United States v. Sweeney

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit

No. 14-1015

UNITED STATES OF AMERICA,

Appellee,

v.

JAMES A. SWEENEY,

Defendant, Appellant.

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

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

Before

Torruella, Howard, and Thompson,
Circuit Judges.

Paul J. Garrity on brief for appellant.
Renée M. Bunker, Assistant United States Attorney, and
Thomas E. Delahanty II, United States Attorney, on brief for
appellee.

April 7, 2015
 PER CURIAM. Appellant James Sweeney appeals the 70-month

prison sentence meted out to him after he pleaded guilty to

conspiracy to possess with intent to distribute more than 100

kilograms of marijuana. He also appeals a "stay dry" condition of

supervised release prohibiting him from possessing or consuming

alcohol for four years after his release from prison. We have

already affirmed the 72-month sentence of Sweeney's partner in

crime, Gerald Rich. United States v. Rich, 589 F. App'x 549 (1st

Cir. 2015) (per curiam). As with Rich, "[t]here is no reason to

tarry" over Sweeney's appellate arguments. Id.

1. Sentence

We begin with Sweeney's challenge to his sentence.

Eschewing any complaint about its procedural reasonableness, and

forgoing any argument that the district court came up with the

wrong sentencing range or misapplied the United States Sentencing

Guidelines ("Guidelines"), Sweeney says only that it was

substantively unreasonable. In essence, Sweeney argues that he is

entitled to a downward variance from the Guidelines-recommended

range of 70-87 months. He suggests 36 months would be appropriate,

and he asks us to vacate his 70-month sentence and remand for

resentencing. Our review is for abuse of discretion. United

States v. Ayala-Vazquez,751 F.3d 1, 29 (1st Cir.), cert. denied sub

nom. Ayala-Vasquez v. United States, 135 S. Ct. 289 (2014) and

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cert. denied sub nom. Cruz-Vasquez v. United States, 135 S. Ct. 467

(2014).

Sweeney's arguments boil down to an expression of

disappointment about the weight the district judge gave to various

aspects of his personal history and characteristics, along with

assurances that his family "would be behind him" while he was in

prison, compared to the weight given to the facts about his

specific involvement in a significant and growing drug smuggling

operation. Such an attack bears no fruit. "That the court chose

to attach less significance to certain mitigating circumstances

than [Sweeney] thinks they deserved does not make his sentence

substantively unreasonable." United States v. Colón-Rodríguez, 696

F.3d 102, 108 (1st Cir. 2012); see also United States v. Rossignol,

___ F.3d ___, 2015 WL 1136485 at *4 (1st Cir. Mar. 16, 2015) ("That

the defendant would prefer an alternative weighing of the

circumstances does not undermine the district court's sentencing

decision.").

Sweeney also takes issue with what he considers to be the

district judge's failure to take into account his good behavior

while out on pre-sentence release. Specifically, he claims the

judge "made no mention of . . . his good conduct, over an

approximate year and a half time period, while on pre-sentence

release." This conduct includes his gainful employment and the

lack of any additional trouble with the law prior to sentencing.

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What's more, Sweeney believes his relative youth demonstrates his

rehabilitative potential and should count in his favor, too.

The problems with Sweeney's position are two-fold.

First, as a factual matter, the record shows that the district

judge did consider Sweeney's youth and his good post-arrest

behavior in crafting the sentence. Indeed, the district judge

explicitly recognized that, "[a]fter his arrest and release,

[Sweeney] worked as a roofer in Portland." As far as Sweeney's

argument about his age goes, the judge stated that he saw "an

enormous amount of potential" in Sweeney, and told Sweeney that he

would have the opportunity to "put this felony . . . behind [him]"

when he gets out of jail and "use . . . his talents in a legal and

constructive way to go out and carve out a good life for

[himself]." So, we see that Sweeney's complaint lacks factual

support in the record, and his real beef is with how the district

judge factored these personal characteristics into the overall

sentencing calculus.

This brings us to the second area of weakness: that the

district judge found Sweeney's mitigation evidence to be outweighed

by other relevant considerations1 does not mean that Sweeney's

1
For example, the judge stated that Sweeney had "committed a
serious federal crime, that there's a lot of money involved, and
there are a lot of dangers in this type of illegal activity, and
that if people sitting out there hear that . . . people like you
are treated leniently, they will be encouraged to do it and to
follow in your footsteps."

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sentence is substantively unreasonable. See Colón-Rodríguez, 696

F.3d at 108. Though the district court may give significant weight

to a defendant's pre-sentence rehabilitation if appropriate in a

particular case, cf. Pepper v. United States, 131 S. Ct. 1229, 1241

(2011), we have never required a sentencing judge to automatically

tip the scale in favor of that consideration. The lynchpin of our

analysis, whether the district court adequately weighed the

relevant statutory factors and whether it provided a "plausible

sentencing rationale," United States v. Martin, 520 F.3d 87, 96

(1st Cir. 2008), remains unchanged.2

In that regard, after an exhaustive hearing the district

judge concluded that Sweeney was the "brains behind the [drug]

operation." Sweeney used his contacts in Mexico to get hundreds of

pounds of marijuana into the United States for eventual

distribution in Maine. The district judge characterized Rich and

Sweeney as "equal partner[s]" in their drug operation, a logical

finding given that Rich would have had no product to sell without

2
Sweeney relies heavily on Martin, a case in which we upheld
a downward variance of 91 months where the defendant "made a
particularly striking impression." 520 F.3d at 94. Yet it takes
but a moment's thought to recognize that affirming a downward
variance granted by one sentencing judge has nothing at all to do
with whether Sweeney's bottom-of-the-range Guidelines sentence was
substantively unreasonable. Further, in Martin we noted that
"there are valid reasons for regarding professions of post-offense
rehabilitation skeptically," and "separating wheat from chaff is
primarily a task for the district court." Id. at 93.

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Sweeney, and Sweeney would not have been able to sell his drugs on

the street without Rich.

Considering the overall record, we conclude that Sweeney

has not come close to adducing the type of "fairly powerful

mitigating reasons" necessary to stand a chance of convincing an

appellate court that "the district judge was unreasonable in

balancing pros and cons" when passing sentence. Ayala-Vazquez, 751

F.3d at 32-33 (quoting United States v. Batchu, 724 F.3d 1, 14 (1st

Cir. 2013)) (internal quotation marks omitted). And, as we

recently reiterated in affirming Rich's 72-month sentence, "[i]n

the mine-run of criminal cases there is no single appropriate

sentence but, rather, a universe of reasonable sentences." Rich,

589 F. App'x at 549 (citing United States v. Walker, 665 F.3d 212,

234 (1st Cir. 2011)). We are satisfied that Sweeney's sentence

fits comfortably within that universe. Accordingly, the judge did

not abuse his discretion in imposing the bottom-of-the-range 70-

month sentence.

2. "Stay dry" Condition of Supervised Release

Having disposed of the first ground of appeal, we come

now to the second. Sweeney, recognizing that he failed to object

to any of the conditions of supervised release at sentencing, says

that the district court plainly erred in prohibiting him from

possessing or using alcohol while he is out on supervised release.

The crux of his argument is that he was convicted of a drug-related

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crime, not an alcohol-related one, and that there is nothing about

his personal history or characteristics that warrants prohibiting

him from drinking when he gets out of prison.

Although the government does respond to the merits of

Sweeney's argument, it first urges us to find that he did not

merely forfeit the objection, he waived it completely. We agree.

The Presentence Investigation Report ("PSR") concluded by

listing special conditions of supervised release recommended to the

district court. The first of these proposed conditions would

prohibit Sweeney from "us[ing] or possess[ing] any controlled

substance, alcohol, or other intoxicant." Although Sweeney

objected to other aspects of the PSR, he did not object to the

"stay dry" recommendation.

Then, at the sentencing hearing, the district judge

advised Sweeney of the following before he passed sentence:

I'm going to place you, as I did Mr. Rich, on
four years of supervised release. I'm going
to impose some conditions. Those conditions
will include drug treatment. I don't want you
slipping back to your old ways of marijuana
abuse and alcohol abuse. I'm not going to
trust you on that. I'm going to require that
you get tested and make sure that you're not
going back and abusing drugs and alcohol.

Shortly thereafter, and as promised, the judge imposed this

particular condition, decreeing that Sweeney "shall not use or

possess any controlled substance, alcohol, or other intoxicant"

while on supervised release. After imposing other conditions and

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discussing a potential fine, the following colloquy with defense

counsel ensued:

The Court: Is there any objection to the
terms of supervised release on the part of the
defendant?

[Counsel]: No. No, there is not, Judge.
Thank you.

Sweeney did not file any post-sentencing motions, and waited until

this appeal to express any dissatisfaction with the "stay dry"

provision.

On this record, Sweeney's conduct smacks to us of waiver,

not forfeiture. We have previously determined that

[a] party waives a right when he intentionally
relinquishes or abandons it. This is to be
distinguished from a situation in which a
party fails to make a timely assertion of a
right-what courts typically call a
"forfeiture." This difference is critical: a
waived issue ordinarily cannot be resurrected
on appeal, whereas a forfeited issue may be
reviewed for plain error.

United States v. Sánchez-Berríos, 424 F.3d 65, 74 (1st Cir. 2005)

(quoting United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir.

2002)). We have also concluded that a party waives an objection by

affirmatively agreeing with a judge's proposed course of action.

United States v. DeLeon, 704 F.3d 189, 192-93 (1st Cir. 2013)

(finding a party waived objection to providing jurors with certain

demonstrative aids when counsel acquiesced by stating, multiple

times, things like "I'm fine with that" in response to the judge's

proposal to send the aids in to the jury room). And when talking

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about a condition of supervised release, we have held that waiver

occurs where a party fails to object to it "at sentencing or by

post-trial motion." United States v. Elwell, 984 F.2d 1289, 1298

(1st Cir. 1993).

We find these principles controlling here. Sweeney was

aware of the proposed "stay dry" condition from the PSR. At

sentencing, the district judge told Sweeney that he would impose

this very condition. The judge explained his reasoning--he doesn't

want Sweeney to backslide after he gets out of jail--on the

record.3 The judge went on to impose this exact condition, then

explicitly asked defense counsel whether he had any objection to

the terms of supervised release just imposed. Counsel responded

with an unequivocal "No."

From these facts, there is no doubt that Sweeney

affirmatively relinquished his right to challenge the "stay dry"

condition. Accordingly, we affirm the "stay dry" condition of

supervised release.

3
In Elwell, we pointed out that the failure to object "[made]
it impossible to assess the district court's reasons for adding in
[the] condition." 984 F.2d at 1298. Here, of course, we know the
district judge's reasoning for imposing the "stay dry" condition.
Sweeney's failure to object to a condition that he knew was coming
deprived the district judge of the opportunity to consider
Sweeney's arguments against that condition. The failure to object
when a sentencing judge explains why he is imposing a particular
condition supports a finding of waiver just as much (if not more)
than the record in Elwell, which was devoid of both an objection to
and the reasoning behind the imposed condition.

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 To reiterate, there is no merit to any argument Sweeney

makes in his appeal. We, therefore, summarily affirm his 70-month

sentence and the "stay dry" condition of supervised release. See

1st Cir. R. 27.0(c).

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