United States Court of Appeals
For the First Circuit
No. 14-1262
UNITED STATES OF AMERICA,
Appellee,
v.
DELANO NELSON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Selya, Circuit Judges.
Angela G. Lehman on brief for appellant.
Seth R. Aframe, Assistant United States Attorney, and John P.
Kacavas, United States Attorney, on brief for appellee.
July 17, 2015
TORRUELLA, Circuit Judge. Appellant Delano Nelson
("Nelson") seeks review of his sentence for armed robbery. Finding
no reversible error in the proceedings of the district court, we
affirm Nelson's sentence.
I. Background
On October 17, 2011, two men later identified as Nelson
and Walter Williams robbed Hannoush Jewelers in Manchester, New
Hampshire. Nelson, who had only recently been released from an
eighteen-year incarceration for his role in a conspiracy to commit
armed robbery in Indiana, entered the store first and took a
brochure from an employee. Williams then entered the store,
wearing a mask and brandishing a silver handgun. At this point,
Nelson jumped over a display counter and ordered a second employee
to get down while Williams maintained control of the lobby.
Williams ordered the store manager to retrieve the cash from the
register. When the manager pressed the alarm button, Williams
demanded that the manager turn around and get down on his knees and
then struck the manager on the back of his head with the gun.
Nelson, meanwhile, ordered an employee to open the display case and
access the store's safe. The value of merchandise taken was an
estimated $212,332.00.
On November 4, 2011, three men in Halloween masks robbed
Kay Jewelers in Tilton, New Hampshire. Williams and Nelson were
identified as two of these men. Williams again brandished a silver
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handgun during the robbery. The total financial loss to Kay
Jewelers was $208,297.96.
On May 11, 2012, the government filed a criminal
complaint charging Nelson with two counts of interference with
commerce by threats or violence, in violation of 18 U.S.C.
§ 1951(a). On July 20, 2012, Nelson surrendered to the
authorities. A two-count indictment followed on August 22, 2012,
and Nelson pled guilty to both counts. The Presentence
Investigation Report ("PSR") calculated a Guidelines range of 97 to
121 months.1 The government requested an upward variance to 210
months. The district court sentenced Nelson to 168 months in
prison.
1
Under the United States Sentencing Guidelines, Count 1 had a
base offense level of twenty (U.S.S.G. § 2B3.1(a)). Six levels
were added for the use of a firearm (U.S.S.G. § 2B3.1(b)(2)(B)).
Two levels were added because the victim sustained a bodily injury
(U.S.S.G. § 2B3.1(b)(3)(A)). Two levels were added because the
loss exceeded $50,000 (U.S.S.G. § 2B3.1(b)(7)(C)), making the
adjusted offense level 30. Count 2 had a base offense level of
twenty (U.S.S.G. § 2B3.1(a)). Six levels were added for the use of
a firearm (U.S.S.G. § 2B3.1(b)(2)(B)). Two were added because the
loss exceeded $50,000 (U.S.S.G. § 2B3.1(b)(7)(C)), making the
adjusted offense level 28. Under the multiple count adjustment,
each count had a unit of one. These units were added to the
greater of the offense levels (thirty) for a total of thirty-two
for the combined adjusted offense level. Two levels were
subtracted for acceptance of responsibility (U.S.S.G. § 3E1.1(a)).
An additional level was subtracted because Nelson timely notified
the authorities of his intent to plead guilty (U.S.S.G.
§ 3E1.1(b)), making the total offense level 29. Nelson received a
criminal history score of three from the armed robbery he committed
in 1992, giving him a Criminal History Category ("CHC") of II. The
Guidelines recommendation for a defendant with a total offense
level of 29 and a CHC of II is 97-121 months.
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The court explained that it was "varying upward" because
"the nature of the offenses of conviction here are extremely
violent robberies . . . the nature of which isn't sufficiently
captured by the guidelines itself." The court added, "[T]he
defendant's criminal history paints a picture of someone who is
substantially more serious than a Criminal History Category II
defendant as the guidelines would characterize him." The court was
"particularly concerned by the fact that the defendant was most
recently incarcerated previously for in part his involvement in a
conspiracy to rob a jewelry store, and yet within 11 months . . .
he's back involved in multiple jewelry store robberies." The court
found that "the fact that his most recent conviction was for a
sentence of substantial length, that that did not deter him,
suggests that he does need to be removed from society for a
substantial period of time to protect society." The court did not
impose the sentence of 210 months requested by the government
because it believed that Nelson was trying to turn his life around.
The court then sentenced him to 168 months' imprisonment and noted
that Nelson had a limited right to appeal. This timely appeal
followed.
II. Analysis
Nelson argues that the district court "procedurally erred
when it pronounced a sentence of 168 [months] without adequately
explaining the sentence or complying with [U.S.S.G.] §
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4A1.3(a)(4)." In this regard, he attempts to make hay of the
district court's loose usage of the terms "departure" and
"variance." Nelson also contends that the sentence was
"substantively unreasonable where the guideline range as calculated
by the PSR was 97 - 121 months." According to Nelson, the district
court failed to follow U.S.S.G. § 4A1.3 "when it arbitrarily
announced a sentence of 168 months which effectively increased
Nelson's criminal history category (CHC) from a level II to a level
V or VI without the court ever stating as much."
This court reviews criminal sentences for both procedural
and substantive reasonableness:
We review the reasonableness of a criminal sentence under
an abuse-of-discretion standard. This is a deferential
standard, which recognizes the sentencing court's
superior coign of vantage. In reviewing a sentence, we
seek to ensure that it is both procedurally sound and
substantively reasonable. A sentence is procedurally
sound so long as the district court did not commit a
procedural error in arriving at the sentence. Examples
of procedural errors include: failing to calculate (or
improperly calculating) the Guidelines range, treating
the Guidelines as mandatory, failing to consider the
section 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain
the chosen sentence -- including an explanation for any
deviation from the Guidelines range. When assessing
procedural reasonableness, our abuse of discretion
standard is multifaceted. [W]e review factual findings
for clear error, arguments that the sentencing court
erred in interpreting or applying the guidelines de novo,
and judgment calls for abuse of discretion simpliciter.
Once we determine that the district court committed no
significant procedural error, we then consider the
substantive reasonableness of the sentence imposed under
an abuse-of-discretion standard. When conducting this
review, we take into account the totality of the
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circumstances, including the extent of any variance from
the [Guidelines Sentencing Range].
United States v. Trinidad-Acosta, 773 F.3d 298, 308-09 (1st Cir.
2014) (internal citations and quotation marks omitted).
The defendant argues that the sentencing judge imposed an
upward departure based on the inadequacy of the defendant's
criminal history category without complying with the attendant
procedural requirements. See U.S.S.G. § 4A1.3(a)(4)(A); see also
Fed. R. Crim. P 32(h). The threshold question, of course, is
whether the district court imposed such a departure or instead
imposed a variant sentence.
"A 'departure,' as explained by the Supreme Court, 'is a
term of art under the Guidelines and refers only to non-Guidelines
sentences imposed under the framework set out in the Guidelines.'"
United States v. Aponte-Vellón, 754 F.3d 89, 93 (1st Cir. 2014)
(quoting Irizarry v. United States, 553 U.S. 708, 714 (2008)).
"Variant sentences, by contrast . . . result from a court's
consideration of the statutory sentencing factors enumerated in 18
U.S.C. § 3553(a)." Id. The procedural requirements for variances
are more lenient than those for departures, as this court made
clear in United States v. Flores-Machicote:
Appellate review of federal criminal sentences
is characterized by a frank recognition of the
substantial discretion vested in a sentencing
court. Although the advisory guidelines are
the starting point and the initial benchmark,
a sentencing judge may draw upon his
familiarity with a case, weigh the factors
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enumerated in 18 U.S.C. § 3553(a), and
custom-tailor an appropriate sentence. It
follows that a sentencing court may not
mechanically assume that the GSR frames the
boundaries of a reasonable sentence in every
case. Rather, the court must take a flexible,
case-by-case approach: once the GSR is properly
calculated, sentencing becomes a judgment call
involving an intricate array of factors.
United States v. Flores-Machicote, 706 F.3d 16, 20-21 (1st Cir.
2013) (internal citations and quotation marks omitted). We have
found that a district court, when determining whether to apply a
variance, "may consider whether a defendant's criminal history
score substantially underrepresents the gravity of his past
conduct." Id. at 21 (citations omitted).
That is precisely what occurred here. The district court
at one point used the term "depart" but then expressly said that it
was "varying upward." It then explained its decision to impose an
above-the-range sentence by referencing not only the defendant's
criminal record but also several of the enumerated section 3553(a)
factors, including the seriousness of the offense, the need for
deterrence, and the need to protect the public. "In short, nothing
in the sentencing record persuades us that the district court
intended to or in fact applied an upward departure under U.S.S.G.
§ 4A1.3(a)(1)." Aponte-Vellón, 754 F.3d at 93. Thus, to the
extent that there was any procedural error - which we doubt - it
was harmless; the record makes clear that "the district court would
have imposed the same sentence as a variance in any event." Id.;
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see also United States v. Oquendo-Garcia, 783 F.3d 54, 56 (1st Cir.
2015) ("If there were any question, the court's explicit invocation
of 18 U.S.C. § 3553(a) at the time that it augmented the sentence
sheds light on the court's intent. For the simple reason that the
court varied, rather than departed, there was no Rule 32(h)
error.").
That brings us to Nelson's argument that his variant
sentence is substantively unreasonable. "In reviewing the
reasonableness of a sentence outside the Guidelines range,
appellate courts may . . . take the degree of variance into account
and consider the extent of a deviation from the Guidelines." Gall
v. United States, 552 U.S. 38, 47 (2007). Although a major
deviation must be supported by a more significant justification
than a minor one, no "extraordinary" circumstances are required to
justify a sentence outside the Guidelines range. See id. Nor
should the "percentage of a departure" be used "as the standard for
determining the strength of the justifications required for a
specific sentence." Id. The same holds true to the percentage of
a variance. Furthermore, we have held that when a sentence is
outside of the Guidelines range, "[t]he court's reasons for
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).
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"[T]he linchpin of a reasonable sentence is a plausible
sentencing rationale and a defensible result." Id. at 96. Such is
the case here. None of the forms of error articulated in
Trinidad-Acosta was evident in Nelson's sentencing. Rather, the
additional forty-seven months imposed on top of the Guidelines-
recommended 121 months reflect the sentencing judge's concerted
deliberation, a balance of the severity of the crimes with Nelson's
stated desire to reform his behavior. The numerical upward
adjustment and case-specific circumstances at issue here are akin
to those in United States v. Del Valle-Rodríguez, 761 F.3d 171 (1st
Cir. 2014), in which we upheld a variant sentence.
III. Conclusion
The upwardly variant sentence imposed on Nelson, which
was rooted in the circumstances of the offense and Nelson's
characteristics, reflects the sentencing judge's concerted
deliberation and balancing of the § 3553(a) factors. Because the
sentence was procedurally sound and substantively reasonable, the
judgment of the district court is therefore
AFFIRMED.
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