United States v. Rabb

United States Court of Appeals
For the First Circuit

No. 20-1146

UNITED STATES OF AMERICA,

Appellee,

v.

DEJUAN RABB, a/k/a SLIM,

Defendant, Appellant.

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

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

Before

Thompson, Selya, and Barron,
Circuit Judges.

John M. Thompson and Thompson & Thompson, P.C. on brief for
appellant.
Halsey B. Frank, United States Attorney, and Noah Falk,
Assistant United States Attorney, on brief for appellee.

July 16, 2021
 SELYA, Circuit Judge. In an earlier appeal, we vacated

a sentence imposed on defendant-appellant Dejuan Rabb and remanded

for resentencing. See United States v. Rabb (Rabb I), 942 F.3d 1,

7 (1st Cir. 2019). On remand, the district court sentenced the

defendant to serve, inter alia, a mandatory minimum six-year term

of supervised release. See 21 U.S.C. § 841(b)(1)(C). The

defendant appeals, asserting that the district court both failed

to make a necessary finding and found facts that should have been

reserved for a jury. Assessing his claims under plain error

review, we readily reject them.

I. BACKGROUND

We briefly rehearse the relevant facts and travel of the

case. When — as in this case — the defendant appeals a sentence

imposed following a guilty plea, we draw the facts from the plea

colloquy, the unchallenged portions of the presentence

investigation report (PSI Report), and the sentencing transcripts.

See United States v. Santa-Soler, 985 F.3d 93, 95 (1st Cir. 2021).

The defendant was arrested on August 31, 2017, after

selling furanyl fentanyl to a confidential informant working with

the Maine Drug Enforcement Agency. A federal grand jury sitting

in the District of Maine subsequently indicted him on sundry drug-

related charges and — after some preliminary proceedings — he

entered guilty pleas to two of the charges. One count embodied a

charge of possession with intent to distribute furanyl fentanyl

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and the other embodied a charge of distribution of furanyl

fentanyl. See 21 U.S.C. § 841(a).

Prior to the change-of-plea hearing, the government

filed an information pursuant to 21 U.S.C. § 851(a)(1) (the

Information). The Information memorialized the defendant's prior

New York conviction for possession of a controlled substance (the

2015 conviction) and noted that judgment on that charge had been

entered against the defendant on or about January 14, 2015.

Pertinently, the Information notified the defendant that the

government intended to rely upon the 2015 conviction in seeking

enhanced penalties. See id. § 841(b)(1)(C).

Following the change-of-plea hearing, the probation

office prepared a PSI Report. With respect to the 2015 conviction,

the PSI Report stated, in part, that the defendant had been found

guilty on November 12, 2014. It added that, on January 14, 2015,

he was sentenced to ninety days' imprisonment, followed by five

years of probation. The PSI Report then recounted that the

defendant's probationary term was later revoked and that he was

sentenced to a one-year term of immurement at that time.

Switching to the guideline sentencing range (GSR) for

the offenses of conviction, the PSI Report observed that those

offenses (as Class B felonies) normally would carry a supervised

release term of two to five years. See USSG §5D1.2(a)(1). In

this instance, though, the guidelines dictated a mandatory minimum

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six-year term of supervised release because the defendant had a

qualifying prior conviction under 21 U.S.C. § 841(b)(1)(C). See

id. §5D1.2(c).

The defendant objected to several aspects of the PSI

Report, but he did not object either to the inclusion of the 2015

conviction as a sentence-enhancer or to the description of the

events surrounding that conviction. Nor did he object to the

proposed six-year mandatory minimum term of supervised release.

The district court convened the disposition hearing on

July 18, 2018. Congress has directed that where, as here, the

government has filed an information pursuant to section 851(a)(1),

the district court shall inquire of the defendant "whether he

affirms or denies that he has been previously convicted." 21

U.S.C. § 851(b). The district court also must inform the defendant

that "any challenge to a prior conviction which is not made before

[the] sentence is imposed" cannot thereafter be pressed. Id.

The court below complied with these statutory

imperatives. After confirming with defense counsel that there was

no objection to the truthfulness of the Information, the court

asked the defendant himself whether he had previously been

convicted of a controlled substance offense in New York as limned

in the Information. The defendant admitted that he had.

Relatedly, the court advised the defendant that if he did not raise

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a challenge to the Information then and there, he could not

subsequently challenge it. No challenge emerged.

The district court went on to find that the defendant

qualified as a career offender, see USSG §4B1.1(a), citing the

2015 conviction and the defendant's previous conviction for a

putative crime of violence (namely, a 1999 New York robbery

conviction under N.Y. Penal Law § 160.10). This career offender

classification elevated the GSR for the offenses of conviction to

188-235 months. Additionally, the court found that the GSR carried

a six-year mandatory minimum term of supervised release. See 21

U.S.C. § 841(b)(1)(C); see also USSG §5D1.2(c). In the end, the

court imposed a downwardly variant incarcerative sentence of 140

months, to be followed by six years of supervised release.

The defendant appealed his sentence, challenging his

classification as a career offender. His appeal focused on his

term of imprisonment and did not challenge his supervised release

term. We found the career offender classification inappropriate,

sustained the defendant's appeal, vacated his sentence, and

remanded for resentencing. See Rabb I, 942 F.3d at 7.

At resentencing, the defendant again eschewed any

challenge to the Information and again voiced no objection to the

applicability of a six-year mandatory minimum supervised release

term. The district court noted that there were "no disputed issues

other than [the prison] sentence" and again accepted the facts

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adumbrated in the PSI Report. The court also incorporated by

reference "everything [it] said at the last sentenc[ing]" to the

extent that those findings were not inconsistent with the vacatur

of the career offender designation.1 It then discussed the

defendant's personal history, his criminal record, and the gravity

of the fentanyl problem in Maine. Recalculating the defendant's

GSR to be 84-105 months, the court imposed a low-end 84-month term

of immurement, to be followed by six years of supervised release.

This timely appeal ensued.

II. ANALYSIS

This time around, the defendant's appeal challenges only

his six-year mandatory minimum term of supervised release. In

support, he advances two principal claims of error. First, he

notes that the sentencing court did not make an explicit finding

that the 2015 conviction was final in the context of section

1Without citation to any relevant authority, the defendant
challenges the efficacy of this incorporation by reference. In a
footnote in his reply brief, he asserts that because his original
sentence was vacated, the events of the first sentencing are
"nullified." This challenge is meritless: federal courts do not
place a premium on longiloquence, and a district court has wide
discretion to incorporate by reference readily ascertainable
facts. See, e.g., In re Pharm. Indus. Average Wholesale Price
Litig., 588 F.3d 24, 40 (1st Cir. 2009) (holding that district
court could incorporate by reference its prior orders when
expanding a class); United States v. Tulloch, 380 F.3d 8, 10 (1st
Cir. 2004) (per curiam) (affirming sentencing court's adoption by
reference of mandatory conditions of supervised release). Nothing
in our earlier opinion precluded the district court from
incorporating by reference at the new sentencing hearing findings
and conclusions that remained pertinent.

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841(b)(1)(C). Without such a finding, he contends, the court erred

in enhancing his GSR to encompass a mandatory minimum six-year

term of supervised release. Second, he submits that the facts

surrounding the 2015 conviction needed to be proved beyond a

reasonable doubt before a jury rather than found under a

preponderance-of-the-evidence standard by a sentencing judge. See

Alleyne v. United States, 570 U.S. 99, 108 (2013); Apprendi v. New

Jersey, 530 U.S. 466, 476 (2000). Because the district court

allegedly flouted this principle, he claims that the 2015

conviction was improperly considered and that, therefore, the six-

year mandatory minimum term of supervised release cannot stand.

The government takes a proactive approach to these

claims. As a threshold matter, it contends that the defendant

waived any challenge to his supervised release term. We start

there and then shift to an examination of the defendant's

asseverational array.

A. Waiver.

The government asserts that the defendant waived, rather

than forfeited, any challenge to the validity of the Information

and its effect on his sentence. This distinction is potentially

important: a waived claim is not reviewable at all, whereas a

forfeited claim may be reviewed for plain error. See United States

v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002).

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 The government bases its argument on a series of events,

including the defendant's failure to employ the procedures

provided by section 851(c) to challenge the validity of the

Information; his acknowledgment of the truthfulness of the

Information at his original sentencing; his confirmation at that

hearing, in response to the district court's query, that he

understood the consequences of failing to challenge the

Information then and there; his omission of any challenge to the

supervised release term during his first appeal; and his

acquiescence to a six-year term of supervised release both at his

original sentencing and at resentencing. In the government's view,

these events, singly and in combination, show conclusively that

the defendant "intentionally relinquish[ed] or abandon[ed]" any

challenge to the Information or its effect on his sentence. Id.

The government's waiver argument finds some purchase in

section 851 itself. The statute directs that "[a]ny challenge to

a prior conviction" that is not raised before the imposition of an

enhanced sentence "shall be waived." 21 U.S.C. § 851(c)(2). There

remains an open question, though, as to whether "any challenge to

a prior conviction" encompasses an objection to the finality of a

prior conviction as opposed to an objection to the existence vel

non of that prior conviction. See, e.g., United States v. Webster,

628 F.3d 343, 345-46 (7th Cir. 2010) (declining to decide whether

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"finality" is captured by the "any challenge" language of section

851(c)). This court has not yet spoken to that question.

We need not wade into these uncharted waters. Even if

we assume that the defendant's claims of error are not waived,

they are easily dispatched. Since waiver, if found, would do no

more than confirm that all roads lead to Rome, we bypass the waiver

issue and instead explain why the defendant's claims are hopeless.

B. Absence of Express Finding of Finality.

The defendant argues that the district court should not

have imposed the enhanced six-year mandatory minimum term of

supervised release under section 841(b)(1)(C). This argument

draws its essence from the district court's failure to make an

express finding that the 2015 conviction was final.

Generally, claims of sentencing error are reviewed 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).

But this standard is not monolithic; within it, we review a

sentencing court's legal conclusions de novo and its factual

determinations for clear error. See United States v. Ramos-

Paulino, 488 F.3d 459, 463 (1st Cir. 2007). Even so, "[t]hese

standards of review may be altered where a party fails to preserve

claims of error in the court below." United States v. Ruiz-

Huertas, 792 F.3d 223, 226 (1st Cir. 2015). This is such a case:

the defendant's challenge to the lack of an express finding of

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finality is raised for the first time in this court. Consequently,

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

F.3d 56, 60 (1st Cir. 2001).

To establish plain error, the defendant 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. The proponent of plain

error must touch all four of these bases in order to prevail. See

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

"The plain error hurdle is high," United States v. Hunnewell, 891

F.2d 955, 956 (1st Cir. 1989), and the defendant stumbles at both

the second and third steps.2

To begin, we discern no clear or obvious error in the

sentencing court's failure to make an express finding of finality

regarding the 2015 conviction. The defendant suggests that because

"an accurate guidelines calculation is a sine qua non to a valid

federal sentence" and because the 2015 conviction was essential to

the determination of his GSR and, in particular, the mandatory

minimum supervised release term, see 21 U.S.C. § 841(b)(1)(C)

(requiring a supervised release term of "at least 6 years" if the

2In our ensuing analysis, the first step of the plain error
matrix merges into the second, and we find it unnecessary to reach
the fourth step.

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defendant committed the offenses of conviction "after a prior

conviction for a felony drug offense [became] final"), the

sentencing court committed an obvious error by not making an

express finding as to the finality of that conviction. We do not

agree.

To establish "clear or obvious error," a party must show

that the error is contrary to existing law. See United States v.

Bennett, 469 F.3d 46, 50-51 (1st Cir. 2006). In other words, the

error must be "indisputable" in light of controlling law. United

States v. Jones, 748 F.3d 64, 69-70 (1st Cir. 2014). Here,

however, the defendant has not identified any authority, whether

in a statute or in the case law, that would require a district

court to make an express finding concerning the finality of a prior

conviction before imposing the enhanced sentence under section

841(b)(1)(C). And although an explicit annunciation of findings

related to an enhanced sentence is always preferable, the "absence

of such findings is not always fatal." United States v. Carbajal-

Váldez, 874 F.3d 778, 783 (1st Cir. 2017).

In this case, the absence of an express finding of

finality does not amount to a clear or obvious error. Although

the defendant has questioned the absence of an express finding of

finality, he has proffered no credible reason to suggest that the

conviction actually lacked finality. And, moreover, on whole-

record review, the surrounding facts mitigate any necessity for an

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express finding. After all, the PSI Report's treatment of the

2015 conviction as final was not challenged by the defendant; the

defendant himself admitted to the conviction in a colloquy with

the district court, and that colloquy gives no reason to doubt the

conviction's finality; and the fact that the defendant was

sentenced to an additional prison sentence when his probation on

the 2015 conviction was revoked incrementally strengthens the

inference of finality.

In all events, the record contains substantial evidence

indicating that the district court implicitly determined the 2015

conviction to be final. At the original sentencing hearing, the

court engaged in the colloquy required by section 851(b) and

confirmed with both the defendant and his counsel that the

defendant had previously been convicted of the crime delineated in

the Information. The court proceeded to find that the defendant

had "a prior conviction for a controlled substance offense as

detailed in [the PSI Report]." What is more, the PSI Report

(expressly adopted by the sentencing court) contained numerous

details about the 2015 conviction, including the date of the

conviction, the parameters of the defendant's sentence, and a

description of the subsequent revocation of probation. In short,

the district court treated the 2015 conviction as final, and the

record — fairly read — indicates that the court implicitly

determined that the 2015 conviction was final. See id. (explaining

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that reviewing court may uphold an enhancement when "the sentencing

record, taken as a whole, reliably shows that the relevant factual

questions were 'implicitly resolved' by the sentencing court"

(quoting United States v. Van, 87 F.3d 1, 3 (1st Cir. 1996))).

Nor can it be said that the sentencing court's implicit

determination that the 2015 conviction was final was itself clear

or obvious error. To begin — as noted above — the defendant has

proffered no credible reason to suggest that the conviction

actually lacked finality. Furthermore, the conviction — as

presented to the court — bore sufficient indicia of finality to

ground the implicit finding.3 See United States v. Etienne, 772

F.3d 907, 913 (1st Cir. 2014) (explaining that on plain error

review, courts "reverse only sparingly" and "'correct only the

3 We note that we have not yet spoken definitively as to the
attributes of "finality" in the context of section 841, and our
sister circuits have exhibited some variations in approach. See,
e.g., United States v. Suarez, 682 F.3d 1214, 1220 (9th Cir. 2012)
("[A] conviction is not final under § 841(b)(1) while that
conviction is subject to direct appellate review, including
certiorari"); United States v. Williams, 616 F.3d 760, 767 (8th
Cir. 2010) (stating that prior conviction is final when defendant
is found guilty and sentenced to probation); United States v.
Short, 947 F.2d 1445, 1460 (10th Cir. 1991) ("[A] sentence is final
for purposes of § 841 when the conviction is no longer subject to
examination on direct appeal."). On plain error review, these
variations are insufficient to breathe life into the defendant's
moribund claim of plain error. See United States v. Gonzalez, 981
F.3d 11, 22 (1st Cir. 2020) (holding that "ambiguous case law does
not give rise to the clear or obvious error necessary to comport
with the plain-error construct").

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most egregious of unpreserved errors'" (quoting United States v.

Sánchez-Berríos, 424 F.3d 65, 73 (1st Cir. 2005))).

We add that the defendant's claim of error also fails to

satisfy the third element of the plain error matrix. That element

requires that the defendant show a reasonable probability that the

claimed error affected his substantial rights. See Duarte, 246

F.3d at 61-62. In a sentencing appeal, such a requirement entails

a showing of a reasonable likelihood that, but for the claimed

error, his sentence would have been different. See United States

v. Bramley, 847 F.3d 1, 7 (1st Cir. 2017).

As to this point, the defendant hinges his argument on

the Supreme Court's holding in Molina-Martinez v. United States,

136 S. Ct. 1338 (2016). In that case, the Court concluded that,

"[w]hen a defendant is sentenced under an incorrect Guidelines

range — whether or not the defendant's ultimate sentence falls

within the correct range — the error itself can, and most often

will, be sufficient to show a reasonable probability of a different

outcome absent the error." Id. at 1345. Put another way, the

Court concluded that an incorrect GSR usually will affect a

defendant's substantial rights, regardless of the actual sentence

imposed. See id.

Contrary to the defendant's importunings, Molina-

Martinez does not rescue his claim of error. There, the defendant

established that the calculation of his GSR was incorrect. See

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id. at 1344-45. That is not the situation here: the defendant

has not established that he was sentenced under an incorrect GSR.

Importantly, he does not contend — nor does he offer us a reason

to believe — that his 2015 conviction was anything other than

final. Seen in this light, Molina-Martinez is inapposite, and the

defendant has failed to show a reasonable probability that the

correction of the purported error — the failure to make an explicit

finding on finality — would produce either a different GSR or a

different sentence. See United States v. Olano, 507 U.S. 725, 734

(1993) (requiring a showing that the alleged error was prejudicial

in order to satisfy the third element of plain error review);

Bramley, 847 F.3d at 7 (requiring "a reasonable probability that,

but for the error, the outcome would have been different"). Thus,

he has not satisfied the third element of plain error.

To sum up, we conclude that neither the sentencing

court's implicit determination that the 2015 conviction was final

nor the lack of an explicit articulation of that finding

constituted clear or obvious error (if error at all). We also

conclude that the defendant has failed to show that, but for the

purported error, his sentence would have been different. Given

these shortcomings, plain error is plainly absent.

C. Apprendi/Alleyne.

This brings us to the defendant's last challenge to his

supervised release term. He asserts that the facts surrounding

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his 2015 conviction increased his sentence by increasing his term

of supervised release and are therefore elements of an aggravated

crime that had to be proved beyond a reasonable doubt before a

jury.4 See Apprendi, 530 U.S. at 476; see also Alleyne, 570 U.S.

at 108. Since they were found only by a sentencing judge, he

posits, his Fifth and Sixth Amendment rights were violated. See

Apprendi, 530 U.S. at 476; see also Alleyne, 570 U.S. at 115-17.

This claim, too, makes its debut on appeal. Once again,

our review is only for plain error. See Duarte, 246 F.3d at 60.

The defendant's claim of error is rooted in a misreading

of the case law. In Apprendi, the Supreme Court held that "any

fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury[] and proved beyond

a reasonable doubt." 530 U.S. at 490. The Court later extended

the Apprendi doctrine, holding that facts that "increase the

mandatory minimum sentence are . . . elements and must be

submitted to the jury and found beyond a reasonable doubt."

Alleyne, 570 U.S. at 108.

Apprendi and Alleyne do not control here. In Almendarez-

Torres v. United States, the Supreme Court held that facts

establishing a prior conviction are sentencing factors, not

4 The defendant observes that the facts surrounding the 2015
conviction were not described in the indictment in this case. By
the same token, he did not admit to those facts in his guilty plea.

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elements of an offense. See 523 U.S. 224, 230 (1998) (calling a

prior conviction "as typical a sentencing factor as one might

imagine"). Both the Apprendi Court and the Alleyne Court declined

to revisit Almendarez-Torres, instead carving out an exception for

prior convictions. See Apprendi, 530 U.S. at 489-90 (finding that

Almendarez-Torres represents "a narrow exception to the general

rule"); see also Alleyne, 570 U.S. at 111 n.1 (recognizing that

Almendarez-Torres remains good law and declining to revisit it).

Unless and until the Supreme Court changes course, Almendarez-

Torres constitutes binding precedent that demands our allegiance.

See Agostini v. Felton, 521 U.S. 203, 237 (1997); United States v.

McIvery, 806 F.3d 645, 653 (1st Cir. 2015).

Consistent with Almendarez-Torres, we hold that the

defendant's Apprendi/Alleyne challenge lacks force. The court

below "hardly could have committed plain error by adhering to

binding Supreme Court precedent." United States v. Gonzalez, 949

F.3d 30, 42 (1st Cir. 2020).

III. CONCLUSION

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

the sentence is

Affirmed.

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