United States v. Sepúlveda-Hernández
Opinion of the Court
In this appeal, defendant-appellant To-más Sepúlveda-Hernández attempts to raise multiple claims of sentencing error. Concluding, as we do, that his claims are both unpreserved and unpersuasive, we affirm.
I. BACKGROUND
The facts and proceedings that culminated in the challenged'sentence are chroni
A jury convicted the appellant of a medley of crimes stemming from his serial roles as the supplier to, part-owner of, and eventual lessor of a drug-distribution network based in La Trocha Ward, Vega Baja, Puerto Rico. See id. at 25-26. On appeal, we trimmed the appellant’s convictions (reducing them to convictions for conspiracy and aiding and abetting the distribution of drugs, simpliciter), vacated his sentence, and remanded for resentenc-ing. See id. at 31, 38. In the process, we upheld the district court’s drug-quantity determination, holding the appellant accountable for 977 kilograms of marijuana. See id. at 35-36.
At resentencing, the district court, without objection, recalibrated the guideline sentencing range (GSR)
II. ANALYSIS
In this venue, the appellant first asseverates that the court below failed adequately to explain its reasons for the sentence. Normally, claims of sentencing error are reviewed for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). But this standard of review is altered where, as here, the appellant has failed to preserve a claim below. See United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). In that event, review is for plain error. See id. To prevail under plain error review, an appellant must show “(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the [appellant’s] substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” Id.
The claim of error sub judice boils down to an assertion that the district court did not adequately state its reasons for imposing a sentence at the peak of the applicable GSR. Because the appellant did not raise this claim below, our review is for plain error.
When a sentence is imposed within the GSR, the “adequate explanation” requirement is less stringent than if the sentencing court had imposed a variant sentence. See United States v. Ruiz-Huertas, 792 F.3d 223, 227 (1st Cir. 2015); United States v. Ocasio-Cancel, 727 F.3d 85, 91 (1st Cir. 2013). And in all events, the sentencing court’s rationale sometimes can be deduced by comparing the parties’ arguments at sentencing with the court’s actions. See United States v. Rivera-Clemente, 813 F.3d 43, 47 (1st Cir. 2016) [No. 13-2275].
Here (as noted above), the district court succinctly summarized its reasons for imposing a 151-month sentence. The court relied principally on the seriousness of the offense. See 18 U.S.C. § 3553(a)(2)(A). Though the court made a conservative drug-quantity estimate, see Sepúlveda-Hernández, 752 F.3d at 35-36, it found that thé sale of crack cocaine alongside the sale of marijuana exacerbated the seriousness of the appellant’s criminal conduct. The sprawling nature of the enterprise and the large number of participants in the drug ring compounded the gravity of the crimes. See 18 U.S.C. §■ 3553(a)(2).
What is more, the court acknowledged the presence of some mitigating factors. It counterbalanced those factors, however, by acknowledging—at various points during the disposition hearing—the deleterious impact of the appellant’s criminal conduct on the community, the appellant’s victimization of others, and the protracted duration (from at least 2002 to 2008) of the illicit activities.
We have said before—and today reaffirm—that “[w]here the record permits a reviewing court to identify both a discrete aspect of an offender’s conduct and a connection between that behavior and the aims of sentencing, the sentence is sufficiently explained to pass muster under section 3553(c).” United States v. Fernández-Cabrera, 625 F.3d 48, 54 (1st Cir. 2010). We add that an adequate explanation need not be an elaborate explanation. Here, we find adequate the district court’s succinct explanation of why it imposed a top-of-the-range sentence. It follows, a fortiori, that there was no. error in this respect, plain or otherwise.
To be sure, Congress also has ordained that if the spread in a particular guideline range exceeds 24 months, the sentencing court must state “the reason for imposing a sentence at a particular point within the range.” 18 U.S.C. § 3553(c)(1). The
The appellant’s next plaint is that the district court ignored the parsimony principle. This plaint generally calls into question the substantive reasonableness of the sentence, which “depends largely on whether the sentence imposed represents a defensible, result supported by a plausible rationale.” United States v. Denson, 689 F.3d 21, 27 (1st Cir. 2012). Whatever the standard of review,
The parsimony principle requires a sentencing court to ‘^impose a sentence sufficient, but not greater than necessary to comply with” ■ various enumerated purposes, see 18 U.S.C. § 3653(a), including recognition of the seriousness of the offense, respect for the law, just punishment, deterrence, protection of the public, and rehabilitation, see id, § 3563(a)(2). That principle, however, recognizes that" sentencing is more an art than a science: there is not a single reasonable sentence for a particular defendant’s commission of a particular crime but, rather, a universe of reasonable sentences. See United States v. Clogston, 662 F.3d 588, 592-93 (1st Cir. 2011). Here,.the district court’s founded explanation of its sentencing rationale defeats the appellant’s claim: considering the nature, circumstances, and gravity of the crimes of conviction and the appellant’s central role in those crimes, the sentence falls within- the wide universe of reasonable sentences. Put another way, “the sentence imposed represents a defensible result supported by a plausible rationale.” Denson, 689 F.3d at 27. So viewed, the parsimony principle was not flouted.
Finally, the appellant suggests that his sentence is infirm because the district court engaged in double counting. This suggestion prescinds from the notion that the district court erroneously relied on the appellant’s role as a leader of the criminal enterprise to justify the sentence — even though the court already had factored the appellant’s leadership role into the sentencing calculus by imposing a four-level enhancement. See USSG § 3B1.1.
We need not linger .long over this offhanded suggestion.- Although, double counting may in some iterations raise fairness concerns, see, e.g., United States v. Maisonet-González, 785 F.3d 757, 764 (1st Cir. 2015), the appellant has not made out a cognizable claim of double counting. Rather, the appellant throws this claim into the mix as a seeming afterthought: he tacks it onto the end of his brief in a single perfunctory sentence. Courts are not required to do counsel’s work, and we treat this forlorn attempt to advance a double-counting argument as waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (reiterating “the settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived”)."
We hasten to add that even if this argument was not waived, it would fail. In the criminal sentencing context, “double
So it is here. Though the sentencing court mentioned the appellant’s leadership role at the disposition hearing, it is reasonably clear from the record that, in so doing, the court was considering the facts underlying the appellant’s leadership role as those facts shed light upon sentéñ’cing factors made relevant by 18 U.S.C. § 3553(a). The- overlap between the 'sentencing enhancement under USSG § 3B1.1 and the sentencing factors made relevant by 18 U.S.C.' § 3553(a) does not furnish a basis for a claim of impermissible' double counting. See Maisonet-Gonzalez, 785 F.3d at 764.
III. CONCLUSION
We need go no further. For the reasons elucidated above, the appellant’s sentence is .
Affirmed.
, In the interim between remand and resen-tencing, the United States Sentencing Commission amended the sentencing guidelines in a way that benefited the appellant. See USSG § 2D1.1 (Nov. 2014); USSG Supp.App. C„ amend. 782 (effective Nov. 1, 2014). The district court properly applied the revised guidelines at resentencing (which took place on February 5, 2015). See United States v. Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. 1990) (explaining that unless some ex post facto problem interferes, the sentencing court should employ the guidelines in effect at the time of sentencing).
. The government contends that the appellant has waived the “failure to explain” issue by not raising it below. In support, the govern
. If this claim of error is viewed as a specie of a claim of substantive unreasonableness, the standard of review is uncertain. See Ruiz-Huertas, 792 F.3d at 228 & n. 4 (noting uncertainty about whether a claim that a sentence '■ is substantively unreasonable must- be- preserved below). Here, however, we need not probe the point more deeply: even under de novo review, the claim of error founders.
Reference
- Full Case Name
- United States v. Tomás SEPÚLVEDA-HERNÁNDEZ
- Cited By
- 27 cases
- Status
- Published