United States Court of Appeals For the First Circuit

No. 18-1965

UNITED STATES OF AMERICA,

Appellee,

v.

BRENT HERCULES, a/k/a Herc, a/k/a B,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Lynch, Selya, and Barron, Circuit Judges.

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

January 9, 2020 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

(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,

(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

(a)(1), 846,

- 2 - and one count of possession with intent to distribute the same,

see

§ 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

(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

1 A variance is a non-guidelines sentence that "result[s] from a court's consideration of the statutory sentencing factors enumerated in

(a)." United States v. Rodríguez- Reyes,

(1st Cir.) (quoting United States v. Aponte-Vellón,

(1st Cir. 2014)), cert. denied,

(2019); see United States v. Heindenstrom, ___ F.3d ___, ___, No. 18-2187, slip op. 1, 10-11 (1st Cir. 2019).

- 3 - 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

2 The PSI Report indicates that these two state convictions were misdemeanors, but the district court initially referred to them as felonies. The court, though, accurately described the substance of these convictions later in the disposition hearing.

- 4 - 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

- 5 - 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.

- 6 - II. ANALYSIS

When confronted with claims of sentencing error, we

engage in a two-step pavane. See United States v. Flores-

Machicote,

(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

If the sentence

proves procedurally sound, we then inquire into its substantive

reasonableness. See

At each step of this bifurcated analysis, the abuse-of-

discretion standard governs our review. See Gall v. United States,

(2007); Narváez-Soto,

. 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,

.

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.

- 7 - 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,

(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.'"

(quoting United States v.

Demers,

(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."

at 30 (quoting United States v. Ruiz,

(1st Cir. 1990)).

- 8 - 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

(a)(43)(B) (defining "aggravated felony" to comprise "drug

trafficking crime[s]" under

(c));

(c)(2) (defining "drug trafficking crime" to include "any

felony punishable under the Controlled Substances Act"). This

status entails wide-ranging consequences. As a general matter,

noncitizens convicted of aggravated felonies are deportable under

federal law.3 See

(a)(2)(A)(iii). In turn,

deportable noncitizens "shall, upon the order of the Attorney

General, be removed" from the United States.

§ 1227(a). And

the appellant's aggravated felony convictions render him

ineligible for various forms of relief from removal. See id.

§ 1229b(a)(3) (cancellation of removal); id. § 1231(b)(3)(B)(ii)

(withholding of removal); id. § 1158(b)(2)(A)(ii), (B)(i)

(asylum). Theoretically, then, "removal is practically

inevitable" under contemporary law for noncitizens who commit

removable offenses. Padilla v. Kentucky,

, 363-64

3Noncitizens convicted of violations of federal, state, or foreign laws relating to controlled substances are also deportable under federal law. See

(a)(2)(B)(i). There is an exception to this rule. See

(memorializing "own use" exception relating to single offense for possession of 30 grams or less of marijuana). That exception is not relevant here.

- 9 - (2010). What is more, the Supreme Court has noted that the risk

of removal is especially pronounced for noncitizens convicted of

offenses "related to trafficking in a controlled substance"

because discretionary relief from removal is generally "not

available" for such individuals.

.

But despite the high likelihood of the appellant's

eventual deportation under the current statutory scheme,4 we cannot

say that the district court clearly erred by deeming the

appellant's future deportation uncertain. In practice,

enforcement of the immigration laws has not always been a model of

consistency, and the district court plausibly noted that the

immigration enforcement priorities of the Executive Branch "seem

to be in flux," changing with the ebb and flow of political tides.

So, too, the court correctly observed that the appellant had not

been deported in the past notwithstanding two prior convictions

for state drug offenses. See

(a)(2)(B)(i)

(establishing that noncitizens convicted of violations of state

controlled substances offenses are deportable). Relatedly, the

court commented on the appellant's 2007 state felony conviction

for attempted criminal possession of a weapon. Although this

4We think it worth noting that the appellant did not cite either the statutory scheme or the Padilla decision before the sentencing court. Instead, he based his argument about his virtually certain deportation on the ICE detainer and generic assertions that, for instance, he would "in all likelihood" be deported.

- 10 - conviction almost certainly rendered the appellant deportable, see

§ 1227(a)(2)(C) (deeming noncitizens convicted under any law

for attempted possession of firearm deportable), the record

contains no evidence that this conviction ever triggered any

proceedings aimed at the appellant's deportation.

Given the substantial possibility of shifting

immigration policies and fluctuating enforcement priorities during

the appellant's lengthy 87-month incarcerative term, the district

court's determination that the appellant's future deportation was

not a matter of absolute certainty was a reasonable assessment of

the appellant's circumstances. Consequently, we hold that the

district court's finding as to the likelihood of the appellant's

future deportation was not clearly erroneous. See Fields,

.

This brings us to the district court's decision not to

consider the appellant's potential deportation when calibrating an

appropriate sentence. Our review is under the abuse-of-discretion

rubric. See

.

In an earlier case involving a conviction for illegal

reentry under

(a), we rejected a defendant's

argument that the sentencing court should have imposed a non-

guidelines sentence on the basis of his "immediate detention and

likely future deportation once released from prison." United

States v. Jiménez-Beltre,

, 520 (1st Cir. 2006) (en

- 11 - banc), abrogated on other grounds by Rita v. United States,

(2007). There, the defendant argued that his potential

future deportation "made a normal guideline sentence unnecessary

for deterrence or public protection and was a pertinent factor

under

(a)(2)."

Dismissing these arguments,

we observed that because the "crime in question — re-entry after

deportation — is ordinarily going to be committed by persons who

will be deported after their sentences have been served," the GSR

"was likely predicated on this understanding."

We added that

the defendant in that case, who had reentered the United States

after deportation, was "hardly in a good position to argue for a

shorter sentence on the ground that another deportation of him

will protect the public adequately against yet another

repetition."

We have not yet had occasion, though, to explore a

sentencing court's ability to consider a defendant's potential

deportation outside the illegal reentry context. Like several

other courts of appeals, see, e.g., United States v. Flores-Olague,

(7th Cir. 2013) (observing that a "sentencing

court is well within its prerogatives and responsibilities in

discussing a defendant's status as a deportable alien" when

considering a defendant's history); United States v. Petrus,

(6th Cir. 2009) (acknowledging that sentencing court

may consider defendant's "potential deportation" and "immigration

- 12 - status"), we now hold that a sentencing court has the discretion,

in an appropriate case, to weigh the possibility of future

deportation when mulling the section 3553(a) factors in an effort

to fashion a condign sentence.5

Under appropriate circumstances, a defendant's potential

deportation may properly be considered as part of a broader

assessment of his history and characteristics pursuant to section

3553(a)(1). On the right factual record, a defendant's potential

deportation also may prove relevant to whether a sentence will

adequately "protect the public from further crimes of the

defendant."

(a)(2)(C). Future threats to the

community might conceivably be mitigated in a situation in which,

upon release from imprisonment, the defendant will promptly be

deported. Cf. United States v. Morales-Uribe,

(8th Cir. 2006) (making this point but concluding that defendant's

impending deportation "would not support a substantial downward

variance" on this basis since defendant had thrice attempted

unlawful entry).

This is not to say that a sentencing court always must

consider a defendant's potential deportation when fashioning an

5The out-of-circuit decisions cited in this opinion discuss potential deportation in a variety of factual contexts. We cite these opinions to support general legal propositions, without implying endorsement of each court's specific application of those propositions.

- 13 - appropriate sentence. Moreover, we expect that variances from the

GSR on this basis, although permissible in the right factual

context, will likely prove rare. In the last analysis, though,

"[s]entencing is much more an art than a science," and the weight

to be given relevant data points "is largely within the

[sentencing] court's informed discretion." United States v.

Clogston,

(1st Cir. 2011). We think it follows

that a sentencing court does not perforce abuse its discretion by

declining to speculate on a defendant's potential future

deportation. See United States v. Gomez-Jimenez,

,

384 n.8 (4th Cir. 2014). Thus, our holding here simply adds to

the chorus of circuit courts recognizing that, in the relatively

rare circumstances in which potential future deportation is an

arguably appropriate sentencing factor, a district court does not

abuse its discretion either by weighing or declining to weigh that

factor in its sentencing calculus under section 3553(a). See,

e.g., id.; Flores-Olague,

.

In this instance, the district court expressed some

general reservations about taking a defendant's potential future

deportation into account. Withal, the court did not categorically

foreclose the consideration of a defendant's potential deportation

in all cases. To the contrary, the court stated explicitly that

it had the discretion to consider the likelihood of future

deportation in the "right case." Seen in this light, the court

- 14 - did not run afoul of the longstanding principle that "generally

courts should not categorically reject a factor as a basis for"

deviating from a guidelines sentence. United States v. Olbres,

(1st Cir. 1996); see Koon v. United States,

(1996) ("Congress did not grant federal courts authority

to decide what sorts of sentencing considerations are

inappropriate in every circumstance.").

The record makes manifest that three factors informed

the district court's decision that this was not an appropriate

case in which to take the likelihood of the appellant's future

deportation into account. These factors included the court's

assessment that the appellant's future deportation was

"speculative"; its conclusion that future deportation would be a

"collateral consequence" of committing a federal crime; and its

concern that reducing a noncitizen's sentence because of the

prospect of future deportation could create sentencing disparities

vis-à-vis similarly situated citizen-defendants. Nothing in the

sentencing transcript or elsewhere in the record suggests that the

court gave any one of these variables dispositive weight. Where,

as here, a sentencing court declines to factor into the sentencing

calculus a defendant's potential future deportation because of an

amalgam of appropriate concerns, no abuse of discretion occurs.

In sum, a sentencing court enjoys wide discretion to

"custom-tailor an appropriate sentence" using a "flexible, case-

- 15 - by-case approach." Flores-Machicote,

. The

district court's decision not to consider the appellant's

potential future deportation in the case at hand falls comfortably

within the ambit of this wide discretion. Here, moreover, the

district court did not clearly err by determining that deportation

was not absolutely certain to transpire. And to the extent that

the appellant "seeks to substitute his judgment" about the

relevance of his potential deportation for the contrary judgment

of the district court, "[w]e cannot countenance such a

substitution." Clogston,

.

III. CONCLUSION

We need go no further.6 For the reasons elucidated

above, the appellant's sentence is

Affirmed.

6The appellant has not argued, either below or on appeal, that his sentence is substantively unreasonable. Thus, we have no need to address that issue.

- 16 -