming
forward and doing anything to children." The court's consideration
of the seriousness of the offense is also supported by the fact
that it correctly calculated and carefully reviewed the Guidelines
range, inasmuch as the seriousness of the offense "was clearly
considered by the Sentencing Commission when setting the Guidelines
ranges." See United States v. Gall, 552 U.S. 38, 54 (2007).
The district court also considered and articulated its
evaluation of the need to avoid potential sentencing disparities.
In fact, the majority's recounting of what was argued at the
sentencing hearing regarding the need to avoid sentencing
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disparities, and the district court's response to these arguments
belie the statement that it did not consider this factor. In
response to the government's argument that the need to avoid
potential sentencing disparities warranted a within-the-Guidelines
sentence, the district judge responded that "in cases similar to
this for possession of child pornography . . . I have done
variances and I have given long supervised release terms and no
incarceration." He also noted that the defendant had pled guilty,
instead of going to trial, and that "the issue of sentencing
disparity is not as great as when you have trials." This leads to
the inevitable conclusion that the district court did in fact
consider the need to avoid potential sentencing disparities.
Furthermore, the Supreme Court has stated that when a district
court correctly calculates and carefully reviews the Guidelines
range, as it did here, it necessarily gives significant weight and
consideration to the need to avoid unwarranted disparities. See
Gall, 552 U.S. at 54 ("As with the seriousness of the offense
conduct, avoidance of unwarranted disparities was clearly
considered by the Sentencing Commission when setting the Guidelines
ranges. Since the District Judge correctly calculated and
carefully reviewed the Guidelines range, he necessarily gave
significant weight and consideration to the need to avoid
unwarranted disparities.").
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The record also shows that the district court considered
the need for deterrence and to promote respect for the law.
Regarding these factors, the district judge stated that defendant
was extremely remorseful and that he was convinced that defendant
will never engage in the same kind of conduct. The court was of
the view that "a sentence of imprisonment may work to promote not
respect, but derision, of the law if the law is viewed as merely a
means to dispense harsh punishment without taking into account the
real conduct and circumstances involved in sentencing." Gall, 552
U.S. at 54.
From the discussion above, it is evident that the court
did not focus on "the personal history and characteristics of the
defendant" to the "exclusion of other important sentencing factors"
in giving a variant sentence, as the majority mistakenly concludes.
In this case, the record makes manifest that the court pondered all
the sentencing factors and decided, within its discretion, to give
more weight to the history and characteristics of the defendant,
which it considered a salient factor, and for which it even relied
on expert testimony, as it explained at the sentencing hearings.
"While a sentencing court must consider all of the applicable
section 3553(a) factors, it is not required to address those
factors, one by one, in some sort of rote incantation when
explicating its sentencing decision." United States v. Dixon, 449
F.3d 194, 205 (1st Cir. 2006); see also United States v. Zapata-
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Vázquez, 778 F.3d 21, 23 (1st Cir. 2015) ("Parsing through the
section 3553(a) factors mechanically is not required." (alterations
omitted) (internal quotation marks and citation omitted)). "Nor is
there any requirement that a district court afford each of the
section 3553(a) factors equal prominence. The relative weight of
each factor will vary with the idiosyncratic circumstances of each
case, and the sentencing court is free to adapt the calculus
accordingly." Dixon, 449 F.3d at 205 (internal citation omitted).
The same is true even when variant sentences are at issue. See
United States v. Del Valle-Rodríguez, 761 F.3d 171, 177 (1st Cir.
2014) (holding that "a sentencing court's obligation to explain a
variance requires the court to offer a plausible and coherent
rationale -- but it does not require the court to be precise to the
point of pedantry"); United States v. Aponte-Vellón, 754 F.3d 89,
94 (1st Cir. 2014) (affirming variant sentence and holding that
"[a]dmittedly, the district court did not go through each of the
§ 3553(a) factors one by one, but our caselaw does not demand such
an exhaustive approach"); Santiago-Rivera, 744 F.3d at 233
(affirming variant sentence and holding that "the court below may
not have waxed longiloquent but 'brevity is not to be confused with
inattention'" (quoting United States v. Turbides-Leonardo, 468 F.3d
34, 42 (1st Cir. 2006))).
Furthermore, this court has held that when the sentence
is outside of the Guidelines range, "[t]he court's reasons for
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deviation should typically be rooted either in the nature and
circumstances of the offense or the characteristics of the
offender." United States v. Martin, 520 F.3d 87, 91 (1st Cir.
2008) (emphasis added); see also Santiago-Rivera, 744 F.3d at 234.
That is precisely the case here, and the district court acted
within its discretion in following that principle.
The majority also states that this court will not fill in
"the gaps in [the] district court's reasoning by looking to the
arguments made by the parties or laid out in the PSR" because of
"the extent of the variance," its conclusion that the court failed
to articulate its evaluation of factors other than rehabilitation,
and its belief that it is not self-evident from the record that the
district court considered said factors. My disagreement with these
statements is two-fold. First, as previously discussed, it is
clear from the record that the court did evaluate (and articulate
its evaluation of) factors other than rehabilitation. Second, this
court has previously emphasized the importance of the appellate
court reviewing "the record as a whole to gauge the sentencing
judge's thought process." United States v. Gallardo-Ortiz, 666
F.3d 808, 813 (1st Cir. 2012) (internal quotation marks omitted)
(quoting United States v. Clogston, 662 F.3d 588, 592 (1st Cir.
2011)). To that effect, this court has been willing to fill in the
gaps in order to affirm upwardly variant sentences. See, e.g.,
Santiago-Rivera, 744 F.3d at 233 (affirming upwardly variant
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sentence and holding that "any gaps in the court's reasoning can
easily be filled by 'comparing what was argued by the parties or
contained in the pre-sentence report with what the judge did'"
(quoting United States v. Jiménez-Beltre, 440 F.3d 514, 519 (1st
Cir. 2006))). Clearly, this must cut both ways and not only in
cases involving upwardly variant sentences.
In sum, we "must review all sentences -- whether inside,
just outside, or significantly outside the Guidelines range --
under a deferential abuse-of-discretion standard." United States
v. Prosperi, 686 F.3d 32, 50 (1st Cir. 2012) (quoting Gall, 552
U.S. at 41). "Gall teaches that it is error to allow the dramatic
nature of variance to unduly influence our review for substantive
reasonableness." Id. (quoting United States v. Thurston, 544 F.3d
22, 25 (1st Cir. 2008)). "We have acknowledged that even when we
believe that a § 3553(a) goal is not met by a sentence, we must
consider the totality of the circumstances, and in particular
whether the sentence sacrifices that goal to satisfy other
legitimate competing interests of the sentencing regime." Id.
Applying these principles to the instant case, I am convinced that
the defendant's sentence must be affirmed. While the district
court's explanation for the sentence imposed focused on the factors
it considered more salient and did not explain some of the
government's contended § 3553(a) factors at the same length as
others, "[t]hat the sentencing court chose not to attach to certain
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. . . factors the significance that the appellant thinks they
deserved does not make the sentence unreasonable." Clogston, 662
F.3d at 592 (citing United States v. Anonymous Defendant, 629 F.3d
68, 78 (1st Cir. 2010)). Because the district court considered all
the relevant § 3553(a) factors to some degree, gave serious
consideration to the extent of the departure from the Guidelines,
and sufficiently explained the basis for its chosen sentence,
deference should be given to the sentencing court. Gall, 552 U.S.
at 51. Since the majority fails to do so, I respectfully dissent.
Finally, I want to emphasize that, on remand, the
district court should not be dissuaded from imposing the sentence
of its choosing. The district court may very well, within its
discretion, impose the same sentence of time served on defendant.
If it decides to do so, I strongly encourage it to explain its
chosen sentence in more detail, so that we may finally put an end
to this case.
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