Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

Nos. 21-1467 21-1468

UNITED STATES OF AMERICA,

Appellee,

v.

TIMOTHY DANIEL DAVIS,

Defendant, Appellant.

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

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

Before

Kayatta, Selya, and Thompson, Circuit Judges.

Thomas J. O'Connor, Jr. on brief for appellant. Darcie N. McElwee, United States Attorney, and Jeanne D. Semivan, Assistant United States Attorney, on brief for appellee.

September 22, 2022 SELYA, Circuit Judge. In these consolidated sentencing

appeals, defendant-appellant Timothy Daniel Davis challenges his

sixty-one-month aggregate sentence as procedurally and

substantively infirm. Specifically, he claims that the sentencing

court failed adequately to explain both its imposition of an

upwardly variant sentence and its imposition of consecutive

sentences. Moreover, he claims that his aggregate sentence is

substantively unreasonable. Concluding that the defendant's

claims of error are impuissant, we summarily affirm.

I

We start by briefly rehearsing the relevant facts and

travel of the case. Where, as here, two related sentences follow

admissions of guilt, we draw the facts from the change-of-plea

colloquy, the undisputed portions of the presentence investigation

report (PSI Report), the transcript of the revocation hearing, and

the transcript of the sentencing hearing. See United States v.

Vélez-Andino,

, 110 (1st Cir. 2021).

In 2018, the defendant pleaded guilty to possession of

a firearm by a convicted felon. See

(g)(1). The

district court sentenced him to five years of probation. The

conditions of his probation included, among other things, that he

"not commit another . . . crime," that he "not unlawfully possess

a controlled substance," and that he "not possess a firearm."

- 2 - Roughly four months after the commencement of his

probationary term, a probation officer visited the defendant's

home in Machiasport, Maine to conduct a home inspection. During

this inspection, the probation officer observed drug

paraphernalia. When questioned about it, the defendant admitted

to consuming marijuana the day before. An ensuing search of the

premises revealed not only a quantity of marijuana but also a

shotgun.

The defendant was arrested the next day. In short order,

a revocation proceeding was initiated.

Two months later, the government filed a single-count

information (the Information) charging the defendant with

possession of a firearm by a convicted felon. See

(g)(1). The defendant's final revocation hearing for the

probation violation and his initial appearance for the new offense

were held on the same day. As to the former, the defendant pleaded

guilty to the Information, admitting that he had violated the

conditions of his probation. As to the latter, the defendant

pleaded guilty and the court accepted his guilty plea to the new

offense (ordering the preparation of a PSI Report). The court

then proceeded to revoke the defendant's probationary term.

The defendant raised no objections either to the amended

revocation report or the revised PSI Report. The amended

revocation report recommended an advisory guideline sentencing

- 3 - range of eight to fourteen months. With respect to the new

offense, the PSI Report recommended a total offense level of 17

and a criminal history category of III, yielding an advisory

guideline sentencing range of thirty to thirty-seven months.

The district court held a combined disposition hearing

for both the probation revocation and the new offense in June of

2021. The government recommended an aggregate sentence of fifty-

four months: twenty-four months on the revocation and thirty

months on the new offense. It told the court that "the guidelines

and First Circuit precedent would treat consecutive sentences as

basically the starting point . . . for similar types of cases" and

"that nothing in this case weighs in favor of disposing of that

default" position. Defense counsel disputed the notion that

consecutive sentences were the "default position" and advocated

instead for time served. The government rejoined that there were

"indications in the guidelines that a consecutive sentence would

be appropriate."

Following the defendant's allocution, the district court

adopted the guideline recommendations adumbrated in the PSI

Report. It then considered the section 3553(a) factors, see

(a), noting that it found "most significant" the need

to protect the public, the need for deterrence, and the seriousness

of the offense. The court emphasized that the "proximity of the

violation on [the] revocation case to the time that [it] imposed

- 4 - the probation . . . was a mere four months" — a factor that

"weigh[ed] heavily" in its thinking.1 In the end, the court imposed

incarcerative terms of twenty-four months on the revocation and

thirty-seven months on the new offense, to run consecutively. This

timely appeal followed.

II

"Appellate review of claims of sentencing error entails

a two-step pavane." United States v. Matos-de-Jesús,

(1st Cir. 2017). "Under this bifurcated approach, we

first examine any claims of procedural error. If the challenged

sentence passes procedural muster, we then proceed to examine any

claim of substantive unreasonableness." United States v. Díaz-

Lugo,

(1st Cir. 2020) (citation omitted).

Throughout, "our review of preserved claims of error is for abuse

of discretion."2

1 In this regard, the court told the defendant that the proximity "comes across as either a conscious disregard and flouting of this Court's authority or a near irrational disregard of the opportunity that you were given. . . . [I]n the face of such a generous opportunity, you chose to so flagrantly violate the trust that I placed on you."

2 The parties squabble about whether the defendant's claims of error are preserved and about the attendant standards of review. We need not resolve these differences but, rather, assume — favorably to the defendant — that our review is for abuse of discretion. See, e.g., United States v. Figueroa-Figueroa,

(1st Cir. 2015).

- 5 - A

The defendant mounts two claims of procedural error.

First, he argues that the district court erred by failing

adequately to explain its "reasons for imposing a

sentence . . . that was significantly higher than the top end of

the applicable guidelines range." Second, he argues that the court

erred by failing adequately to explain why it ran the two sentences

consecutively. We examine the merits of these arguments

separately.

1

It is apodictic that a sentencing court must "state in

open court . . . the specific reason for the imposition of a

[variant] sentence."

(c). That explanation,

though, need not "be precise to the point of pedantry." United

States v. Del Valle-Rodríguez,

(1st Cir. 2014).

The court "need only identify the main factors behind its decision"

when imposing a variant sentence. United States v. Vargas-García,

(1st Cir. 2015). And the court may fulfill this

obligation "either explicitly or by fair inference from the

sentencing record." United States v. Montero-Montero,

(1st Cir. 2016).

In this instance, the court identified the sentencing

factors that it deemed "most significant." Although the court did

not specifically link these factors to the upward variance, that

- 6 - linkage may fairly be inferred from a review of the sentencing

transcript. In particular, the court spoke at length about the

proximity between the start of the defendant's probationary term

and the commission of the new offense. See, e.g., supra note 1.

It stressed the glaring breach of trust that the defendant had

displayed by repeating — within a matter of four months — the same

unlawful conduct that underpinned the probationary term. The

defendant, in effect, had "slapped away" the court's helping hand.

That ends this aspect of the matter. Because the court

laid out the main factors behind its upwardly variant sentence, we

think it satisfied its obligation to make an adequate explanation.

Thus, the defendant's first claim of error founders.

2

The defendant's second claim of procedural error — that

the court failed adequately to explain why the two sentences were

imposed consecutively — fares no better. To begin, the defendant

faults the district court for "failing to address [his] argument

against the imposition of consecutive sentences." But we have

stated before and reiterate today that "a sentencing court is under

no obligation . . . to address every argument that a defendant

advances in support of his preferred sentence." United States v.

Rivera-Morales,

(1st Cir. 2020).

We add, moreover, that the defendant's argument in favor

of concurrent sentences was thoroughly debated at the disposition

- 7 - hearing. That the court did not refer to it when imposing

consecutive sentences suggests that the court was unconvinced by

the argument, not that the argument was overlooked.

The defendant has a related contention. He contends

that the court was required to give reasons for imposing

consecutive sentences, but that it gave none. But the defendant

is grasping at straws: he points to no statute, rule, guideline,

or precedential decision requiring a court to state specific

reasons for imposing a consecutive sentence.

In all events, the defendant is foraging in an empty

cupboard. Where, as here, "a term of imprisonment is imposed on

a defendant who is already subject to an undischarged term of

imprisonment, the terms may run concurrently or consecutively."

(a). Subsection (b) goes on to state that "in

determining whether the terms imposed are to be ordered to run

concurrently or consecutively," the court "shall consider, as to

each offense for which a term of imprisonment is being imposed,

the factors set forth in [18 U.S.C. §] 3553(a)." Id. § 3584(b).

In the case at hand, the record makes manifest that the court

considered all of the section 3553(a) factors, cf. United States

v. Dávila-González,

(1st Cir. 2010) (explaining

that sentencing court's statement that "it had considered all the

section 3553(a) factors is entitled to some weight"), and decided,

in the due exercise of its discretion, to run the sentences back

- 8 - to back. Its reasons for opting to impose consecutive sentences

can fairly be inferred from the record. No more is exigible.

B

This brings us to the defendant's preserved contention

that his aggregate sentence is substantively unreasonable. Once

again, our review is for abuse of discretion. See Holguin-

Hernandez v. United States,

(2020); United

States v. Ortiz-Pérez,

(1st Cir. 2022).

In evaluating the substantive reasonableness of a

challenged sentence, we are mindful that "reasonableness is a

protean concept." United States v. Martin,

(1st

Cir. 2008). As we have said, "[t]here is no one reasonable

sentence in any given case but, rather, a universe of reasonable

sentencing outcomes." United States v. Clogston,

(1st Cir. 2011). Our task, then, is to determine whether the

challenged "sentence falls within this broad universe." Rivera-

Morales,

.

In the last analysis, "a sentence will be deemed

substantively reasonable as long as it rests on 'a plausible

rationale and . . . represents a defensible result.'" Ortiz-

Pérez,

(alteration in original) (quoting Rivera-

Morales,

). "Where, as here, an aggregate sentence

is the product of two or more distinct sentences, we sometimes

have found it useful to analyze the substantive reasonableness of

- 9 - the aggregate sentence by analyzing the substantive reasonableness

of each of its constituent parts."

We follow that praxis

here.

The aggregate sentence in this case is composed of two

sentences. The first sentence is an upwardly variant

twenty-four-month sentence following the revocation of probation.

An upwardly variant sentence requires a "heightened" degree of

explanation. United States v. Padilla-Galarza,

(1st Cir. 2021). We already have concluded, though, that this

upward variance was adequately explained. See supra Part II(A)(1).

That adequate explanation does double duty as the functional

equivalent of a plausible rationale. See United States v. Valle-

Colón,

(1st Cir. 2021).

The remaining sentence is a within-guidelines sentence

of thirty-seven months on the new offense. To undermine the

reasonableness of a within-the-range sentence, the defendant must

"adduce fairly powerful mitigating reasons and persuade us that

the district [court] was unreasonable in balancing pros and cons

despite the latitude implicit in saying that a sentence must be

'reasonable.'" United States v. Navedo-Concepción,

(1st Cir. 2006). Seen in this light, showing that a

within-the-range sentence is unreasonable presents "a heavy

burden." United States v. Pelletier,

(1st Cir.

2006). The defendant cannot lift that heavy burden here.

- 10 - We need not tarry. At sentencing, the court made clear

that it had reached its determination as to the appropriate

sentence after reviewing the PSI Report, listening to the parties'

arguments, and mulling the section 3553(a) factors. It identified

the factors that it found "most significant" and noted that all

those factors weighed in favor of a higher sentence. "[T]he

balancing of the sentencing factors is largely within the district

court's discretion," Ortiz-Pérez,

, and the

defendant has shown no misuse of that discretion here, see Rivera-

Morales,

(explaining that court of appeals "must

accord significant deference to the court's informed determination

that the section 3553(a) factors justify the sentence imposed").

Finally, the result reached by the district court is

easily defensible: the aggregate sentence falls within the broad

universe of reasonable sentences for the probation revocation and

the new offense. The defendant's conduct constituted a significant

breach of the court's trust. Less than four months after being

sentenced to probation as a convicted felon in possession of a

firearm, the defendant repeated essentially the same offense,

pleading guilty to possessing yet another firearm. Given the

timing of the new offense, there is no principled way in which we

can set aside an aggregate sentence of sixty-one months on

reasonableness grounds.

- 11 - The defendant resists this conclusion. He says, in

effect, that because he had originally received a probationary

sentence for a firearms-possession offense, his aggregate sentence

of five years is manifestly unreasonable. But the fact that the

court previously imposed a probationary sentence, coupled with the

fact that the defendant flouted that largesse, is a substantial

part of the reason why the current sentence falls within the "broad

universe" of substantively reasonable sentences.

For these reasons, we hold that the defendant's

aggregate sentence is substantively reasonable.

III

We need go no further. The challenged sentences are

summarily

Affirmed. See 1st Cir. R. 27.0(c).

- 12 -