United States Court of Appeals For the First Circuit

No. 19-1936

UNITED STATES OF AMERICA,

Appellee,

v.

DENNIS AYALA,

Defendant, Appellant.

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

[Hon. George Z. Singal, U.S. District Judge]

Before

Kayatta, Selya, and Barron, Circuit Judges.

Jane Elizabeth Lee for appellant Dennis Ayala. Noah Falk, Assistant United States Attorney, with whom Halsey B. Frank, United States Attorney, was on brief, for appellee.

March 19, 2021 BARRON, Circuit Judge. Dennis Ayala challenges his 2019

sentence in the District of Maine for a federal drug conspiracy

offense. We affirm.

I.

On February 25, 2019, pursuant to a plea agreement, Ayala

pleaded guilty in the District of Maine to one count of conspiracy

to distribute, and to possess with intent to distribute, 40 grams

or more of fentanyl, in violation of

, 841(a)(1),

and 841(b)(1)(B). Under the plea agreement, Ayala and the

government had agreed that, for purposes of calculating the

Guidelines Sentencing Range ("GSR") for this offense, they would

both recommend a Base Offense Level ("BOL") under the Guidelines

of 28, pursuant to U.S.S.G. § 2D1.1(a)(5) and (c)(6). That BOL

corresponds to the one that applies when the quantity of fentanyl

attributable to a defendant convicted of an offense such as the

one to which Ayala pleaded guilty is 280 to 400 grams. See id.

§ 2D1.1(a)(5), (c)(6).

The first day of Ayala's sentencing proceeding was July

16, 2019. The District Court indicated at that time that it did

not intend to rely on the BOL in the plea agreement. Instead, the

District Court explained that it intended to rely on the BOL in

the Presentence Investigation Report ("PSR"), which the United

States Probation Office had prepared in advance of the sentencing

proceeding.

- 2 - The PSR had attributed a quantity of nearly 900 grams of

fentanyl to Ayala in connection with his offense.1 Pursuant to

U.S.S.G. § 2D1.1(a)(5) and (c)(5), the PSR had thus calculated

Ayala's BOL to be 30 rather than 28 as the plea agreement had

specified. The PSR had then added a three-level leadership

enhancement based on U.S.S.G. § 3B1.1(b) and subtracted three

levels pursuant to U.S.S.G. § 3E1.1(a) and (b) for Ayala's

acceptance of responsibility. The result was that the PSR had

calculated Ayala's Total Offense Level ("TOL") to be 30. The PSR

had then calculated the GSR, based on that TOL and Ayala's criminal

history, to be 108 to 135 months of imprisonment.

Both Ayala and the government objected to the District

Court's decision to adopt the BOL set forth in the PSR. When asked

by the District Court to explain the objection, the government

said that both sides had agreed in the plea agreement to make a

nonbinding recommendation to the District Court that the BOL be

28. Ayala also argued that the drug quantity that the PSR had

used in calculating the BOL was too large.

The PSR had based the drug quantity on which it relied

in calculating Ayala's BOL on certain cash that Ayala had

The PSR had based its more detailed calculation of the drug 1

quantity on converted heroin drug weights and their marijuana equivalents of just over 1,100 kilograms. But, the PSR had also noted that if only fentanyl had been used to make the calculation, then the total drug quantity would have been 897.07 grams, which is an amount that would also have corresponded to a BOL of 30.

- 3 - possessed. The PSR had found that the cash had been used in

connection with the conspiracy to which Ayala had pleaded guilty.

Ayala contended, however, that the cash at issue was not in fact

"drug money" and so should not have been used to determine that

the drug quantity involved in his crime was large enough to yield

a BOL of 30.

Ayala pointed to documents that he had previously

submitted to the District Court. Those documents, he argued,

showed that he had used some of the cash in question to repay a

person who had paid his bail for his arrest on a state drug charge.

Ayala also contended that he had received the cash in 2013 from

legitimate sources.

The District Court granted Ayala a continuance to

support this latter contention with additional documentation. By

the time the sentencing proceeding recommenced on September 16,

2019, Ayala had produced documents that showed, among other things,

that he had received benefits and life insurance payments of

approximately $250,000 in 2013, following his daughter's death.

The District Court nonetheless adopted the PSR's

calculation of Ayala's GSR, which was based on a BOL of 30 rather

than 28. That BOL was in turn based on the drug quantity of nearly

900 grams of fentanyl that the District Court had attributed to

Ayala in connection with his offense. The District Court then

sentenced Ayala to 108 months in prison. The length of that prison

- 4 - sentence was at the very bottom of the GSR of 108 to 135 months

that the District Court used. It was also at the very bottom of

the GSR that the PSR had used. If the District Court had calculated

the GSR based on the plea agreement's BOL of 28, then -- holding

all other aspects of the calculation constant -- the GSR would

have been 87 to 108 months. See U.S.S.G. § 2D1.1(a)(5), (c)(6).

In that event, the sentence that the District Court imposed would

have been at the very top end of the applicable GSR.

Ayala timely appealed.

II.

Ayala first takes aim at the procedural reasonableness

of his sentence due to the drug quantity that the District Court

attributed to him in connection with his offense. The District

Court relied on that drug quantity in calculating the GSR to be

108 to 135 months of imprisonment. Ayala contends that the

evidence did not suffice to support that drug quantity, because

the District Court based it in part on his having been in

possession of cash that was "drug money" when the record failed to

show that it was. Ayala also contends that, in any event, the

District Court erred by simply relying on the PSR's use of that

larger drug quantity to calculate his GSR without making

independent findings of its own. Ayala contends that this was so

because he had expressly objected to the PSR's use of that larger

drug quantity in calculating his BOL on the ground that, in doing

- 5 - so, it was wrongly treating the cash that he had possessed as "drug

money."

We review for clear error a contention that the record

does not support a district court's factfinding regarding drug

quantity. See United States v. Bernier,

(1st

Cir. 2011). We review de novo a contention that a district court

erred in failing to make independent findings of its own and by

instead simply adopting the PSR's findings in the face of a

defendant's express objection to them. See United States v.

Murchison,

(1st Cir. 2017). But, here, we may

bypass the substance of each of these contentions, because, as we

will explain, any error that the District Court may have made with

respect to drug quantity in calculating the GSR in Ayala's case

was harmless. See United States v. Tavares,

(1st Cir. 2013).

In announcing Ayala's sentence, the District Court noted

that Ayala was a long-term drug dealer and that he continued to

traffic drugs after his arrests, even while out on bail. It then

explained:

[I]n my findings [Ayala] has . . . a [TOL of] 30 and a Criminal History Category II which is 108 to 135 months. If he had [a TOL of] 28 . . . , as [Ayala's counsel] was arguing, and a II, he would have 87 to 108 months. In my view, the 108 months is appropriate under either set of circumstances, and that's what I'm going to sentence him to. (emphasis added).

- 6 - The District Court's statement that the sentence that it

imposed was "appropriate under either set of circumstances"

clearly demonstrates, when read in the context of "the record as

a whole," Williams v. United States,

(1992),

that the sentence did not depend on whether the BOL was 28 or 30.

That conclusion accords with the fact that the sentence that the

District Court imposed falls within the GSR that corresponds to

either of those BOLs. And, because the statement by the District

Court makes clear that the sentence that it imposed did not depend

on its choice between those two BOLs, its statement also

necessarily demonstrates that the sentence that it imposed did not

depend on whether the proper drug quantity was the lesser one that

Ayala contends the District Court should have used or the larger

one that it did use. Accordingly, the record reveals that any

error that the District Court may have made with respect to drug

quantity was harmless, because any such error had no effect on the

sentence imposed. See Tavares,

; see also United

States v. Marchena-Silvestre,

(1st Cir. 2015)

(explaining that "not . . . every error in calculating the [GSR]

calls for reversal under plain error analysis, or even under

harmless error analysis" because "[a] sentencing court might, for

example, make it clear that it was aware of a possible flaw in its

calculation of a [GSR], and explain that its sentence would

nevertheless be the same under an alternative analysis pressed by

- 7 - the party that ultimately appealed," but finding plain error

because "[n]othing in th[e] record provide[d] any indication clear

enough to overbear the probative force of th[e] logical

presumption" that "there [wa]s at least a reasonable likelihood

that [the sentencing court] would have landed on a [shorter]

sentence").2

In contending otherwise, Ayala points first to Molina-

Martinez v. United States,

(2016), in which the

United States Supreme Court explained that Guidelines calculation

errors can be prejudicial even when they are not preserved and

even when the imposed sentence would have fallen within the correct

GSR. See

. But, the Supreme Court also noted

in that case that there might be "instances when, despite

application of an erroneous Guidelines range, . . . [t]he record

in a case may show . . . that the district court thought the

sentence it chose was appropriate irrespective of the Guidelines

2Ayala contends at one point in his briefing to us that the District Court "substantively erred" in using the higher BOL from the PSR, but he does not dispute that such a challenge, even if styled as one that takes aim at a "substantive" rather than a "procedural" error, fails insofar as the resultant BOL of 30 played no role in the District Court's decision to impose the sentence that he challenges. Nor is there merit to Ayala's challenge to his sentence insofar as he means to take issue with the length of the sentence independent of his challenge to the District Court's reliance on the drug quantity set forth in the PSR and thus to the BOL of 30. As we have noted, under either the higher BOL of 30 or the lower one of 28, the sentence was within the applicable GSR, and we see no basis for concluding on this record that, as such, the sentence that was imposed was substantively unreasonable.

- 8 - range" and that in such cases the defendant would not be able to

show that the calculation error was prejudicial.

.

For the reasons that we have just given, the District Court here

made clear that it "thought the sentence it chose was appropriate

irrespective" of the dispute over the proper GSR,

and so

Molina-Martinez provides no support for Ayala's position.

Ayala also relies on United States v. Alphas,

(1st Cir. 2015), in which the district court stated that it

was "unlikely" that a different Guidelines calculation would have

resulted in a different sentence,

. We concluded that

this statement in context left open "the possibility of a lesser

sentence," such that the error in the Guidelines calculation was

not harmless.

But, Ayala's reliance on this precedent, too,

is misplaced, because, as we have explained, the District Court's

explanation for the sentence that it imposed does not admit of

such a possibility.

III.

Ayala's remaining ground for challenging his sentence is

that the sentencing judge exhibited bias toward him at his

sentencing proceeding. Because Ayala did not preserve this

challenge below, we review it only for plain error, see United

States v. Caramadre,

(1st Cir. 2015), and we

find none.

- 9 - Ayala's sentencing proceeding began with three witnesses

speaking on Ayala's behalf. The first was Ayala's fiancée, who

stated at the start of her testimony at the proceeding that she

was nervous and that she did not know what to say. The sentencing

judge at that point stated: "You want to tell me he is a swell

guy."

Ayala contends that this one statement by the sentencing

judge demonstrates bias toward him and thus that his sentence

cannot stand. But, read in the context of the transcript of the

sentencing proceeding as a whole, see United States v. Lanza-

Vázquez,

(1st Cir. 2015), the statement at most

reflects a perhaps ill-advised attempt by the sentencing judge to

put a witness at ease. Indeed, at the same sentencing proceeding

and over the government's objection, the District Court granted

Ayala's request for a continuance of several weeks so that he would

have an additional opportunity to rebut the challenged findings

regarding drug quantity. Thus, Ayala has failed to show judicial

bias, see Liteky v. United States,

(1994),

let alone met his burden to show a "clear or obvious" instance of

it, as is required by the plain error standard, United States v.

Duarte,

(1st Cir. 2001).

IV.

For these reasons, we affirm.

- 10 -