United States v. Kuljko

United States Court of Appeals
For the First Circuit

No. 19-2232

UNITED STATES OF AMERICA,

Appellee,

v.

STEPHAN KULJKO, JR.,
a/k/a Steven J. Kuljko, a/k/a Stephan Kuljko,

Defendant, Appellant.

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

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Howard, Chief Judge,
Selya, Circuit Judge,
and Gelpí,* District Judge.

John F. Palmer for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Andrew E. Lelling, United States Attorney, was on brief, for
appellee.

June 15, 2021

* Of the District of Puerto Rico, sitting by designation.
 SELYA, Circuit Judge. Mounting several disparate claims

of error, defendant-appellant Stephan Kuljko, Jr., a convicted

fraudster who hornswoggled dozens of victims out of millions of

dollars, asks us to annul the verdict returned by a jury after a

lengthy trial, set aside his convictions, and vacate his 156-month

incarcerative sentence. Concluding, as we do, that the appellant's

arguments are as empty as the glittering assurances that he offered

to those whom he defrauded, we affirm his convictions and sentence.

I

We briefly rehearse the travel of the case. The

government's investigation yielded copious evidence that the

appellant had masterminded two serpentine schemes, both

fraudulent, over a protracted period of time. One scheme involved

a bank account, supposedly frozen, which (the appellant

represented) contained large sums of money. The other scheme

involved an emerald, supposedly huge and extremely valuable, which

(the appellant represented) was being held in South America.

Spinning tales of riches there for the taking, the appellant

hoodwinked over forty victims and bilked millions of dollars from

them over a period that stretched for more than a decade.

When the facts surrounding the appellant's nefarious

activities came to light, a federal grand jury sitting in the

District of Massachusetts charged him with various crimes. A

superseding indictment, handed up on November 6, 2018, charged the

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appellant with five counts of wire fraud, see 18 U.S.C. § 1343,

and one count of obstruction of justice, see id. § 1503(a). The

obstruction-of-justice count was premised on an allegation that

the appellant, shortly after the original indictment was returned,

took steps to conceal some twenty-three motor vehicles that were

among the fruits of his fraudulent activity.

The appellant maintained his innocence and a twelve-day

jury trial ensued. The jury found the appellant guilty on four of

the five wire-fraud counts and on the obstruction-of-justice

count. The appellant was acquitted on the remaining wire-fraud

count. The district court sentenced the appellant to an upwardly

variant 156-month term of immurement. This timely appeal followed.

II

In this venue, the appellant advances two claims of trial

error and a cluster of claims of sentencing error.1 Since none

possesses even a patina of plausibility, we make short shrift of

them.

A

The appellant first argues that his convictions cannot

stand because the district court improperly refused to remove a

1To the extent that the appellant suggests other claims of
error, such claims are either fatally underdeveloped, patently
meritless, or both. We therefore reject them out of hand.

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juror (whom we shall call Juror 31) for cause. Some stage-setting

is useful.

Jury empanelment took place on August 5, 2019 (the day

before the trial itself started). At the lunch break, Juror 31 —

then a member of the venire — exchanged a brief salutation with an

assistant United States attorney (the AUSA) in the courthouse

cafeteria.2 The prosecutor reported this exchange to the district

court, which proceeded to conduct an individualized voir dire of

the juror. In response to the court's queries, Juror 31 said, in

substance, that her coworker's husband (the AUSA) worked in the

building; that she thought he might be a prosecutor; that she did

not know his surname; that she had met him "probably five times

and never had a conversation with him"; and that "he saw me at

lunch and said hi." She assured the court that — even assuming

that the AUSA toiled in the same office as the prosecutor — it

would not affect her ability to serve as a juror "because I only

know his wife, and we don't have conversations about him or what

happens here."

After the court's interrogation of Juror 31 had

concluded and the juror had left the courtroom, the district court

found her credible and advised counsel that it did not "see a

reason to excuse her." The appellant's attorney asked the court

2 In Boston, the United States Attorney's Office is housed in
the same courthouse as the United States District Court.

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to pose an additional question. The court obliged, had Juror 31

brought back to the courtroom, and inquired whether, given that

the AUSA was married to her coworker and served in the same office

as the prosecutor, it would "be awkward or uncomfortable if it

turned out you were on a jury that found a defendant not guilty

because it would be uncomfortable with your colleague at all?"

The juror replied in the negative and the district court again

found that she was qualified to serve on the jury. The appellant

neither objected nor asked the court to remove Juror 31 for cause.

And after the venire had been whittled down, the appellant's

attorney did not use a peremptory strike to eliminate Juror 31.

It thus came to pass that Juror 31 was seated as one of the twelve

trial jurors.

Before opening statements the next day, the district

court pointed out that, according to a memorandum describing

witness interviews, the AUSA — although not participating in the

appellant's trial — had participated in some portion of an

interview of a prospective witness. The court stated that, given

that the AUSA's wife worked with Juror 31, "[i]t would probably be

preferable not to mention [the AUSA's] name." Neither side

objected, and in line with the court's stated preference, the

AUSA's name was never mentioned before the jury.

On the third day of trial, the appellant — for the first

time — asked the district court to excuse Juror 31. The court

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refused to do so. Two days later, the court revisited the matter

and asked defense counsel if he wanted to say anything more about

the possibility of excusing Juror 31. Counsel responded that, had

he known that the AUSA "was actually participating" at the witness

interview, he "would have exercised a peremptory [strike] to get

rid of her."3 The district court said that it would "think about

it further."

The next day, defense counsel told the court that he

still believed that Juror 31 should be excused for cause. The

court reserved decision and, on the following day, again questioned

Juror 31. She assured the court once more that her passing

acquaintance with the AUSA had "no connection" to her duties as a

juror. She then declared that "[m]y responsibility here is as

part of this jury." When the court inquired if there was "any

reason why you couldn't continue to be an open-minded, fair and

impartial juror, fair to both sides," she replied, "None

3 The record reflects that the memorandum describing, inter
alia, the witness interview in question (which was the source of
the information concerning the AUSA's participation) was delivered
to defense counsel before the jury was sworn. We need not pursue
this point, though, because counsel's assertion that he "would
have exercised a peremptory [strike] to get rid of her" is of no
consequence. After all, in the absence of a showing of bias — and
none has been made here, see text infra — a party "cannot be
granted a new trial if the only purpose is 'to recreate the
peremptory challenge process because counsel lacked
. . . information.'" Sampson v. United States, 724 F.3d 150, 164
(1st Cir. 2013) (quoting McDonough Power Equip., Inc. v. Greenwood,
464 U.S. 548, 555 (1984)).

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whatsoever." The court, satisfied that Juror 31 would serve

impartially, again refused to remove her. Juror 31 served on the

jury through the end of the trial and was one of the jurors who

returned the verdict.

Against this backdrop, the appellant argues that the

district court should have excused Juror 31 for actual bias or, at

least, for implied bias. Preserved challenges to the seating of

a juror are reviewed for abuse of discretion. See United States

v. Kar, 851 F.3d 59, 68 (1st Cir. 2017); United States v. Godfrey,

787 F.3d 72, 81 (1st Cir. 2015). Here, it is quite likely that

the appellant's challenge (or at least some aspects of it) was

either waived or forfeited. See, e.g., United States v. Soto, 799

F.3d 68, 96 (1st Cir. 2015); United States v. Chapdelaine, 989

F.2d 28, 32 (1st Cir. 1993). But even if we assume, for argument's

sake, that the appellant's challenge was fully preserved, it

nonetheless fails.

A district court has considerable leeway in probing

concerns about juror impartiality and in determining what remedial

measures, if any, may be appropriate. See United States v. Tejeda,

481 F.3d 44, 52 (1st Cir. 2007); United States v. Rodríguez-Ortiz,

455 F.3d 18, 23 (1st Cir. 2006). Where, as here, the district

court has had the opportunity to question the challenged juror and

to see and hear her responses in real time, the party who

challenges the court's decision to allow the juror to sit

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ordinarily faces an uphill climb. See Amirault v. Fair, 968 F.2d

1404, 1405 (1st Cir. 1992) (noting that "issues of juror

credibility and honesty are determinations 'peculiarly within a

trial judge's province' and are accorded great deference" (quoting

Wainwright v. Witt, 469 U.S. 412, 428 (1985))).

In the case at hand, there is no hint of an abuse of

discretion. Notably, the appellant finds no fault with the scope

of the district court's interrogation of Juror 31. He argues

instead that Juror 31's answers to the court's questions somehow

require a finding that Juror 31 was either actually or impliedly

biased.

The claim of actual bias is fanciful. The district

court, after careful questioning, explicitly found that Juror 31

was credible in declaring her impartiality. That finding was

premised not only on the juror's avowals but also on the court's

assessment of her demeanor. Moreover, the finding was consistent

with the uncontradicted facts concerning the tenuousness of Juror

31's derivative relationship with the AUSA. The appellant has

identified no principled way in which we could second-guess it.

The claim of implied bias is also without merit. Such

a claim requires "'exceptional' or 'extreme' circumstances" giving

rise to an implication of bias. Id. at 1406 (quoting Smith v.

Phillips, 455 U.S. 209, 222 (1982) (O'Connor, J., concurring)).

As we explain below, no such circumstances existed here.

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 The appellant says, in effect, that bias should be

implied because the juror had a coworker whose husband (the AUSA)

labored in the same office as the prosecutor and participated in

the pretrial interview of a witness. While we do not gainsay that

even such an attenuated relationship was enough to spur a vigilant

trial court to consider whether bias could be implied, the

underlying hypothesis is sufficiently conjectural that bias could

not be implied as a matter of law. See United States v. Wood, 299

U.S. 123, 149 (1936) (warning against an imputation of bias that

"rests on an assumption without any rational foundation"). And

here, the court's rejection of such an implication, after a

painstaking inquiry, was well within the wide margins of its

discretion. Its search into the possibility of bias was both

cautious and thorough: it questioned Juror 31 at some length,

found her credible, and concluded — supportably, we think — that

an implication of bias was unwarranted. On this record, that

conclusion demands our deference.

To cinch the matter, we have rejected claims of implied

bias based on scenarios more conducive to juror removal than that

presented here. See, e.g., Kar, 851 F.3d at 64, 68 (finding no

implied bias when juror was "[f]amily friend" and "maybe once or

twice" babysat for prosecution team's paralegal); United States v.

Burgos-Montes, 786 F.3d 92, 111 (1st Cir. 2015) (finding no implied

bias when juror and defense witness were distant cousins); cf.

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United States v. Torres, 960 F.2d 226, 228 (1st Cir. 1992) (finding

no plain error when juror who knew prosecutor's brother was not

excused for implied bias). The appellant's claim of error is,

therefore, unavailing.

B

The appellant's second claim of error targets a comment

made by the prosecutor during his rebuttal argument. In his

closing, defense counsel had suggested that two of the government's

witnesses may have fabricated their account of a three-way

telephone conversation in which they claimed to have participated.

Counsel pointed out that there was "no documentary evidence of

this call" and added that the jurors would not "find a single

mention of a three-way call" involving the two government witnesses

and the appellant in the compendious telephone records (spanning

a ten-to-twelve year period) that the government had introduced

into evidence.

Responding in rebuttal, the prosecutor noted that

defense counsel had not asked the custodian of the telephone

records:

[W]hen she was on the stand with all of those
phone records whether there is any
verification in the records, she could have
answered him, because you can do it yourself
if you want to wade through 5,000 pages of
phone records. . . . What you won't find is
anything indicating that that's a three-way
phone call because phone records don't
identify three-way phone calls.

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Immediately after this comment, defense counsel objected. The

district court noted the objection and reminded the jury that "as

I've instructed [you] and will reiterate, anything the lawyers say

is not evidence, and if your memory of the evidence individually

and collectively differs from what any lawyer says, it's your

memory that controls." At that point, the prosecutor resumed his

rebuttal argument, telling the jury (without any further

objection) that he was only suggesting that "the records don't

indicate . . . a third party involved. It doesn't mean it didn't

happen . . . ."

Given the appellant's contemporaneous objection, his

claim of error — insofar as it relates to the quoted statement —

is preserved. Review is, therefore, de novo. See United States

v. Berroa, 856 F.3d 141, 161 (1st Cir. 2017); United States v.

Sepúlveda-Hernández, 752 F.3d 22, 31 (1st Cir. 2014).

An attorney's summation is not meant to be used as a

device for the introduction of new facts into evidence. In this

instance, the appellant complains that a portion of the

prosecutor's comment — "phone records don't identify three-way

phone calls" — states a fact not in evidence. The appellant's

complaint is literally true: the government does not point to any

competent evidence in the record verifying the asserted fact that

"phone records don't identify three-way phone calls." The ultimate

test, though, is whether the error caused harm. See Berroa, 856

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F.3d at 162. Here, the error was manifestly harmless. We explain

briefly.

In this context, harmless error review takes into

account a multiplicity of factors, including the severity of the

impropriety, the nature of the impropriety (that is, whether or

not it was deliberate, whether or not it was isolated, and the

like), the strength of the government's case against the defendant,

and how the district court responded to the impropriety (especially

the timing, nature, and force of any curative instructions). See

id. The bottom-line question is whether the impropriety "so

poisoned the well that the trial's outcome was likely affected."

United States v. Mejia-Lozano, 829 F.2d 268, 274 (1st Cir. 1987);

see United States v. Morales-Cartagena, 987 F.2d 849, 854 (1st

Cir. 1993).

Here, the impropriety was not severe. Although the

prosecutor should not have made the statement, he went on to

explain what he meant in a way that both mitigated the force of

the comment and indicated that any misconduct was not deliberate.

Moreover, the reference was fleeting; it was an isolated comment

in the course of a twelve-day trial. Cf. United States v. Peña-

Santo, 809 F.3d 686, 700 (1st Cir. 2015) (finding no error where

"prosecutor's improper statement was isolated and not

deliberate").

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 Importantly, the court gave a swift and strong curative

instruction — an instruction that apparently met with the

appellant's satisfaction (he neither objected to its phrasing nor

asked for some further admonition). By the same token, the

appellant does not fault the instruction in his appellate briefing.

What is more, the jury hardly could have overlooked the court's

prophylactic language: the court made the same point in its

preliminary jury instructions at the start of trial and reiterated

the caution in the jury charge. The presence, content, and timing

of curative instructions are salient factors in assessing the

harmfulness vel non of an improper comment by a prosecutor during

closing argument. See, e.g., United States v. Soto-Beníquez, 356

F.3d 1, 43 (1st Cir. 2003). In this case, those factors favor a

finding of harmlessness.

Last — but surely not least — the evidence of the

appellant's guilt was overwhelming. The government presented

twenty-five witnesses and complemented their testimony with an

avalanche of documentary proof. The strength of the evidence is

always an "important integer" in the harmless error calculus.

United States v. Kilmartin, 944 F.3d 315, 338 (1st Cir. 2019).

And although the phone records themselves are silent as to whether

the appellant had placed three-way calls, the evidence tilts

heavily toward a conclusion that the call to which the prosecutor

alluded had actually occurred. This evidence included testimony

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from the other two participants in the three-way call, as well as

an email — sent a few hours after the call's completion — that

confirmed its existence. And, finally, there was evidence of a

pattern: no fewer than four other victims testified about similar

three-way calls. Indeed, the jury heard a recording of one of

these three-way calls.

The short of it is that the claim of error fails: the

prosecutor's comment did not poison the well. On this record, it

would strain credulity to think that the untoward comment affected

or influenced the jury verdict in any way. The impropriety was,

therefore, harmless.

We add a coda. Although the appellant points to other

comments by the prosecutor that he now says were questionable,

none of those comments drew a contemporaneous objection. Thus,

review would be only for plain error, see Sepúlveda-Hernández, 752

F.3d at 31; United States v. Sánchez-Berríos, 424 F.3d 65, 73 (1st

Cir. 2005), and plain error is plainly absent.

C

We next address the appellant's multiple claims of

sentencing error. After exploring the relevant procedural

history, we explain why those claims are impuissant.

Following the jury verdict, the district court ordered

the preparation of a presentence investigation report (the PSI

Report). The PSI Report identified forty-six victims of the

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appellant's fraudulent schemes and established an amount of loss

in excess of $2,700,000. The probation office recommended a total

offense level of 314 and a criminal history category (CHC) of II

(based on the appellant's prior convictions for theft and domestic

violence). These recommendations yielded a tentative guideline

sentencing range (GSR) of 121-151 months in prison. The PSI Report

further advised that either an upward departure or an upward

variance might be appropriate because the appellant's CHC

substantially underrepresented the seriousness of his criminal

record and the likelihood of recidivism.

At the disposition hearing, the district court — ruling

favorably on two defense objections — rejected the proposed role-

in-the-offense adjustment and deleted the criminal history point

that had been assigned for the appellant's domestic violence

conviction. Taking those changes into account, the court set the

appellant's total offense level at 29 and placed him in CHC I.5

4 The probation office started with a base offense level of
7, see USSG §2B1.1(a)(1); applied a 16-level enhancement due to
the amount of loss, see id. §2B1.1(b)(1)(I); added 4 levels because
the offense resulted in substantial financial hardship to five or
more victims, see id. §2B1.1(b)(2)(B); assayed a 2-level upward
role-in-the-offense adjustment, see id. §3B1.1(c); and topped its
calculations with a 2-level enhancement for obstruction of
justice, see id. §3C1.1.
5 The appellant had at least five prior convictions that —
because they were remote in time — were not factored into the
assessment of his CHC. See USSG §4A1.2(e).

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It proceeded to recast the GSR at 87-108 months. Neither side

objected to this recasted GSR.

Early on, the court indicated that it was disposed either

to depart or vary upward based on factors such as the inadequacy

of the appellant's CHC and the likelihood of recidivism. The court

reiterated its inclination to depart or vary upward once it

formulated the reduced GSR.

After making its preliminary thinking known, the court

solicited the attorneys' views. The question, it said, was

"considering all the Section 3553[a] factors, what's the most

appropriate sentence, what's the sentence that's sufficient and no

more than necessary[?]" The government asked for a 121-month

sentence, and the appellant (through counsel) sought a 70-month

sentence. The appellant himself declined to allocute. Following

a short recess, the court imposed a 156-month term of immurement.

1

Our approach to claims of sentencing error is familiar:

Appellate review of a criminal defendant's
claims of sentencing error involves a two-step
pavane. See United States v. Matos-de-Jesús,
856 F.3d 174, 177 (1st Cir. 2017). Under this
bifurcated framework, we first examine the
validity vel non of any claims of procedural
error. See id. If the sentence passes
procedural muster, we then examine any
challenge to its substantive reasonableness.
See id.

United States v. Miranda-Díaz, 942 F.3d 33, 39 (1st Cir. 2019).

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 Preserved claims — whether procedural or substantive —

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). We have made it clear, though, that "[t]he abuse-

of-discretion standard is not monolithic." United States v.

Rivera-Morales, 961 F.3d 1, 15 (1st Cir. 2020). "[W]ithin it, we

review the sentencing court's findings of fact for clear error and

questions of law . . . de novo." Id.; see United States v. Flores-

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

Unpreserved claims of error — if reviewable at all — are

scrutinized under less appellant-friendly standards. Pertinently,

forfeited claims are reviewed only for plain error. See United

States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). "The plain

error hurdle is high." United States v. Hunnewell, 891 F.2d 955,

956 (1st Cir. 1989). "Review for plain error entails four

showings: (1) that an error occurred (2) which was clear or

obvious and which not only (3) affected the [appell]ant's

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

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

246 F.3d at 60. Under plain error review, the appellant "must

carry the devoir of persuasion as to all four of these elements."

United States v. Pinkham, 896 F.3d 133, 136-37 (1st Cir. 2018).

In this case, the appellant advances three claims of

procedural sentencing error and a claim that his sentence is

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substantively unreasonable. We begin our analysis with his trio

of procedural claims, none of which was raised in the court below.

Our review, therefore, is only for plain error. See Duarte, 246

F.3d at 60.

2

The appellant suggests that, under Federal Rule of

Criminal Procedure 32(h), he was entitled to receive (yet did not

receive) advance notice of the district court's intention to vary

upward. He is wrong both as to what Rule 32(h) requires and as to

what notice he received.

It is clear beyond hope of contradiction that Rule 32(h)

requires advance notice of departures, not variances. See Irizarry

v. United States, 553 U.S. 708, 714 (2008); United States v.

Daoust, 888 F.3d 571, 575 (1st Cir. 2018); United States v.

Santini-Santiago, 846 F.3d 487, 490 (1st Cir. 2017). And at any

rate, the court below gave the appellant ample advance notice that

it was mulling an upward variance. Indeed, at the disposition

hearing, the appellant's counsel — in response to a direct question

— assured the court that he was neither surprised by, nor

unprepared for, the court's consideration of a substantial upward

variance. There was no error in this regard, plain or otherwise.

3

Next, the appellant argues that the sentence was not

adequately explained. This argument, too, is hopeless. The

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sentencing court described the factors material to its upward

variance in great detail and tied those factors expertly to the

considerations limned in 18 U.S.C. § 3553(a). No more was

exigible. See United States v. Rodríguez-Cruz, 997 F.3d 362, 367

(1st Cir. 2021) ("Although a sentencing court is duty-bound to

consider the section 3553(a) factors, it need not descant upon

each and every such factor."); United States v. Clogston, 662 F.3d

588, 592 (1st Cir. 2011) (similar); United States v. Vargas-Dávila,

649 F.3d 129, 131 (1st Cir. 2011) (similar). Nothing resembling

plain error occurred.

4

The appellant's last claim of procedural error posits

that the sentencing court erred by relying on factors "already

accounted for in the Guideline[s]." Specifically, he submits that

the court below — once it had settled upon the proper GSR — should

not have considered "amount of loss," "substantial financial

hardship," "obstruction of justice, and the ten-year duration of

the fraudulent conduct." These factors, he says, already were

considered by the court in formulating enhancements that merged

into the ultimate GSR calculation and should not have been

considered again in fashioning an upward variance. Although the

appellant does not use the term, this argument is nothing more

than a jeremiad against what the appellant perceives as double-

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counting (that is, the use of a particular fact in more than one

way in the sentencing calculus).

The claim that the sentencing court double-counted

certain sentencing factors rests on a kernel of truth — but that

kernel of truth does not take the appellant very far. "In the

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." United States v. Sepúlveda-Hernández, 817 F.3d 30,

35 (1st Cir. 2016). "It follows that a sentencing court may rely

on a factor that is already included in the calculation of the GSR

to impose an upward or downward variance as long as the court

'articulate[s] specifically the reasons that this particular

defendant's situation is different from the ordinary situation

covered by the guidelines calculation.'" United States v. Bruno-

Campos, 978 F.3d 801, 806 (1st Cir. 2020) (quoting United States

v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir. 2006)).

So it is here. The redundancy of which the appellant

complains is nothing more than a reflection that certain facts

relevant to his sentencing were present in extraordinary or

exaggerated degrees. Some examples will suffice to illustrate the

point.

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 To begin, the appellant defrauded forty-six individuals

— far above the "five or more" victims needed to justify the

imposition of a sentencing enhancement under USSG §2B1.1(b)(2)(B).

See, e.g., Bruno-Campos, 978 F.3d at 806; United States v. Díaz-

Lugo, 963 F.3d 145, 155 (1st Cir. 2020). So, too, the amount of

loss was more than just a monetary estimate: it was composed of

funds swindled from individuals who (in many instances) could ill

afford the losses. Similarly, the imposition of an obstruction-

of-justice enhancement (for concealing the twenty-three vehicles)

did not render that fact irrelevant for purposes of the upward

variance where, as here, the appellant used the identity of an

innocent third party (his daughter) to facilitate the cover-up.

Distinctions of this sort also can be drawn with respect to the

other factors that the appellant says were double-counted. On

this record, the appellant has failed to show any clear or obvious

error in the district court's use of double-counting.

5

Finally, the appellant challenges the substantive

reasonableness of his 156-month prison sentence. This challenge

must be treated as preserved and, thus, our review is for abuse of

discretion. See Holguin-Hernandez v. United States, 140 S. Ct.

762, 766 (2020); Bruno-Campos, 978 F.3d at 808.

"Our case law makes pellucid that the hallmarks of a

substantively reasonable sentence are a plausible sentencing

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rationale and a defensible result." Rodríguez-Cruz, 997 F.3d at

366; see Clogston, 662 F.3d at 593. When — as in this case — the

sentencing court pronounces an upwardly variant sentence, it "must

provide an adequate explanation for the variance." Rodríguez-

Cruz, 997 F.3d at 366. Notwithstanding this obligation, the

sentencing court need not "be precise to the point of pedantry."

Id. (quoting United States v. Del Valle-Rodríguez, 761 F.3d 171,

177 (1st Cir. 2014)).

Here, the district court found the GSR "greatly

insufficient" to capture the gravity of the offenses of conviction.

What is more, it found the GSR inadequate "to protect the public

from" the appellant. The court proceeded to quote from victim-

impact statements and noted that — with respect to one victim in

particular — the appellant had continued to squeeze the victim for

funds even after he knew that the victim needed money to care for

his brother (who was suffering from multiple sclerosis). The court

observed that it could not "remember anybody who committed more

despicable, more fraudulent crimes than [the appellant], knowing

that these people were sacrificing the well-being of their

famil[ies]."

Nor did the court's sentencing rationale stop there. It

went on to find that the appellant's CHC "grossly

underrepresent[ed]" the risk of his recidivism; that the frauds

had lasted over a decade; that the appellant had bilked his victims

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out of millions of dollars but had never helped to pay for the

education of his own children; that he had used his daughter's

name to help facilitate his obstruction of justice; and that the

court wished to send a strong message not only to the appellant

but also to those who might be tempted to perpetrate similar

frauds.

In sum, the district court articulated its sentencing

rationale in clear and unmistakable terms. That rationale was

plausible (indeed, compelling). The court reasonably concluded

that the facts of the case made manifest the appellant's venality,

his utter disregard for the plight of others, and the danger that

he presented to the community. In view of this plausible

rationale, we have no quarrel with the court's determination that

an upwardly variant sentence was in order.

This leaves only the question of whether the 156-month

prison sentence represents a defensible result. The mere fact

that the length of the sentence reflects a substantial increase

over the top of the GSR does not render it substantively

unreasonable. See Flores-Machicote, 706 F.3d at 25. Instead,

"the inquiry is fact-sensitive and case-specific." Rodríguez-

Cruz, 997 F.3d at 367; see Martin, 520 F.3d at 91. Here, moreover,

the egregious nature of the appellant's frauds and the callous

manner in which they were committed provide a solid foundation for

the upward variance.

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 On occasion, extravagant criminality may call for an

extravagant sentence. This is such a case: although the extent

of the upward variance is substantial, so, too, is the scope of

the appellant's frauds and the extent of his esurient greed. When

all is said and done, the record leaves no doubt that even the top

of the GSR was incommensurate with the appellant's wrongdoing.

Evaluating the record as a whole, we are confident that the

appellant's upwardly variant sentence falls within the "broad

universe" of reasonable sentencing outcomes. Rivera-Morales, 961

F.3d at 21. Accordingly, we reject the appellant's challenge to

the substantive reasonableness of his sentence.

III

We need go no further. For aught that appears, the

appellant was fairly tried before an able and thoughtful judge and

an impartial jury, justly convicted, and lawfully sentenced. For

the reasons elucidated above, the judgment of the district court

is

Affirmed.

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