United States v. Daoust

• Decision Date: 01 May 2018
• Docket Number: No. 17-1234,17-1234
• Citation: 888 F.3d 571
• Parties: UNITED STATES of America, Appellee, v. Robert DAOUST, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

888 F.3d 571

UNITED STATES of America, Appellee,

v.Robert DAOUST, Defendant, Appellant.

No. 17-1234

United States Court of Appeals, First Circuit.

May 1, 2018

Inga L. Parsons and Law Offices of Inga L. Parsons on brief for appellant.

Halsey B. Frank, United States Attorney, and Benjamin M. Block, Assistant United States Attorney, on brief for appellee.

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

SELYA, Circuit Judge.

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 full-time 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. 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 the probation officer's recommendation or impose a top-of-the-range 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.

Preserved claims of sentencing error ordinarily are reviewed for abuse of discretion. See Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (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 Fed.Appx. 348, 352 (6th Cir. 2016) (collecting cases). Procedures for supervised release revocation sentences are delineated in a separate rule: Federal Rule of Criminal Procedure 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, 128 S.Ct. 2198, 171 L.Ed.2d 28 (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 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).

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.

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...