United States Court of Appeals For the First Circuit

No. 19-1445

UNITED STATES OF AMERICA,

Appellee,

v.

FRANKIE DEJESÚS,

Defendant, Appellant.

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

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

Before

Kayatta, Selya, and Barron, Circuit Judges.

John W. VanLonkhuyzen and Verrill Dana LLP on brief for appellant. Halsey B. Frank, United States Attorney, and Benjamin M. Block, Assistant United States Attorney, on brief for appellee.

July 9, 2021 SELYA, Circuit Judge. In this sentencing appeal,

defendant-appellant Frankie deJesús challenges both the district

court's refusal to grant him an offense-level reduction for

acceptance of responsibility, see USSG §3E1.1, and the substantive

reasonableness of his downwardly variant sentence. Concluding, as

we do, that his claims of error are fruitless, we affirm.

I. BACKGROUND

Because the defendant's sentence followed a guilty plea,

we draw the facts from the change-of-plea colloquy, the presentence

investigation report (PSI Report), and the transcripts of the pre-

sentencing conference and disposition hearings. See United States

v. Rivera-González,

(1st Cir. 2015); United States

v. Del Valle-Rodríguez,

(1st Cir. 2014).

Beginning in 2015, the defendant became involved in a

conspiracy to distribute controlled substances. The nerve center

of the conspiracy was in Rochester, New York. A network of

associates transported weekly shipments of heroin and crack

cocaine from out of state to a dozen or more distribution

locations, known as "trap houses," in central Maine. Members of

the conspiracy traveled back and forth between the drug ring's New

York headquarters and these trap houses in order to supply and

sell the drugs and collect the proceeds. This arrangement

facilitated a heavy flow of drugs: from May 27 to June 26, 2016,

the defendant himself moved a converted drug weight of 1,874.11

- 2 - kilograms of heroin and crack cocaine. In the same time frame,

the defendant possessed a firearm to help him carry out the

conspiracy's business.

After participating in a shootout at a Walmart parking

lot in Augusta, Maine, the defendant came to the attention of the

authorities. He was arrested on state charges on June 26, 2016.

His cell phone was seized, and a forensic search turned up text

messages indicative of drug trafficking.

Incident to this arrest, the defendant was charged with

reckless conduct with a dangerous weapon, see Me. Rev. Stat. Ann.

tit. 17-A, § 211; id. § 1252(4) (repealed 2019); attempted murder,

see id. §§ 152, 201; and aggravated assault, see id. § 208. He

subsequently pleaded guilty to reckless conduct with a dangerous

weapon and disposition was deferred. The other charges were

dropped.

That was not the end of the matter. As a result of the

leads generated from the defendant's cell phone, a federal grand

jury sitting in the District of Maine returned an indictment

against him. The indictment charged him with a single count of

conspiracy to distribute and to possess with intent to distribute

controlled substances. See

(a)(1), 846. He

pleaded not guilty and was released pending trial.

While on pretrial release, the defendant worked for a

number of different employers, including Speedway (a convenience-

- 3 - store chain). In the meantime, the district court set a change-

of-plea hearing for October 24, 2018.

Just one day before the scheduled hearing, the defendant

was arrested and charged with fourth-degree grand larceny for

stealing from Speedway. See

. It turned

out that, less than one week after starting at the convenience

store, he loaded $1,500 onto a prepaid debit card and left the

store without paying for the transfer. After committing this

theft, he never returned to work at Speedway. Although the

defendant now says that the entire affair was the result of a

misunderstanding, he pleaded guilty to a lesser charge of petit

larceny, see

§ 155.25, and was sentenced to time served.

On November 20, 2018, the defendant belatedly pleaded

guilty to the pending federal charge. At the district court's

direction, the probation office prepared a PSI Report. The PSI

Report recommended a total offense level (TOL) of 34 and a criminal

history category (CHC) of I, yielding a guideline sentencing range

(GSR) of 151-188 months. In calculating the TOL, the probation

office declined to recommend an offense-level reduction for

acceptance of responsibility, see USSG §3E1.1, on the ground that

the defendant's larceny offense evinced a failure to withdraw from

criminal conduct during pretrial release. Even so, the PSI Report

limned factors that might provide a basis for a downward variance,

- 4 - including the defendant's youth, his childhood traumas, and his

lack of any prior criminal history.

At the disposition hearing, the district court adopted

the probation office's recommended guideline calculations

(including the recommendation that the defendant not receive an

offense-level reduction for acceptance of responsibility). After

weighing the relevant sentencing factors, see

(a),

the court imposed a downwardly variant 130-month term of

immurement. This timely appeal followed.

II. ANALYSIS

In fashioning a sentence, a district court must first

"use the Sentencing Guidelines to calculate a recommended

sentencing range" and then consider "whether a guideline sentence

is appropriate in light of the factors enumerated in

(a)." United States v. Vázquez,

(1st

Cir. 2013). We review imposed sentences through the deferential

prism of the abuse of discretion standard. See Gall v. United

States,

(2007); United States v. Martin,

(1st Cir. 2008). "The touchstone of abuse of discretion

review in federal sentencing is reasonableness." United States v.

Vargas-Dávila,

(1st Cir. 2011).

The task of evaluating a sentence typically involves a

two-step pavane. See United States v. Miranda-Díaz,

(1st Cir. 2019); United States v. Clogston,

, 590

- 5 - (1st Cir. 2011). In executing this pavane, "we first determine

whether the sentence imposed is procedurally reasonable and then

determine whether it is substantively reasonable." Clogston,

. Here, the defendant challenges both the procedural

integrity and the substantive reasonableness of his sentence.

Apart from his challenge to the court's declination to make a

downward adjustment for acceptance of responsibility, he finds no

fault with the district court's guideline calculations.

The defendant's twin challenges occur at separate steps

in the sentencing pavane. Thus, we address them separately.

A. The Claim of Procedural Error.

The defendant's procedural challenge centers on the

district court's decision to deny him an offense-level reduction

for acceptance of responsibility. This challenge has two facets.

To begin, the defendant asserts that the district court

failed to make an individualized assessment of his circumstances

when evaluating his acceptance of responsibility. Instead, it

denied him the offense-level reduction based on a general policy

and, thus, committed error. See United States v. Flores-Machicote,

(1st Cir. 2013) (requiring district courts to

"ground sentencing determinations in case-specific factors"). As

evidence of this purported error, the defendant points to a

statement made by the court during the disposition hearing. At

that time, the judge stated: "[i]n general, it has been my policy

- 6 - that if a defendant commits a new criminal offense while on

pretrial release, I have tended to deny . . . acceptance of

responsibility."

The words of a sentencing court must, of course, be taken

in context. See United States v. Rodríguez-Cruz,

(1st Cir. 2021) ("A party cannot lift a single comment from

the sentencing dialogue and focus on it in splendid isolation.").

Here — when the challenged statement is viewed in its full context

— the defendant's assertion withers. The statement, read as a

whole, described a tendency, not a rigid policy. And perhaps more

importantly, the court went on to make clear that its application

of its approach "depend[ed] on the nature of the new criminal

activity," thereby putting to rest any impression that the

defendant was being sentenced based on a general policy.

Last — but surely not least — the court couched the

denial of the acceptance-of-responsibility reduction not only on

the defendant's commission of a new offense while on pretrial

release but also more specifically on facts unique to the

defendant's new offense. These idiosyncratic facts included the

method of perpetration of the theft, its timing, and the

defendant's relationship with his victim. This focus on the

particular circumstances surrounding the aggravating offense

"unmistakably shows that the judge gave individualized attention

- 7 - to the defendant's situation." Flores-Machicote,

;

see United States v. Deppe,

(1st Cir. 2007).

The second facet of the defendant's claim of procedural

error is no more robust. The defendant challenges the acceptance-

of-responsibility denial frontally, asserting that the district

court overemphasized the seriousness of the theft and downplayed

the significance of his guilty plea to the offense of conviction.

Thus, the defendant submits, the court contradicted a core

principle of the guidelines: that a timely and truthful admission

of guilt be given great weight in assessing acceptance of

responsibility. See USSG §3E1.1 cmt. n.1.

There is less to this argument than meets the eye. We

acknowledge, of course, that the guidelines are advisory, see

United States v. Booker,

(2005), and the

Sentencing Commission's commentary is not binding, see United

States v. Chuong Van Duong,

(1st Cir. 2012).

Even so, the baseline rule is that, in calculating a defendant's

GSR, "[c]ourts ordinarily should interpret and apply the

guidelines as written," looking both to the "guideline provision

about which the defendant complains" and "its associated

commentary." United States v. Fiume,

(1st Cir.

2013). The weighing of guideline factors is left principally to

the district court's judgment and its factfinding will not be

disturbed unless shown to be clearly erroneous. See United States

- 8 - v. Franky-Ortiz,

(1st Cir. 2000); United States

v. Royer,

(1st Cir. 1990). What is more, the

court is not obliged to spell out its reasoning in exquisite

detail: a "plausible basis for arriving at [a particular]

conclusion" is sufficient. Royer,

.

There was no clear error here. The defendant bore the

burden of proving his entitlement to an offense-level reduction

for acceptance of responsibility. See United States v. D'Angelo,

(1st Cir. 2015). Although the guidelines look

with favor upon a timely guilty plea as a plinth for an acceptance-

of-responsibility adjustment, see USSG §3E1.1 cmt. n.3, a guilty

plea alone — even a timely guilty plea — does not guarantee receipt

of the downward adjustment, see D'Angelo,

; Royer,

. And a sentencing court, when attempting to

determine the sincerity of a defendant's acceptance of

responsibility, can weigh in the balance any new criminal conduct

committed while the defendant was on pretrial release for the

offense of conviction. See USSG §3E1.1 cmt. n.1(B); see also

D'Angelo,

; United States v. Jordan,

(1st Cir. 2008). Such new criminal conduct has an obvious

bearing on the sincerity of a defendant's professed acceptance of

responsibility.

In the case at hand, the district court furnished a

convincing explanation as to why it deemed the defendant's new

- 9 - crime antithetic to an offense-level reduction for acceptance of

responsibility. The court gave four reasons. First, the amount

of money that the defendant stole ($1,500) was substantial.

Second, the fact that the theft was from the defendant's employer

betokened a "breach of trust" that signified a "lack of remorse."

Third, the theft occurred less than a week after the defendant had

commenced his employment. Fourth, the theft's logistics indicated

a "deliberate, planned crime that required forethought."

These reasons are persuasive, especially since the

defendant attempted to counter them solely through his own

testimony.1 Because the district court was "not bound to credit

self-serving protestations," United States v. Jiminez,

(1st Cir. 2007), its determination that the defendant had

deliberately engaged in significant criminal conduct while on

pretrial release cannot be said to be clearly erroneous. And once

the district court supportably has found that the defendant has

committed a new offense after being charged, it "may . . . decline

to award a reduction for acceptance of responsibility on that

ground alone." United States v. Carrington,

(1st

Cir. 1996).

1When the district court (during a pre-sentencing conference) noted the lack of extrinsic evidence favoring the defendant on this point and offered defense counsel an opportunity to supplement the record, counsel declined. He told the court that he "[did not] believe that approach [was] worth the coin."

- 10 - B. The Claim of Substantive Unreasonableness.

This leaves the defendant's claim that his sentence is

substantively unreasonable. We treat that claim as preserved, see

Holguin-Hernandez v. United States,

(2020),

and review it for abuse of discretion, see Gall,

;

Martin,

. To apply this standard, we must consider

the totality of the circumstances. Martin,

.

Our starting point is the sentence itself: a 130-month

term of immurement. That sentence was a full twenty-one months

beneath the bottom of the GSR. Notwithstanding this sharp downward

variance, the defendant argues that — all things considered — any

sentence exceeding 120 months should be regarded as substantively

unreasonable.2

This argument cannot withstand scrutiny. "Our case law

makes pellucid that the hallmarks of a substantively reasonable

sentence are a plausible sentencing rationale and a defensible

result." Rodríguez-Cruz,

. Both hallmarks are

present here.

2 The reasoning behind this 120-month figure is not immediately apparent. Arguably, it may represent an attempt either to borrow the sentence imposed on another member of the conspiracy or to recast the GSR to reflect what it would have been had the court granted a downward adjustment for acceptance of responsibility.

- 11 - We begin with the sentencing court's rationale. That

rationale must be discernable, but it need not "be precise to the

point of pedantry." Del Valle-Rodríguez,

.

In this instance, the court's rationale included its

appraisal of the defendant's culpability. It stressed his role in

a sprawling conspiracy that trafficked large amounts of highly

addictive drugs. The court also thought it significant that the

defendant participated in the conspiracy not out of addiction but

out of a decision to profit from a "business that trades on

misery." So, too, the court attached significance to the

defendant's participation in a risky shootout in a Walmart parking

lot during broad daylight, endangering innocent bystanders who

were close at hand.

The court then extended its rationale to take account of

mitigating factors. It noted, for example, the defendant's youth,

his traumatic childhood, his guilty plea, and the absence of a

prior criminal record. Weighing all of the factors, pro and con,

the court concluded that a downwardly variant sentence was

appropriate.

We find this rationale plausible. Although the

defendant insists that the district court misallocated the weight

that it gave to competing factors, the allocation of weight as

among sentencing factors is — within wide margins — a matter

committed to the district court's informed discretion. See United

- 12 - States v. Colón-Rodríguez,

(1st Cir. 2012);

Clogston,

. The court below did not venture beyond

those margins.

The question remains as to whether the length of the

sentence is defensible. The defendant urges us to answer this

question in the negative, arguing that a 130-month sentence is

longer than necessary and, thus, offends the parsimony principle.

See

(a); see also Holguin-Hernandez,

; United States v. Rodríguez,

(1st Cir.

2008). We disagree.

Where a sentence falls within a properly calculated GSR,

a defendant who challenges it faces a steep uphill climb to show

that the length of the sentence is unreasonable. See Rita v.

United States,

(2007); United States v.

Cortés-Medina,

(1st Cir. 2016). It necessarily

follows that the climb is even steeper where, as here, a defendant

contests the length of a downwardly variant sentence. See United

States v. Millán-Machuca,

, 32 (1st Cir. 2021). The

defendant cannot scale those heights.

When appellate review focuses on whether the length of

a sentence is defensible, significant deference is due to the

first-hand judgment of the sentencing court. See Gall,

; Martin,

. Because "reasonableness is a

protean concept," Martin,

, there is usually not a

- 13 - single appropriate sentence in any given case but, rather, a "wide

universe of reasonable sentences," United States v. Sepúlveda-

Hernández,

(1st Cir. 2016). We conclude, without

serious question, that the below-the-range sentence imposed here

fits comfortably within this capacious universe.

The defendant resists this conclusion. He says that

there is a disparity between his sentence and the sentences imposed

on others who participated in the same drug-trafficking

conspiracy. The defendant, though, asks us to compare

incomparables: apart from the fact that his proposed comparators

took part in the same drug-trafficking conspiracy, he makes no

effort to show that any of them was similarly situated. For aught

that appears, facts such as the defendant's possession of a

firearm, his acceptance-of-responsibility shortfall, and/or his

role in the parking-lot shootout strip the proposed comparisons of

any probative value. See Flores-Machicote,

(explaining that "[c]omparing apples to oranges is not a process

calculated to lead to a well-reasoned result" when a defendant

alleges sentencing disparity).

That ends this aspect of the matter. Because the

district court articulated a plausible sentencing rationale and

reached a thoroughly defensible result, we reject the defendant's

claim of substantive unreasonableness.

- 14 - III. CONCLUSION

We need go no further. For the reasons elucidated above,

the defendant's sentence is

Affirmed.

- 15 -