United States Court of Appeals
For the First Circuit
No. 15-1293
UNITED STATES OF AMERICA,
Appellee,
v.
TOMÁS SEPÚLVEDA-HERNÁNDEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Kayatta, Circuit Judges.
Michael C. Bourbeau and Bourbeau & Bonilla, LLP on brief for
appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Thomas F. Klumper, Assistant United States Attorney,
Senior Appellate Counsel, on brief for appellee.
March 16, 2016
SELYA, Circuit Judge. In this appeal, defendant-
appellant Tomás Sepúlveda-Hernández attempts to raise multiple
claims of sentencing error. Concluding, as we do, that his claims
are both unpreserved and unpersuasive, we affirm.
I. BACKGROUND
The facts and proceedings that culminated in the
challenged sentence are chronicled in our previous opinion, see
United States v. Sepúlveda-Hernández, 752 F.3d 22, 25-27 (1st Cir.
2014), and we assume the reader's familiarity with that account.
We offer only a synopsis here.
A jury convicted the appellant of a medley of crimes
stemming from his serial roles as the supplier to, part-owner of,
and eventual lessor of a drug-distribution network based in La
Trocha Ward, Vega Baja, Puerto Rico. See id. at 25-26. On appeal,
we trimmed the appellant's convictions (reducing them to
convictions for conspiracy and aiding and abetting the
distribution of drugs, simpliciter), vacated his sentence, and
remanded for resentencing. See id. at 31, 38. In the process, we
upheld the district court's drug-quantity determination, holding
the appellant accountable for 977 kilograms of marijuana. See id.
at 35-36.
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At resentencing, the district court, without objection,
recalibrated the guideline sentencing range (GSR)1: the appellant's
base offense level was 28, see USSG §2D1.1; a four-level
enhancement for a leadership role was added, see id. §3B1.1(a); a
designation of Criminal History Category I was made; and these
subsidiary findings cumulatively yielded a GSR of 121 to 151
months. The government argued for a top-of-the-range sentence.
The appellant sought a below-the-range sentence. The district
court proceeded to sentence the appellant at the apogee of, but
within, the GSR, imposing a 151-month term of immurement on each
count of conviction, to run concurrently. The court explained: "I
think the offense that you engaged in, the actions that you engaged
in, the amount of drugs, the persons that you harmed, seriously
creates a very serious and complex situation. . . . You were not
just a participant, a simple seller." This timely appeal followed.
II. ANALYSIS
In this venue, the appellant first asseverates that the
court below failed adequately to explain its reasons for the
1
In the interim between remand and resentencing, the United
States Sentencing Commission amended the sentencing guidelines in
a way that benefited the appellant. See USSG §2D1.1 (Nov. 2014);
USSG Supp. App. C., amend. 782 (effective Nov. 1, 2014). The
district court properly applied the revised guidelines at
resentencing (which took place on February 5, 2015). See United
States v. Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. 1990)
(explaining that unless some ex post facto problem interferes, the
sentencing court should employ the guidelines in effect at the
time of sentencing).
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sentence. Normally, claims of sentencing error are reviewed for
abuse of discretion. See Gall v. United States, 552 U.S. 38, 51
(2007); United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008).
But this standard of review is altered where, as here, the
appellant has failed to preserve a claim below. See United States
v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). In that event, review
is for plain error. See id. To prevail under plain error review,
an appellant must show "(1) that an error occurred (2) which was
clear or obvious and which not only (3) affected the [appellant's]
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings." Id.
The claim of error sub judice boils down to an assertion
that the district court did not adequately state its reasons for
imposing a sentence at the peak of the applicable GSR. Because
the appellant did not raise this claim below, our review is for
plain error.2
2
The government contends that the appellant has waived the
"failure to explain" issue by not raising it below. In support,
the government cites the decisions in United States v. McCabe, 270
F.3d 588, 590 (8th Cir. 2001), and United States v. Caicedo, 937
F.2d 1227, 1236 (7th Cir. 1991). But we have declined to follow
the approach taken in those cases. See United States v. Vazquez-
Molina, 389 F.3d 54, 57 (1st Cir. 2004) (holding that appellant
forfeited a similar challenge when he let the opportunity to raise
the challenge "slip" at sentencing); see also United States v.
Eisom, 585 F.3d 552, 556 (1st Cir. 2009). Thus, we reject the
government's waiver contention and, instead, treat the appellant's
claim of error as forfeited.
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Congress has made it abundantly clear that a sentencing
court is required to "state in open court the reasons for its
imposition of the particular sentence." 18 U.S.C. § 3553(c). This
statutory directive must be read "in a practical, common-sense
way." United States v. Dávila-González, 595 F.3d 42, 48 (1st Cir.
2010). Thus, it is sufficient for the sentencing court simply to
identify the main factors driving its determination. See United
States v. Vargas-García, 794 F.3d 162, 166 (1st Cir. 2015). Put
another way, the sentencing court's explanation need not "be
precise to the point of pedantry." United States v. Turbides-
Leonardo, 468 F.3d 34, 40 (1st Cir. 2006).
When a sentence is imposed within the GSR, the "adequate
explanation" requirement is less stringent than if the sentencing
court had imposed a variant sentence. See United States v. Ruiz-
Huertas, 792 F.3d 223, 227 (1st Cir. 2015); United States v.
Ocasio-Cancel, 727 F.3d 85, 91 (1st Cir. 2013). And in all events,
the sentencing court's rationale sometimes can be deduced by
comparing the parties' arguments at sentencing with the court's
actions. See United States v. Rivera-Clemente, ___ F.3d ___, ___
(1st Cir. 2016) [No. 13-2275, slip op. at 5].
Here (as noted above), the district court succinctly
summarized its reasons for imposing a 151-month sentence. The
court relied principally on the seriousness of the offense. See
18 U.S.C. § 3553(a)(2)(A). Though the court made a conservative
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drug-quantity estimate, see Sepúlveda-Hernández, 752 F.3d at 35-
36, it found that the sale of crack cocaine alongside the sale of
marijuana exacerbated the seriousness of the appellant's criminal
conduct. The sprawling nature of the enterprise and the large
number of participants in the drug ring compounded the gravity of
the crimes. See 18 U.S.C. § 3553(a)(2).
What is more, the court acknowledged the presence of
some mitigating factors. It counterbalanced those factors,
however, by acknowledging — at various points during the
disposition hearing — the deleterious impact of the appellant's
criminal conduct on the community, the appellant's victimization
of others, and the protracted duration (from at least 2002 to 2008)
of the illicit activities.
We have said before — and today reaffirm — that "[w]here
the record permits a reviewing court to identify both a discrete
aspect of an offender's conduct and a connection between that
behavior and the aims of sentencing, the sentence is sufficiently
explained to pass muster under section 3553(c)." United States v.
Fernández-Cabrera, 625 F.3d 48, 54 (1st Cir. 2010). We add that
an adequate explanation need not be an elaborate explanation.
Here, we find adequate the district court's succinct explanation
of why it imposed a top-of-the-range sentence. It follows, a
fortiori, that there was no error in this respect, plain or
otherwise.
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To be sure, Congress also has ordained that if the spread
in a particular guideline range exceeds 24 months, the sentencing
court must state "the reason for imposing a sentence at a
particular point within the range." 18 U.S.C. § 3553(c)(1). The
spread here is 30 months, so this provision applies. In this
instance, however, the court's explanation allows us to infer why
the court selected a sentence at the high end of the GSR. See
Rivera-Clemente, ___ F.3d at ___ [slip op. at 5]. Manifestly,
there was no plain error.
The appellant's next plaint is that the district court
ignored the parsimony principle. This plaint generally calls into
question the substantive reasonableness of the sentence, which
"depends largely on whether the sentence imposed represents a
defensible result supported by a plausible rationale." United
States v. Denson, 689 F.3d 21, 27 (1st Cir. 2012). Whatever the
standard of review,3 this claim of error lacks force.
The parsimony principle requires a sentencing court to
"impose a sentence sufficient, but not greater than necessary to
comply with" various enumerated purposes, see 18 U.S.C. § 3553(a),
3 If this claim of error is viewed as a specie of a claim of
substantive unreasonableness, the standard of review is uncertain.
See Ruiz-Huertas, 792 F.3d at 228 & n.4 (noting uncertainty about
whether a claim that a sentence is substantively unreasonable must
be preserved below). Here, however, we need not probe the point
more deeply: even under de novo review, the claim of error
founders.
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including recognition of the seriousness of the offense, respect
for the law, just punishment, deterrence, protection of the public,
and rehabilitation, see id. § 3553(a)(2). That principle, however,
recognizes that sentencing is more an art than a science: there is
not a single reasonable sentence for a particular defendant's
commission of a particular crime but, rather, a universe of
reasonable sentences. See United States v. Clogston, 662 F.3d
588, 592-93 (1st Cir. 2011). Here, the district court's founded
explanation of its sentencing rationale defeats the appellant's
claim: considering the nature, circumstances, and gravity of the
crimes of conviction and the appellant's central role in those
crimes, the sentence falls within the wide universe of reasonable
sentences. Put another way, "the sentence imposed represents a
defensible result supported by a plausible rationale." Denson,
689 F.3d at 27. So viewed, the parsimony principle was not
flouted.
Finally, the appellant suggests that his sentence is
infirm because the district court engaged in double counting. This
suggestion prescinds from the notion that the district court
erroneously relied on the appellant's role as a leader of the
criminal enterprise to justify the sentence — even though the court
already had factored the appellant's leadership role into the
sentencing calculus by imposing a four-level enhancement. See
USSG §3B1.1.
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We need not linger long over this off-handed suggestion.
Although double counting may in some iterations raise fairness
concerns, see, e.g., United States v. Maisonet-González, 785 F.3d
757, 764 (1st Cir. 2015), the appellant has not made out a
cognizable claim of double counting. Rather, the appellant throws
this claim into the mix as a seeming afterthought: he tacks it
onto the end of his brief in a single perfunctory sentence. Courts
are not required to do counsel's work, and we treat this forlorn
attempt to advance a double-counting argument as waived. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
(reiterating "the settled appellate rule that issues adverted to
in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived").
We hasten to add that even if this argument was not
waived, it would fail. In the criminal sentencing context, "double
counting is a phenomenon that is less sinister than the name
implies." United States v. Zapata, 1 F.3d 46, 47 (1st Cir. 1993).
When formulating its overall sentencing rationale, a sentencing
court is not normally foreclosed from considering the same nucleus
of operative facts that grounded an enhancement. See United States
v. Lilly, 13 F.3d 15, 19-20 (1st Cir. 1994). In the absence of an
express or implied prohibition — and we discern none here — a
district court may rely on a particular fact for multiple
sentencing purposes. See United States v. Reyes-Rivera, 812 F.3d
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79, 88 (1st Cir. 2016); United States v. McCarty, 475 F.3d 39, 46
(1st Cir. 2007).
So it is here. Though the sentencing court mentioned
the appellant's leadership role at the disposition hearing, it is
reasonably clear from the record that, in so doing, the court was
considering the facts underlying the appellant's leadership role
as those facts shed light upon sentencing factors made relevant by
18 U.S.C. § 3553(a). The overlap between the sentencing
enhancement under USSG §3B1.1 and the sentencing factors made
relevant by 18 U.S.C. § 3553(a) does not furnish a basis for a
claim of impermissible double counting. See Maisonet-Gonzalez,
785 F.3d at 764.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the appellant's sentence is
Affirmed.
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