United States Court of Appeals
For the First Circuit
No. 20-1146
UNITED STATES OF AMERICA,
Appellee,
v.
DEJUAN RABB, a/k/a SLIM,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Thompson, Selya, and Barron,
Circuit Judges.
John M. Thompson and Thompson & Thompson, P.C. on brief for
appellant.
Halsey B. Frank, United States Attorney, and Noah Falk,
Assistant United States Attorney, on brief for appellee.
July 16, 2021
SELYA, Circuit Judge. In an earlier appeal, we vacated
a sentence imposed on defendant-appellant Dejuan Rabb and remanded
for resentencing. See United States v. Rabb (Rabb I), 942 F.3d 1,
7 (1st Cir. 2019). On remand, the district court sentenced the
defendant to serve, inter alia, a mandatory minimum six-year term
of supervised release. See 21 U.S.C. § 841(b)(1)(C). The
defendant appeals, asserting that the district court both failed
to make a necessary finding and found facts that should have been
reserved for a jury. Assessing his claims under plain error
review, we readily reject them.
I. BACKGROUND
We briefly rehearse the relevant facts and travel of the
case. When — as in this case — the defendant appeals a sentence
imposed following a guilty plea, we draw the facts from the plea
colloquy, the unchallenged portions of the presentence
investigation report (PSI Report), and the sentencing transcripts.
See United States v. Santa-Soler, 985 F.3d 93, 95 (1st Cir. 2021).
The defendant was arrested on August 31, 2017, after
selling furanyl fentanyl to a confidential informant working with
the Maine Drug Enforcement Agency. A federal grand jury sitting
in the District of Maine subsequently indicted him on sundry drug-
related charges and — after some preliminary proceedings — he
entered guilty pleas to two of the charges. One count embodied a
charge of possession with intent to distribute furanyl fentanyl
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and the other embodied a charge of distribution of furanyl
fentanyl. See 21 U.S.C. § 841(a).
Prior to the change-of-plea hearing, the government
filed an information pursuant to 21 U.S.C. § 851(a)(1) (the
Information). The Information memorialized the defendant's prior
New York conviction for possession of a controlled substance (the
2015 conviction) and noted that judgment on that charge had been
entered against the defendant on or about January 14, 2015.
Pertinently, the Information notified the defendant that the
government intended to rely upon the 2015 conviction in seeking
enhanced penalties. See id. § 841(b)(1)(C).
Following the change-of-plea hearing, the probation
office prepared a PSI Report. With respect to the 2015 conviction,
the PSI Report stated, in part, that the defendant had been found
guilty on November 12, 2014. It added that, on January 14, 2015,
he was sentenced to ninety days' imprisonment, followed by five
years of probation. The PSI Report then recounted that the
defendant's probationary term was later revoked and that he was
sentenced to a one-year term of immurement at that time.
Switching to the guideline sentencing range (GSR) for
the offenses of conviction, the PSI Report observed that those
offenses (as Class B felonies) normally would carry a supervised
release term of two to five years. See USSG §5D1.2(a)(1). In
this instance, though, the guidelines dictated a mandatory minimum
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six-year term of supervised release because the defendant had a
qualifying prior conviction under 21 U.S.C. § 841(b)(1)(C). See
id. §5D1.2(c).
The defendant objected to several aspects of the PSI
Report, but he did not object either to the inclusion of the 2015
conviction as a sentence-enhancer or to the description of the
events surrounding that conviction. Nor did he object to the
proposed six-year mandatory minimum term of supervised release.
The district court convened the disposition hearing on
July 18, 2018. Congress has directed that where, as here, the
government has filed an information pursuant to section 851(a)(1),
the district court shall inquire of the defendant "whether he
affirms or denies that he has been previously convicted." 21
U.S.C. § 851(b). The district court also must inform the defendant
that "any challenge to a prior conviction which is not made before
[the] sentence is imposed" cannot thereafter be pressed. Id.
The court below complied with these statutory
imperatives. After confirming with defense counsel that there was
no objection to the truthfulness of the Information, the court
asked the defendant himself whether he had previously been
convicted of a controlled substance offense in New York as limned
in the Information. The defendant admitted that he had.
Relatedly, the court advised the defendant that if he did not raise
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a challenge to the Information then and there, he could not
subsequently challenge it. No challenge emerged.
The district court went on to find that the defendant
qualified as a career offender, see USSG §4B1.1(a), citing the
2015 conviction and the defendant's previous conviction for a
putative crime of violence (namely, a 1999 New York robbery
conviction under N.Y. Penal Law § 160.10). This career offender
classification elevated the GSR for the offenses of conviction to
188-235 months. Additionally, the court found that the GSR carried
a six-year mandatory minimum term of supervised release. See 21
U.S.C. § 841(b)(1)(C); see also USSG §5D1.2(c). In the end, the
court imposed a downwardly variant incarcerative sentence of 140
months, to be followed by six years of supervised release.
The defendant appealed his sentence, challenging his
classification as a career offender. His appeal focused on his
term of imprisonment and did not challenge his supervised release
term. We found the career offender classification inappropriate,
sustained the defendant's appeal, vacated his sentence, and
remanded for resentencing. See Rabb I, 942 F.3d at 7.
At resentencing, the defendant again eschewed any
challenge to the Information and again voiced no objection to the
applicability of a six-year mandatory minimum supervised release
term. The district court noted that there were "no disputed issues
other than [the prison] sentence" and again accepted the facts
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adumbrated in the PSI Report. The court also incorporated by
reference "everything [it] said at the last sentenc[ing]" to the
extent that those findings were not inconsistent with the vacatur
of the career offender designation.1 It then discussed the
defendant's personal history, his criminal record, and the gravity
of the fentanyl problem in Maine. Recalculating the defendant's
GSR to be 84-105 months, the court imposed a low-end 84-month term
of immurement, to be followed by six years of supervised release.
This timely appeal ensued.
II. ANALYSIS
This time around, the defendant's appeal challenges only
his six-year mandatory minimum term of supervised release. In
support, he advances two principal claims of error. First, he
notes that the sentencing court did not make an explicit finding
that the 2015 conviction was final in the context of section
1Without citation to any relevant authority, the defendant
challenges the efficacy of this incorporation by reference. In a
footnote in his reply brief, he asserts that because his original
sentence was vacated, the events of the first sentencing are
"nullified." This challenge is meritless: federal courts do not
place a premium on longiloquence, and a district court has wide
discretion to incorporate by reference readily ascertainable
facts. See, e.g., In re Pharm. Indus. Average Wholesale Price
Litig., 588 F.3d 24, 40 (1st Cir. 2009) (holding that district
court could incorporate by reference its prior orders when
expanding a class); United States v. Tulloch, 380 F.3d 8, 10 (1st
Cir. 2004) (per curiam) (affirming sentencing court's adoption by
reference of mandatory conditions of supervised release). Nothing
in our earlier opinion precluded the district court from
incorporating by reference at the new sentencing hearing findings
and conclusions that remained pertinent.
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841(b)(1)(C). Without such a finding, he contends, the court erred
in enhancing his GSR to encompass a mandatory minimum six-year
term of supervised release. Second, he submits that the facts
surrounding the 2015 conviction needed to be proved beyond a
reasonable doubt before a jury rather than found under a
preponderance-of-the-evidence standard by a sentencing judge. See
Alleyne v. United States, 570 U.S. 99, 108 (2013); Apprendi v. New
Jersey, 530 U.S. 466, 476 (2000). Because the district court
allegedly flouted this principle, he claims that the 2015
conviction was improperly considered and that, therefore, the six-
year mandatory minimum term of supervised release cannot stand.
The government takes a proactive approach to these
claims. As a threshold matter, it contends that the defendant
waived any challenge to his supervised release term. We start
there and then shift to an examination of the defendant's
asseverational array.
A. Waiver.
The government asserts that the defendant waived, rather
than forfeited, any challenge to the validity of the Information
and its effect on his sentence. This distinction is potentially
important: a waived claim is not reviewable at all, whereas a
forfeited claim may be reviewed for plain error. See United States
v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002).
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The government bases its argument on a series of events,
including the defendant's failure to employ the procedures
provided by section 851(c) to challenge the validity of the
Information; his acknowledgment of the truthfulness of the
Information at his original sentencing; his confirmation at that
hearing, in response to the district court's query, that he
understood the consequences of failing to challenge the
Information then and there; his omission of any challenge to the
supervised release term during his first appeal; and his
acquiescence to a six-year term of supervised release both at his
original sentencing and at resentencing. In the government's view,
these events, singly and in combination, show conclusively that
the defendant "intentionally relinquish[ed] or abandon[ed]" any
challenge to the Information or its effect on his sentence. Id.
The government's waiver argument finds some purchase in
section 851 itself. The statute directs that "[a]ny challenge to
a prior conviction" that is not raised before the imposition of an
enhanced sentence "shall be waived." 21 U.S.C. § 851(c)(2). There
remains an open question, though, as to whether "any challenge to
a prior conviction" encompasses an objection to the finality of a
prior conviction as opposed to an objection to the existence vel
non of that prior conviction. See, e.g., United States v. Webster,
628 F.3d 343, 345-46 (7th Cir. 2010) (declining to decide whether
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"finality" is captured by the "any challenge" language of section
851(c)). This court has not yet spoken to that question.
We need not wade into these uncharted waters. Even if
we assume that the defendant's claims of error are not waived,
they are easily dispatched. Since waiver, if found, would do no
more than confirm that all roads lead to Rome, we bypass the waiver
issue and instead explain why the defendant's claims are hopeless.
B. Absence of Express Finding of Finality.
The defendant argues that the district court should not
have imposed the enhanced six-year mandatory minimum term of
supervised release under section 841(b)(1)(C). This argument
draws its essence from the district court's failure to make an
express finding that the 2015 conviction was final.
Generally, claims of sentencing error are reviewed for
abuse of discretion. See Gall v. United States, 552 U.S. 38, 41
(2007); United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008).
But this standard is not monolithic; within it, we review a
sentencing court's legal conclusions de novo and its factual
determinations for clear error. See United States v. Ramos-
Paulino, 488 F.3d 459, 463 (1st Cir. 2007). Even so, "[t]hese
standards of review may be altered where a party fails to preserve
claims of error in the court below." United States v. Ruiz-
Huertas, 792 F.3d 223, 226 (1st Cir. 2015). This is such a case:
the defendant's challenge to the lack of an express finding of
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finality is raised for the first time in this court. Consequently,
our review is for plain error. See United States v. Duarte, 246
F.3d 56, 60 (1st Cir. 2001).
To establish plain error, the defendant must show "(1)
that an error occurred (2) which was clear or obvious and which
not only (3) affected the defendant's substantial rights, but also
(4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." Id. The proponent of plain
error must touch all four of these bases in order to prevail. See
United States v. Pinkham, 896 F.3d 133, 136-37 (1st Cir. 2018).
"The plain error hurdle is high," United States v. Hunnewell, 891
F.2d 955, 956 (1st Cir. 1989), and the defendant stumbles at both
the second and third steps.2
To begin, we discern no clear or obvious error in the
sentencing court's failure to make an express finding of finality
regarding the 2015 conviction. The defendant suggests that because
"an accurate guidelines calculation is a sine qua non to a valid
federal sentence" and because the 2015 conviction was essential to
the determination of his GSR and, in particular, the mandatory
minimum supervised release term, see 21 U.S.C. § 841(b)(1)(C)
(requiring a supervised release term of "at least 6 years" if the
2In our ensuing analysis, the first step of the plain error
matrix merges into the second, and we find it unnecessary to reach
the fourth step.
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defendant committed the offenses of conviction "after a prior
conviction for a felony drug offense [became] final"), the
sentencing court committed an obvious error by not making an
express finding as to the finality of that conviction. We do not
agree.
To establish "clear or obvious error," a party must show
that the error is contrary to existing law. See United States v.
Bennett, 469 F.3d 46, 50-51 (1st Cir. 2006). In other words, the
error must be "indisputable" in light of controlling law. United
States v. Jones, 748 F.3d 64, 69-70 (1st Cir. 2014). Here,
however, the defendant has not identified any authority, whether
in a statute or in the case law, that would require a district
court to make an express finding concerning the finality of a prior
conviction before imposing the enhanced sentence under section
841(b)(1)(C). And although an explicit annunciation of findings
related to an enhanced sentence is always preferable, the "absence
of such findings is not always fatal." United States v. Carbajal-
Váldez, 874 F.3d 778, 783 (1st Cir. 2017).
In this case, the absence of an express finding of
finality does not amount to a clear or obvious error. Although
the defendant has questioned the absence of an express finding of
finality, he has proffered no credible reason to suggest that the
conviction actually lacked finality. And, moreover, on whole-
record review, the surrounding facts mitigate any necessity for an
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express finding. After all, the PSI Report's treatment of the
2015 conviction as final was not challenged by the defendant; the
defendant himself admitted to the conviction in a colloquy with
the district court, and that colloquy gives no reason to doubt the
conviction's finality; and the fact that the defendant was
sentenced to an additional prison sentence when his probation on
the 2015 conviction was revoked incrementally strengthens the
inference of finality.
In all events, the record contains substantial evidence
indicating that the district court implicitly determined the 2015
conviction to be final. At the original sentencing hearing, the
court engaged in the colloquy required by section 851(b) and
confirmed with both the defendant and his counsel that the
defendant had previously been convicted of the crime delineated in
the Information. The court proceeded to find that the defendant
had "a prior conviction for a controlled substance offense as
detailed in [the PSI Report]." What is more, the PSI Report
(expressly adopted by the sentencing court) contained numerous
details about the 2015 conviction, including the date of the
conviction, the parameters of the defendant's sentence, and a
description of the subsequent revocation of probation. In short,
the district court treated the 2015 conviction as final, and the
record — fairly read — indicates that the court implicitly
determined that the 2015 conviction was final. See id. (explaining
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that reviewing court may uphold an enhancement when "the sentencing
record, taken as a whole, reliably shows that the relevant factual
questions were 'implicitly resolved' by the sentencing court"
(quoting United States v. Van, 87 F.3d 1, 3 (1st Cir. 1996))).
Nor can it be said that the sentencing court's implicit
determination that the 2015 conviction was final was itself clear
or obvious error. To begin — as noted above — the defendant has
proffered no credible reason to suggest that the conviction
actually lacked finality. Furthermore, the conviction — as
presented to the court — bore sufficient indicia of finality to
ground the implicit finding.3 See United States v. Etienne, 772
F.3d 907, 913 (1st Cir. 2014) (explaining that on plain error
review, courts "reverse only sparingly" and "'correct only the
3 We note that we have not yet spoken definitively as to the
attributes of "finality" in the context of section 841, and our
sister circuits have exhibited some variations in approach. See,
e.g., United States v. Suarez, 682 F.3d 1214, 1220 (9th Cir. 2012)
("[A] conviction is not final under § 841(b)(1) while that
conviction is subject to direct appellate review, including
certiorari"); United States v. Williams, 616 F.3d 760, 767 (8th
Cir. 2010) (stating that prior conviction is final when defendant
is found guilty and sentenced to probation); United States v.
Short, 947 F.2d 1445, 1460 (10th Cir. 1991) ("[A] sentence is final
for purposes of § 841 when the conviction is no longer subject to
examination on direct appeal."). On plain error review, these
variations are insufficient to breathe life into the defendant's
moribund claim of plain error. See United States v. Gonzalez, 981
F.3d 11, 22 (1st Cir. 2020) (holding that "ambiguous case law does
not give rise to the clear or obvious error necessary to comport
with the plain-error construct").
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most egregious of unpreserved errors'" (quoting United States v.
Sánchez-Berríos, 424 F.3d 65, 73 (1st Cir. 2005))).
We add that the defendant's claim of error also fails to
satisfy the third element of the plain error matrix. That element
requires that the defendant show a reasonable probability that the
claimed error affected his substantial rights. See Duarte, 246
F.3d at 61-62. In a sentencing appeal, such a requirement entails
a showing of a reasonable likelihood that, but for the claimed
error, his sentence would have been different. See United States
v. Bramley, 847 F.3d 1, 7 (1st Cir. 2017).
As to this point, the defendant hinges his argument on
the Supreme Court's holding in Molina-Martinez v. United States,
136 S. Ct. 1338 (2016). In that case, the Court concluded that,
"[w]hen a defendant is sentenced under an incorrect Guidelines
range — whether or not the defendant's ultimate sentence falls
within the correct range — the error itself can, and most often
will, be sufficient to show a reasonable probability of a different
outcome absent the error." Id. at 1345. Put another way, the
Court concluded that an incorrect GSR usually will affect a
defendant's substantial rights, regardless of the actual sentence
imposed. See id.
Contrary to the defendant's importunings, Molina-
Martinez does not rescue his claim of error. There, the defendant
established that the calculation of his GSR was incorrect. See
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id. at 1344-45. That is not the situation here: the defendant
has not established that he was sentenced under an incorrect GSR.
Importantly, he does not contend — nor does he offer us a reason
to believe — that his 2015 conviction was anything other than
final. Seen in this light, Molina-Martinez is inapposite, and the
defendant has failed to show a reasonable probability that the
correction of the purported error — the failure to make an explicit
finding on finality — would produce either a different GSR or a
different sentence. See United States v. Olano, 507 U.S. 725, 734
(1993) (requiring a showing that the alleged error was prejudicial
in order to satisfy the third element of plain error review);
Bramley, 847 F.3d at 7 (requiring "a reasonable probability that,
but for the error, the outcome would have been different"). Thus,
he has not satisfied the third element of plain error.
To sum up, we conclude that neither the sentencing
court's implicit determination that the 2015 conviction was final
nor the lack of an explicit articulation of that finding
constituted clear or obvious error (if error at all). We also
conclude that the defendant has failed to show that, but for the
purported error, his sentence would have been different. Given
these shortcomings, plain error is plainly absent.
C. Apprendi/Alleyne.
This brings us to the defendant's last challenge to his
supervised release term. He asserts that the facts surrounding
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his 2015 conviction increased his sentence by increasing his term
of supervised release and are therefore elements of an aggravated
crime that had to be proved beyond a reasonable doubt before a
jury.4 See Apprendi, 530 U.S. at 476; see also Alleyne, 570 U.S.
at 108. Since they were found only by a sentencing judge, he
posits, his Fifth and Sixth Amendment rights were violated. See
Apprendi, 530 U.S. at 476; see also Alleyne, 570 U.S. at 115-17.
This claim, too, makes its debut on appeal. Once again,
our review is only for plain error. See Duarte, 246 F.3d at 60.
The defendant's claim of error is rooted in a misreading
of the case law. In Apprendi, the Supreme Court held that "any
fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury[] and proved beyond
a reasonable doubt." 530 U.S. at 490. The Court later extended
the Apprendi doctrine, holding that facts that "increase the
mandatory minimum sentence are . . . elements and must be
submitted to the jury and found beyond a reasonable doubt."
Alleyne, 570 U.S. at 108.
Apprendi and Alleyne do not control here. In Almendarez-
Torres v. United States, the Supreme Court held that facts
establishing a prior conviction are sentencing factors, not
4 The defendant observes that the facts surrounding the 2015
conviction were not described in the indictment in this case. By
the same token, he did not admit to those facts in his guilty plea.
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elements of an offense. See 523 U.S. 224, 230 (1998) (calling a
prior conviction "as typical a sentencing factor as one might
imagine"). Both the Apprendi Court and the Alleyne Court declined
to revisit Almendarez-Torres, instead carving out an exception for
prior convictions. See Apprendi, 530 U.S. at 489-90 (finding that
Almendarez-Torres represents "a narrow exception to the general
rule"); see also Alleyne, 570 U.S. at 111 n.1 (recognizing that
Almendarez-Torres remains good law and declining to revisit it).
Unless and until the Supreme Court changes course, Almendarez-
Torres constitutes binding precedent that demands our allegiance.
See Agostini v. Felton, 521 U.S. 203, 237 (1997); United States v.
McIvery, 806 F.3d 645, 653 (1st Cir. 2015).
Consistent with Almendarez-Torres, we hold that the
defendant's Apprendi/Alleyne challenge lacks force. The court
below "hardly could have committed plain error by adhering to
binding Supreme Court precedent." United States v. Gonzalez, 949
F.3d 30, 42 (1st Cir. 2020).
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the sentence is
Affirmed.
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United States v. Rabb
Combined Opinion