United States v. Soto-Soto

• Decision Date: 01 May 2017
• Docket Number: No. 16-1444,16-1444
• Citation: 855 F.3d 445
• Parties: UNITED STATES of America, Appellee, v. Josue SOTO-SOTO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

855 F.3d 445

UNITED STATES of America, Appellee,

v.Josue SOTO-SOTO, Defendant, Appellant.

No. 16-1444

United States Court of Appeals, First Circuit.

May 1, 2017

Eric Alexander Vos , Federal Public Defender, Vivianne M. Marrero , Assistant Federal Public Defender, Supervisor, Appeals Section, Eleonora C. Marranzini , Assistant Federal Public Defender, and Franco L. Perez-Redondo , Research and Writing Specialist, on brief for appellant.

Rosa Emilia Rodríguez-Vélez , United States Attorney, Mariana E. Bauzá-Almonte , Assistant United States Attorney, Chief, Appellate Division, and Juan Carlos Reyes-Ramos , Assistant United States Attorney, on brief for appellee.

Before Howard, Chief Judge, Selya and Stahl, Circuit Judges.

SELYA, Circuit Judge.

Defendant-appellant Josue Soto-Soto appeals from a two-year sentence imposed following the revocation of a term of supervised release. He complains that the district court erred both in stating that it had granted him "two previous opportunities" to reform his ways and in fashioning a substantively unreasonable sentence. Finding his plaints unpersuasive, we affirm.

I. BACKGROUND

The relevant facts are largely uncontested. On October 18, 2013, the appellant entered a guilty plea to a charge of being a felon in possession of a firearm. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). The district court sentenced him to eighteen months' imprisonment, to be followed by three years of supervised release. The appellant served the incarcerative portion of the sentence and began serving his term of supervised release on November 3, 2014.

The appellant's new status got off to a rocky start: at an intake interview, he disobeyed instructions to wait in the reception area and fled from the probation office. Several months later, the appellant was apprehended; and, on May 19, 2015, the district court held a hearing to consider revocation of his supervised release. In the end, the court did not revoke supervised release but, rather, attached an additional condition requiring cognitive behavioral treatment

. Nevertheless, the court took pains to warn the appellant "that any future non-compliance [would] result in the revocation of his [supervised release]."

On July 7, 2015, the probation officer, by motion, informed the district court that the appellant had again violated the conditions of his supervised release. The motion noted that, on July 4, the appellant had been charged with aggravated domestic abuse, domestic abuse by means of threats, and unlawful carrying and use of bladed weapons in derogation of Puerto Rico law. See P.R. Laws Ann. tit. 8, §§ 632(d), 633 ; id. tit. 25, § 458d. Even though a local magistrate found probable cause to believe that these charges were well-founded, the parties agreed to dispose of the motion by adding anger management and domestic violence counseling to the existing conditions of the appellant's supervised release.

The matter came before the district court on January 15, 2016. Although the court made no express findings as to whether the conditions of supervised release had been violated, it declared that the appellant had "demonstrated a disregard and lack of commitment towards the Court and the supervision conditions." Even so, the court accepted the parties' agreement, allowed the existing supervised release term to continue, and added anger management and domestic violence counseling as additional conditions. The court took the occasion, though, to issue "a stern warning," telling the appellant bluntly that this was his "last opportunity" and admonishing him that if he again failed to comply with his supervised release conditions, the court would "not hesitate in revoking [his ] term of supervision ." (Emphasis in original).

The third time was not the charm. Less than a month after the January 15 hearing, the probation officer learned that a participant in the appellant's transitional housing program claimed that the appellant had supplied him with synthetic marijuana. Moreover—after being asked to consent to a search—the appellant had left the program without authorization. Though the probation officer made arrangements for the appellant to re-enter the program, the appellant absconded.

Once the appellant was back in custody, the probation officer moved for revocation of his supervised release. On April 6, 2016, the district court convened a hearing. The appellant admitted the allegations contained in the probation officer's motion and asked the court to sentence him either to time served or—if the court was unwilling to do so—to no more than five months' imprisonment (the low end of the guideline sentencing range), without any further term of supervised release. The government demurred, pointing out that the appellant had repeatedly flouted both the probation officer's instructions and the supervised release conditions. With this tarnished record in mind, the government proposed that the court choose between two alternative dispositions. In the first instance, it recommended imposition of the statutory maximum term of immurement —two years, see 18 U.S.C. § 3583(e)(3) —with no further period of supervised release. Should that proposal not suit the court, the government recommended, as an alternative, a sentence at the high end of the guideline sentencing range (eleven months), to be followed by a fresh term of supervised release. The probation officer agreed with the suggestion for a two-year term of immurement, counselling against a new term of supervised release because the appellant had demonstrated that he "would not follow instructions."

The district court determined that the appellant had violated the conditions of his supervised release. Relatedly, the appellant had "demonstrated that he is unable to comply with the conditions of his supervision." The court added that even though the appellant had been "granted two previous opportunities and was allowed to continue on supervision in an effort to assist him in his reintegration to the community, he did not abide by the supervision conditions." Consequently, the court revoked the existing term of supervised release.

The court then turned to sentencing. Based on the appellant's criminal history category (III) and the fact that the original offense of conviction (felon in possession) was a grade C violation, see USSG § 7B1.1(a)(3), the court set the guideline sentencing range at five to eleven months, see id. § 7B1.4(a). The court abjured the guideline range, however, and sentenced the appellant to two years' imprisonment (the statutory maximum), with no new term of supervised release. This timely appeal followed.

II. ANALYSIS

The appellant makes both a procedural and a substantive challenge to his sentence. We discuss them in order.

A .

The appellant's claim of procedural error assails the district court's characterization of the second revocation proceeding as a second chance for the appellant to get his act together. This misperception, he says, adversely affected the court's sentencing calculus. Preserved claims of sentencing error are typically reviewed for reasonableness, under an abuse of discretion rubric. See Gall v. United States , 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ; United States v. Montero-Montero , 817 F.3d 35, 37 (1st Cir. 2016). Here, however, the appellant did not preserve the claim of procedural error that he now advances.¹ Our review, therefore, is for plain error. See United States v. Duarte , 246 F.3d 56, 60 (1st Cir. 2001). Under the plain error standard, the appellant 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. Plain error is plainly absent here.

The short of it is that the record supports the district court's characterization. The appellant's first opportunity to avoid a new prison sentence came during the May 19, 2015 revocation hearing, when the district court decided not to revoke supervised release despite the appellant's admission that he had violated some of the pertinent conditions. Instead of ordering revocation, the court allowed the appellant to remain free on supervised release. The appellant does not dispute that this outcome constituted an "opportunity," afforded to him by the court, to remain out of prison.

The crux of the matter, though, is the January 15, 2016 revocation hearing, which the district court characterized as the appellant's second blown opportunity to remain at liberty. The appellant contends that this characterization was incorrect because there was no finding that a factual or legal basis existed to revoke his supervision and send him back to prison at that time. The appellant's premise is sound: the court made no actual finding. But the conclusion that the appellant draws from that premise does not follow.

To begin, the district court's characterization was not a post hoc afterthought: the minutes of the January 15 hearing reflect that the court expressly stated that it was granting the appellant "a last opportunity."² The court's contemporaneous characterization of its own order is entitled to some weight. Cf. Lefkowitz v. Fair , 816 F.2d 17, 22 (1st Cir. 1987) (explaining that "uncertainty as to the meaning and intendment of a district court order can sometimes best be dispelled by deference to the views of the writing judge").

In all events, the appellant cabins the word "opportunity" in a way that defies both common usage and common sense. It is apodictic that appellate courts should "'allow a good deal of leeway' in reviewing the adequacy of a district court's explanation" of a sentencing determination. United States v. Ofray-Campos , 534 F.3d 1, 38-39 (1st Cir. 2008) (quoting United States v. Gilman , 478 F.3d 440, 446 (1st Cir. 2007) ). Viewing the outcome of the January 15 hearing as affording the appellant an opportunity to redeem...