United States v. Blewitt

United States Court of Appeals
For the First Circuit

No. 18-1356

UNITED STATES OF AMERICA,

Appellee,

v.

SETH J. BLEWITT,

Defendant, Appellant.

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

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Lynch, Selya, and Boudin,
Circuit Judges.

Leslie W. O'Brien on brief for appellant.
Halsey B. Frank, United States Attorney, and Benjamin M.
Block, Assistant U.S. Attorney, on brief for appellee.

April 5, 2019
 SELYA, Circuit Judge. Defendant-appellant Seth J.

Blewitt, who stands convicted of bank robbery, Hobbs Act robbery,

and a related firearms offense, challenges his sentence. He argues

that the sentencing court acted in contravention of the Supreme

Court's opinion in Dean v. United States, 137 S. Ct. 1170, 1178

(2017), and in the bargain, engaged in impermissible gender

stereotyping. Concluding, as we do, that the appellant's arguments

contain more cry than wool, we affirm.

I. BACKGROUND

Since this appeal follows a guilty plea, we draw the

relevant facts mainly from the change-of-plea colloquy, the

presentence investigation report (PSI Report), and the sentencing

transcript. See United States v. Rentas-Muñiz, 887 F.3d 1, 2 (1st

Cir. 2018); United States v. Dietz, 950 F.2d 50, 51 (1st Cir.

1991). But because one of the appellant's claims of sentencing

error is inextricably intertwined with the sentencing of his

accomplice (his then-wife, Cara Blewitt), we add certain

undisputed facts relating to her sentencing.

On May 28, 2017, the appellant, with his physiognomy

obscured by a winter hat and sunglasses, entered a bank in Bangor,

Maine. After telling the teller that he was "actually robbing

[her]," he proceeded to do just that. In carrying out the heist,

he neither threatened the teller nor displayed a weapon.

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Absconding with $500, the appellant joined Cara Blewitt in their

getaway vehicle.

This scene was reprised the next day, when the appellant

robbed a discount variety store. On that occasion, though, the

appellant was armed with a sawed-off shotgun. Cara Blewitt again

drove the getaway car.

Shortly after the second robbery, the police identified

the Blewitts as the robbers. Warrants were issued, and the couple

was arrested during a traffic stop. Several shotgun shells were

found on the appellant's person and in the Blewitts' car. A

further search of the vehicle revealed $300 in cash, a Remington

.22 long rifle, and hundreds of rounds of ammunition. Moreover,

a forensic examination of the appellant's cell phone disclosed

multiple internet searches related to robbery. These included:

"Hard up for cash? Rob a Dollar Store," "How nine out of every

ten muggers get away with it," and "Robbery: What is the best way

to rob a store?"

In due course, a federal grand jury sitting in the

District of Maine returned an indictment against the appellant.

The indictment charged him in three counts: bank robbery in

violation of 18 U.S.C. § 2113(a) (count 1); interference with

commerce by robbery in violation of 18 U.S.C. § 1951 (count 2);

and brandishing a firearm during and in relation to a crime of

violence in violation of 18 U.S.C. § 924(c)(1)(A) (count 3). The

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appellant initially maintained his innocence but, on November 30,

2017, reversed his field and pleaded guilty to all three counts of

the indictment. There was no plea agreement.

When prepared, the PSI Report recommended a guideline

sentencing range (GSR) for counts 1 and 2, as a group, of 37 to 46

months. By statute, count 3 required a mandatory minimum sentence

of 84 months to run consecutively to any sentence imposed on the

grouped counts (counts 1 and 2). See 18 U.S.C. § 924(c)(1)(A)(ii).

Cara Blewitt was prosecuted separately and the case

against her followed a somewhat different course. She admitted

her involvement in the robberies shortly after her arrest, waived

indictment, and was charged in an information. While the

information charged her with the same two robbery offenses with

which her then-husband was charged, it did not charge her with a

firearms offense. She pleaded guilty to both counts of the

information.

Cara Blewitt's sentencing hearing was held on March 26,

2018. The district court expressed concern about the potential

disparity in the sentences that she and the appellant faced. The

court questioned why the government had chosen not to bring

identical charges against both spouses, suggesting that the

government's charging decisions had been influenced by assumptions

about the gender roles of the defendants. The government responded

that it did not believe it had sufficient evidence to charge Cara

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Blewitt with the firearms offense. The court was not satisfied:

it noted that the probation department had recommended a minor

role reduction for Cara Blewitt, see USSG §3B1.2(b), and wondered

why the government had not opposed that reduction, again suggesting

that the government's decision was premised on gender

stereotyping. The government rejoined that Cara Blewitt was less

culpable than the other participant. Despite its reservations,

the court followed the probation department's recommendations,

calculated Cara Blewitt's GSR to be 46 to 57 months,1 and sentenced

her to a downwardly variant 33-month term of immurement.

The district court convened the appellant's sentencing

hearing approximately two weeks after Cara Blewitt's sentencing.

The court adopted the guideline calculations limned in the PSI

Report and set the appellant's GSR for the grouped counts at 37 to

46 months. It then remarked the 84-month consecutive sentence

mandated with respect to the firearms count. After again voicing

its concern with the disparity between Cara Blewitt's recently

imposed sentence and the appellant's prospective sentence, the

court suggested that "typical gender roles" may have influenced

the government's charging decisions. The court went on to sentence

the appellant to a downwardly variant 24-month term of immurement

1
As calculated, Cara Blewitt's GSR for the grouped counts
exceeded the appellant's GSR for those counts. The reasons for
this discrepancy are not relevant here and, in all events, no one
has questioned any of the district court's guideline calculations.

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on the grouped counts, followed by a consecutive 84-month term of

immurement on the firearms count — a total of 108 months of

incarceration. This timely appeal ensued.

II. ANALYSIS

In this venue, the appellant advances two claims of

error. First, he submits that the district court committed

procedural error in failing to appreciate that it had discretion

to consider the mandatory sentence on the firearms count when

formulating the sentence for the grouped counts. Second, he

submits that the district court impermissibly engaged in gender

stereotyping when formulating his sentence and, thus, transgressed

his constitutional right to equal protection. We examine these

claims separately.

A. The Asserted Dean Error.

The appellant's first claim of error hinges on his

allegation that the district court determined his sentence on the

grouped counts based on a "mistaken belief" that it could not take

into account the mandatory minimum sentence that it would have to

impose on the firearms count. This is a claim of procedural error,

and we review claims of procedural error in sentencing appeals for

abuse of discretion.2 See Gall v. United States, 552 U.S. 38, 46

2 Although the record reflects some basis for questioning
whether this claim of error was properly preserved, the government
has adopted the position that our review is for abuse of
discretion. We take this concession at face value and apply the

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(2007); United States v. Torres, 541 F.3d 48, 51 (1st Cir. 2008).

"Within this rubric, we assay the district court's factfinding for

clear error and afford de novo consideration to its interpretation

and application of the sentencing guidelines." United States v.

Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).

The appellant rests this procedural challenge on a

single statement of the sentencing court: "Congress has mandated

that after I calculate the underlying sentence, I must impose an

84-month sentence if someone goes and brandishes a gun." This

remark, the appellant says, is a telltale sign that the court

committed the same procedural error that the Supreme Court

condemned in Dean. We do not agree.

Dean, like this case, involved a sentencing proceeding

at which the defendant was to be sentenced both for predicate

offenses that carried no mandatory minimum and for firearms

offenses that each carried a mandatory minimum. There, as here,

the mandatory minimum sentence had to be imposed to run

consecutively to the predicate-offense sentence. See Dean, 137 S.

Ct. at 1174-75. The defendant asked the sentencing court to take

his mandatory sentence into account when fashioning his sentence

abuse-of-discretion standard. See United States v. Encarnación-
Ruiz, 787 F.3d 581, 586 (1st Cir. 2015) ("When the government fails
to request plain error review, we, and many of our sister circuits,
review the claim under the standard of review that is applied when
the issue is properly preserved below.").

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on the predicate-offense counts and to impose a one-day sentence

on those counts. See id. at 1175. The district court responded

that even though the mandatory minimum sentence plus one day would

be "more than sufficient," it did not think that it could sentence

the defendant to one day for the predicate offenses simply because

the defendant was subject to a lengthy mandatory minimum sentence

for the firearms offenses. Id. The Eighth Circuit affirmed the

resulting sentence. See United States v. Dean, 810 F.3d 521, 533

(8th Cir. 2015).

The Supreme Court granted certiorari and vacated the

defendant's sentence, emphasizing that "[s]entencing courts have

long enjoyed discretion in the sort of information they may

consider when setting an appropriate sentence." Dean, 137 S. Ct.

at 1175. Given the breadth of this discretion, the Court concluded

that nothing in section 924(c) should be read to "restrict[] the

authority conferred on sentencing courts . . . to consider a

sentence imposed under § 924(c) when calculating a just sentence

for the predicate count." Id. at 1176-77. It follows that for a

sentencing court to engage in the conduct condemned in Dean, it

must have "erroneously believed it had to 'ignore the fact that

the defendant will serve the mandatory minimum[] imposed' under

section 924(c) when calculating a just sentence" for other

offenses. United States v. Vallellanes-Rosa, 904 F.3d 125, 128

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(1st Cir. 2018) (alteration in original) (quoting Dean, 137 S. Ct.

at 1174).

The statement identified by the appellant — "Congress

has mandated that after I calculate the underlying sentence, I

must impose an 84-month sentence if someone goes and brandishes a

gun" — is merely a statement of fact. It says what it means and

means what it says. It does not show, by any stretch of even the

most lively imagination, that the court below labored under any

misapprehension when sentencing the appellant on the grouped

counts.3 This conclusion is bolstered by the fact that nothing in

the sentencing transcript offers the slightest indication that the

district court either was unaware of Dean or believed that it could

not consider the mandatory minimum sentence for the firearms count

when determining the sentence for the grouped counts. Indeed, the

holding in Dean could hardly have escaped the district court's

notice: a discussion of that holding was featured prominently in

the PSI Report and the decision in Dean was highlighted by the

government at sentencing. To cinch the matter, the court below —

unlike the sentencing court in Dean — gave no hint that it wished

3 The most logical interpretation of the district court's
reference to calculating the underlying sentence is as an
acknowledgment that the court was following the usual praxis with
respect to the grouped counts, calculating the GSR and then
applying the sentencing factors delineated in 18 U.S.C. § 3553(a).
See, e.g., Peugh v. United States, 569 U.S. 530, 536 (2013); Gall,
552 U.S. at 49-50; Rita v. United States, 551 U.S. 338, 347-48
(2007).

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to limit the appellant's total sentence to something near the

mandatory minimum sentence but thought it could not do so.

That ends this aspect of the matter. In the absence of

anything resembling a Dean error, we reject the appellant's first

claim of error.

B. The Gender Stereotyping Claim.

This brings us to the appellant's claim that the

sentencing court violated his right to equal protection by

impermissibly considering his gender. Because the appellant did

not raise this claim of error below, our review is limited to plain

error. See United States v. Duarte, 246 F.3d 56, 60 (1st Cir.

2001). Plain error is a formidable standard of review, which

requires that an appellant demonstrate: "(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.

Inasmuch as the appellant challenges an action by the

federal government, his right to equal protection is grounded in

the Due Process Clause of the Fifth Amendment. See U.S. Const.

amend. V; see also González-Maldonado v. MMM Healthcare, Inc., 693

F.3d 244, 247 n.2 (1st Cir. 2012) (explaining that "the Due Process

Clause of the Fifth Amendment is treated as containing an equal

protection component that binds the federal government in the same

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way that the Equal Protection Clause [of the Fourteenth Amendment]

binds the states"). Our "approach to Fifth Amendment equal

protection claims has always been precisely the same as to equal

protection claims under the Fourteenth Amendment." Carrasco v.

Sec'y of HEW, 628 F.2d 624, 628 n.5 (1st Cir. 1980) (quoting

Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975)). Refined

to bare essence, the Constitution's guarantee of equal protection

"mean[s] that 'all persons similarly situated should be treated

alike.'" Pagán v. Calderón, 448 F.3d 16, 34 (1st Cir. 2006)

(quoting City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S.

432, 439 (1985)).

Here, the appellant argues that due to his gender, the

district court treated him more harshly than his similarly situated

accomplice when calculating their respective sentences.

Specifically, he points to the court's comment that, "one of the

factors that troubles me about the case is that the roles in the

robbery . . . are generally consistent with typical gender roles."

The court added that, "[i]t's an unusual male who is going to push

his girlfriend or wife out of a car and say, you go in and rob a

store or bank. The more typical situation would be that the male

would go in and the female would play the role of get-away driver."

From these remarks, the appellant surmises that the court

impermissibly considered his gender as a factor in the sentencing

calculus.

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 In mounting this claim, the appellant relies primarily

on United States v. Maples, 501 F.2d 985 (4th Cir. 1974). Maples,

however, is a horse of an entirely different hue. There, a man

and a woman entered a bank and perpetrated an armed robbery. They

pleaded guilty to identical charges. See id. at 985-86. The trial

judge sentenced the man to serve fifteen years and the woman to

serve ten years, after stating (with respect to the woman's

sentence): "I just don't believe in punishing women who

participated in a crime with the men on the same basis as a man.

. . . [B]ecause of your age and the fact that you are a woman, the

Court will not incarcerate you for quite as long as I did your co-

defendant." Id. at 986. The male defendant appealed, and the

Fourth Circuit vacated his sentence. See id. at 987. The court

explained that "[i]t is manifest from the statement of the district

judge, in sentencing [the female defendant], that at least a part

of the leniency shown her vis-a-vis her codefendants, was the fact

that she was a woman." Id. The court concluded that "the factor

of sex [is] an impermissible one to justify a disparity in

sentences." Id.

We have no quarrel with the decision in Maples. Here,

by contrast, the appellant and Cara Blewitt were not similarly

situated. Most notably, the appellant was convicted of a firearms

offense (a violation of 18 U.S.C. § 924(c)), resulting in an 84-

month mandatory minimum sentence. Cara Blewitt was not charged

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with any such crime. In addition, Cara Blewitt qualified for a

mitigating role adjustment (as a minor participant in the second

robbery), while the appellant never even requested such an

adjustment.

We add, moreover, that the district court at no time

indicated an intent to sentence one defendant more harshly or more

leniently based on gender. To the contrary, the record makes

manifest that the court was concerned about the looming disparity

between the two participants' sentences and was openly critical of

the government's charging decisions. In the end, the court

attempted to make the sentences more equal, giving the appellant

a sentence that was 13 months below the bottom of his GSR precisely

because of concerns about disparity. The court added that if the

appellant had been acting alone and disparity had not been a

concern, it would not have hesitated to impose a stiffer sentence.

The sentencing court's use of a downward variance to

mitigate perceived disparity was well within its discretion. After

all, avoiding unwarranted disparities in sentencing among

similarly situated defendants is "a salient consideration in the

fashioning of a criminal sentence." United States v. Nuñez, 840

F.3d 1, 7 (1st Cir. 2016).

To say more would be to paint the lily. The appellant

has failed to make a plausible showing of any violation of his

right to equal protection, and plain error is plainly absent.

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III. CONCLUSION

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

the appellant's sentence is

Affirmed.

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