United States v. Hunter

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit

No. 15-1603

UNITED STATES OF AMERICA,

Appellee,

v.

ANDRE HUNTER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. Nancy Torresen, U.S. District Judge]

Before

Howard, Chief Judge,
Selya and Kayatta, Circuit Judges.

Clifford B. Strike and Strike, Goodwin & O'Brien on brief for
appellant.
Thomas E. Delahanty II, United States Attorney, and Julia M.
Lipez, Assistant United States Attorney, on brief for appellee.

June 27, 2016
 SELYA, Circuit Judge. Defendant-appellant Andre Hunter

challenges his 235-month sentence, raising three discrete claims

of error. After careful consideration, we affirm.

Since this appeal follows a guilty plea, we draw the

facts from the change-of-plea colloquy, the undisputed portions of

the presentence investigation report (PSI Report), and the

transcript of the disposition hearing. See United States v.

Almonte-Nuñez, 771 F.3d 84, 86 (1st Cir. 2014). In mid-2014, the

Drug Enforcement Administration along with local law enforcement

agencies began investigating the appellant's activities in and

around Portland, Maine. The investigation confirmed that the

appellant was trafficking both heroin and cocaine, and that he

commanded a number of underlings. The appellant was arrested in

September, and a search of his home turned up drug paraphernalia

and around $30,000 in cash.

In due season, a federal grand jury returned an

indictment. A superseding indictment charged the appellant with

one count of conspiring to distribute heroin and cocaine and two

related specific-offense counts. See 21 U.S.C. §§ 841(a)(1),

846. The appellant eventually pled guilty to all three counts,

with no plea agreement.

The PSI Report recommended a base offense level of 30

(tied to drug quantity), see USSG §2D1.1(c)(5); a two-level

enhancement for the appellant's leadership role, see id.

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§3B1.1(c); a further two-level enhancement for engaging in a

pattern of criminal activity as a livelihood, see id.

§2D1.1(b)(15)(E); and a final two-level enhancement for

obstruction of justice, see id. §3C1.1. The appellant's extensive

criminal history — including a string of sex-related offenses and

two separate convictions for non-payment of child support — placed

him in criminal history category (CHC) V. Based on these findings,

the PSI Report calculated the applicable guideline sentencing

range (GSR) at 292 to 365 months (even though the statutory maximum

sentence on each count of conviction was twenty years).

At the disposition hearing, the appellant objected to

these guideline calculations, arguing, inter alia, that his early

guilty plea and overall recognition of the severity of his actions

qualified him for a three-level downward adjustment for acceptance

of responsibility. See id. §3E1.1. He also argued that his two

convictions for non-payment of child support should be counted

together as one conviction, thus yielding only a single criminal

history point and shrinking his CHC accordingly.

The district court convened the disposition hearing on

May 15, 2015. Premised on a revised drug-quantity finding, the

court lowered the appellant's base offense level to 28. The court

then accepted the probation office's recommended enhancements,

declined to credit the appellant for acceptance of responsibility,

and assessed a separate criminal history point for each of the two

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non-payment of child support convictions. Calculating the GSR to

be 235 to 293 months, the court imposed a bottom-of-the-range

sentence: 235 months. This timely appeal ensued.

Review of sentencing decisions is generally approached

through a two-step process. See United States v. Madera-Ortiz,

637 F.3d 26, 30 (1st Cir. 2011); United States v. Martin, 520 F.3d

87, 92 (1st Cir. 2008). "We begin by examining allegations of

procedural error." United States v. Rivera-González, 776 F.3d 45,

48 (1st Cir. 2015). Next, we consider challenges to the

substantive reasonableness of the sentence. See id. A sentencing

court's interpretations of the sentencing guidelines trigger de

novo review, though its findings of fact are evaluated only for

clear error. See United States v. Walker, 665 F.3d 212, 232 (1st

Cir. 2011). Where a sentencing court's "decision is based on

reasonable inferences drawn from adequately supported facts," that

decision is not clearly erroneous. United States v. Santos, 357

F.3d 136, 142 (1st Cir. 2004).

It is a bedrock proposition that procedural

reasonableness requires that a district court accurately calculate

the GSR. See Gall v. United States, 552 U.S. 38, 51 (2007); United

States v. Vázquez-Martínez, 812 F.3d 18, 22-23 (1st Cir. 2016).

This makes sense because "[t]he Guidelines provide a framework or

starting point . . . for the judge's exercise of [sentencing]

discretion." Freeman v. United States, 564 U.S. 522, 529 (2011).

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Here, the appellant's first claim of procedural error implicates

the district court's guideline calculations: he laments the

court's denial of a three-level downward adjustment for acceptance

of responsibility.

The guidelines instruct that if a defendant "clearly

demonstrates acceptance of responsibility for his offense," he may

receive a two-level downward adjustment. USSG §3E1.1(a). "If the

defendant receives this first-tier adjustment and if his offense

level, calculated without reference to the first-tier adjustment,

is 16 or more, [a] second tier comes into play." United States v.

Meléndez-Rivera, 782 F.3d 26, 29 (1st Cir. 2015). That second

tier provides an opportunity for an additional offense-level

reduction, contingent "upon motion of the government stating that

the defendant has assisted authorities in the investigation or

prosecution of his own misconduct by timely notifying authorities

of his intention to enter a plea of guilty, thereby permitting the

government to avoid preparing for trial and permitting the

government and the court to allocate their resources efficiently."

USSG §3E1.1(b).

The appellant maintains that he qualifies for both of

these reductions owing to his guilty plea and acknowledgment of

wrongdoings.1 The district court disagreed, and so do we.

The appellant claims an entitlement to both the first-tier
1

and the second-tier reductions even though the government never

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 To begin, a defendant has no automatic entitlement to a

downward adjustment for acceptance of responsibility. See United

States v. Franky-Ortiz, 230 F.3d 405, 408 (1st Cir. 2000). Here,

moreover, the district court supportably determined that the

appellant had obstructed justice. The court grounded this

determination on two primary justifications: a finding that the

appellant, after his arrest, had instructed another individual to

dispose of drugs stored in his residence; and a finding that the

appellant had lied to the probation office about the sale of his

motorcycle and then encouraged his girlfriend to help him cover up

the lie.2

The Sentencing Commission has explained that "[c]onduct

resulting in an enhancement [for obstruction of justice]

ordinarily indicates that the defendant has not accepted

responsibility for his criminal conduct." USSG §3E1.1, comment.

(n.4). Nevertheless, the imposition of such an enhancement does

not automatically place a downward adjustment for acceptance of

responsibility beyond a defendant's reach. "Ordinarily" does not

mean "always," and the guidelines recognize that such a reduction

made the gate-opening motion needed to reach the second tier.
Because his assignment of error fails on more substantive grounds,
we do not dwell on this irregularity.
2 Although the appellant attempts to challenge those findings
and the ensuing enhancement, that challenge is empty. After all,
the appellant admitted below that he had committed the obstructive
acts, and he also admitted that he had done so deliberately.

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may be appropriate in "extraordinary cases." USSG §3E1.1, comment.

(n.4); see United States v. Cash, 266 F.3d 42, 45 (1st Cir. 2001).

Such cases, though, are "hen's-teeth rare." United States v.

Maguire, 752 F.3d 1, 6 (1st Cir. 2014).

At any rate, the burden of proving acceptance of

responsibility rests with the defendant. See United States v.

Deppe, 509 F.3d 54, 60 (1st Cir. 2007). In this instance, the

appellant offers nothing in the way of persuasive evidence to

mitigate his blatant and twice-repeated obstruction of justice.

Actions have consequences, and this obstructive conduct was

antithetic to any meaningful acceptance of responsibility.

Accordingly, the sentencing court did not clearly err in viewing

the appellant's case as run-of-the-mine rather than extraordinary.

It follows that the court did not clearly err in declining to

adjust the appellant's offense level for acceptance of

responsibility.

The appellant's second claim of procedural error also

implicates the sentencing guidelines — more specifically, the

propriety of his placement in CHC V. This claim centers on his

two prior convictions for failing to pay child support. Although

the district court assigned separate criminal history points for

each of these convictions, the appellant contends that those two

convictions, collectively, should have counted for only one

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criminal history point. This contention runs headlong into the

actual language of the guidelines.

Some background is helpful to place this claim of error

in perspective. Determining a defendant's CHC is an essential

step in calculating his GSR. Here, the probation office assigned

the appellant eleven criminal history points (including one point

for each of his two non-payment of child support convictions).

This proposed criminal history score situated the appellant in CHC

V. See USSG 5, Pt. A. While retaining the two points for the two

non-payment of child support convictions, the district court

reduced the appellant's criminal history score to ten; but this

revised score still left the appellant in CHC V. See id.

The appellant challenges the district court's ruling,

arguing that the non-payment of child support convictions,

collectively, should have yielded only one criminal history point,

which would have reduced his criminal history score to nine and

situated him in CHC IV. In mounting this argument, the appellant

emphasizes a specific guideline provision, which states in

pertinent part that sentences separated by an intervening arrest

are to be counted separately in computing a defendant's criminal

history score. See id. §4A1.2(a)(2). The appellant asserts that

the record does not show that his prior convictions were separated

by an intervening arrest and, therefore, suggests that they should

not be treated separately. That suggestion leads nowhere.

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 Here, the offenses underlying the non-payment of child

support convictions were not brought in the same charging document,

and the sentences corresponding to those offenses were not imposed

on the same day. These facts are important because the guidelines

further provide that "[i]f there is no intervening arrest, prior

sentences are counted separately unless (A) the sentences resulted

from offenses contained in the same charging instrument; or (B)

the sentences were imposed on the same day." Id. So — regardless

of whether or not there was an intervening arrest — the guidelines

plainly dictate that the appellant's two convictions must be

treated separately. See, e.g., United States v. Gonzalez, 739

F.3d 420, 423 (9th Cir. 2013); United States v. Jones, 698 F.3d

1048, 1050-51 (8th Cir. 2012). It follows inexorably that the

district court's allocation of two criminal history points for

these two convictions was not error at all.

This brings us to the appellant's asseveration that his

235-month sentence is substantively unreasonable. Assuming,

without deciding, that our review is for abuse of discretion, see

United States v. Pérez, 819 F.3d 541, 547 (1st Cir. 2016); United

States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir.), cert. denied,

136 S. Ct. 258 (2015), the asseveration necessarily questions

whether the sentence is the product of "a plausible sentencing

rationale and a defensible result," Martin, 520 F.3d at 96. "In

assessing the substantive reasonableness of a sentence, it is

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significant that the sentence falls within the GSR," Madera-Ortiz,

637 F.3d at 30 — and here, the challenged sentence fell at the

nadir of the GSR.

In addition, the record reflects that the district court

thoroughly considered the sentencing factors identified by

Congress, see 18 U.S.C. § 3553(a), and offered a cogent and well-

supported explanation for its ultimate sentencing determination.

That explanation emphasized the especially harmful nature of the

appellant's criminal activities and the predictably dire

consequences of those criminal activities for the community. The

court added that the appellant's crimes were all the more

blameworthy because he was motivated by greed rather than by

addiction.

Faced with the district court's careful analysis

(including the court's recognition of positive factors, such as

the appellant's strong relationship with his mother and his

professed contrition), the appellant's primary rejoinder is that

the sentence is excessive because his crimes were "non-violent"

and, thus, merited a more "rehabilitative" approach. This

rejoinder fails for two reasons. First, the GSR itself took into

account the non-violent nature of the appellant's crimes. See

United States v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008).

Second, the appellant's argument overlooks the verity that "courts

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of appeals must grant district courts wide latitude in making

individualized sentencing decisions." Martin, 520 F.3d at 91.

The short of it is that "[r]easonableness entails a range

of potential sentences, as opposed to a single precise result."

United States v. Dixon, 449 F.3d 194, 204 (1st Cir. 2006). On

appeal, a sentence will be deemed substantively unreasonable if —

and only if — it "falls outside the expansive boundaries of that

universe." Martin, 520 F.3d at 92. This highly deferential

perspective leaves no room for us to disturb the sentence fashioned

by the court below. Simply put, there was no abuse of discretion

here.

We need go no further. For the reasons elucidated above,

the sentence is

Affirmed.

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