United States v. Hercules

• Decision Date: 09 January 2020
• Docket Number: No. 18-1965,18-1965
• Citation: 947 F.3d 3
• Parties: UNITED STATES of America, Appellee, v. Brent HERCULES, a/k/a Herc, a/k/a B, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

947 F.3d 3

UNITED STATES of America, Appellee,

v.Brent HERCULES, a/k/a Herc, a/k/a B, Defendant, Appellant.

No. 18-1965

United States Court of Appeals, First Circuit.

January 9, 2020

Angela G. Lehman, Somerville, MA, for appellant.

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

Before Lynch, Selya, and Barron, Circuit Judges.

SELYA, Circuit Judge.

This appeal presents a question of first impression in this circuit: is a defendant's potential future deportation a factor that a sentencing court may consider under 18 U.S.C. § 3553(a) ? Although we answer this question in the affirmative, we conclude that the court below acted well within the encincture of its discretion in determining that it would not give weight to the appellant's potential future deportation. Therefore, we reject the appellant's claims of error and uphold the challenged sentence.

I. BACKGROUND

Because this sentencing appeal follows a guilty plea, we gather the relevant facts from the change-of-plea colloquy, the undisputed portions of the presentence investigation report (PSI Report), and the transcript of the disposition hearing. See United States v. Narváez-Soto, 773 F.3d 282, 284 (1st Cir. 2014). Beginning in September of 2015, defendant-appellant Brent Hercules participated in a conspiracy to transport drugs into central Maine for distribution. During a period of approximately eleven months, the appellant drove vehicles carrying drugs, drug dealers, and/or drug proceeds between New York and Maine once or twice each week.

In May of 2017, the hammer fell: a federal grand jury sitting in the District of Maine charged the appellant with one count of conspiracy to distribute and possess with intent to distribute controlled substances, see 21 U.S.C. §§ 841(a)(1), 846, and one count of possession with intent to distribute the same, see id. § 841(a)(1). After some preliminaries, not relevant here, the appellant pleaded guilty to both counts. When prepared, the PSI Report revealed that the appellant had been born in the British Virgin Islands in 1986 and had immigrated to the United States with his parents when he was three years of age. He became a lawful permanent resident in July of 1999. By the time of sentencing, U.S. Immigration and Customs Enforcement (ICE) had filed a detainer against the appellant with an eye toward subsequent deportation.

Prior to the disposition hearing, the appellant submitted a sentencing memorandum in which he asserted that he was certain to be deported after serving his sentence. He therefore beseeched the sentencing court, when mulling the factors delineated in 18 U.S.C. § 3553(a), to consider his future deportation and the possibility of a downward variance on that basis.¹ The government opposed this entreaty, contending that the appellant's deportation was not a "foregone conclusion" and that a criminal defendant's potential deportation was an inappropriate ground for imposing a downwardly variant sentence.

The district court addressed this dispute at the outset of the disposition hearing. The court enumerated three reasons why it would not take the appellant's potential future deportation into account either as a sentencing factor or, by extension, as a basis for lowering the appellant's sentence.

First, the court stated that although there was surely "a risk" that the appellant would be deported after serving his sentence, it was "not at all convinced that [he] will, in fact, be deported." In support, the court noted shifting immigration enforcement priorities among various presidential administrations, particularly with respect to "individuals like the [appellant,] who was brought here as a child." In a similar vein, the court noted that the appellant had two prior state drug convictions, neither of which had triggered his deportation.² Given what it characterized as the "uncertainty" surrounding the appellant's deportation, the court expressed discomfort with reducing his sentence based on a future event that might never occur.

Second, the court explained its view that potential future deportation qualifies as a "collateral consequence" of committing a federal criminal offense. Even though the court recognized that it was not "forbidden from considering" collateral consequences, it described such consequences as difficult to assess inasmuch as every defendant potentially faces wide-ranging repercussions as a result of a federal criminal conviction (including difficulty securing employment and strained personal and familial relationships).

Third, the court highlighted its "greatest concern" with considering the possibility of future deportation: that placing such a factor into the mix might lead inexorably to sentencing disparities between citizen- and noncitizen-defendants. In the court's judgment, it would be "fundamentally wrong" to reduce a noncitizen-defendant's sentence because of potential future deportation when comparable arguments about immigration status "would not be available" to a similarly situated citizen-defendant.

Relying on these reasons, the court determined that it would not give weight to the appellant's potential deportation when fashioning the appellant's sentence. Later on, the court reiterated its view that it had "the discretion to consider deportation" but that "this is not the right case to do it."

Without objection, the district court proceeded to adopt the guideline calculations limned in the PSI Report, set the appellant's total offense level at 29, and placed him in criminal history category III. These computations yielded a guideline sentencing range (GSR) of 108 to 135 months. The government recommended a bottom-of-the-range sentence (108 months). Stressing his acceptance of responsibility and his relatively limited role as a driver for the drug ring, the appellant sought a downwardly variant 60-month sentence.

After weighing the pertinent section 3553(a) factors, the district court varied downward (albeit not on the basis of the appellant's potential deportation) and imposed an 87-month term of immurement. In explaining its sentencing rationale, the court acknowledged the large amount of drugs and drug proceeds that the appellant had transported and found that the appellant had played a "limited but essential role" in the conspiracy. The court noted, however, that the appellant had neither performed a managerial role in the conspiracy nor engaged directly in distribution.

Along with the prison sentence, the district court imposed a three-year term of supervised release, attaching several special conditions. These special conditions included a stipulation that the appellant be surrendered to ICE after serving his prison sentence and, "[i]f ordered deported," remain outside the United States during the period of supervised release.

This timely appeal followed.

II. ANALYSIS

When confronted with claims of sentencing error, we engage in a two-step pavane. See United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013). To begin, we inquire into any alleged procedural errors, such as miscalculating the GSR, failing to consider the section 3553(a) factors, or basing a sentence on clearly erroneous facts. See id. If the sentence proves procedurally sound, we then inquire into its substantive reasonableness. See id.

At each step of this bifurcated analysis, the abuse-of-discretion standard governs our review. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ; Narváez-Soto, 773 F.3d at 285. This standard is not monolithic: under its umbrella, we review findings of fact for clear error and questions of law (including those involving the application and interpretation of the sentencing guidelines) de novo. See Narváez-Soto, 773 F.3d at 285.

The appellant's principal plaint is that the district court misapprehended the likelihood of his future deportation. Specifically, he submits that the court erred by deeming his future deportation merely "possible," when in point of fact "he is subject to mandatory deportation with no possible relief." In the appellant's view, this misapprehension infected the district court's decision not to consider his future deportation when crafting an appropriate sentence.

Before grappling with the appellant's arguments, we pause to locate them within the applicable analytic framework. In his opening brief, the appellant did not explicitly characterize his argument about the inevitability of deportation in terms of either procedural or substantive error. The government, though, characterized this argument as a claim of procedural and factual error, and the appellant has not disputed this characterization. Consequently, we treat the appellant's argument about the likelihood of his deportation as a claim of procedural (and more specifically, factual) error.

Against this backdrop, we turn to the district court's determination that the appellant's future deportation was possible but not a sure thing. We review this factual determination for clear error. See United States v. Fields, 858 F.3d 24, 29 (1st Cir. 2017). Clear error review is deferential and "requires that we accept findings of fact and inferences drawn therefrom unless, ‘on the whole of the record, we form a strong, unyielding belief that a mistake has been made.’ " Id. (quoting United States v. Demers, 842 F.3d 8, 12 (1st Cir. 2016) ). When a sentencing court faces "more than one plausible view of the circumstances, [its] choice among supportable alternatives cannot be clearly erroneous." Id. at 30 (quoting United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990) ).

Here, it cannot be gainsaid that the appellant is quite likely to be deported to his homeland (the British Virgin Islands) once he has served his prison sentence. After all, the appellant's convictions are for aggravated felonies. See 8 U.S.C. § 1101(a)(43)(B) (defining "aggravated felony" to comprise "drug trafficking crime[s]" und...