Date: 05-02-2018

Case Style:

Case Number: 17-1224

Judge: Selya

Court: United States District Court for the District of Maine (Cumberland County)

Plaintiff's Attorney: Halsey B. Frank

Defendant's Attorney: Inga L. Parsons

Description: Defendant-appellant Robert Daoust
mounts a multi-pronged challenge to the sentence imposed following
the revocation of his supervised release term. Concluding, as we
do, that his claims of sentencing error are futile, we affirm the
sentence.
I. BACKGROUND
We briefly rehearse the facts and travel of the case.
In 2010, the appellant pleaded guilty to possession of heroin with
intent to distribute. See 21 U.S.C. § 841(a)(1). The district
court sentenced him to a seven-year term of immurement, to be
followed by a three-year term of supervised release. The
appellant's prison sentence was later reduced to seventy months,
see 18 U.S.C. § 3582(c)(2), and he served that sentence. His
supervised release commenced on September 29, 2016.
The appellant moved into a motel room, obtained fulltime
employment, and began participating in various treatment
modalities. Soon thereafter, the appellant relocated to a
different motel room, sharing his new accommodations with a female
companion (herself a convicted felon). This new relationship did
not last long: approximately two months after regaining his
freedom, the appellant became intoxicated at a party, returned to
his motel, and wound up in an altercation with his companion. The
appellant punched the woman in the head, covered her face with a
pillow, and repeatedly threatened that he was going to kill her.
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When another motel resident tried to intervene, the appellant
struck him and pushed him to the ground.
The police were notified and charged the appellant with
misdemeanor domestic violence assault. See Me. Rev. Stat. Ann.
tit. 17-A, § 207-A. Not surprisingly, the United States Probation
Office moved expeditiously to revoke the appellant's supervised
release. The probation officer's filing identified four putative
violations of the appellant's supervised release conditions,
namely, that he had possessed or consumed alcohol or other
intoxicants, that he had associated with a convicted felon, that
he had committed a state crime, and that he had failed to give
timely notice to the probation office prior to changing residences.
At a revocation hearing held on March 3, 2017, the
government dismissed the charge of untimely notification. In
return, the appellant admitted to the remaining three violations.
The appellant did not object to anything in the revised revocation
report, and the district court adopted the report in its entirety.
The court proceeded to note that the admitted violations
constituted Grade C violations, see USSG §7B1.1(a)(3); that the
advisory guideline sentencing range was eight to fourteen months,
see id. §7B1.4(a); and that the maximum penalty provided by statute
was two years' imprisonment, see 18 U.S.C. § 3583(e)(3).
The probation officer recommended a sentence of one year
and one day. The government suggested that the court either adopt
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the probation officer's recommendation or impose a top-of-therange
sentence (fourteen months). For his part, the appellant
argued for a sentence in the three-to-six-month range. After
mulling the relevant guideline provisions and sentencing factors,
the district court imposed a two-year incarcerative term, to be
followed by an additional thirty-four months of supervised
release. This timely appeal ensued.
II. ANALYSIS
The appellant advances several claims of sentencing
error. We address them one by one.
A. Rule 32(h).
To begin, the appellant argues for the first time on
appeal that the notification requirement of Federal Rule of
Criminal Procedure 32(h) obligated the district court to provide
him advance notice of its intention to impose a sentence above the
peak of the guideline range.1 This argument is doubly flawed.
1 The rule provides that:
Before the court may depart from the
applicable sentencing range on a ground not
identified for departure either in the
presentence report or in a party's prehearing
submission, the court must give the parties
reasonable notice that it is contemplating
such a departure. The notice must specify any
ground on which the court is contemplating a
departure.
Fed. R. Crim. P. 32(h).
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Preserved claims of sentencing error ordinarily are
reviewed for abuse of discretion. See Gall v. United States, 552
U.S. 38, 41 (2007). But where, as here, an appellant has failed
to preserve his claim, appellate review is for plain error.2 See
United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). To
prevail under plain error review, the appellant must demonstrate
"(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. For two reasons, we
discern no error (plain or otherwise).
The short reason is that Rule 32 and its various subparts
(including Rule 32(h)) simply do not apply to sentences imposed
for supervised release violations. See United States v. Redcap,
505 F.3d 1321, 1323 (10th Cir. 2007); United States v. Leonard,
483 F.3d 635, 638-39 (9th Cir. 2007); see also United States v.
Smith, 639 F. App'x 348, 352 (6th Cir. 2016) (collecting cases).
Procedures for supervised release revocation sentences are
delineated in a separate rule: Federal Rule of Criminal Procedure
2 The appellant suggests that the facts of this case warrant
a more relaxed standard of review. See, e.g., United States v.
Cortes-Claudio, 312 F.3d 17, 24 (1st Cir. 2002) (noting that, in
some limited circumstances, a contemporaneous objection may not
necessarily be required). This suggestion finds no firm footing
in the circumstances of this case and, in all events, the
appellant's claim of error lacks merit under any conceivable
standard of review.
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32.1. Unlike Rule 32(h), Rule 32.1 contains no advance
notification requirement in the event that the sentencing court
elects to impose a sentence above the advisory guideline sentencing
range.
There is a slightly longer — but equally conclusive —
reason why the appellant's Rule 32(h) argument fails. Although
Rule 32(h) generally requires reasonable notice if the sentencing
court is contemplating a departure from the applicable guideline
range on a ground not identified either in the presentence
investigation report or in the parties' prehearing submissions,
the supervised release revocation sentence imposed in this case
was a variant sentence, not a departure. See United States v.
Santini-Santiago, 846 F.3d 487, 490 (1st Cir. 2017)
(distinguishing variances from departures). This is a critically
important distinction, as Rule 32(h) does not apply at all to
variances. See Irizarry v. United States, 553 U.S. 708, 714
(2008); United States v. Román-Díaz, 853 F.3d 591, 596 & n.5 (1st
Cir. 2017); Santini-Santiago, 846 F.3d at 490.
To be sure, we have indicated, albeit in dictum, that in
a rare case advance notice may be required when a sentencing court
proposes "to adopt a variant sentence relying on some ground or
factor that would unfairly surprise competent and reasonably
prepared counsel." United States v. Vega-Santiago, 519 F.3d 1, 5
(1st Cir. 2008) (en banc) (emphasis in original). It is readily
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evident, though, that this is not such a rare case. Upwardly
variant sentences are well-known to be within the universe of
possible sentences and, in this case, the district court's
sentencing rationale did not depend on any ground or factor that
could plausibly be characterized as a surprise.
B. Sentencing Factors.
When imposing a supervised release revocation sentence,
a district court is obliged to consider the various factors
specified in 18 U.S.C. § 3583(e). See United States v. Márquez-
García, 862 F.3d 143, 145 (1st Cir. 2017). This list of factors
borrows heavily from the factors enumerated in 18 U.S.C. § 3553(a),
and includes the nature and circumstances of the offending conduct,
see id. § 3553(a)(1); the need to deter further criminal
misbehavior, see id. § 3553(a)(2)(B); the need to protect the
community from "further crimes of the defendant," id.
§ 3553(a)(2)(C); and the need to consider the policy statements
promulgated by the Sentencing Commission, see id. § 3553(a)(5).
While the sentencing court must consider all of the enumerated
factors, it is not required to analyze each factor separately or
at length. See United States v. Turbides-Leonardo, 468 F.3d 34,
40 (1st Cir. 2006). Rather, the court's explication of its
sentencing calculus need only "identify the main factors driving
its determination." United States v. Sepúlveda-Hernández, 817
F.3d 30, 33 (1st Cir. 2016).
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Here, the appellant claims that the district court
failed adequately to assess the relevant sentencing factors. This
claim, raised for the first time on appeal, is mistaken: the court
below plainly recognized its responsibility to consider the
sentencing guidelines and the full range of applicable sentencing
factors. Indeed, the court stated explicitly that it had given
consideration to each of the relevant factors. This statement is
"entitled to significant weight," United States v. Santiago-
Rivera, 744 F.3d 229, 233 (1st Cir. 2014), and there is nothing in
the sentencing record that calls the statement into question.3
What is more, the district court identified the main
factors that drove its ultimate sentencing determination. It
discussed the appellant's personal history, his continuing
struggles to comply with the law, the serious nature of the
domestic violence offense and the circumstances surrounding it,
and the obvious need for both deterrence and protection of the
public. Nor did the court take a one-sided view: it commented
specifically on the few mitigating factors that were made manifest
by the record.
3 The appellant contends that the district court "did not
appear to appreciate that [it] was going above the guidelines"
when it imposed the two-year sentence. This contention blinks
reality: the transcript of the final revocation hearing makes
pellucid that the district court considered the guideline
sentencing range, rejected it, and chose instead to impose a
statutory maximum sentence.
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Even so, the appellant argues that the court gave too
much weight to the seriousness of the domestic violence offense.
That conduct, however, was properly weighed in the sentencing
calculus, see 18 U.S.C. §§ 3583(e), 3553(a)(1)(A), and district
courts are afforded wide discretion to determine how much weight
to assign to a particular sentencing factor, see United States v.
Clogston, 662 F.3d 588, 593 (1st Cir. 2011). A district court has
an obligation to consider the totality of relevant sentencing
factors, but it has no obligation to assign to those factors the
weight that the defendant would prefer. See United States v.
Leahy, 668 F.3d 18, 25 (1st Cir. 2012).
The short of it is that we see no sign that the district
court erred — let alone plainly erred — either in its treatment of
the relevant sentencing factors or in its choice to give heavy
weight to the gravity of the violations committed by the appellant.
After all, those violations — especially the domestic violence
assault — were egregious, and only a brief period of time had
elapsed between the commencement of the appellant's supervised
release and the offending conduct.
C. Substantive Reasonableness.
The appellant's final claim of error challenges the
substantive reasonableness of his sentence. Although this claim
was not raised below, the standard of review is "somewhat blurred."
United States v. Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir. 2015).
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To skirt this unsettled question, we assume — favorably to the
appellant — that our review is for abuse of discretion. See, e.g.,
id. at 228 & n.4.
A sentence is substantively reasonable as long as it is
supported by a "plausible sentencing rationale" and achieves a
"defensible result." United States v. Martin, 520 F.3d 87, 96
(1st Cir. 2008). Since there can be a wide universe of reasonable
sentences in any single case, a sentence fails the test of
substantive reasonableness only if it "falls outside the expansive
boundaries of that universe." Id. at 92.
In the case at hand, the district court lucidly
articulated its sentencing rationale. Specifically, the court
focused on the appellant's perceived dangerousness: it noted that
his alcohol use made him "quite dangerous," pointed out that the
domestic violence offense could have "easily ended with a death,"
and remarked the threats that he repeatedly had voiced. Building
on this sturdy foundation, the court emphasized the need for
deterrence and the importance of public safety. Threaded through
the court's comments was an apparent judgment that the appellant
should be sentenced to significant prison time for a flagrant
breach of the court's trust.
With this backdrop in place, we have scant difficulty in
concluding that the district court articulated a plausible
sentencing rationale. The appellant, released from custody on
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specific conditions, lost little time in committing serial
violations of those conditions — and the court was certainly
entitled to take that chronology into account.
The appellant has another shot in his sling. He asserts
that the length of his sentence is not defensible. To this end,
he says that because the maximum sentence in Maine for misdemeanor
domestic violence assault is 364 days, see Me. Rev. Stat. Ann.
tit. 17-A, §§ 207-A(1)(A), 1252(2)(D), his supervised release
revocation sentence should not exceed that maximum.
The appellant's premise is correct: Maine limits a jail
sentence for misdemeanor domestic violence assault to 364 days.
See id. But the conclusion that he draws from this premise does
not follow: a supervised release violation is an independent
offense4 and, thus, when conduct comprises both a state crime and
a violation of a federal supervised release condition, the maximum
sentence for the former does not control the maximum sentence for
the latter. Cf. United States v. Work, 409 F.3d 484, 490 (1st
Cir. 2005) (noting that "the permissible term of incarceration
authorized for a supervised release violation is not circumscribed
4 The appellant argues that the district court punished him
for the domestic violence offense per se, in violation of USSG Ch.
7 Pt. A(3)(b). This argument lacks force. The court's comments
make it pellucid that it was punishing the appellant for the breach
of trust that his supervised release violations entailed, not for
the domestic violence offense per se.
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by the substantive sentence" under the guidelines). This case
illustrates the point.
As said, the appellant's original conviction was for
possession of heroin with intent to distribute — a class D felony.
See 18 U.S.C. § 3559(a)(4). Congress set the maximum supervised
release revocation sentence for a defendant (like the appellant)
whose original offense of conviction was a class D felony at two
years. See id. § 3583(e)(3). That statutory maximum pertains
even when the conduct underlying the defendant's supervised
release violation is itself a misdemeanor. See id. In
establishing this paradigm, Congress plainly contemplated that
some defendants might be sentenced to a longer term of imprisonment
for supervised release violations than for the state offense
underlying that violation.
We add that the sentencing outcome — a two-year sentence
for the appellant's supervised release violations — is easily
defensible. Although the revocation sentence exceeds the top of
the advisory guideline range by ten months, we have found more
dramatic upward variances to result in substantively reasonable
sentences. See, e.g., United States v. Alejandro-Rosado, 878 F.3d
435, 440-41 (1st Cir. 2017) (finding two-year sentence
substantively reasonable despite guideline sentencing range of
four-to-ten months); Márquez-García, 862 F.3d at 147-48 (same).
At the end of the day, the guideline ranges for supervised release
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violations are "merely advisory" United States v. Soto-Soto, 855
F.3d 445, 451 (1st Cir. 2017), and the two-year sentence imposed
in this case is roughly proportionate to the appellant's breach of
trust. So viewed, the sentence falls comfortably within the
"expansive boundaries" of the universe of reasonable sentences.
United States v. Matos-de-Jesús, 856 F.3d 174, 180 (1st Cir. 2017)
(quoting Martin, 520 F.3d at 92).
No more is exigible. We conclude, without serious
question, that the appellant's sentence was substantively
reasonable and, therefore, not an abuse of discretion.

Outcome: We need go no further. For the reasons elucidated above,
the sentence is Affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: