Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 16-2034
UNITED STATES,
Appellee,
v.
HARRY PARSONS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Thompson, Circuit Judges.
Robert C. Andrews on brief for appellant.
William D. Weinreb, Acting United States Attorney, and Alexia
R. De Vincentis, Assistant United States Attorney, on brief for
appellee.
October 16, 2017
Per Curiam. Appellant-defendant Harry Parsons appeals
from the 54-month sentence imposed upon resentencing, which
represented an upward variance from the non-career offender
guideline sentencing range (GSR) of 37-46 months. Parsons
challenges the sentence as procedurally and substantively
unreasonable. We grant the government's motion for summary
disposition.
At Parsons' original sentencing, the court determined
(over Parsons' objection) that the career offender guideline
applied to him. However, the court exercised its discretion to
deviate from that GSR and to sentence him as though he were not a
career offender. See United States v. Martin, 520 F.3d 87, 96
(1st Cir. 2008)(stating that Kimbrough v. United States, 552 U.S.
85 (2007) "opened the door for a sentencing court to deviate from
the guidelines in an individual case even though that deviation
seemingly contravenes a broad policy pronouncement of the
Sentencing Commission."). Neither party had requested a sentence
within the career offender GSR and the court repeatedly stated
that the career offender designation was not driving the sentence.
After addressing in detail the 18 U.S.C. § 3553(a) factors as they
applied to Parsons' case, the court imposed a 66-month sentence,
which was somewhat above the non-career offender GSR of 37-46
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months, but substantially below the career offender GSR of 262-
327 months.
Parsons appealed his 66-month sentence to this court
(Appeal No. 15-1539) and while that appeal was pending, the United
States Supreme Court issued its decision in Johnson v. United
States, 135 S.Ct. 2551 (2015)(Johnson II). In the wake of that
decision, the government conceded that Parsons no longer qualified
as a career offender and because the district court had not
expressly stated "that it would have imposed the same sentence
absent the career offender designation," Appellee's Brief in
Appeal No. 15-1539, p. 27, the government took the position that
the sentence should be vacated and the case remanded for
resentencing. In view of that concession, we vacated Parsons'
sentence and remanded.
Upon remand to the same sentencing judge, the court
imposed a 54-month sentence, which represented an upward variance
of eight months from the non-career offender GSR of 37-46 months.
It was below the 66-month sentence requested by the government but
above the 30-month sentence requested by Parsons. The court
adopted the reasons it had articulated at the original sentencing,
but reduced the sentence on account of Parsons' positive post-
conviction conduct while in prison. The court recognized that the
career offender guideline no longer applied, but emphasized that
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it had "not consider[ed] [Parsons] the first time around as a
career offender," Resentencing Transcript, p. 29, and that the
initial sentence "was driven by [its] consideration of the §
3553(a) factors, which . . . are largely the same here." Id., p.
30. Parsons objected that the court had failed to sufficiently
explain its decision to upwardly vary from the non-career offender
GSR on remand, preserving that issue for appeal.
This court "review[s] the reasonableness of a sentence
in a bifurcated fashion, first assessing claims of procedural
unreasonableness before turning to plaints of substantive
unreasonableness." United States v. Ubiles-Rosario, 867 F.3d 277,
290 (1st Cir. 2017). "Generally speaking, [this court] 'review[s]
both procedural and substantive reasonableness under a deferential
abuse-of-discretion standard.'” Id.
I. Procedural Reasonableness
Parsons contends that his sentence is procedurally
unreasonable for 1) failure of the court to "articulat[e] the
specific reasons for a sentence that was above the Guideline
Range," and 2) "because the District Court failed to divorce his
sentence from the prior erroneous career offender determination
and did not otherwise provide a rationale that differentiated Mr.
Parsons from similarly situated Criminal History Category III
defendants." Appellant's Brief, p. 14. He maintains that
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recidivism could not be relied upon to justify the upward variance
because it had already been accounted for in calculating the CHC.
Id.
At the resentencing hearing, the sentencing court
adopted and incorporated its analysis of the § 3553(a) factors
from the original sentencing. See Resentencing Transcript, p. 28.
It recognized that Parsons no longer qualified as a career
offender, but noted that it had not considered Parsons as a career
offender when initially sentencing him. Id. at 29. Therefore, the
§ 3553 factors, that were addressed in detail at the first
sentencing, applied in essentially the same way upon resentencing.
See id., pp. 29-30. The exception was post-conviction conduct,
for which the court reduced the 66-month sentence to 54 months.
There was no abuse of discretion by the sentencing court in
disavowing reliance upon the career offender GSR with respect to
the initial sentencing or in adopting its analysis of the § 3553(a)
factors from the original sentencing hearing.
Nor did the district court abuse its discretion by
failing to differentiate Parsons from similarly situated
defendants in Criminal History Category (CHC) III. At the original
sentencing, the court expressed concern that CHC III understated
Parsons' criminal history. Specifically, the court had noted the
nature and number of convictions reported in the presentence report
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(PSR) and the fact that Parsons had served no state prison time
for those convictions. The court had also noted that Parsons had
committed the present offenses while on probation for a state court
offense, and that he had twice violated terms of pre-trial release
while awaiting trial on this case.
Parsons contends that the court's explanation for
finding that the CHC III did not adequately account for Parsons'
criminal history was flawed on the ground that "recidivism could
not be relied upon to justify the upward variance because it had
already been accounted for in calculating the CHC." Appellant's
Brief, p. 14. However, two of the factors specifically relied
upon by the sentencing court (the recurrence of criminal offenses
and the violations of pre-trial release) were not fully accounted
for in the criminal history score. Because of the cap on one-
point convictions under U.S.S.G. § 4A1.1(c), some of Parsons' prior
convictions were not included in his total criminal history score.
And his repeated violations of the terms of pre-trial release were
not at all accounted for in his CHC.
There was no abuse of discretion in the court's
explanation of its reasons for varying upwards from a GSR that was
based upon a CHC of III. See United States v. Del Valle-Rodriguez,
761 F.3d 171, 176 (1st Cir. 2014)(stating that "upward variance
may be justified by . . . a finding that the defendant's criminal
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history score underrepresents the gravity of his past conduct . .
. or by a finding that the GSR underestimates the likelihood of
recidivism"); United States v. Politano, 522 F.3d 69, 75 (1st Cir.
2008)(upholding six-month variance that relied upon finding that
defendant's "likelihood of recidivism was underestimated in the
Guidelines").
II. Substantive Reasonableness
The substantive dimension of the reasonableness inquiry
"'focuses on the duration of the sentence in light of the totality
of the circumstances.' It acknowledges that, although the
'sentencing court is under a mandate to consider a myriad of
relevant factors, . . . the weighting of those factors is largely
within the court's informed discretion.' Our review demands only
'a plausible sentencing rationale and a defensible result'" United
States v. Nieves-Mercado, 847 F.3d 37, 42 (1st Cir. 2017). "Even
with respect to an upwardly variant sentence, an appellate court
'must give due deference to the district court's decision that the
[18 U.S.C.] § 3553(a) factors, on a whole, justify the extent of
the variance.'" United States v. Bermudez-Melendez, 827 F.3d 160,
163 (1st Cir. 2016).
Parsons argues that his sentence is substantively
unreasonable because "there is nothing about his circumstances
that justifies an upward variance." Appellant's Brief, p. 17. But,
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as discussed above, the court relied at re-sentencing upon the
factors on which it had relied at the original sentencing: "the
nature of the crimes, the recurrence, and what deterrent effect
those previous convictions and penalties have had or, frankly, not
had at this point." Sentencing Tr., p. 23. The sentencing court's
reliance upon those factors provides a "plausible sentencing
rationale." See United States v. Flores-Machicote, 706 F.3d 16, 25
(1st Cir. 2013)(holding that "sentencing calculus centered on the
seriousness of the defendant's criminal conduct, the defendant's
past history and likelihood of recidivism, and the need for
deterrence . . . constituted a plausible rationale").
"Where, as here, the district court imposes a sentence
outside the GSR, a reviewing court must consider the extent of the
variance. But even a substantial variance does not translate, ipso
facto, into a finding that the sentence is substantively
unreasonable. Everything depends on context." Id. (citations
omitted). “'[T]here is not a single reasonable sentence but,
rather, a range of reasonable sentences,' and, '[c]onsequently,
reversal will result if — and only if — the sentencing court's
ultimate determination falls outside the expansive boundaries of
that universe.'" United States v. Castrillon-Sanchez, 861 F.3d 26,
30 (1st Cir.)(citations omitted), cert. denied, ___ S.Ct. ___,
2017 WL 3480393 (2017).
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Here, the court imposed a sentence 8 months above the
applicable GSR of 37-46 months. In the context of the court's
expressly articulated consideration of the § 3553(a) factors,
particularly the recurrence of Parsons' criminal offenses, his
failure to have been deterred, and concern about the need for the
sentence to provide deterrence, the 54-month sentence is
defensible. See Nieves-Mercado, 847 F.3d at 44 (holding that
"upward variance of 9 months on top of a 41-51 month range
constitutes a 'defensible result'").
The court's determination that "this is a sentence that
is sufficient but not greater than necessary, to effect and reflect
all of the goals of sentencing under § 3553(a)," Resenting Tr., p.
32, is also entitled to some weight. See Ubiles-Rosario, 867 F.3d
at 294. Extraordinary circumstances were not necessary to justify
the above-guideline sentence. See United States v. Pagan-Walker,
___ F.3d ___, 2017 WL 3446130, at *2 (1st Cir. Aug. 11, 2017).
Because the sentence was procedurally sound and
substantively reasonable, the judgment of the district court is
affirmed. See 1st Cir. R. 27.0(c).
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