United States Court of Appeals For the First Circuit

No. 19-2092

UNITED STATES OF AMERICA,

Appellee,

v.

DAMIAN A. OUELLETTE,

Defendant, Appellant.

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

[Hon. Lance E. Walker, U.S. District Judge]

Before

Lynch, Barron, Circuit Judges. Burroughs, District Judge.

Jon A. Haddow and Farrell, Rosenblatt & Russell, on brief for appellant. Noah Falk, Assistant United States Attorney, and Halsey B. Frank, United States Attorney, on brief for appellee.

January 14, 2021

 Of the District of Massachusetts, sitting by designation. Burroughs, District Judge. Damian A. Ouellette pleaded

guilty to one count of possession of a firearm by a felon in

violation of

(g)(1) and 924(a)(2). The district

court sentenced Ouellette to seventy-two months of incarceration.

On appeal, Ouellette challenges his sentence, contending that the

district court miscalculated his base offense level under the

Sentencing Guidelines. Following our review of the Guidelines

calculation and the sentencing hearing transcript, we find that

the sentence imposed was reasonable and we therefore affirm.

I.

Because Ouellette pleaded guilty, we draw the relevant

facts from the undisputed portions of the presentence

investigation report ("PSR") and the transcript of the sentencing

hearing. See United States v. Benoit,

, 21 (1st Cir.

2020).

On November 2, 2018, while Ouellette was on probation

following a state conviction for theft, local police officers were

called to his home to respond to a domestic violence disturbance.

Once there, the officers learned that Ouellette had assaulted and

choked his wife until she nearly lost consciousness. His wife

told the officers that her child had found a gun that Ouellette

had been hiding in their bedroom. The officers then searched the

home pursuant to a warrant and found a loaded firearm. Because

Ouellette was a convicted felon, he was prohibited from possessing

- 2 - a firearm.

On January 30, 2019, Ouellette pleaded guilty to one

count of being a felon in possession of a firearm. In its PSR,

Probation determined that Ouellette had a base offense level

("BOL") of fourteen because he was a "prohibited person" as defined

by the Guidelines when he committed the offense. The Government

objected, arguing that because Ouellette had a prior felony

conviction for a crime of violence under U.S.S.G.

§ 2K2.1(a)(4)(A), namely robbery with a dangerous weapon, his BOL

should be twenty. Before sentencing, after briefing by both

sides, the district court issued a written opinion in which it

agreed with the Government that the prior conviction qualified as

a crime of violence, resulting in a BOL of twenty.

Given Ouellette's lengthy criminal history, a BOL of

fourteen, as initially recommended by Probation, would have

resulted in an advisory Guidelines sentence range of forty-one to

fifty-one months, whereas a BOL of twenty increased the advisory

range to seventy-seven to ninety-six months.

At sentencing, the district court reiterated its finding

on the enhancement, found that the total adjusted offense level

was twenty-one after accounting for an obliterated serial number

on the firearm and Ouellette's acceptance of responsibility, and

then reviewed various

(a) factors, including

Ouellette's youth, difficult upbringing, long criminal history,

- 3 - and serious history of substance abuse. In particular, the

district court, noting that the charge arose out of a domestic

violence incident, stated that "the nature and circumstance of

this particular offense strikes me as something significantly more

severe than what we might refer to as a garden variety prohibited

person in possession of a firearm, and that concerns me." The

district court also referenced the briefing relative to

determining the BOL and said that it was "not enthused" about the

"methodology" prescribed to determine whether the state robbery

offense was a crime of violence for purposes of the Sentencing

Guidelines.

The district court then announced that it was going to

"give a below guideline sentence" and ultimately sentenced

Ouellette to seventy-two months' incarceration. In varying from

the Guidelines, the district court made the following remarks:

I've carefully considered the objections to the guideline analysis as they would affect the defendant's total offense level. And even if I had accepted or come out to -- arrived at a different conclusion regarding those objections, the sentence I have announced today is untethered from the guidelines. I would impose precisely the same sentence even if the applicable sentencing guideline range would have been reduced by any or all of the objections made for the reasons that I have articulated in some detail.

II.

Ouellette, in his timely filed appeal, argues that the

- 4 - district court misapplied the Guidelines in determining that his

prior conviction for armed robbery was a crime of violence for

purposes of calculating his BOL. The Government contends first

that any alleged error was harmless because the sentence imposed

was independent of the Guidelines, and second that there was no

error.1

When reviewing sentencing appeals, "[w]e first consider

whether the sentence is procedurally reasonable, and then consider

whether it is substantively reasonable." United States v.

Hassan-Saleh-Mohamad,

(1st Cir. 2019) (quoting United

States v. Rodríguez-Reyes,

(1st Cir. 2019)).

A. Procedural Reasonableness

Where, as here, preserved claims of procedural error are

under review, we

ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence -- including an explanation for any deviation from the Guidelines range.

United States v. Ayala-Vazquez,

(1st Cir. 2014)

1 Ouellette did not address the Government’s first argument in his opening brief, but responded to it in his reply brief, stating that even if the district court varied from the Guidelines, the BOL of twenty was still the improper starting point for that variance.

- 5 - (alteration in original) (quoting Gall v. United States,

(2007)). "When mulling the procedural reasonableness of a

sentence, we afford de novo review to the sentencing court's

interpretation and application of the sentencing guidelines, assay

the court's factfinding for clear error, and evaluate its judgment

calls for abuse of discretion." United States v. Ruiz-Huertas,

(1st Cir. 2015).

An error in calculating the Guidelines range can result

in remand when the incorrect Guidelines calculation is used as the

baseline for arriving at a sentence, even if the sentence

ultimately varies from the Guidelines range. See Molina-Martinez

v. United States,

, 1345–46 (2016). "There may be

instances," however, "when, despite application of an erroneous

Guidelines range, a reasonable probability of prejudice does not

exist."

. For example, we have consistently held that

when a sentencing court makes clear that it would have entered the

same sentence regardless of the Guidelines, any error in the

court's Guidelines calculation is harmless. See United States v.

Ortiz-Álvarez,

(1st Cir. 2019) ("That independent

justification shows that the district court, while cognizant of

the dueling guidelines calculations, 'intended to untether' its

sentence from the guidelines calculations presented to him (and

any errors in them), refuting [appellant's] claim of prejudice."

(quoting United States v. Hudson,

(1st Cir.

- 6 - 2016))); United States v. Acevedo-Hernández,

(1st Cir. 2018) ("In light of this clear indication in the record

that the court would have imposed the same sentence even without

any of the alleged errors, we find that any errors in calculating

[appellant's] GSR would have been harmless."); United States v.

Marsh,

(1st Cir. 2009) ("[T]he district court

stated that it would have imposed the same sentence as a non-

Guideline sentence under

(a). If we find an

alleged Guideline error would not have affected the district

court's sentence, we may affirm." (citation omitted)).

It was within the district court's discretion to impose

a sentence outside of the Guidelines range. Because the district

court made clear that it would have imposed the same sentence

regardless of the Guidelines, any alleged error in calculating

Ouellette's BOL is harmless. See United States v. Tavares,

, 25–27 (1st Cir. 2013) ("An error is harmless if it 'did

not affect the district court's selection of the sentence

imposed.'" (quoting Williams v. United States,

(1992))).2

B. Substantive Reasonableness

Ouellette did not object to the reasonableness of his

2 We note that Ouellette makes no argument in his opening brief to us that the district court's failure to expressly justify the variance from the alternative Guidelines range precludes us from finding harmless error. - 7 - sentence during the sentencing hearing, nor has he explicitly

challenged the substantive reasonableness of his sentence on

appeal. "However, even if we are satisfied that an error did not

affect the district court's determination of the sentence, we still

must review the sentence for substantive reasonableness." Id. at

27.

"A sentence is substantively reasonable if the district

court provided a 'plausible sentencing rationale and reached a

defensible result.'" United States v. Gomera-Rodríguez,

(1st Cir. 2020) (quoting United States v. Coffin,

(1st Cir. 2019)). Under the totality of the circumstances,

including the district court's concern with Ouellette's long

pattern of repeated convictions and probation violations, as well

as the underlying domestic violence incident connected to his

conviction in this case, the seventy-two-month sentence is a

defensible result, supported by a plausible rationale.

III.

For the reasons given, we find that the sentence imposed

was reasonable.

Affirmed.

- 8 -