United States v. Soto-Soto

United States Court of Appeals
For the First Circuit

No. 16-1444

UNITED STATES OF AMERICA,

Appellee,

v.

JOSUE SOTO-SOTO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

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

Eric Alexander Vos, Federal Public Defender, Vivianne M.
Marrero, Assistant Federal Public Defender, Supervisor, Appeals
Section, Eleonora C. Marranzini, Assistant Federal Public
Defender, and Franco L. Perez-Redondo, Research and Writing
Specialist, on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Juan Carlos Reyes-Ramos, Assistant United
States Attorney, on brief for appellee.

May 1, 2017
 SELYA, Circuit Judge. Defendant-appellant Josue Soto-

Soto appeals from a two-year sentence imposed following the

revocation of a term of supervised release. He complains that the

district court erred both in stating that it had granted him "two

previous opportunities" to reform his ways and in fashioning a

substantively unreasonable sentence. Finding his plaints

unpersuasive, we affirm.

I. BACKGROUND

The relevant facts are largely uncontested. On October

18, 2013, the appellant entered a guilty plea to a charge of being

a felon in possession of a firearm. See 18 U.S.C. §§ 922(g)(1),

924(a)(2). The district court sentenced him to eighteen months'

imprisonment, to be followed by three years of supervised release.

The appellant served the incarcerative portion of the sentence and

began serving his term of supervised release on November 3, 2014.

The appellant's new status got off to a rocky start: at

an intake interview, he disobeyed instructions to wait in the

reception area and fled from the probation office. Several months

later, the appellant was apprehended; and, on May 19, 2015, the

district court held a hearing to consider revocation of his

supervised release. In the end, the court did not revoke

supervised release but, rather, attached an additional condition

requiring cognitive behavioral treatment. Nevertheless, the court

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took pains to warn the appellant "that any future non-compliance

[would] result in the revocation of his [supervised release]."

On July 7, 2015, the probation officer, by motion,

informed the district court that the appellant had again violated

the conditions of his supervised release. The motion noted that,

on July 4, the appellant had been charged with aggravated domestic

abuse, domestic abuse by means of threats, and unlawful carrying

and use of bladed weapons in derogation of Puerto Rico law. See

P.R. Laws Ann. tit. 8, §§ 632(d), 633; id. tit. 25, § 458d. Even

though a local magistrate found probable cause to believe that

these charges were well-founded, the parties agreed to dispose of

the motion by adding anger management and domestic violence

counseling to the existing conditions of the appellant's

supervised release.

The matter came before the district court on January 15,

2016. Although the court made no express findings as to whether

the conditions of supervised release had been violated, it declared

that the appellant had "demonstrated a disregard and lack of

commitment towards the Court and the supervision conditions." Even

so, the court accepted the parties' agreement, allowed the existing

supervised release term to continue, and added anger management

and domestic violence counseling as additional conditions. The

court took the occasion, though, to issue "a stern warning,"

telling the appellant bluntly that this was his "last opportunity"

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and admonishing him that if he again failed to comply with his

supervised release conditions, the court would "not hesitate in

revoking [his] term of supervision." (Emphasis in original).

The third time was not the charm. Less than a month

after the January 15 hearing, the probation officer learned that

a participant in the appellant's transitional housing program

claimed that the appellant had supplied him with synthetic

marijuana. Moreover — after being asked to consent to a search —

the appellant had left the program without authorization. Though

the probation officer made arrangements for the appellant to re-

enter the program, the appellant absconded.

Once the appellant was back in custody, the probation

officer moved for revocation of his supervised release. On April

6, 2016, the district court convened a hearing. The appellant

admitted the allegations contained in the probation officer's

motion and asked the court to sentence him either to time served

or — if the court was unwilling to do so — to no more than five

months' imprisonment (the low end of the guideline sentencing

range), without any further term of supervised release. The

government demurred, pointing out that the appellant had

repeatedly flouted both the probation officer's instructions and

the supervised release conditions. With this tarnished record in

mind, the government proposed that the court choose between two

alternative dispositions. In the first instance, it recommended

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imposition of the statutory maximum term of immurement — two years,

see 18 U.S.C. § 3583(e)(3) — with no further period of supervised

release. Should that proposal not suit the court, the government

recommended, as an alternative, a sentence at the high end of the

guideline sentencing range (eleven months), to be followed by a

fresh term of supervised release. The probation officer agreed

with the suggestion for a two-year term of immurement, counselling

against a new term of supervised release because the appellant had

demonstrated that he "would not follow instructions."

The district court determined that the appellant had

violated the conditions of his supervised release. Relatedly, the

appellant had "demonstrated that he is unable to comply with the

conditions of his supervision." The court added that even though

the appellant had been "granted two previous opportunities and was

allowed to continue on supervision in an effort to assist him in

his reintegration to the community, he did not abide by the

supervision conditions." Consequently, the court revoked the

existing term of supervised release.

The court then turned to sentencing. Based on the

appellant's criminal history category (III) and the fact that the

original offense of conviction (felon in possession) was a grade

C violation, see USSG §7B1.1(a)(3), the court set the guideline

sentencing range at five to eleven months, see id. §7B1.4(a). The

court abjured the guideline range, however, and sentenced the

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appellant to two years' imprisonment (the statutory maximum), with

no new term of supervised release. This timely appeal followed.

II. ANALYSIS

The appellant makes both a procedural and a substantive

challenge to his sentence. We discuss them in order.

A.

The appellant's claim of procedural error assails the

district court's characterization of the second revocation

proceeding as a second chance for the appellant to get his act

together. This misperception, he says, adversely affected the

court's sentencing calculus. Preserved claims of sentencing error

are typically reviewed for reasonableness, under an abuse of

discretion rubric. See Gall v. United States, 552 U.S. 38, 41

(2007); United States v. Montero-Montero, 817 F.3d 35, 37 (1st

Cir. 2016). Here, however, the appellant did not preserve the

claim of procedural error that he now advances.1 Our review,

1To be sure, the appellant's counsel stated, at the end of
the disposition hearing, that the appellant objected to the
sentence as "procedurally . . . unreasonable." No objection was
raised, however, to the court's "two previous opportunities"
comments. A general objection to the procedural reasonableness of
a sentence is not sufficient to preserve a specific challenge to
any of the sentencing court's particularized findings. To preserve
a claim of error for appellate review, an objection must be
sufficiently specific to call the district court's attention to
the asserted error. See United States v. Ríos-Hernández, 645 F.3d
456, 462 (1st Cir. 2011); United States v. Holmquist, 36 F.3d 154,
168 (1st Cir. 1994); United States v. Boylan, 898 F.2d 230, 249
(1st Cir. 1990).

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therefore, is for plain error. See United States v. Duarte, 246

F.3d 56, 60 (1st Cir. 2001). Under the plain error standard, the

appellant must show "(1) that an error occurred (2) which was clear

or obvious and which not only (3) affected the defendant's

substantial rights, but also (4) seriously impaired the fairness,

integrity, or public reputation of judicial proceedings." Id.

Plain error is plainly absent here.

The short of it is that the record supports the district

court's characterization. The appellant's first opportunity to

avoid a new prison sentence came during the May 19, 2015 revocation

hearing, when the district court decided not to revoke supervised

release despite the appellant's admission that he had violated

some of the pertinent conditions. Instead of ordering revocation,

the court allowed the appellant to remain free on supervised

release. The appellant does not dispute that this outcome

constituted an "opportunity," afforded to him by the court, to

remain out of prison.

The crux of the matter, though, is the January 15, 2016

revocation hearing, which the district court characterized as the

appellant's second blown opportunity to remain at liberty. The

appellant contends that this characterization was incorrect

because there was no finding that a factual or legal basis existed

to revoke his supervision and send him back to prison at that time.

The appellant's premise is sound: the court made no actual finding.

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But the conclusion that the appellant draws from that premise does

not follow.

To begin, the district court's characterization was not

a post hoc afterthought: the minutes of the January 15 hearing

reflect that the court expressly stated that it was granting the

appellant "a last opportunity."2 The court's contemporaneous

characterization of its own order is entitled to some weight. Cf.

Lefkowitz v. Fair, 816 F.2d 17, 22 (1st Cir. 1987) (explaining

that "uncertainty as to the meaning and intendment of a district

court order can sometimes best be dispelled by deference to the

views of the writing judge").

In all events, the appellant cabins the word

"opportunity" in a way that defies both common usage and common

sense. It is apodictic that appellate courts should "'allow a

good deal of leeway' in reviewing the adequacy of a district

court's explanation" of a sentencing determination. United States

v. Ofray-Campos, 534 F.3d 1, 38-39 (1st Cir. 2008) (quoting United

States v. Gilman, 478 F.3d 440, 446 (1st Cir. 2007)). Viewing the

outcome of the January 15 hearing as affording the appellant an

opportunity to redeem himself comports with common linguistic

usage. See, e.g., Opportunity, Merriam-Webster's Collegiate

Dictionary (11th ed. 2003) (defining "opportunity" broadly as "a

2 The appellant did not object to this portion of the minutes
(even though he objected to a different portion of the minutes).

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favorable juncture of circumstances"). It likewise comports with

common sense. After all, the court exercised its discretion to

accept a recommended outcome that permitted the appellant to remain

free on supervised release without having to defend himself against

the probation officer's charges. Had the court pressed ahead with

those charges, the appellant would have been at risk of revocation

(and, thus, of being returned to prison).

A district court, particularly when ruling from the

bench, cannot be expected to use language that is "precise to the

point of pedantry." Lenn v. Portland Sch. Comm., 998 F.2d 1083,

1088 (1st Cir. 1993). As long as the court's words reflect a

correct understanding of the law, the facts, and the state of

proceedings, no more is exigible. See United States v. Pelletier,

469 F.3d 194, 204 (1st Cir. 2006) (finding no error, even though

district court's word choice was "an awkward locution," since court

clearly understood the law); cf. Dopp v. Pritzker, 38 F.3d 1239,

1244 n.5 (1st Cir. 1994) (acknowledging that trial courts need not

be "letter-perfect in their syntax"). The court below satisfied

this standard. When all is said and done, we find no error, plain

or otherwise, in the court's characterization of the outcome of

the January 15 hearing as an "opportunity" afforded to the

appellant.3

3For the sake of completeness, we note that the appellant
actually received a third opportunity when — less than a month

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 B.

This leaves the appellant's claim that his two-year

sentence is substantively unreasonable. Inasmuch as this claim

was raised below, our review is for abuse of discretion. See

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

denied, 136 S. Ct. 258 (2015).

The touchstone of abuse of discretion review in federal

sentencing is reasonableness. See Gall, 552 U.S. at 46. In this

context, "reasonableness is a protean concept, not an absolute."

United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). 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." Gall, 552

U.S. at 51. The test is whether the sentence reflects "a plausible

sentencing rationale and a defensible result." Martin, 520 F.3d

at 96.

Here, our analysis starts with the relevant statutory

framework. Congress enacted 18 U.S.C. § 3583(e) to guide a

sentencing court in the exercise of its discretion when imposing,

inter alia, a sentence following the revocation of a term of

after the January 15 revocation hearing — he flouted his supervised
release conditions and left his transitional housing program
without authorization. Rather than notifying the court of this
lapse, the probation officer simply arranged for the appellant to
re-enter the program.

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supervised release. "The maximum sentence for a person who

violates the conditions of his supervised release varies based on

the severity of 'the offense that resulted in the term of

supervised release.'" United States v. Fontanez, 845 F.3d 439,

445 (1st Cir. 2017) (quoting 18 U.S.C. § 3583(e)(3)). For this

purpose, offenses are grouped in various categories. See 18 U.S.C.

§ 3583(e)(3). The parties agree that the underlying offense in

this case (felon in possession) is a class C violation, which bears

a maximum two-year sentence upon revocation of supervised release.

See id.

Section 3583 incorporates by reference some, but not

all, of the sentencing factors limned in 18 U.S.C. § 3553(a). See

United States v. Vargas-Dávila, 649 F.3d 129, 131 (1st Cir. 2011).

These incorporated factors include the nature of the offense, 18

U.S.C. § 3553(a)(1); the offender's history and characteristics,

id.; the need for deterrence, id. § 3553(a)(2)(B); and the need to

protect the public, id. § 3553(a)(2)(C). Although the court must

mull all of the incorporated factors, "it need not do so

mechanically." Vargas-Dávila, 649 F.3d at 131.

In the case at hand, the appellant asseverates that his

sentence is substantively unreasonable because his supervised

release was never before revoked and the sentencing record shows

no "plausible explanation" for the sentence. The force of this

asseveration is undercut to a significant extent by the appellant's

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course of conduct. Actions have consequences, and the appellant's

actions gave the district court ample reason to believe that only

a substantial sentence would deter him from his wayward practices.

By the same token, the appellant's actions showed that he was a

particularly poor candidate for a further term of supervised

release. As the court observed, from the very beginning, the

appellant "demonstrated that he [was] unable to comply with the

conditions of his supervision." This assessment was borne out by

the probation officer, who recommended that the appellant not be

given any term of supervised release because "he [did] not

cooperate or commit[] to the terms at all."

Even without any consideration of the incidents that

prompted the second revocation hearing,4 the record makes manifest

that the appellant was a serial violator of the conditions of

supervised release. He repeatedly left his transitional housing

program without authorization and failed, on several occasions, to

follow his probation officer's instructions. What is more, the

appellant was explicitly warned, during both the first and second

hearings, that any further violations would result in the

4 The district court's sentencing rationale did not address
whether or not the appellant actually committed the infractions
alleged in the motion that sparked the January 15 revocation
hearing. Instead, the court relied mainly on facts such as that
the appellant showed "poor judgment" and "repeated[ly] failed to
cooperate with the probation officer, the supervision strategies
and the work plan set out for him." Those discerned facts find
firm footing in the record.

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revocation of his supervised release (and, thus, in additional

prison time). These warnings went unheeded, and the court acted

well within its discretion in giving heavy weight to this checkered

history.

The court's rationale plainly justified a substantial

sentence. We recognize that the court proceeded to impose a

statutory maximum two-year sentence, notwithstanding that the

guideline sentencing range topped out at eleven months of

incarceration. See USSG §7B1.4(a). But the guideline ranges with

respect to sentences for revocation of supervised release are

merely advisory, see United States v. Work, 409 F.3d 484, 492 (1st

Cir. 2005) (citing USSG §§7B1.1-7B1.5), and the court had the

authority to vary upward from the applicable range so long as the

circumstances justified such a variance. We think that they did:

a high-end guideline sentence would in all likelihood have carried

with it a new supervised release term, see 18 U.S.C. § 3583(h),

and the appellant had given the court reason to believe that a new

term of supervised release would be fruitless. In view of the

appellant's demonstrated unwillingness to comply with conditions

of supervised release, the court's decision to eschew a new term

of supervision and instead impose a lengthier sentence seems

altogether appropriate.

The upshot, then, is that the court articulated a

plausible sentencing rationale and reached a defensible result.

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It considered the proper mix of sentencing factors (including the

appellant's history and characteristics, the seriousness of the

offense, promoting respect for the law, providing just punishment,

and furthering deterrence) and concluded that the "statutory

maximum term in this case [was] warranted." On this record, the

two-year sentence — though severe — did not "fall[] outside the

'expansive boundaries' of the entire range of reasonable

sentences." Vargas-Dávila, 649 F.3d at 130 (quoting Martin, 520

F.3d at 92).

III. CONCLUSION

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

the sentence is

Affirmed.

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