United States v. Sansone

United States Court of Appeals
For the First Circuit

No. 22-1464

UNITED STATES OF AMERICA,

Appellee,

v.

DANIEL PAUL SANSONE,

Defendant, Appellant.

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

[Hon. Lance E. Walker, U.S. District Judge]

Before

Barron, Chief Judge,
Selya and Gelpí, Circuit Judges.

Stephen P. Super on brief for appellant.
Darcie N. McElwee, United States Attorney, and Benjamin M.
Block, Assistant United States Attorney, on brief for appellee.

January 4, 2024
 SELYA, Circuit Judge. Defendant-appellant Daniel Paul

Sansone challenges both the procedural integrity and substantive

reasonableness of his top-of-the-range sentence. His procedural

challenges, though, are unpreserved and fail plain-error review.

That leaves his substantive challenge, which we review for abuse

of discretion. Discerning none, we affirm the defendant's

sentence.

I

We briefly rehearse the relevant facts and travel of the

case. "Where, as here, a sentencing appeal follows a guilty plea,

we glean the relevant facts from the change-of-plea colloquy, the

unchallenged portions of the presentence investigation report (PSI

Report), and the record of the disposition hearing." United States

v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009).

On October 15, 2020, law enforcement officers in

Waterville, Maine, responded to a report of a gunshot near Poolers

Parkway. The report noted that "a suspicious male on a red

motorcycle was observed in the area." Upon arriving at the scene,

the officers found the defendant standing next to a red motorcycle.

When the officers asked the defendant to show them his hands, the

defendant fled. A foot-chase ensued. The chase ended in the

defendant's capture.

Once the defendant was in custody, a search of his person

revealed a loaded ammunition magazine and a large amount of cash.

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A backpack that the defendant discarded while running contained,

among other things, 28.1 grams of marijuana. Following an

inspection of the area covered by the foot-chase, the officers

also found a loaded firearm with the safety selector switch in the

"fire" position.

In an interview with law enforcement, the defendant said

that he had traveled to Waterville to locate Zoe Hendricks, who

shares a child with him. He added that Hendricks was subject to

bail conditions, which prohibited her from having any contact with

him. With respect to the firearm, the defendant insisted that he

carried it with him — despite being a prohibited person1 — because

he believed that a drug dealer had a "hit on him." He also asserted

that the firearm had discharged accidentally.

Further inquiry revealed that both the defendant and

Hendricks were on bail following an arrest on April 30, 2020. That

arrest resulted in charges of aggravated trafficking of scheduled

drugs, carrying a concealed weapon, and violating a condition of

release.

A review of the defendant's text messages and social

media accounts disclosed that he had sent several messages to

Hendricks on the night of October 15. A representative sampling

of these messages follows:

On October 6, 2020, the defendant was convicted in a Maine
1

state court of unlawful trafficking in scheduled drugs.

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 • "I'm going to suicide by cop tonight."

• "Just do this the easy way so I don't have to go

shooting up your families houses." "I'm taking

someone close to you out with me."

• "Zoe, if you down [sic] answer, I'm going to shoot

myself in the head." This message included a photo

of the defendant with a gun to his head and his

finger on the trigger.

• "I'm ready to die to night and I'll happily take

you with me . . . ."

At the time of the incident, Hendricks lived close to where the

gunshot was fired. Following the gunshot, the defendant messaged

Hendricks, "I know you could hear that."

In due course, a federal grand jury sitting in the

District of Maine returned an indictment that charged the defendant

with being a felon in possession of a firearm. See 18 U.S.C.

§ 922(g)(1). Although the defendant initially maintained his

innocence, he later pleaded guilty to this charge. After accepting

the defendant's guilty plea, the district court ordered the

preparation of a PSI Report. That report was submitted, and the

probation office later substituted a revised PSI Report.2

The revised PSI Report included an addendum, which confirmed
2

that no objections to it had been received either from the
defendant or from the government.

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 In the revised PSI Report, the probation office

recommended a total offense level of seventeen, a criminal history

score of eight, and a criminal history category (CHC) of IV. Of

particular pertinence for present purposes, the criminal history

score included four points stemming from two discrete

adjudications in a Massachusetts juvenile court. The first two

points related to a February 2015 charge of receiving stolen

property; the second two points related to March 2015 charges of

receiving stolen property and twice uttering counterfeit notes.

The disposition for both sets of charges was identical: "Continued

Without a Finding with Supervised Probation."

The defendant's release on probation for these two

juvenile state-court adjudications was short-lived. After his

second probation violation, he was "Committed" to the

Massachusetts Department of Youth Services (DYS) on December 23,

2015. He was thereafter "Released to Community" on June 23, 2016.

From that time forward, he was "In and Out of DYS Custody" and

"Discharged from DYS" on October 26, 2017.

The revised PSI Report recommended a guideline

sentencing range (GSR) of thirty-seven to forty-six months'

imprisonment. Neither party challenged this calculation.

The district court convened the disposition hearing on

June 1, 2022. The prosecutor described the defendant as "a master

manipulator" and noted that, although "[t]he defendant is somebody

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that unquestionably has had an extremely troubled and difficult

childhood," that reality should not "explain away" the defendant's

misconduct. The prosecutor further observed that the defendant

had subjected Hendricks to "despair and terror" on October 15.

Given this predicate, the prosecutor argued for "a sentence at the

high end of the guideline range."

For his part, defense counsel introduced seven exhibits,

including a psychological report, a letter from Hendricks, and a

sheaf of other letters. He did not object to the inclusion of

four points in the defendant's criminal history score based upon

the defendant's juvenile adjudications. Wrapping up, defense

counsel argued for a downwardly variant sentence, suggesting that

the defendant's circumstances, particularly "the difficulty in his

childhood," warranted "leniency." The court then heard testimony

from the defendant's mother, Barbara Sansone, who discussed the

defendant's entry into foster care, his childhood, and the "total

attitude change" that she witnessed in the months following his

most recent incarceration.

During his allocution, the defendant accepted

responsibility for his actions, admitting that his "choices were

foolish, lacked foresight, and created a recurring pattern that

lasted for years." He concluded by requesting a downwardly variant

sentence.

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 The court proceeded to adopt the revised PSI Report in

its entirety (including the guideline calculations). It stated

that — in fashioning an appropriate sentence — it had considered

the parties' recommendations, the defendant's exhibits, his

mother's testimony, and his allocution, as well as the sentencing

factors limned in 18 U.S.C. § 3553(a). The court made clear its

view that "the conduct underlying [the] offense is alarming in the

extreme." It emphasized that the need to provide specific

deterrence and protect the public from the defendant "scream out

to me for me to be at least a stopgap" and to impose "a period of

incarceration that's meaningful." And the court stated:

I take no exception with the characterization
that [defense counsel] presented in terms of
your personal history and characteristics.
You have had, to put it mildly, a challenging
go in the few years that you've been on the
planet. I get that. You're not the first
person to appear before me who has struggled
in a similar fashion. And I understand how
hopelessly complex that can make life, and it
can lead to resentment, bitterness, confusion,
and extremely poor decisions. I get all of
that.

In the end, the court determined that a forty-six-month term of

immurement was "a just and fair sentence." This timely appeal

followed.

II

"Appellate review of claims of sentencing error entails

a two-step pavane." United States v. Matos-de-Jesús, 856 F.3d

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174, 177 (1st Cir. 2017). During this pavane, "we first determine

whether the sentence imposed is procedurally reasonable and then

determine whether it is substantively reasonable." United States

v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011). Throughout, "our

review of preserved claims of error is for abuse of discretion."

United States v. Díaz-Lugo, 963 F.3d 145, 151 (1st Cir. 2020).

Unpreserved claims of error, if not deemed waived, are reviewed

only for plain error. See United States v. Duarte, 246 F.3d 56,

60 (1st Cir. 2001).

In this venue, the defendant challenges both procedural

and substantive aspects of his sentence. We address these

challenges separately.

A

The defendant advances two related claims of procedural

error. First, he argues that a juvenile adjudication of DYS

commitment is not a sentence of confinement and, thus, not a lawful

predicate for the assignment of criminal history points under USSG

§4A1.2(d)(2)(A). Second, he argues that "there was no evidence on

the record" to support the sentencing court's conclusion that both

juvenile adjudications resulted in confinement of at least sixty

days. Either way — he says — the sentencing court committed

procedural error when it used the juvenile adjudications to boost

his criminal history score (and, thus, increase his CHC).

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 1

We start with the argument that the defendant's criminal

history score was erroneously inflated because a juvenile

adjudication of DYS commitment is not a sentence of confinement.

Because the defendant did not advance this argument below, our

review is for plain error. See United States v. Serrano-Mercado,

784 F.3d 838, 844-45 (1st Cir. 2015); United States v. Vasco, 564

F.3d 12, 22 (1st Cir. 2009).

"The plain error hurdle is high." United States v.

Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989). To prevail under

plain-error review, a defendant must make "four showings: (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." Duarte, 246 F.3d at 60.

Moreover, "[a] party who claims plain error 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). The defendant

cannot make this uphill climb.

Our analysis begins with the text of the relevant

guideline. See United States v. DiPina, 178 F.3d 68, 71 (1st Cir.

1999). USSG §4A1.2(d)(2)(A) directs that two criminal history

points are to be added to a defendant's criminal history score for

"each . . . juvenile sentence to confinement of at least sixty

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days if the defendant was released from such confinement within

five years of his commencement of the instant offense." For any

other juvenile sentence imposed within that period, only one

criminal history point is added to the defendant's criminal history

score. See USSG §4A1.2(d)(2)(B). Neither the guideline nor its

commentary expands on the meaning of the phrase "juvenile sentence

to confinement."

The question of what constitutes a sentence of

confinement under section 4A1.2(d)(2)(A) is a question of federal

law. See United States v. Carrasco-Mateo, 389 F.3d 239, 246 (1st

Cir. 2004). In this case, the defendant cites no pertinent federal

authority expounding on the meaning of the phrase "juvenile

sentence to confinement."

The only authority cited by the defendant for the

proposition that — under section 4A1.2(d)(2)(A) — a juvenile

adjudication of DYS commitment is not a sentence of confinement is

Commonwealth v. Samuel S., 69 N.E.3d 573 (Mass. 2017). There, the

Massachusetts Supreme Judicial Court (SJC) purposed to answer

whether Mass. Gen. Laws ch. 6, § 178E(f) gave Massachusetts judges

"discretion to relieve [a] juvenile of the requirement to register

as a sex offender." Id. at 576. The exercise of discretion was

determined to be contingent upon whether the juvenile had been

sentenced to immediate confinement. See id. at 577. The SJC held

that — for purposes of that statute — commitment to DYS did not

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"constitute a sentence of immediate confinement." See id. at 581

& n.13.

Samuel S. has only tangential bearing on the issue we

must decide. It tells us that a juvenile adjudication of DYS

commitment does not constitute a sentence of immediate confinement

for the purpose of a particular state statute. But it tells us

nothing about whether a juvenile adjudication of DYS commitment

constitutes a sentence of confinement for the purpose of section

4A1.2(d)(2)(A).

We add, moreover, that the sentencing court in this case

was not writing on a pristine page. In the past, we have upheld

sentencing courts' determinations that Massachusetts juvenile

adjudications of commitment constitute sentences of confinement.

See, e.g., United States v. Gibbons, 553 F.3d 40, 45-46 (1st Cir.

2009).

To be sure, the defendant's argument has a patina of

plausibility. A juvenile's commitment to DYS may result in any

one of five distinct outcomes, two of which include confinement.

See Mass. Gen. Laws ch. 120, § 6 (listing outcomes); see also

Gibbons, 553 F.3d at 45. The record in this case is inscrutable

on this point: it simply does not permit us to discern which of

these outcomes attached to the defendant's commitments.

Under plain-error review, this ambiguity cuts in favor

of the government. See United States v. Gonzalez, 981 F.3d 11, 22

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(1st Cir. 2020) (explaining that — under plain-error review —

ambiguity cuts against appellant); United States v. Sweeney, 226

F.3d 43, 46 (1st Cir. 2000) (stating that "'plain error' must be

just that — clear-cut, patent, and obvious"). After all, to

prevail on plain-error review, an appellant must do more than show

that his claim of error is plausible. He must show, among other

things, that the error claimed is "clear or obvious." Duarte, 246

F.3d at 60.

To constitute clear or obvious error, an error must be

"contrary to existing law." United States v. Rabb, 5 F.4th 95,

101 (1st Cir. 2021); see United States v. Ackerly, 981 F.3d 70, 76

(1st Cir. 2020) (stating that such "error must offend established

law"). "In other words, the error must be 'indisputable' in light

of controlling law." Rabb, 5 F.4th at 101 (quoting United States

v. Jones, 748 F.3d 64, 70 (1st Cir. 2014)). In the absence of

some authoritative signposts — and we see none here — a district

court's choice between two equally plausible but conflicting

outcomes cannot constitute plain error. This is a steep climb,

and the defendant has not succeeded in reaching the summit. See

Rabb, 5 F.4th at 101 (noting that when "defendant has not

identified any authority, whether in a statute or in the case law,"

for proposition advanced, claimed error cannot be clear or

obvious); see also United States v. Ilarraza, 963 F.3d 1, 15 (1st

Cir. 2020) (noting that appellant who, among other things, did not

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"identify any authority defining" the phrase "confinement," as

used in USSG §4A1.2(d)(2)(A), could not prevail under plain-error

review). It follows that the defendant's first claim of procedural

error succumbs under plain-error review.

2

We turn next to the defendant's argument that there is

insufficient evidence in the record to support the district court's

conclusion that both juvenile adjudications resulted in sentences

of confinement of at least sixty days. This argument — which

questions the temporal aspect of the juvenile adjudications — was

not raised below and, thus, our review is for plain error. See

Duarte, 246 F.3d at 60.

On plain-error review, the "bar for challenging a

district court's factual findings is especially high." United

States v. González-Andino, 58 F.4th 563, 568 (1st Cir. 2023).

"[I]f an error pressed by the appellant turns on 'a factual finding

[he] neglected to ask the district court to make, the error cannot

be clear or obvious unless' he shows that 'the desired factual

finding is the only one rationally supported by the record below.'"

Id. (alterations in original) (quoting United States v. Takesian,

945 F.3d 553, 563 (1st Cir. 2019)).

The defendant cannot make this showing. In point of

fact, he does not even attempt to do so. Instead, he relies on a

purported ambiguity in the record to claim that the "period of

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actual confinement could have begun sixty-one days before June

23rd" (the "Released to Community" date), "fifty-nine days before

the release date," or "even . . . the day the commitment was

imposed." Because the factual finding that the defendant proposes

— that the two DYS-commitment adjudications did not result in

sentences of at least sixty days — is not the only plausible

interpretation of the factual record, the defendant cannot prevail

under plain-error review. See id. It follows that the defendant's

second claim of procedural error must fail.3

B

This brings us to the defendant's challenge to the

substantive reasonableness of his top-of-the-range sentence. At

the disposition hearing, defense counsel argued for a shorter

sentence, suggesting that such a sentence would be sufficient, but

not greater than necessary, to achieve the purposes of sentencing.

That was enough to preserve the claim of substantive

unreasonableness. See Holguin-Hernandez v. United States, 140 S.

For the sake of completeness, we add that the defendant's
3

argument would also fail because he cannot meet the heightened
prejudice standard under plain-error review. See United States v.
Olano, 507 U.S. 725, 734 (1993) (requiring showing that alleged
error was prejudicial in order to satisfy third element of
plain-error review). Although the government bore the burden of
proof before the trial court, see Gibbons, 553 F.3d at 43, the
defendant — on appellate review — has "failed to point to any
reason to conclude that an examination of the [juvenile records]
would indicate" that he was not actually confined, Serrano-
Mercado, 784 F.3d at 847. Nor does the defendant argue that he
was not confined.

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Ct. 762, 766 (2020). Our review, therefore, is for abuse of

discretion. See United States v. Flores-Nater, 62 F.4th 652, 655

(1st Cir. 2023); United States v. Bruno-Campos, 978 F.3d 801, 808

(1st Cir. 2020).

The case law makes manifest that, "[i]n the sentencing

context, 'reasonableness is a protean concept.'" Clogston, 662

F.3d at 592 (quoting United States v. Martin, 520 F.3d 87, 92 (1st

Cir. 2008)). As such, "[t]here is no one reasonable sentence in

any given case but, rather, a universe of reasonable sentencing

outcomes." Id. To determine whether a particular sentence is

substantively reasonable, we ask whether it "falls within this

broad universe." United States v. Rivera-Morales, 961 F.3d 1, 21

(1st Cir. 2020).

Contesting the substantive reasonableness of a sentence

is particularly daunting where — as here — "the challenged sentence

is within a properly calculated GSR." Clogston, 662 F.3d at 593;

see United States v. Madera-Ortiz, 637 F.3d 26, 30 (1st Cir. 2011).

"To undermine the substantive reasonableness of a within-the-range

sentence, a defendant must 'adduce fairly powerful mitigating

reasons and persuade us that the district judge was unreasonable

in balancing pros and cons despite the latitude implicit in saying

that a sentence must be "reasonable."'" Madera-Ortiz, 637 F.3d at

30 (quoting United States v. Navedo-Concepción, 450 F.3d 54, 59

(1st Cir. 2006)). This is no less true when the sentence imposed

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is at the upper end of the applicable guideline range. See, e.g.,

id. at 32.

We need not tarry. "In the last analysis, a sentence

will withstand a challenge to its substantive reasonableness as

long as it rests on 'a plausible sentencing rationale' and reflects

'a defensible result.'" United States v. de Jesús, 831 F.3d 39,

43 (1st Cir. 2016) (quoting Martin, 520 F.3d at 96). The sentence

challenged here passes this test with flying colors.

To begin, the sentencing court convincingly articulated

why it believed that the defendant's conduct warranted a sentence

at the upper end of the applicable GSR. The court determined that

the offense conduct was "alarming in the extreme." Although the

court acknowledged the defendant's "challenging" life, it

emphasized the need to provide specific deterrence and to protect

the public. This sentencing rationale was plausible.

So, too, the challenged sentence reflects a defensible

result. For one thing, the record makes clear that the defendant

violated his bail conditions when he contacted Hendricks on October

15 and sought to force her to violate her bail conditions as well.

For another thing, the defendant subjected Hendricks to an evening

of terror: he threatened to kill himself, kill her, and kill her

relatives. To make a bad situation worse, he texted her pictures

of himself with a gun to his head and went so far as to fire a

shot within 100 yards of her home. Given this forbidding record,

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we cannot say that a sentence at the upper end of the guideline

range was indefensible.

The defendant rejoins that the sentencing court

"overstated" the seriousness of his past criminal record and failed

adequately to consider his personal history and characteristics.

This complaint does not move the needle. We repeatedly have

observed that "the weighting of [the section 3553(a)] factors is

largely within the [district] court's informed discretion."

Clogston, 662 F.3d at 593; see Madera-Ortiz, 637 F.3d at 32

(explaining that it is "[t]he sentencing court's task [] to sift

the available information and balance the pertinent factors (both

mitigating and aggravating)"). We are bound to "accord significant

deference" to the district court's "informed determination that

the section 3553(a) factors justify the sentence imposed." Rivera-

Morales, 961 F.3d at 21. Consequently, "we cannot substitute our

judgment of the appropriate sentence for that of the [district]

court." Id.

Here, moreover, the court specifically stated that it

had considered, among other things, all the section 3553(a)

factors. Such a statement "is entitled to some weight." United

States v. Dávila-González, 595 F.3d 42, 49 (1st Cir. 2010).

Let us be perfectly clear. Cutting through the thicket

of words, the defendant's real complaint is not that the district

court failed to consider certain relevant factors but, rather,

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that the district court failed to attach to certain factors the

weight that he thinks they deserved. Yet, as we repeatedly have

stated, "[t]hat [a] sentencing court chose not to attach to certain

of the mitigating factors the significance that the [defendant]

thinks they deserved does not make the sentence unreasonable."

Clogston, 662 F.3d at 593; see United States v. De Jesús-Torres,

64 F.4th 33, 42 (1st Cir. 2023); United States v. Ortiz-Pérez, 30

F.4th 107, 112-13 (1st Cir. 2022); United States v. Suárez-

González, 760 F.3d 96, 102 (1st Cir. 2014).

To sum up, we hold that the defendant's top-of-the-range

sentence both rests on a plausible sentencing rationale and

reflects a defensible result. Having failed to "adduce fairly

powerful mitigating reasons and persuade us that the district judge

was unreasonable in balancing" the sentencing factors, Navedo-

Concepción, 450 F.3d at 59, the defendant's challenge to the

substantive reasonableness of his sentence founders.

III

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

the challenged sentence is

Affirmed.

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