United States v. Coombs

United States Court of Appeals
For the First Circuit

No. 16-1246

UNITED STATES OF AMERICA,

Appellee,

v.

CHRISTOPHER COOMBS,

Defendant, Appellant.

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

[Hon. George Z. Singal, U.S. District Judge]

Before

Lynch, Selya and Kayatta,
Circuit Judges.

James S. Hewes for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.

May 19, 2017
 SELYA, Circuit Judge. Defendant-appellant Christopher

Coombs strives to persuade us that the district court erred both

in denying his multiple motions to suppress incriminating evidence

and in fashioning his sentence. We are not convinced and,

therefore, affirm.

I. BACKGROUND

We rehearse the facts as supportably found by the

district court following an omnibus hearing on the appellant's

several motions to suppress. See United States v. Gamache, 792

F.3d 194, 196 (1st Cir. 2015); United States v. Paneto, 661 F.3d

709, 711-12 (1st Cir. 2011).

In the wake of his 2009 conviction on drug-trafficking

charges, the appellant was sentenced to a fifteen-month term of

immurement to be followed by a five-year term of supervised

release. He served his prison sentence but, during his final six

months under supervision, he again found himself on the wrong side

of the law.

In October of 2014, Customs and Border Protection (CBP)

agents intercepted a package at John F. Kennedy International

Airport in New York. An air waybill — a document completed by the

sender that includes the package's origin, destination, and a

description of its contents — accompanied the package. The air

waybill indicated that the package was from "Marry" in Shanghai

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and was to be delivered at the appellant's residence in Westbrook,

Maine. The contents were described as "[p]olycarbonate."

Inspection of the contents revealed an amber-colored

crystal (a rock-like substance). The agents conducted a chemical

field test and received a reading that was positive for

methylenedioxymethamphetamine (MDMA), commonly known as ecstasy.

A second analysis, conducted in Portland, Maine, at a Department

of Homeland Security (DHS) facility, detected alpha-

pyrrolidinopentiophenone (alpha-PVP), a type of synthetic

cathinone. Synthetic cathinones are colloquially known as bath

salts.1

On October 31, DHS agents and local police, in

conjunction with the U.S. Postal Service, executed a controlled

delivery of the package (with the contents safely removed) to the

appellant at his Westbrook address.

While the controlled delivery was underway, the officers

sought an anticipatory search warrant for the appellant's

1 Bath salts are a relatively new phenomenon in the drug
enforcement arena. See Nat'l Drug Intelligence Ctr., U.S. Dep't
of Justice, Synthetic Cathinones (Bath Salts): An Emerging
Domestic Threat 5 (2011). They have come into use as surrogates
for better-known drugs such as ecstasy, methamphetamine, and
cocaine. See id. Of late, bath salts have become a particular
problem in Maine. See, e.g., McCue v. City of Bangor, 838 F.3d
55, 57-60 (1st Cir. 2016); United States v. Ketchen, No. 1:13-cr-
00133, 2016 WL 3676150, at *7-9 (D. Me. July 6, 2016); Skoby v.
United States, Nos. 1:11-cr-00208, 1:14-cv-00352, 2015 WL 4250443,
at *3 (D. Me. July 13, 2015).

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residence. In support of probable cause, they represented, inter

alia, that the substance in the package had tested positive for

MDMA and alpha-PVP. A state magistrate issued the search warrant,

with the caveat that it should be executed only if the appellant

took the parcel inside his home.

As matters turned out, the appellant accepted the parcel

while standing outside the building, and the officers promptly

took him to the ground. He was arrested on the spot and never

brought the package into his home. The officers described the

appellant's manner at the time of the detention as "nerved up" but

cooperative. By the time that news of the warrant arrived at the

scene, the appellant already had consented to a search of his

residence and had signed a form to that effect.

Following the appellant's arrest, officers transported

him to the police station and read him his Miranda rights. See

Miranda v. Arizona, 384 U.S. 436, 478-79 (1966). The appellant

stated that he had ordered the package and some other shipments

from China on behalf of a third party. When packages arrived, the

appellant would deliver them to the requesting individual and would

be paid for his trouble. The intercepted parcel, he said,

represented the largest order that he had placed. When asked if

alpha-PVP "sounded familiar," he responded in the affirmative.

During a search of the appellant's residence, officers

seized a computer, a tablet, and five cell phones. Thereafter,

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the appellant — still in custody — exchanged telephone calls with

his wife. A standard recording at the beginning of each call

warned him that the conversations would be recorded and monitored.

When his wife noted that the authorities had taken his electronic

gear, he asked her to delete receipts from two e-mail accounts and

supplied her with the passwords. In a subsequent conversation,

the appellant sought to confirm that his wife had not only deleted

the receipts but also had emptied the trash folders to "make sure

they were deleted securely."

In due course, the government sought and received

warrants authorizing the search of the five cell phones found at

the appellant's residence and the two e-mail accounts that he had

mentioned to his wife. The search of the e-mails disclosed several

exchanges between the appellant and overseas pharmaceutical

companies, in which the appellant, in his own words, solicited

"apvp (or similar products)." In addition, he made inquiries as

to pricing and quantities and placed several orders.

Subsequent to the issuance of the last of the warrants,

the seized amber-colored crystal was subjected to more

sophisticated laboratory testing. This testing was conducted at

a Drug Enforcement Administration (DEA) laboratory. It revealed,

for the first time, that the substance was alpha-

pyrrolidinohexanophenone (alpha-PHP) rather than alpha-PVP.

Although these substances were (and are) both regulated as

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controlled substances — illegal bath salts — the two have different

chemical compositions.

At the time of the appellant's offensive conduct, alpha-

PVP was regulated pursuant to the Attorney General's authority to

designate controlled substances temporarily, as needed, in order

to "avoid imminent hazards to public safety."2 21 U.S.C. § 811(h);

see Schedules of Controlled Substances: Temporary Placement of 10

Synthetic Cathinones Into Schedule I, 79 Fed. Reg. 12,938, 12,938

(Mar. 7, 2014). On the other hand, alpha-PHP was (and is)

regulated as a controlled substance analogue, meaning that it is

"substantially similar" to a controlled substance, 21 U.S.C.

§ 802(32)(A), and thus may be regulated as such if intended for

human consumption, see id. § 813; see also McFadden v. United

States, 135 S. Ct. 2298, 2302 (2015) (explicating relevant

statutory scheme).

On January 15, 2015, a federal grand jury sitting in the

District of Maine handed up a two-count indictment against the

appellant. Count one charged possession with intent to distribute

alpha-PHP, a schedule I controlled substance analogue. See 21

U.S.C. §§ 802(32)(A), 813, 841(a)(1). Count two, which focused on

2Although it makes no difference for present purposes, alpha-
PVP has since been permanently designated as a schedule I
controlled substance. See Schedules of Controlled Substances:
Placement of 10 Synthetic Cathinones Into Schedule I, 82 Fed. Reg.
12,171, 12,172 (Mar. 1, 2017) (codified at 21 C.F.R.
§ 1308.11(d)(61)).

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the appellant's instructions to his wife to delete certain e-

mails, charged obstruction of justice. See 18 U.S.C.

§ 1512(b)(2)(B).

The appellant maintained his innocence and filed five

separate motions to suppress. Following an omnibus hearing, the

district court — ruling in an electronic order — deemed the first

suppression motion moot3 and denied the four remaining motions.

The appellant thereafter entered a conditional guilty plea to

counts one and two, see Fed. R. Crim. P. 11(a)(2), reserving the

right to appeal the denial of his quartet of motions to suppress.

Without objection, the district court calculated the

appellant's guideline sentencing range as fifty-seven to seventy-

one months. The court then sentenced the appellant to a concurrent

five-year incarcerative term on each count of conviction, to be

followed by five years of supervision. At the same time, the court

dealt with the appellant's admitted violation of his earlier

supervised release and imposed a 366-day incarcerative sentence

for that violation. The court decreed that the revocation-of-

3 The first suppression motion sought to challenge the
anticipatory search warrant, which had no effect unless and until
the appellant brought the package inside his residence. See
generally United States v. Ricciardelli, 998 F.2d 8, 10-11 (1st
Cir. 1993) (explaining use of anticipatory search warrants for
controlled deliveries of contraband). As events played out, the
officers detained the appellant before he brought the package
inside. Consequently, the government agreed to withdraw the
warrant and to disregard it as a basis for the search of the
appellant's home.

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supervised-release sentence would run consecutively to the

concurrent sentences imposed with respect to the offenses of

conviction.

The appellant moved to modify the judgment.

Pertinently, he sought to reduce his new term of supervision from

five years to three years. The court granted this entreaty in

part, reducing the supervised release term for count two to three

years (the statutory maximum for that count, see 18 U.S.C.

§§ 3559(a)(3), 3583(b)(2)). This timely appeal followed.

II. ANALYSIS

In this venue, the appellant challenges the denial of

four of his motions to suppress. We address the first two of these

motions together and then examine the other two motions separately.

Thereafter, we scrutinize the appellant's claims of sentencing

error.

A. Suppression.

We review a district court's findings of fact on a motion

to suppress for clear error. See United States v. Zapata, 18 F.3d

971, 975 (1st Cir. 1994). This standard requires us to accept not

only the court's factual findings but also the reasonable

inferences drawn from those discerned facts. See Paneto, 661 F.3d

at 711. Questions of law engender de novo review. See Zapata, 18

F.3d at 975.

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 1. The Second and Third Motions to Suppress. The

appellant's second motion to suppress sought to exclude evidence

obtained from the five cell phones found in his residence, and the

third motion sought to exclude messages recovered from the

appellant's two e-mail accounts. The appellant argues that there

was no showing of probable cause sufficient to justify the search

of his cell phones and e-mails.

A finding of probable cause does not demand proof beyond

a reasonable doubt. See United States v. Hoffman, 832 F.2d 1299,

1305-06 (1st Cir. 1987). As relevant here, it demands proof

sufficient to support a fair probability that a crime has been

committed and that evidence of that crime is likely to be found

within the objects to be searched. See United States v. Clark,

685 F.3d 72, 75-76 (1st Cir. 2012); United States v. Ricciardelli,

998 F.2d 8, 10-11 (1st Cir. 1993). The district court concluded

that the government's proffer passed through this screen. The

appellant's challenge to this conclusion rests on the assertion

that the affidavits accompanying the warrant applications

contained false information: that the amber-colored crystal in the

mailed package was alpha-PVP when, in fact, it was alpha-PHP.

A criminal defendant may impugn the veracity of an

affidavit supporting a search warrant if he can show that a false

statement, necessary to a finding of probable cause, was included

in the affidavit "knowingly and intentionally, or with reckless

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disregard for the truth." Franks v. Delaware, 438 U.S. 154, 155-

56 (1978). Evidence obtained as a result of a warrant will be

suppressed if "the defendant proves intentional or reckless

falsehood by preponderant evidence and the affidavit's

creditworthy averments are insufficient to establish probable

cause." United States v. Tanguay, 787 F.3d 44, 49 (1st Cir. 2015).

In this instance, the challenged affidavits were signed

by DHS Special Agent Gary Moulton. Moulton submitted two

affidavits: one in support of the search of the five cell phones

and the other in support of the search of the two e-mail accounts.

Each of Moulton's affidavits incorporated an earlier affidavit

from a member of the Westbrook Police Department, Augustin

Rodriguez, originally prepared in support of the application for

the anticipatory search warrant. See supra note 3. The appellant

does not allege that either Moulton or Rodriguez intentionally

misled the magistrate in order to obtain search warrants. The

question reduces, then, to whether the challenged statements in

the affidavit were made "with reckless disregard for the truth."

United States v. Ranney, 298 F.3d 74, 78 (1st Cir. 2002).

Hindsight is always 20/20 and, when viewed in

retrospect, the affidavits at some points mis-described the

contents of the package. As matters turned out, the package did

not contain alpha-PVP but alpha-PHP. It is apodictic, though,

that "[e]ven if a warrant issues upon an insufficient showing of

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probable cause, suppression may be inappropriate if the officers

involved have exhibited objective good faith." United States v.

Floyd, 740 F.3d 22, 32 (1st Cir. 2014). This makes perfect sense:

the purpose of suppression is to deter police misconduct, see

United States v. Leon, 468 U.S. 897, 918-21 (1984), and when law

enforcement officers have obtained a search warrant in good faith

and acted within its scope, there is "nothing to deter," id. at

921.

Even so, recklessness can defeat a claim of good faith.

We have explained that when an affiant "in fact entertained serious

doubts as to the truth" of his statements or when "circumstances

evincing obvious reasons to doubt the veracity of the allegations"

were present, the affiant can be said to have crossed the line

into recklessness. Ranney, 298 F.3d at 78 (quoting United States

v. Williams, 737 F.2d 594, 602 (7th Cir. 1984)); accord Tanguay,

787 F.3d at 52. In contrast, small inaccuracies in a warrant

affidavit do not invalidate the warrant if those inaccuracies

result from good-faith mistakes. See, e.g., United States v.

Capozzi, 347 F.3d 327, 332-33 (1st Cir. 2003) (emphasizing

importance of leeway for affidavits drafted by nonlawyers "under

significant time pressure"); United States v. Brunette, 256 F.3d

14, 20 (1st Cir. 2001) (holding that statement that "all" seized

images were pornographic when at least two of thirty-three were

not was misleading, but did not justify suppression). So, too,

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incorrect assertions made in good faith reliance on a third party's

errors, or even lies, do not demand suppression. See United States

v. Tzannos, 460 F.3d 128, 138 (1st Cir. 2006). Nor does sincere

reliance on incorrect technical data, even when law enforcement

officers themselves are to blame for the bevue. See United States

v. Barnett, 989 F.2d 546, 556-57 (1st Cir. 1993).

Here, the government's first line of defense is that

there was no false statement at all: read together, the affidavits

simply stated that the amber-colored crystal had tested positive

for MDMA and alpha-PVP (which was in fact true). But this is only

part of the story: the affidavits referred, several times, to the

substance itself as alpha-PVP.4 Neither the government nor the

defendant is entitled to cherry-pick an affidavit, focusing only

on portions of the affidavit that are helpful to that party's cause

and ignoring the remainder. See Clark, 685 F.3d at 76 (stating

that the probable cause analysis requires reading supporting

affidavits "as a whole"). By the time of the suppression hearing,

the government knew that the amber-colored crystal had been

identified definitively as alpha-PHP. Yet, a fair reading of the

affidavits as a whole shows, with conspicuous clarity, that they

4
For example, Rodriguez's affidavit specifically discussed
"remov[ing] a quantity of the Alpha-PVP" from the package before
the controlled delivery. Similarly, one of Moulton's affidavits
references the appellant's "receipt of a large quantity of Alpha
PVP" on the date of the controlled delivery.

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featured the assertion, later revealed to be mistaken, that the

amber-colored crystal was alpha-PVP. We therefore reject the

government's claim that there was no false statement at all.

To be sure, the affidavits did misstate a fact. Even

so, that the affidavits, in hindsight, misstated a fact does not

resolve the matter. Rodriguez signed his affidavit on October 31,

2014. Moulton signed the first of his two affidavits on November

6, 2014. He signed the second affidavit on November 14, 2014.

But the amber-colored crystal was not accepted for testing at the

DEA laboratory until November 14, and the results of that testing

were not made available to the DHS until December 9 (long after

all of the search warrants had been issued).

There is not a shred of evidence that, when the

affidavits were executed and submitted, either affiant knew (or

for that matter had any reason to believe) that the amber-colored

crystal was not alpha-PVP. The affiants' mistaken assertion was

made neither knowingly nor with reckless disregard for the truth.

Quite the opposite: the affiants relied on the only laboratory

test results then available to them — results that indicated,

albeit preliminarily, the presence of MDMA and alpha-PVP. The

appellant does not allege that these preliminary tests were

conducted negligently or that the affiants acted recklessly in

relying upon those results.

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 When all is said and done, the record in this case

contains nothing that shows that either affiant had the slightest

reason to entertain serious doubts about the accuracy of the

available test results. For aught that appears, the affiants

incorporated into their affidavits the best information known to

them. Law enforcement officers who prepare warrant affidavits are

expected to use care, but they are not expected to be clairvoyant.

That a small portion of the information contained in these

affidavits ultimately proved to be mistaken does not vitiate the

affiants' good faith. See Barnett, 989 F.2d at 556-57.

We could stop here but, for the sake of completeness, we

proceed to consider whether the affidavits, even without the

statements incorrectly referring to the amber-colored crystal as

alpha-PVP, would still demonstrate probable cause. We think that

they do.

To begin, the initial laboratory test results would not

need to be edited out of the Rodriguez affidavit. Regardless of

what the substance eventually proved to be, it is not false to say

that the initial tests returned positive readings for MDMA and

alpha-PVP. Thus, the Rodriguez affidavit, incorporated in the

later Moulton affidavits, would still be read to assert,

truthfully, that the contents of the package addressed to the

appellant tested positive for controlled substances.

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 Moreover, Moulton's affidavits would continue to state,

truthfully, that the appellant accepted delivery of the package

and that he asked his wife to delete receipts from his e-mail

accounts after learning that the police had seized his computer.

Given these and other statements, we are satisfied that the

affidavits, stripped of the false assertion, would still contain

enough true facts to establish a fair probability that evidence of

a crime would be found through a search of the appellant's cell

phones and e-mail accounts. See Tanguay, 787 F.3d at 50.

That ends this aspect of the matter. In the

circumstances of this case, the officers' good faith is manifest.

They gained no advantage by describing the amber-colored crystal

as alpha-PVP rather than alpha-PHP. Both were regulated as

controlled substances and, thus, we conclude that the officers

reasonably believed that they were dealing with an illicit drug

and identified that drug in a way that, though mistaken, did not

materially mislead the magistrate. Put another way, had the

affidavits referred exclusively to alpha-PHP, their force would

not have been diminished. To cinch the matter, the affidavits,

stripped of the false assertion, still make out a robust showing

of probable cause. It follows that no error, clear or otherwise,

tainted the district court's order denying the appellant's second

and third motions to suppress.

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 2. The Fourth Motion to Suppress. Consent is a well-

recognized exception to the requirement that police must have a

warrant to search one's home. See Schneckloth v. Bustamonte, 412

U.S. 218, 219 (1973); United States v. Laine, 270 F.3d 71, 74-75

(1st Cir. 2001). Here, the appellant challenges the denial of his

fourth motion to suppress, which sought to invalidate his consent

to the search of his residence and exclude the evidence gathered

as a result of that search.

The validity of a defendant's consent must be gauged

under the totality of the circumstances. See United States v.

Stierhoff, 549 F.3d 19, 23 (1st Cir. 2008). When evaluating the

totality of the circumstances, an inquiring court must look for

evidence of coercion, duress, confusion, and the like. See

Schneckloth, 412 U.S. at 227. A consenting party's mental

frailties may have a bearing upon this analysis. See United States

v. Watson, 423 U.S. 411, 424-25 (1976). But such frailties are

entitled to little weight in the abstract. See United States v.

Richards, 741 F.3d 843, 849 (7th Cir. 2014) (explaining that "a

person is not precluded from consenting to a warrantless search

simply because he or she suffers from a mental disease"); cf.

United States v. Palmer, 203 F.3d 55, 61-62 (1st Cir. 2000) ("In

the context of the voluntariness of a confession, a defendant's

mental state by itself and apart from its relation to official

coercion never disposes of the inquiry into constitutional

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voluntariness."). For weight to attach, there must be evidence of

some nexus between, say, the individual's mental condition and the

giving of consent, see United States v. Reynolds, 646 F.3d 63, 73-

74 (1st Cir. 2011), or some evidence that officers obtained consent

by exploiting a known vulnerability, cf. United States v. Hughes,

640 F.3d 428, 438-39 (1st Cir. 2011) (making same point in context

of allegedly coerced confession). When the evidence shows that

the consenting party was "responsive, lucid, and cooperative with

the police officers," post hoc claims of incompetency inspire

suspicion. Reynolds, 646 F.3d at 74.

In the case at hand, the appellant acknowledges that he

read and signed a consent form authorizing the search of his

residence. That form, among other things, specifically advised

him that he had a right not to consent to the search. He

nonetheless maintains that his consent was not voluntarily given.

He says that he had just been thrown to the ground and arrested,

and suggests that he was intimidated and under intense stress.

The record, however, undermines this suggestion: Moulton (whose

testimony was credited by the district court) stated that more

than twenty minutes elapsed between the appellant's arrest and his

consent to the search. The appellant appeared cooperative and

lucid throughout, even if a bit "nerved up." What is more, no

officer's weapon was drawn and no threats were uttered.

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 The appellant also argues that his history of mental

illness — anxiety, depression, and bipolar disorder — vitiated his

consent. But the record contains nothing in the way of persuasive

evidence that might show a nexus between the appellant's

psychiatric history and the giving of consent. Importantly, the

officers who testified observed no evidence of mental incapacity

during their interactions with the appellant. Overall, he seemed

calm, albeit nervous, and was "able to carry on a conversation."

In the last analysis, the voluntariness of the

appellant's consent presented an issue of fact for the district

court. We have said before that "[w]here the evidence supports

two plausible but conflicting inferences, the factfinder's choice

between them cannot be clearly erroneous." Laine, 270 F.3d at 76.

So it is here: there was ample record support for the district

court's conclusion that the appellant, even given his afflictions,

was not so stressed by the circumstances that his consent could be

regarded as either coerced or otherwise involuntary. We therefore

uphold the denial of the appellant's fourth motion to suppress.

3. The Fifth Motion to Suppress. Finally, the appellant

complains that the district court should have granted his fifth

motion to suppress and excluded his statements at the police

station following his arrest. In this regard, he notes that there

is no documentation either of the Miranda warning or of his

purported waiver of his Miranda rights. He does not deny, however,

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that the officers advised him of his Miranda rights before

interrogating him.

The appellant's argument gains no headway because

neither a signed waiver of Miranda rights nor any other form of

documentation is required.5 See Berghuis v. Thompkins, 560 U.S.

370, 384-85 (2010); see also United States v. Guzman, 603 F.3d 99,

106 (1st Cir. 2010) ("Oral waivers of Miranda rights are sufficient

. . . ."). Here, the government produced evidence that the

officers not only read the appellant his rights but also received

his verbal assurances that he understood those rights. To be sure,

the appellant again points to his history of mental illness to

suggest that his waiver of rights was not voluntary. The officers

testified, though, that he was cooperative and responsive during

the interview and that there was no reason to doubt the

voluntariness of his waiver. On a cold appellate record, we cannot

second-guess the district court's decision to credit the officers'

testimony. We therefore uphold the denial of the appellant's fifth

motion to suppress. See United States v. Pelletier, 469 F.3d 194,

5
We note, though, that the officers had recording equipment
available at the time of the interview but opted not to use it.
That decision was unfortunate: recording suspects' interviews is
a salutary way to eliminate future questions that may arise both
about how a particular interview was conducted and about what was
said. See United States v. Houlihan, 92 F.3d 1271, 1289 (1st Cir.
1996) (decrying policy of deliberately avoiding recording or
taking notes during pretrial interviews and explaining that
maintaining contemporaneous records safeguards against witnesses
changing their stories over time).

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201 (1st Cir. 2006) (indicating that findings of voluntariness

hinge on credibility determinations).

B. Sentencing.

This brings us to the appellant's claims of sentencing

error. As a general matter, we review such claims for abuse of

discretion. See Gall v. United States, 552 U.S. 38, 41 (2007);

United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). We first

resolve any claims of procedural irregularity and then address any

challenge to the substantive reasonableness of the sentence. See

United States v. Demers, 842 F.3d 8, 12 (1st Cir. 2016); Martin,

520 F.3d at 92.

Here, the appellant musters both procedural and

substantive claims. First, he assigns error to the district

court's decision to run his 366-day sentence for the violation of

his earlier supervised release term consecutively to his

concurrent five-year sentences for the offenses of conviction.

Second, he insists that those concurrent five-year sentences are

substantively unreasonable. We address these claims separately.6

1. Consecutive Sentence. The appellant assails the

district court's decision to run his 366-day sentence for violating

his earlier supervised release term consecutively to the

6In his appellate brief, the appellant advanced yet another
claim of sentencing error, challenging the five-year term of
supervised release imposed on count one. At oral argument in this
court, the appellant abandoned that claim.

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concurrent five-year sentences for the offenses of conviction. In

support, the appellant relies on 18 U.S.C. § 3584(a), which draws

a distinction between "terms of imprisonment imposed at the same

time" and those "imposed at different times." The sentences here

fell into the former classification and, with respect to that

classification, the statute provides that such sentences should

run concurrently "unless the court orders" otherwise. Id.

A decision as to whether to run sentences concurrently

or consecutively normally rests in the sentencing court's informed

discretion. See United States v. Román-Díaz, 853 F.3d 591, 597

(1st Cir. 2017); United States v. Carrasco-de-Jesús, 589 F.3d 22,

29 (1st Cir. 2009). Section 3584(a) does not create an exception

to this standard. The plain language of the statute makes pellucid

that a sentencing court has discretion to run sentences imposed at

the same time for different crimes either concurrently or

consecutively. In such a situation, the statute makes concurrent

sentences the default rule but gives the sentencing court

discretionary authority to deviate from that rule. See United

States v. García-Ortiz, 792 F.3d 184, 194 (1st Cir. 2015).

The appellant's challenge runs headlong into the abuse-

of-discretion standard of review. Given the district court's

concerns about the appellant's cavalier attitude toward the law,

see infra Part II(B)(2), we think that its decision to run the

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sentences consecutively fits comfortably within the compass of its

discretion.

Relatedly, the appellant argues that the imposition of

consecutive sentences in this case amounts to double-counting. In

his view, he is being punished twice for the same act because the

conduct underlying the counts of conviction forms the basis for

the revocation of his supervised release term. This argument,

too, lacks force.

Where, as here, conduct committed by a person while on

supervised release transgresses the criminal law as well as the

conditions of supervision, there is no legal impediment in

sentencing the defendant both as a criminal and as a supervised

release violator. See United States v. Chapman, 241 F.3d 57, 61

(1st Cir. 2001). Were the rule otherwise, a defendant would

effectively escape meaningful punishment for violating his

supervised release conditions. See id.

By the same token, there is no legal impediment to

imposing the sentences to run consecutively. See United States v.

Quinones, 26 F.3d 213, 216 (1st Cir. 1994). Indeed, the sentencing

guidelines envision precisely such a scenario:

[a]ny term of imprisonment imposed upon the
revocation of probation or supervised release
shall be ordered to be served consecutively to
any sentence of imprisonment that the
defendant is serving, whether or not the
sentence of imprisonment being served resulted

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 from the conduct that is the basis of the
revocation of probation or supervised release.

USSG §7B1.3(f).

2. Substantive Reasonableness. The appellant's last

plaint is that his concurrent five-year sentences are

substantively unreasonable. Specifically, he complains that these

sentences offend the "parsimony principle" because they are

"greater than necessary to achieve the purposes of sentencing."

United States v. Dunston, 851 F.3d 91, 100 (1st Cir. 2017); see 18

U.S.C. § 3553(a). Even though this plaint was not voiced below,

our standard of review is unsettled. See Demers, 842 F.3d at 14;

United States v. Ruiz-Huertas, 792 F.3d 223, 228 & n.4 (1st Cir.),

cert. denied, 136 S. Ct. 258 (2015). Here, however, the claim of

error fails regardless of which standard of review obtains.

Consequently, we assume — favorably to the appellant — that review

is for abuse of discretion.

A claim that a sentence offends the parsimony principle

is typically treated, for all practical purposes, as a claim that

the challenged sentence is substantively unreasonable. See

Dunston, 851 F.3d at 100. The appellant characterizes his claim

as such, and we will treat it accordingly.

With respect to a claim that a sentence is substantively

unreasonable, the key inquiry is whether the sentencing court has

articulated a plausible rationale and reached a defensible result.

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See Martin, 520 F.3d at 96. "There is more than one reasonable

sentence in virtually any case, and we will vacate a procedurally

correct sentence as substantively unreasonable only if it lies

'outside the expansive boundaries' that surround the 'universe' of

reasonable sentences." United States v. Matos-de-Jesús, ___ F.3d

___, ___ (1st Cir. 2017) [No. 16-1695, slip op. at 10] (quoting

Martin, 520 F.3d at 92). This formulation presents an appellant

with an uphill climb, and that climb is even steeper when, as in

this case, the challenged sentence is within a properly calculated

guideline sentencing range. See United States v. Clogston, 662

F.3d 588, 592-93 (1st Cir. 2011).

The appellant catalogues a litany of factors that, in

his view, justify greater leniency. As a youth, he endured sexual

and physical abuse, which led to homelessness when his mistreatment

proved too much. He has experienced a number of health-related

problems, including bipolar disorder, depression, anxiety, chronic

back pain, and hepatitis C. In addition, his family will suffer

from his absence: he is a father figure to his three stepchildren

(ages nine to twelve at the time of sentencing), and his wife

suffers from fibromyalgia.

We do not gainsay that this litany of mitigating factors

weighs in favor of leniency. The district court, though, took

pains to note that it gave these factors due weight. It then

mentioned several countervailing considerations and — having

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constructed a balance — set forth cogent reasons for nonetheless

imposing a mid-range sentence. For example, the court — which had

sentenced the appellant for his original drug-trafficking offenses

— expressed concern that his relatively short prison term for his

prior drug convictions already had taken the mitigating factors

into consideration. The court was entitled to weigh in the balance

the fact that it had given the appellant "a significant break" in

his earlier case. Following that lenient treatment, the appellant

had neither turned his life around nor learned to "obey the law."

Moreover, the court worried that the appellant continued to have

a "mentality that he [could] get away with something." The court

expressed particular skepticism about the appellant's claim that

he did not know that alpha-PHP was illegal.

The short of it is that the district court weighed all

of the relevant sentencing factors, see 18 U.S.C. § 3553(a), and

wove those factors into a plausible sentencing rationale. That it

did not weigh the factors as the appellant would have liked does

not undermine the plausibility of this rationale. See Clogston,

662 F.3d at 593 ("A sentencing court is under a mandate to consider

a myriad of relevant factors, but the weighting of those factors

is largely within the court's informed discretion.").

The district court also achieved a defensible result.

On this issue, the fact that the concurrent five-year sentences

were within the guideline range is deserving of some weight. See

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Rita v. United States, 551 U.S. 338, 347 (2007); United States v.

Rodríguez-Adorno, 852 F.3d 168, 178 (1st Cir. 2017). To complete

the picture, the sentences were "responsive to the nature and

circumstances of the offense, the characteristics of the offender,

the importance of deterrence, and the need for condign punishment."

Matos-de-Jesús, ___ F.3d at ___ [No. 16-1695, slip op. at 11]. So

viewed, the sentences were within the universe of reasonable

sentences for the offenses of conviction.

III. CONCLUSION

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

the judgment is

Affirmed.

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