United States v. Vixamar

United States Court of Appeals
For the First Circuit

No. 11-1217

UNITED STATES OF AMERICA,

Appellee,

v.

IMARTHA VIXAMAR,

Defendant, Appellant.

No. 11-1251

UNITED STATES OF AMERICA,

Appellee,

v.

MARY SAINTFLEUR,

Defendant, Appellant.

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

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

Before

Boudin, Lipez, and Thompson, Circuit Judges.

J. Martin Richey, Federal Defender Office, for appellant
Imartha Vixamar.
Daniel Klubock, with whom Feinberg & Kamholtz was on brief,
for appellant Mary Saintfleur.
Cynthia A. Young, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

May 11, 2012
 THOMPSON, Circuit Judge.

Overview

Imartha Vixamar and Mary Saintfleur think the district

judge got it all wrong when he revoked their probation and

resentenced them to prison terms above the ranges recommended by

the Sentencing Commission.1 We think the opposite and affirm.

Probation

Back in June 2009, Vixamar and Saintfleur pled guilty to

two counts each of passport fraud. See 18 U.S.C. § 1542.

According to their testimony at the sentencing hearing held a

little later, this is how that crime went down: Following

Vixamar's lead, Saintfleur applied for a new passport sometime in

2007, falsely claiming that someone had stolen her old one.

Vixamar gave Saintfleur a photo to hand in with the application,

promising her $1,000 for her troubles. Vixamar later picked up the

passport, hightailed it to Haiti, and passed it on to another woman

there.

Getting off with probation, Vixamar and Saintfleur

pledged not to consort with convicted felons without probation's

okay and, commonsensically enough, not to commit future crimes

either. They also promised to file truthful and complete monthly

supervision reports with probation, to notify probation within 72

1
Saintfleur's name is spelled "Saint Fleur" in the record,
but, for simplicity's sake, we use the spelling that her lawyer
uses in her brief to us.

-2-
hours of their being questioned or arrested by police, and to

remain regularly employed and to notify probation of employment

changes at least 10 days in advance. On top of that, Vixamar

agreed not to work at any healthcare job that gave her access to

"patient valuables" unless she first told her employer or the

patients about her criminal past and let probation confirm that she

had done that – a condition imposed because of her 2007 convictions

for stealing, forging, and cashing checks from elderly patients at

assisted-living facilities where she had worked; a striking example

is her having stolen checks and a credit card from a 96-year-old

resident of a life-care center in Randolph, Massachusetts, taking

her for thousands of dollars.

The duo could have received harsher sentences. Passport

fraud in cases like theirs is punishable by up to 10 years in

prison on each count, see id., and Vixamar's advisory Guidelines

sentencing range ("GSR") was 12 to 18 months in prison, while

Saintfleur's was 18 to 24 months. But the district judge instead

sentenced them both to 36 months' probation, with 9 months of home

confinement for Vixamar and 5 months for Saintfleur. The judge put

a lot of thought into Vixamar's sentence. Reviewing all the

evidence from the sentencing hearing, the judge found that Vixamar

had come up with the passport-fraud scheme – that is what

Saintfleur had testified to – and had lied to investigators and to

him under oath in a desperate bid to duck responsibility. But

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because (among other things) she was still nursing her infant

daughter, the judge decided on probation, even though he was not

convinced that she had grasped how serious her offense was. And he

warned her and Saintfleur that if they did not live up to their

probation obligations, they would probably go to prison.

Violations

Vixamar and Saintfleur did not stay out of trouble for

long, returning to federal court in January 2011 on probation-

violation charges. The gist of the charges was this: Randolph

police had arrested Saintfleur for depositing into her account in

September 2010 a $4,000 check stolen from Lois Gibbs, an elderly,

mentally-incompetent Randolph resident receiving in-home hospice

care. The check was dated August 29, 2010. Saintfleur had

reported to probation that she had no checking account in her name

and had received only $200 for that entire month. She also had

said nothing to probation about the arrest. Saintfleur had no ties

to Gibbs. But Vixamar did through her work as a certified nursing

assistant ("CNA") for Clinical One, a healthcare-staffing company

that had placed her with Gibbs right around the time that the check

went missing. The theory was that Vixamar had swiped the check and

handed it off to Saintfleur. Compounding her problems, Vixamar had

not filled in Clinical One on her criminal past, had falsified her

job application – giving the company her husband's last name

("Jacques") rather than the one she normally went by ("Vixamar"),

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and jotting down a false social-security number and date of birth

– and had created a false job reference too. She also had kept

probation in the dark about her Clinical One job, and neither she

nor Saintfleur had ever told probation about their interacting with

each other. Making matters worse for Saintfleur, law enforcement

had a video of her helping a "friend" deposit a $6,000 check stolen

from an elderly resident of a Reading, Massachusetts, nursing home

where she had worked as a CNA. Unsurprisingly, Saintfleur had

never clued probation in to the fact that she had worked there for

two months until she was fired in November 2010, and she had never

notified probation that the Reading police had contacted her. All

of this resulted in the pair's getting hit with five probation-

violation charges apiece, though some of Saintfleur's charges had

several subparts.

A magistrate judge held a preliminary revocation and

detention hearing, see Fed. R. Crim. P. 32.1(b)(1), and, after

listening to testimony from a probation officer, concluded that

probable cause existed for two of the charges against Vixamar

(arising from (a) her not telling probation about her Clinical One

job and (b) her falsifying her Clinical One job application) and

for four of the charges against Saintfleur (stemming from (a) her

depositing the stolen Gibbs check and (b) her not telling probation

how police had questioned and arrested her or how she had worked

for and gotten fired by the nursing home). Pertinently for present

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purposes, the magistrate judge found that the government had

offered no evidence to bolster the charges that centered on

Vixamar's involvement in the Gibbs check-cashing scheme or their

associating with each other. And he ultimately released the two to

home confinement with electronic monitoring pending the final

revocation hearing.

Revocation and Resentencing

That hearing happened ten months later before the same

district judge who had sentenced them originally. See Fed. R.

Crim. P. 31.1(b)(2). Vixamar's and Saintfleur's counsel started

off by saying that their clients would admit to all the charges

that the magistrate judge had found probable cause for, but not to

the others. And the prosecutor indicated that the government did

not intend to proceed on these other charges anyway. Not so fast,

said the judge. The magistrate judge had to decide only whether to

detain or release the defendants, the judge added, but he (the

district judge) had to decide whether to revoke their probation and

resentence them. Given their different tasks, "whatever the

magistrate did is not binding on me."2 "I regard this, across the

2
Both Vixamar and Saintfleur play up the magistrate judge's
no-probable-cause findings on appeal. But neither argues that
these findings bound the district judge. And rightly so. See
generally 3 Charles A. Wright & Sarah N. Welling, Federal Practice
and Procedure § 562, at 379 (4th ed. 2011) (noting that a
"revocation hearing in a felony case must be held before a judge
rather than a magistrate judge").

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board, as an extremely serious matter," said the judge, "and I'm

not going to let it go until I've reliably found the facts."

Saintfleur was sworn in, and, responding to the judge's

questions, she admitted all the charges against her except the

association one. She confessed to a lot of things, including that

she had known all along that the Gibbs check was a stolen check and

that she had later helped a friend deposit the stolen $6,000 check

too. But, she insisted, neither she nor Vixamar had stolen the

Gibbs check. A "friend of mine," a woman named "Nerlande Sanon,"

had, she said.3

Hoping to get to the bottom of this, the judge set the

matter down for a formal evidentiary hearing. Before the

government presented its case, the judge questioned Vixamar under

oath, and she conceded that she had falsified her Clinical One job

application, had not come clean with Clinical One about her prior

convictions, and had not told probation about her Clinical One job.

But she denied the remaining charges. The judge then went over the

ground rules for the hearing, stressing that he could revoke

probation if the proof, "reasonably" viewed, "satisfied" him that

a violation had occurred. See, e.g., United States v. DiIanni, 87

F.3d 15, 17 (1st Cir. 1996). "But it may require a preponderance

3
The friend's name is spelled "Narlan Sanon" at one point in
the transcript. We use what the parties tell us is the right
spelling.

-7-
of the evidence to satisfy me," he added.4 The judge asked whether

anyone disagreed with that. And no one did.

The judge then heard testimony from a number of

government witnesses, including John Bringardner, a Randolph

detective who spoke about the Gibbs-check theft; Melissa Knybel, a

Clinical One director who talked about Vixamar's placement with

Gibbs; and Nerlande Sanon (one of two Nerlande Sanons living in the

area, a government search revealed), who testified about knowing

Saintfleur but who denied knowing Vixamar or Gibbs or having a hand

in the Gibbs-check heist. Neither Vixamar nor Saintfleur took the

stand again (so the government never cross-examined them at the

evidentiary hearing), and neither called any witnesses either.

After hearing evidence and argument, the judge found that

Vixamar and Saintfleur had proven themselves to be incorrigible

"frauds and liars" with "a history of conspiring with each other to

commit crimes by using false documents." And he concluded that the

government had proven "by far more than" a preponderance of the

evidence that the two had committed the violations that they had

admitted to, and also that Vixamar had stolen the Gibbs check and

had worked with Saintfleur to have it forged and deposited.

4
The probation-revocation statute, unlike the revocation-of-
supervised-release statute, says nothing about the level of
evidence required. Compare 18 U.S.C. § 3565 (setting out no burden
of persuasion for revocation of probation) with 18 U.S.C. § 3583(e)
(declaring that preponderance of the evidence is the burden of
persuasion for revocation of supervised release).

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Vixamar's fate would have been the same, the judge said, even

without her prior convictions for using her health-aide positions

to steal from the elderly – but they "reinforce[d]" his

"conclusions." The government, he added, only fell short of

proving that Saintfleur had not notified probation about being

questioned by Randolph police, because the record showed that

Detective Bringardner had tried to interview her (they had played

a lot of phone tag) but never did. As for Saintfleur's story that

a Nerlande Sanon had poached the Gibbs check, the judge did not buy

it, even for a second, given that Saintfleur had zero credibility

and that the Sanon who had testified here credibly denied taking

the check. Also, the judge stressed, Saintfleur's decision not to

testify and undergo cross-examination (as she had every right to

do) undercut her story even if it were credible, which, again, it

was not.

Having revoked their probation, the judge turned his

attention to resentencing. See 18 U.S.C. § 3564(e) (explaining how

"[a] sentence of probation remains conditional and subject to

revocation until its expiration or termination"); id. § 3565(a)(2)

(discussing how a court can "revoke the sentence of probation and

resentence the defendant"). The Sentencing Commission classifies

three grades of probation violations – A, B, and C – with the

grades determined by the "conduct constituting" any "federal,

state, or local offense punishable by" various terms of

-9-
imprisonment. U.S.S.G. § 7B1.4. It also offers a table listing

recommended sentencing ranges for probation violations. U.S.S.G.

§ 7B1.4(a). Vixamar and Saintfleur had committed Grade B

violations, the judge said, which, when combined with their

criminal histories, put Vixamar's revocation GSR at 6 to 12 months

and Saintfleur's at 8 to 14 months. But the judge added, and the

parties agreed, that he could also factor into his resentencing

decision what their GSRs had been for the passport-fraud crimes (12

to 18 months for Vixamar; 18 to 24 months for Saintfleur) and what

the statutory sentencing range had been for those crimes too (up to

10 years on each passport-fraud count). And he noted that he could

depart upward if "the original sentence was the result of a

downward departure . . . ." U.S.S.G. § 7B1.1 cmt. n.4.

Pausing at this point, the judge asked defense counsel

whether he had calculated the GSRs correctly, and they answered

yes. The government then asked for a sentence at the top of each

defendant's GSR. But Saintfleur's lawyer floated the idea that the

government's recommendation might breach some prosecutorial promise

that had persuaded her to plead guilty to passport fraud in 2009.

See Santobello v. New York, 404 U.S. 257, 262 (1971) (holding that

prosecutors must honor their end of any plea agreement that they

make). So, in response, the judge said that he would not rely on

the government's sentencing proposal. Vixamar's lawyer asked the

judge to sentence his client to a year and a day in jail and six

-10-
months of home confinement.5 And Saintfleur's attorney requested

that his client get probation again, with the condition that she

serve a year and a day in a halfway house.

The judge resentenced them each to 36 months in prison

and 36 months of supervised release, however. And he explained

why, hitting the relevant sentencing factors in 18 U.S.C.

§ 3553(a).6

Turning to Vixamar, the judge reminded her that he had

given her a real sentencing break in 2009 – remember, her record

had shown multiple convictions for stealing from the elderly, and

she had been the driving force behind the passport-fraud stunt –

something he had done even though he had had serious doubts about

whether she had learned anything from her repeated brushes with the

law. Vixamar then not only lied to probation (about her job

situation, for example) and to Clinical One (by handing over a

false social-security number and date of birth, among other

things), but she also committed another especially "despicable"

5
Looking for leniency, Vixamar's lawyer offered up a medical
note indicating that his client was pregnant. "I'm a little
concerned about admitting this," the judge announced, because the
passport-fraud and probation-revocation cases "have been about
false documents." So the judge called the doctor's office from the
bench on speaker phone and in open session. And the doctor
confirmed that, yes, indeed, Vixamar was pregnant.
6
These include a defendant's background, the nature and
circumstances of the offense, the seriousness of the offense, the
need to deter criminal conduct, and the need to protect the public.
See, e.g., United States v. Rodriguez, 630 F.3d 39, 41 (1st Cir.
2010) (paraphrasing § 3553(a)).

-11-
crime – stealing from a person in her care who could not protect

herself. "[Y]ou're a menace, a tremendous danger to other people,"

the judge said, "particularly to [the] very vulnerable," and he

thought that her sentence would deter her and others from crimes

like this and protect the public too. And he noted that 18 months

(the high end of the GSR) would have been perfectly reasonable for

her passport-fraud crimes. But he concluded that 36 months was

justified because she had violated the "trust" that he had "placed"

in her.

Speaking to Saintfleur, the judge said that he "could

have locked [her] up, very reasonably, for two years in November of

2009," and if he had – i.e., if he had not given her a sentencing

break too – the Gibbs-check theft would not have happened. Like

Vixamar, she had lied to probation and had abused the trust that he

had placed in her. Also like Vixamar, she had shown herself to be

"a very dangerous person" – she had gotten worse over time,

graduating from shoplifting to passport fraud to fleecing the

elderly – and he concluded that her sentence was necessary for

deterrence and public protection as well.

In his written statements of reasons in support of the

sentences, see 18 U.S.C. § 3553(c)(2), the judge, among other

things, again referenced the § 3553(a) factors and noted too how

Vixamar and Saintfleur had gotten downward variances at their

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original sentencing – all of which justified the above-Guidelines

sentences, he wrote.

Issues on Appeal

Arguing in unison, Vixamar and Saintfleur raise two

issues on appeal:

For openers, they say that the government presented

insufficient evidence to support two of the judge's violation

findings – namely, that Vixamar had run off with the Gibbs check,

which Saintfleur then deposited, and that the two had interacted

with each other. They call this an attack on the procedural

reasonableness of their sentences and analyze the issues through

that prism. But because, again, what they are really doing is

questioning the sufficiency of the evidence underpinning the two

contested violations, a different set of cases controls. See

United States v. Gallo, 20 F.3d 7, 13 (1st Cir. 1994). Under this

regime, we review for clear error the district judge's factual

findings regarding whether the probationer violated a probation

condition, and we review for abuse of discretion the judge's

decision that that violation warrants revocation of probation. Id.

For Vixamar and Saintfleur to succeed on their sufficiency claims,

they must get us to firmly and definitely believe that the judge

made a mistake – a tall task, given that (a) the evidence must be

viewed in the light most agreeable to the government, (b) the

judge's choice among competing but plausible inferences from the

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evidence cannot as a matter of law be clearly erroneous, and (c)

credibility calls were his to make. See id. (discussing points (a)

and (c)); United States v. Pacheco, 489 F.3d 40, 45 (1st Cir. 2007)

(discussing point (b)).

Vixamar and Saintfleur also say that their 36-month

prison terms are too harsh, amounting to substantive

unreasonability – an issue we review for abuse of discretion too,

see United States v. Gallardo-Ortiz, 666 F.3d 808, 811 (1st Cir.

2012), knowing that the defendants have an uphill fight, given that

there is no single "reasonable" sentence in any one case but rather

a range of sensible outcomes, see United States v. Clogston, 662

F.3d 588, 592 (1st Cir. 2011), and that a sentence will stand

provided that there is "a plausible sentencing rationale and a

defensible overall result," see United States v. Bunchan, 626 F.3d

29, 35 (1st Cir. 2010) (internal quotation marks omitted).

Analysis

The Sufficiency Challenge

Vixamar's and Saintfleur's sufficiency arguments are

straightforward enough. But before we get to them we need to

discuss an issue that arose rather late in the game concerning the

burden of persuasion for probation revocation. By way of a post-

argument letter, see Fed. R. App. P. 28(j), the government argues

that the reasonably-satisfied standard laid down in our caselaw –

see, e.g., DiIanni, 87 F.3d at 17; Gallo, 20 F.3d at 14; United

-14-
States v. Czajak, 909 F.2d 20, 22 (1st Cir. 1990) – is a lesser

standard than the preponderance-of-the-evidence standard, which is

a more-likely-than-not rule, see Earle v. Benoit, 850 F.2d 836, 841

(1st Cir. 1988). Not so says Vixamar in response, pointing to

cases outside this circuit and insisting that "reasonably

satisfied" requires a preponderance of the evidence. We do not

choose sides on this issue today – an issue that has not gotten

full-briefing treatment – because Vixamar and Saintfleur lose

either way.

Here is why:

(a) The judge had seen and heard Vixamar and Saintfleur

during the 2009 sentencing hearing and the 2011 revocation hearing,

and he found them to be liars: Vixamar had lied about her role in

the passport scam, the judge noted, and later had lied to probation

about her Clinical One job and to Clinical One about her true

identity. Saintfleur had lied to probation about her checking-

account situation, her employment status, and her brushes with the

Reading police. And, ultimately, we see no reason to second-guess

the judge's credibility findings.

(b) Dated August 29, 2010, the stolen Gibbs check had

been taken from the middle of an extra checkbook tucked inside a

box in one of Gibbs's dresser drawers, and one could plausibly

infer from that that whoever snatched it had had access to Gibbs's

home for parts of August 2010. That ruled Saintfleur out. But not

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Vixamar, who as Gibbs's CNA certainly had access, and who by the

way only had access because she had violated other probation

conditions by working for a home-healthcare provider, lying to get

that job, and cutting probation out of the loop.

Saintfleur fires back that others had entrée to Gibbs's

residence too, and she decries the fact that there was no evidence

concerning the CNAs on duty when Vixamar was not. What she

effectively wants is for us to use something over and above even

the beyond-a-reasonable-doubt test, suggesting that we must reverse

because the government did not disprove every possibility that

might let her off the hook. Her argument goes nowhere, however,

given the series of cases that hold that "[t]he government need not

prove a violation beyond a reasonable doubt, but must merely

satisfy the court that a violation occurred," DiIanni, 87 F.3d at

17; accord Gallo, 20 F.3d at 14 – which makes the standard that she

essentially pushes for out of the question.

(c) Vixamar and Saintfleur also knew each other, an

inescapable conclusion given the passport scam that they had run

together. Desperate to poke holes in the judge's analysis, Vixamar

accuses him of exaggerating the "history" between her and

Saintfleur, taking particular offense at his saying that the two

had a "history of conspiring with each other to commit crimes using

false documents." According to Vixamar, the record shows only that

she had recruited Saintfleur into the passport-fraud scheme and had

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gone with her to the passport office to file the false paperwork,

which, she intimates, is not much of a "history."

That is too a myopic view of the evidence, since the

record shows that Saintfleur gave Vixamar the receipt so that

Vixamar could pick up the passport the next day, and that the two

then headed back to Saintfleur's house, at which point Vixamar gave

Saintfleur some of the money that she had promised her for helping

out. Just as importantly, Vixamar glides over the fact that she

and Saintfleur had been "friends" for five or six months before she

sprung the passport-fraud idea on Saintfleur. No matter. The

judge's description of the defendants' conspiracy history jibed

with the evidence and does not come close to clear error.

As a fallback, Vixamar protests that the judge's

"history" comment shows that he was swayed by their "propensity to

commit crimes together," which is a Fed. R. Evid. 404(b)-type

argument. Rule 404(b) holds that evidence of past crimes is

inadmissible to prove that a defendant probably did whatever she is

currently accused of, simply because she has shown a propensity to

break the law. See, e.g., United States v. Tse, 375 F.3d 148, 156

(1st Cir. 2004). But even assuming for argument's sake that

Vixamar is right about her propensity point (something we do not

decide), she gains nothing because the rules of evidence do not

apply to probation-revocation proceedings. See, e.g., Fed. R.

Evid. 1101(d).

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 (d) Saintfleur admitted to depositing the stolen Gibbs

check into her own account. She also admitted to helping an

unnamed "friend" deposit a $6,000 check lifted from a patient at a

Reading nursing home where she (Saintfleur) had worked as a CNA

(without telling probation). Interestingly, the record reveals

that Saintfleur had gone from stealing from stores to stealing from

the elderly after teaming up with Vixamar on the passport scam.

Saintfleur reminds us that she had told the judge under

oath before the evidentiary hearing that she had gotten the check

from a "friend" named Nerlande Sanon. Convinced that this is some

sort of trump card, she and Vixamar contend that her statement

proves that Vixamar was not the thief and that the two had not

interacted with one another as charged. We disagree.

For one thing, Saintfleur played fast and loose with the

truth, the judge found, and even though prevaricators like her may

not prevaricate all the time, see United States v. Williams, 216

F.3d 611, 614 (7th Cir. 2000), he also found that her Nerlande-

Sanon story was not credible either – and again, that was for him,

not us, to decide, see United States v. Oquendo-Rivera, 586 F.3d

63, 67 (1st Cir. 2009). For another thing, the judge could and did

credit Nerlande Sanon's testimony that she knew Saintfleur but not

Vixamar or Gibbs, and that she had nothing to do with the Gibbs-

check theft. Ultimately, these not-clearly-erroneous findings pour

cold water on Saintfleur's theory.

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 Wait a minute, Vixamar says. A government agent had

found two Nerlande Sanons after running different internet searches

but only one testified at the evidentiary hearing. Maybe the non-

testifying Nerlande Sanon was the thief, Vixamar speculates. After

all, the agent testified that this Nerlande Sanon lived in Randolph

(just like Gibbs) and had worked as a CNA in 1976, and the defense

introduced documents showing that she also had a dismissed larceny

charge on her record from around that time, had filed for

bankruptcy in 1996 but now owned a Mercedes, and has a daughter

(Daphnee Germaine) who is a nurse. So maybe she or her daughter,

the theory goes, had slipped Saintfleur the Gibbs check on the sly.

Or because Nerlande Sanon is a fairly common Haitian name, Vixamar

continues, maybe some other Nerlande Sanon was the culprit, and if

the agent had only run more or better searches, he would have found

her.

This argument does not persuade. For starters, and to

repeat ourselves, the judge rejected Saintfleur's Nerlande-Sanon

story, as he had every right to do. Also, Vixamar again sounds

like she wants us to reverse because the government did not

eliminate all doubts about whether she had done what she is alleged

to have done. But again, that is not the test. See, e.g.,

DiIanni, 87 F.3d at 17; Gallo, 20 F.3d at 14. Cinching matters,

the agent also testified that the non-testifying Nerlande Sanon,

who was an investigator with the state department of social

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services, had said that she did not know Saintfleur or Vixamar (she

did not recognize them from their photos) and that she had not

passed any checks on to either of them. She had been "very

helpful" to his investigation, the agent stressed, and "didn't

appear to be holding anything back." And viewing the evidence in

the light most favorable to the government's theory of the case, we

conclude that the judge did not stumble in spurning the suggestion

that a Nerlande Sanon (either one of the two a government agent had

found or one the agent had missed) was the Gibbs-check thief.

Relatedly, Vixamar blasts the judge for intimating that

Saintfleur had falsely fingered Nerlande Sanon as the wrongdoer to

falsely clear Vixamar. But taking the evidence in the light most

friendly to the government, making all reasonable inferences in its

favor too, we see no reversible error here.

Our bottom-line conclusion: Assuming (without deciding)

that the reasonably-satisfied standard for probation revocation

entails a more-likely-than-not threshold, we hold that the district

judge did not clearly err in finding by a preponderance of the

evidence that Vixamar had stolen the Gibbs check and that she and

Saintfleur had associated with each other. Given the soundness of

those factual findings and the leeway the law gives district judges

for judgment in this area, we cannot say that the judge here abused

his discretion by revoking Vixamar's and Saintfleur's probation.

And so we move on.

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 The Sentencing Challenge

As for Vixamar's and Saintfleur's claims that their 36-

month prison sentences are too long, their odds of winning are not

great. See, e.g., Clogston, 662 F.3d at 592. Applying abuse-of-

discretion review, we cannot vacate for substantive

unreasonableness unless they show that the judge's decision "falls

outside the 'expansive boundaries'" of rationally-available

sentencing choices. See United States v. Vargas-Dávila, 649 F.3d

129, 130 (1st Cir. 2011) (quoting United States v. Martin, 520 F.3d

87, 92 (1st Cir. 2008)). This they have not done. We explain,

beginning with a few basics.

Congress crafted a specific statutory scheme to guide a

sentencing judge's discretion in probation-revocation cases. At

the risk of oversimplification, here is how it works. After

holding a hearing under Fed. R. Crim. P. 32.1 and considering the

relevant § 3553(a) factors, a district judge may either "continue

[the] probation, with or without extending the term or modifying or

enlarging the conditions," 18 U.S.C. § 3565(a)(1), or "revoke the

sentence of probation and resentence the defendant," id.

§ 3565(a)(2). Of course, following Congress's direction, the judge

should consult the Sentencing Commission's non-binding policy

statements, see 18 U.S.C. § 3553(a)(5) – statements that suggest,

for example, that the district judge should revoke probation for a

Grade A or B violation, see U.S.S.G. § 7B1.3(a)(1), and should

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focus on punishing the "breach of trust" that the violation

represents, "while taking into account, to a limited degree, the

seriousness of the underlying violation and the criminal history of

the violator," see id. Ch. 7 Pt. A(3)(b).7 Also, and again, the

§ 3553(a) factors that guide sentencing include the characteristics

of the defendant and the nature of the offense, plus the need for

the sentence to reflect the seriousness of the crime, to provide

sufficient deterrence, and to protect the public. See footnote 7,

above. A couple more things to keep in mind: First, the probation

violation puts in "play the penalty provisions of the original

charge," United States v. de Jesús, 277 F.3d 609, 611 (1st Cir.

2002) (emphasis added), meaning the judge can "impose any sentence

[he] might originally have imposed," United States v. Bynoe, 562

F.2d 126, 129 (1st Cir. 1977) – even one that "differ[s] from the

Sentencing Commission's recommendation," provided he "stay[s]

within the range set by the statute[] of conviction," Rodriguez,

630 F.3d at 41. And second, a judge may depart upward from the

7
We quote a little bit more from this statement:
While the nature of the conduct leading to the revocation
[may] be considered in measuring the extent of the breach
of trust, imposition of an appropriate punishment for any
new criminal conduct [is] not . . . the primary goal of
a revocation sentence. Instead, the sentence imposed
upon revocation [is] intended to sanction the violator
for failing to abide by the conditions of the court-
ordered supervision, leaving the punishment for any new
criminal conduct to the court responsible for imposing
the sentence for that offense.
Id.

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probation-revocation GSR if the original sentence for the original

crime resulted from a downward departure. See U.S.S.G. § 7B1.4

cmt. n.4.

To state the obvious, Vixamar's and Saintfleur's 36-month

sentences are well below the combined 20-year maximum that each

could have gotten after pleading guilty to two passport-fraud

infractions apiece, see 18 U.S.C. § 1542, though their sentences

are above the 18-month (Vixamar) and 24-month (Saintfleur) maximums

suggested for the passport-fraud crimes under the advisory-

Guidelines regime. And they are also above the 12-month (Vixamar)

and 14-month (Saintfleur) maximums recommended for their probation

violations.

Because judges typically impose within-Guidelines

sentences, see Rodriguez, 630 F.3d at 42, a judge who does not

risks creating "unwarranted" sentencing disparities, in violation

of 18 U.S.C. § 3553(a)(6), so careful thought is required, see Gall

v. United States, 552 U.S. 38, 54 (2007). And, as Vixamar and

Saintfleur stress, we must consider the degree of difference

between the sentences and the recommended Guidelines ranges. But

we must also "give due deference" to the judge's conclusion "that

the § 3553(a) factors, on a whole, justif[ied]" the sentences.

Gall, 552 U.S. at 51.

The record here reveals no real reason to second-guess

the judge's exercise of sentencing discretion and plenty of reasons

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why it deserves our respect. Vixamar's perjuring herself during

the passport-fraud proceedings was bad enough. But after getting

a sentencing break, she then lied to Clinical One (using a false

social-security number and date of birth, and making up a job

reference), and she lied to probation too (keeping quiet about her

Clinical One job), all so she could prey on elder-care patients –

the very persons the judge had sought to protect through certain

probation conditions. Saintfleur was hardly any better. Like

Vixamar, she chose to parlay her sentencing break into an

opportunity to steal from the defenseless. And she was not

straight with probation either (regarding her checking account and

job situation and her arrest and other contacts with the police).

Obviously the probation sentences did not make Vixamar and

Saintfleur mend their ways – they had actually gotten worse, the

judge found. "[V]ery dangerous" were words he used.

"[I]ncorrigible" was another. The need to deter them from

committing future crimes – and to deter other healthcare workers

from copying them – justified above-Guidelines sentences selected

to make the message sink in and hopefully stick. Cf. Vargas-

Dávila, 649 F.3d at 131 (finding the defendant's 24-month prison

sentence substantively reasonable, even though his GSR was 5 to 11

months, noting, among other things, his "checkered record of non-

compliance" with his supervised-release conditions).

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 The above-Guidelines sentences were also justified given

what the Sentencing Commission says about how upward departures for

probation violations may be warranted following downward departures

at the original sentencing. See U.S.S.G. § 7B1.4 cmt. n.4. The

judge at various points in the record called each probation

sentence the product of a downward "departure." But he also called

them the result of a downward "variance." Now, the policy

statement relevant here speaks only of "departure[s]." Id.

Departures and variances do differ. See Irizarry v. United States,

553 U.S. 708, 714 (2008) (explaining that a "'[d]eparture' is a

term of art under the Guidelines and refers only to non-Guidelines

sentences imposed under the framework set out in the Guidelines");

United States v. Gibbons, 553 F.3d 40, 42 (1st Cir. 2009)

(clarifying that a variance results from the judge's consideration

of the § 3553(a) factors). But their differences do not matter for

present purposes – the policy applies just as well to one as to the

other.

Vixamar and Saintfleur make several counter-arguments,

none of which they raised below, so we review only for plain error.

See, e.g., United States v. Edelkind, 467 F.3d 791, 796 (1st Cir.

2006). Plain error, of course, requires "(1) error, (2) plainness,

(3) prejudice, and (4) an outcome that is a miscarriage of justice

or akin to it," id. at 797 – a hard-to-meet standard, to be sure,

see, e.g., United States v. Tan, 674 F.3d 103, 111 (1st Cir. 2012).

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 First up is Vixamar's claim that the judge impermissibly

"double counted" her breach of trust, an argument that goes

something like this: Pointing to the Sentencing Commission's

policy statement that we quoted several paragraphs ago, she says

that a judge in a revocation proceeding should impose a sanction

for the "breach of trust," leaving punishment for any separate

criminal offense to follow a conviction in a separate criminal

proceeding. Next she says that the judge reached the 36-month

number by first giving her 18 months (the upper end of the GSR for

the passport-fraud offenses) because she had breached the trust he

had placed in her when he gave her probation and then by adding 18

more because, again, she had breached his trust when she violated

the probation conditions.8 And that, she insists, without citing

a single case, amounts to forbidden double counting.

Vixamar gets no mileage out of this argument.

Admittedly, her stealing the Gibbs check constituted both a

probation violation and a separate criminal offense. And by

8
Here is what the judge said:
This [36-month] sentence is above the advisory guideline
range, but any disparity between you and others who might
be superficially similar is justified. I gave you a very
substantial downward departure, a break, in November of
2009, from 12 to 18 months. I could have locked you up
for 18 months in November of 2009 and then Mrs. Gibbs
wouldn't have had her money stolen, and you quickly
violated that trust by committing serious crimes. The
guidelines indicate that usually 18 months is reasonable
the first time. Your new crime is worth at least another
18 months, because you also violated the trust – the more
hope than trust, even – that I placed in you.

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reading certain selected statements of the district judge, one

might be tempted to think that the judge did what the Sentencing

Commission recommends against – sentencing Vixamar for the

triggering crime. One would be wrong, however. The record, when

fairly and comprehensively examined, makes clear that the entire

36-month sentence was sparked by her breach of trust – though the

judge did note the seriousness of her new offense, which is a

permissible § 3553(a) consideration – rather than by a desire to

punish her for her latest crime. All of this tracks nicely with

the Sentencing Commission's advice. The judge had the right focus,

in other words. And with his not having subverted the policy

statement that she relies on, Vixamar is left with nothing (she

points us to no caselaw, for example) supporting her position.

Simply said, this is not the stuff of plain error. See United

States v. Roy, 506 F.3d 28, 30-31 (1st Cir. 2007) (explaining the

plain-error standard with exquisite care).

Vixamar also accuses the judge of overzealousness in

pursuing public deterrence, claiming he had let his "personal

distaste" for what she had done get the better of him. True, the

judge called thieving from a woman in hospice care "despicable."

But we see nothing suggesting any impropriety in the way he weighed

the § 3553(a) factors.

As for Saintfleur, she does argue that the judge

obsessively focused on punishing her for depositing the Gibbs check

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– a serious crime, she apparently concedes. But what we have just

said about the judge having trained his focus on the right

considerations sinks this argument too. She also contends that her

probation-revocation GSR (8 to 14 months) adequately covered the

seriousness of the situation, and she faults the judge for not

explaining why he thought that it did not. Again, from what we

have said it is obvious that the judge did spell out why a within-

Guidelines sentence would not work, so we need say no more about

that. And her final claim – that the judge could adjust her

sentence upward because of the original sentencing break, but only

by one level – is a non-starter, given that she cites no authority,

nor can we think of any, suggesting that she is right.

Weighing the § 3553(a) factors is no easy task. It is

far from a science. See Clogston, 662 F.3d at 593. And it

involves many hard choices, with a lot hanging in the balance. But

sentencing judges (unlike us) do this almost daily, year in and

year out, seeing and hearing the defendants and other witnesses

first hand. See id. Hence our deferential standard of review.

See id. Taking advantage of his superior position, the judge here

imposed defensible sentences, given his sensible view of the

circumstances, and he offered plausible rationales for them too.

Maybe a different judge would have made different choices. But

because we cannot say that this judge's choices fall outside the

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realm of "reasonable sentencing outcomes," Vixamar's and

Saintfleur's sentences stand. See id. at 592.

Conclusion

For the reasons given above we affirm the judgments below

in all respects.

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