Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 18-1729

UNITED STATES,

Appellee,

v.

JOEL JAHAMAL ROUGEAU, a/k/a Panther,

Defendant, Appellant.

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

[Hon. Patti B. Saris, U.S. District Judge]

Before

Howard, Chief Judge, Thompson, Circuit Judge, and Gelpí, Chief District Judge.*

Merritt Schnipper, with whom Schnipper Hennessy PC was on brief, for appellant. Randall E. Kromm, Assistant United States Attorney, with whom, Andrew E. Lelling, United States Attorney, was on brief, for appellee.

February 9, 2021

* Of the United States District Court for the District of Puerto Rico, sitting by designation. PER CURIAM. Defendant-appellant Joel Rougeau pleaded

guilty to his part in the cross-country transportation of a

quantity of fentanyl concealed in a truck that he was driving with

his girlfriend as his travel companion. He was sentenced to 135

months' imprisonment, which was the bottom of the applicable

guidelines range. On appeal, Rougeau argues that the unique facts

of his case should have resulted in a below-range sentence, and he

challenges the sentence imposed by the district court on grounds

of procedural and substantive reasonableness.

Soon after the truck that Rougeau was driving was seized

by local law enforcement officers in Oklahoma, Rougeau fled to

Mexico, where he remained for twenty months. He reported that the

cartel concerned with the shipment took him captive, brutally

tortured him, and forced him to commit atrocities, including at

least one murder and multiple dismemberments of corpses. After he

was returned to the United States, prison health staff diagnosed

him with post-traumatic stress and major depressive disorders. A

psychiatric evaluation confirmed these conditions.

While explaining its choice of sentence, the district

court took note of matters for which Rougeau bore responsibility,

including the participation of his girlfriend in the offense.

Rougeau objects, arguing that his companion was an equal

participant and insisting that nothing supports an attribution of

responsibility to him for her involvement. The record, however,

- 2 - does contain circumstantial evidence that the companion's

participation was contingent on that of Rougeau. The inference

that the district court drew from the facts presented was

permissible and did not cross the line of procedural

reasonableness. See United States v. Marceau,

(1st Cir. 2009) (sentencing court may draw plausible inferences

from circumstantial evidence). Even had the court erred in this

respect, the claim was not preserved and any possible error was

not "clear or obvious." United States v. Gaccione,

(1st Cir. 2020).

Rougeau also argues that the court's reliance on this

factual finding worked unfair surprise on him in violation of his

right to due process, but he developed this argument for the first

time in his reply brief and therefore waived it. See United States

v. Tosi,

(1st Cir. 2018). In any case, the

government argued at the Rule 11 hearing and in its sentencing

memorandum that this was Rougeau's drug trafficking operation, not

his girlfriend's.

Rougeau further argues that the district court did not

accord his life-altering trauma the significance that it was due

and thus imposed a sentence that was unnecessary and gratuitous.

He contends that, as a procedural matter, the court did not

adequately address his traumatization and its effect on the need

for specific deterrence or more generally a 135-month sentence;

- 3 - and that, as a substantive matter, the sentence was unreasonably

long when his trauma was considered alongside the fact that he had

only previously engaged in criminal activity as a teenager.

The district court addressed Rougeau's traumatization in

a direct and substantial manner, and Rougeau's insistence on even

more particularity is baseless. See United States v. Harrison,

(1st Cir. 2018). Moreover, the court expressly

acknowledged that it must consider the sentencing factors under

(a), and it discussed facts relevant to specific

deterrence not long after the parties argued over that factor.

That is all that was required. See United States v. Mendoza-

Maisonet,

(1st Cir. 2020) (court's reasoning can be

inferred from parties' arguments); United States v. Hassan-Saleh-

Mohamad,

(1st Cir. 2019) (according weight to court's

acknowledgment of § 3553(a) and consideration of facts relevant to

sentencing factors).

Substantive reasonableness turns on the totality of

circumstances. United States v. Owens,

(1st Cir.

2019). The district court's balancing of the multiple

considerations bearing on the sentencing determination in this

case, including evidence that Rougeau had previously trafficked

significant quantities of drugs during his adult years, was within

permitted boundaries.

- 4 - For the foregoing reasons, the judgment of the district

court is affirmed.

- 5 -