United States Court of Appeals For the First Circuit

No. 21-1913

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERTO REYES-CORREA, a/k/a Robertito,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Gelpí, Thompson, and Montecalvo Circuit Judges.

Samuel P. Carrion, Assistant Federal Public Defender, with whom Eric Alexander Vos, Federal Public Defender, Franco L. Pérez-Redondo, Assistant Federal Public Defender, Supervisor, Appeals Division, and Kevin E. Lerman, Research & Writing Attorney, were on brief, for appellant. David C. Bornstein, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

August 31, 2023 MONTECALVO, Circuit Judge. In this appeal, Roberto

Reyes-Correa ("Reyes") challenges a statutory maximum

thirty-six-month sentence that the district court imposed

following a revocation of supervised release. Reyes argues that

the district court, in arriving at the sentence, improperly relied

on ex parte communications with a probation officer, which Reyes

claims constitutes reversible error. Reyes also contends that the

district court's upwardly variant sentence was procedurally and

substantively unreasonable. Because we agree that the district

court's failure to adequately justify the sentence was procedural

error, we vacate the sentence and remand to the district court for

resentencing.

I. Background

To begin, we recount the facts leading up to the

revocation sentence at issue here. In 2014, Reyes pled guilty to

conspiring to possess cocaine with intent to distribute near a

protected location.1 Reyes had been charged with being a

"facilitator" and a lookout for a drug trafficking organization,

which entailed acting as a messenger and an intermediary "when

clients did not want to go into the housing project." At the time

of his guilty plea, Reyes was a first-time offender with no prior

arrests or convictions. Following Reyes's plea, the court

1 Reyes was convicted pursuant to

(a)(1), (b)(1)(C), 846, and 860.

- 2 - sentenced him to thirty-seven months' imprisonment followed by a

six-year supervised-release term. Shortly thereafter, Reyes filed

an assented-to motion to reduce his sentence. The district court

granted the motion, and Reyes's sentence was reduced to thirty

months, with no change to the supervised release term.

A. First Supervised Release Term

In July 2016, Reyes was released from prison and entered

supervised release. Before his arrest, Reyes had struggled with

a substance use disorder, informing the Probation Office

("Probation") that "he ha[d] a history of Percocet use,

approximately four pills a day" and "that he used cocaine daily,

spending about $100 a day."2 Upon release, as required by the

conditions of his probation, Reyes began attending an outpatient

substance abuse treatment program. In December 2017, Reyes's

probation officer notified the district court that Reyes had tested

positive for marijuana four times over the previous eight months.

The probation officer requested that no action be taken because

Reyes had been referred to an inpatient residential substance abuse

treatment program. In February 2018, however, Reyes tested

2 Percocet is a brand name for Oxycodone, which is a prescription opioid. Commonly Used Drugs Charts, National Institute on Drug Abuse, https://nida.nih.gov/research- topics/commonly-used-drugs-charts#prescription-opioids (last visited Aug. 30, 2023).

- 3 - positive for buprenorphine.3 Shortly after, Reyes left the

program, and the court issued a warrant for his arrest. When Reyes

was arrested and brought before the district court, he admitted to

violating conditions of his supervised release by consuming drugs

and abandoning his treatment without authorization. The court

revoked his term of supervision and sentenced him to nine months

in prison followed by five years of supervised release.

B. Second Supervised Release Term

In March 2019, Reyes completed his reimprisonment term

and began his second term of supervised release, now with a

different probation officer. Three months into his term of

supervision, Reyes's probation officer claimed Reyes had violated

the conditions of release and requested that a warrant issue to

arrest Reyes. The probation officer alleged that Reyes had failed

to show up for two scheduled urine testing appointments and three

drug treatment program sessions. He also stated that Reyes had

been "prescribed psychotropic medications to stabilize [his]

mental health disorders" and though instructed to pick up the

medication, Reyes had failed to provide evidence that he had done

3Buprenorphine is a "medication to treat opioid use disorder." Buprenorphine, Substance Abuse and Mental Health Services Administration, https://www.samhsa.gov/medications- substance-use-disorders/medications-counseling-related- conditions/buprenorphine (last visited Aug. 30, 2023). Due to "buprenorphine's opioid effects, it can be misused, particularly by people who do not have an opioid dependency."

- 4 - so. The probation officer cited this failure as another violation

of Reyes's supervised release conditions. The district court then

issued a warrant for Reyes's arrest.

When Reyes was arrested and brought before the court, he

admitted to the alleged violations. The court once again revoked

his supervised release and sentenced him to one year in prison

followed by four years of supervised release. In addition to the

standard conditions, the court added that Reyes must "reside at

the [r]esidential [r]eentry [c]enter" for the first six months of

his supervised release.

C. Third Supervised Release Term

In July 2020, Reyes was released for his third term of

supervised release -- the term at issue in this appeal. Due to

the COVID-19 pandemic, the residential reentry center where Reyes

resided had to "lockdown every participant," which meant that

Reyes's access to "substance abuse and mental health treatment

[was] very limited." In an informative motion to the court, the

probation officer explained that Reyes had a "substance abuse

history" and that one year prior, Reyes had undergone a psychiatric

evaluation that diagnosed him with "Bipolar disorder, Type 1, mixed

episodes." As a result of the limited treatment at the residential

reentry center, the probation officer stated that Reyes had "been

struggling with his substance abuse problem and [e]specially with

his mental health condition." So, in November 2020, the court

- 5 - suspended the residential reentry center condition, allowed Reyes

to move into his mother's home, and referred Reyes to outpatient

treatment for his "dual disorder."

Over the next seven months, the probation officer filed

two informative motions detailing Reyes's progress. Reyes had

continued with treatment but also "demonstrated [a] hostile,

defiant and disrespectful attitude towards treatment personnel

while [being] resistant to treatment regulations." But he would,

at points, also apologize and "recognize[] his attitude problem,

explosive behavior and mental health condition while admitting his

need of treatment." As the COVID-19 pandemic raged on, Reyes's

treatment reports were delayed, and Reyes's progress appeared to

slow.

In May 2021, Reyes informed his probation officer that

he had been pulled over several days prior for speeding and driving

without a license. The probation officer told Reyes that he had

violated a release condition by failing to notify the probation

officer within three days of any contact with a law enforcement

officer. Reyes also began missing treatment appointments, and in

June 2021, Reyes's mother contacted the probation officer to report

that Reyes had been hospitalized for four days for expressing

suicidal ideations.

Given the above, the probation officer asked the court

to take no action with regard to the earlier alleged violation in

- 6 - order to give Probation and the treatment center the time to

"emotionally stabilize [Reyes] and continue with the

implementation of the dual treatment."

Two weeks later, however, on July 6, 2021, the probation

officer requested that the court issue an arrest warrant for Reyes.

First, the probation officer explained that a confidential source

informed Probation that Reyes had been "acting erratically and

under the effects of what appear[ed] to be synthetic cannabinoids."

The officer also received "videos and a picture depicting [Reyes]

under the strong effect of a controlled substance." Second, the

treatment center had informed the probation officer that Reyes had

not been "ingesting his medication properly and [that] last week

he did not pick up his prescribed medication." On July 23, 2021,

Reyes was arrested.

D. The Revocation Proceeding at Issue in This Appeal

On August 6, 2021, following his arrest, Reyes appeared

before a magistrate judge and waived the preliminary hearing. On

October 18, 2021, the court held Reyes's revocation hearing. Reyes

did not contest any of the allegations in Probation's motion. He

instead explained his struggles with bipolar disorder and severe

depression. He stated that his "defiant" behavior was not due to

his substance use disorder but instead was linked to his mental

health conditions and that "the medication [was] what [was]

crucial." Taking that into account, Reyes requested a sentence of

- 7 - twelve months' imprisonment with no supervised release to follow.

The government also recommended a twelve-month sentence. The

government took no position on the supervised release term and

deferred to the court's judgment.

The court revoked Reyes's supervised release term based

on Reyes's use of illegal substances, his failure to notify

Probation regarding his contact with law enforcement, and his

failure to follow the instructions of the outpatient treatment

program. The court explained that because the violations were

Grade C, the applicable guidelines sentencing range was three to

nine months' imprisonment.4 The court then sentenced Reyes to

thirty-six months' imprisonment, the statutory maximum for Reyes's

violation. See

(e)(3). Upon doing so, the court

recounted the facts of Reyes's case and noted that it had "viewed

the video" of Reyes under the effect of synthetic cannabinoids.

Reyes's defense counsel specifically objected to (1) the

probation officer's ex parte submission of videos as "a matter of

procedure" and (2) the excessive length of the sentence as

substantively unreasonable. While objecting to the sentence

length, Reyes's counsel also pointed to the fact that Reyes's

4 Supervised release violations are categorized into three grades. U.S.S.G. § 7B1.1(a). Grade C is the least severe and covers conduct that constitutes "(A) a federal, state, or local offense punishable by a term of imprisonment of one year or less; or (B) a violation of any other condition of supervision." Id. § 7B1.1(a)(3).

- 8 - violations were "Type C violations" and not "equal to someone that

has . . . committed a crime." Reyes's counsel concluded by

highlighting Reyes's contributing mental health issues, noting

that Reyes was making "progress," and arguing that it was

"excess[ive] to have a 36-month [] sentence" for Reyes. The court

denied the objections.

Following sentencing, Reyes spoke with the probation

officer and learned that the probation officer had recommended a

nine-month sentence and not a thirty-six-month sentence. When

announcing Reyes's sentence, the court mistakenly stated that it

"agree[d] with the probation officer" on the sentence length.

After Reyes alerted the court of this error, the court struck the

phrase "[t]he [c]ourt agrees with the probation officer" from the

hearing transcript.

Reyes then brought this appeal.

II. Discussion

Reyes first argues that the district court violated his

due process rights in relying on ex parte communications at his

revocation hearing. Second, Reyes argues that his

thirty-six-month sentence was both procedurally and substantively

unreasonable. "We review preserved challenges for abuse of

discretion." United States v. Cruz-Ramos,

(1st

Cir. 2021).

We take each argument in turn.

- 9 - A. The District Court's Ex Parte Communications with the Probation Officer

Reyes contends that, at the revocation hearing, when the

district court stated that it had received and viewed videos from

the probation officer, it demonstrated that it had engaged in

improper ex parte communications with the probation officer. Reyes

also points to a post-hearing order where the district court

revealed that the probation officer had prepared "wording" for the

court ahead of the revocation hearing. As a result, Reyes argues

that he had no opportunity to meaningfully respond to the videos

or the "wording" because he had no notice that the court would

rely on them. In Reyes's view, the ex parte communications

violated his due process rights, and so, at minimum, he should

have his sentence remanded for reconsideration. Because Reyes

objected to the ex parte communications at his revocation hearing,

we review this claim for abuse of discretion. See

A sentencing court may "conduct an inquiry broad in

scope, largely unlimited either as to the kind of information [it]

may consider, or the source from which it may come." Pepper v.

United States,

, 489 (2011) (quoting United States v.

Tucker,

(1972)). Nonetheless, this inquiry does

have limits and "is bounded by both Federal Rule of Criminal

Procedure 32 and the demands of due process." United States v.

Bramley,

(1st Cir. 2017). Federal Rule of Criminal

- 10 - Procedure 32.1 sets out requirements and dictates that, at a

revocation hearing, a defendant is entitled to:

(A) written notice of the alleged violation; (B) disclosure of the evidence against the person; (C) an opportunity to appear, present evidence, and question any adverse witness unless the court determines that the interest of justice does not require the witness to appear; (D) notice of the person's right to retain counsel or to request that counsel be appointed if the person cannot obtain counsel; and (E) an opportunity to make a statement and present any information in mitigation.

Fed. R. Crim. P. 32.1(b)(2). And we have held that Rule 32.1 and

"the Due Process Clause of the United States Constitution require

that a defendant be apprised of the information to be relied on in

sentencing and an opportunity to challenge and rebut such

information." United States v. Berzon,

(1st Cir.

1991).

So, as the sentencing court prepares for the revocation

and sentencing hearing, "[e]x parte communication between the

probation officer and the court is usually permissible where the

court is merely seeking advice or analysis, . . . and the probation

officer and the court may consult privately about certain issues

incident to criminal sentencing." United States v. Marrero-Pérez,

(1st Cir. 2019) (internal citations omitted). But

if "the probation officer reveals new facts relevant to the

sentencing calculus, those facts cannot be relied upon by the

sentencing court unless and until they are disclosed to the parties

- 11 - and subjected to whatever adversarial testing may be appropriate."

Bramley,

. As a result, "[a] district court's use of

new information (meaning information not already found in the

district court's record) that is significant (meaning 'materially

relied on' by the district court in determining a sentence) can be

reversible error." United States v. Ramos-Carreras,

,

5 (1st Cir. 2023) (quoting United States v. Rivera-Rodríguez,

(1st Cir. 2007)).

1. The District Court's Receipt of Videos

Reyes first contends that the district court improperly

received videos of him using synthetic cannabinoids. Because

defense counsel was not included on any communication sending the

videos to the court, Reyes's defense counsel concluded that the

videos were likely sent through "ex parte communications between

the probation officer and the [c]ourt."

There is no doubt that defense counsel is correct. The

videos do not qualify as permissible ex parte communications

seeking "advice or analysis," so if the videos were not disclosed

to Reyes, the court should not have received them ex parte. See

Marrero-Pérez,

. The operative question here then

is whether the videos were new information.

They were not. To begin, Reyes did not contest any of

the allegations of the arrest warrant motion, which included the

allegations that he had been using synthetic cannabinoids and that

- 12 - he had been captured on video doing so. Indeed, the videos were

one of the reasons that the probation officer requested the arrest

warrant. Furthermore, the government not only mentioned the videos

at the preliminary hearing but also stated that they had provided

Reyes with the videos. As a result, Reyes's argument that he was

unprepared for the videos to play a role in his ultimate sentencing

is unpersuasive.

Reyes accurately points out, however, that the

preliminary hearing was before a magistrate judge and a transcript

of the preliminary hearing had not been filed at the time of the

final revocation hearing. As such, anything said at the

preliminary hearing should not be considered part of the record.

United States v. Colón-Maldonado,

, 13 n.10 (1st Cir.

2020) (declining to consider testimony from the preliminary

hearing where "no transcript of that testimony was filed before

(or at) the final revocation hearing, and the district judge gave

no indication he'd listened to an audio recording or reviewed some

other record of the testimony"). But we can still use the

preliminary hearing transcript to confirm that Reyes had notice

and access to the videos. Even if we credit Reyes's point, it is

difficult to characterize the videos as "new information" or

extra-record evidence, especially given the probation officer's

explicit mention of the videos in the arrest warrant motion. As

- 13 - a result, the district court's ex parte receipt of the videos was

not reversible error or an abuse of discretion.5

2. The Probation Officer's "Wording"

Reyes next argues that the district court erred by

adopting the probation officer's "wording" during Reyes's

revocation hearing. To confirm that the probation officer had

recommended a nine-month sentence, the court had requested the

probation officer's "wording" that the officer provided to the

court before the hearing. In Reyes's view, this reveal meant that

the probation officer "wr[o]te out the court's wording to pronounce

punishment for [the] violations." In other words, Reyes argues

that, through this "wording," the probation officer essentially

instructed the court how to rule.

As we stated above, a judge may have ex parte

communications with a probation officer "where the court is merely

seeking advice or analysis." Marrero-Pérez,

; see

also Bramley,

(noting that a court's "communications

5 Reyes also argues that the court materially relied on the videos and that the videos "apparently had a major impact on the court," which was improper. But the necessary inquiry is whether the information at issue was both new and materially relied upon. See Ramos-Carreras, 59 F.4th at 5; see also United States v. Millán-Isaac,

(1st Cir. 2014) (evaluating "the record closely to determine whether the court considered new information at sentencing" before considering "whether [the court] materially relied on that information in crafting [defendant's] sentence"). Because we establish that Reyes had notice of the videos, the information was not new, and we need not address this argument.

- 14 - with [a] probation officer are fundamentally different from its

communications with third parties" because the probation officer

"is simply an extension of the court itself"). And as even Reyes

appears to concede, the "wording" contained the probation

officer's recommendations. There is nothing in the record to

indicate that there was anything beyond advice and analysis in the

non-binding recommendation provided to the district court.

Assuming without deciding, however, that there was

something more than advice and analysis in the "wording," any error

was harmless. See United States v. Tavares,

(1st

Cir. 2013) (confirming the "validity of harmless-error analysis in

procedural error cases" (citing United States v. Booker,

(2005))). An error is harmless if "the error did not affect

the district court's selection of the sentence imposed." Williams

v. United States,

(1992).

The court confirmed that the probation officer

recommended a nine-month sentence in their "wording." The court,

presumably having read the recommendation before sentencing,

nonetheless sentenced Reyes to thirty-six months' imprisonment.

Whatever may have been revealed in the recommendation, it was

employed to support a nine-month sentence -- a sentence roundly

rejected by the district court. Even when confronted with the

chance to take another look at the probation officer's

recommendation, the court adhered to its sentence and instead chose

- 15 - to amend the transcript. Given the stark difference between the

probation officer's recommendation and the court's ultimate

sentence, it is unlikely there was anything in the recommendation

that influenced the sentence. Thus, to the extent there was an

error, it did not affect the court's sentence.

B. Procedural Reasonableness of the Sentence

Reyes next challenges the procedural reasonableness of

his sentence. He contends that the district court erred by failing

to adequately explain its 400% upwardly variant sentence. See

United States v. Del Valle-Rodríguez,

(1st Cir.

2014) (explaining that "[t]he procedural dimension includes errors

such as . . . neglecting to explain the rationale for a variant

sentence adequately"). As an initial matter, we must resolve the

standard of review.

For a defendant "[t]o preserve a claim of procedural

sentencing error for appellate review, [their] objection need not

be framed with exquisite precision." United States v.

Rivera-Berríos,

(1st Cir. 2020). It must,

however, "be sufficiently specific to call the district court's

attention to the asserted error." United States v. Soto-Soto,

, 448 n.1 (1st Cir. 2017).

Here, Reyes's objections were sufficiently specific to

call the district court's attention to a perceived failure to

explain the sentence length. The government maintains that Reyes's

- 16 - counsel failed to raise an objection that preserved Reyes's claim

on appeal regarding inadequate explanation. We disagree. In

addition to objecting to the court's consideration of the videos

as "a matter of procedure," counsel also objected to the court's

perceived failure to consider the fact that Reyes's violations

were Grade C -- and thus not "equal to someone that has . . .

committed a crime." And counsel ended the hearing by objecting to

the court's failure to consider Reyes's contributing mental health

issues and his progress in treatment. We find that "[s]ubsumed

within those objections is the clearly implicit charge that the

district court's explanation rested on improper considerations."

United States v. Serrano-Berríos,

, 250 n.1 (1st Cir.

2022). Thus, we will "review the district court's justification

for varying upward under the familiar abuse-of-discretion

standard."

Having determined the standard of review, we now

set out what a court must do to adequately explain a sentence.

During sentencing, a court must "state in open court the

reasons for its imposition of the particular sentence."

(c); see also Gall v. United States,

(2007).

When a court, as here, imposes a sentence above the guidelines

sentencing range, "it must justify the upward variance." Del

Valle-Rodríguez,

. To successfully justify a

variance, the court needs to "articulate[] why it believe[s] that

the [defendant's] case differ[s] from the norm."

. And

- 17 - "the greater a deviation from the [guidelines sentencing range],

the more compelling the sentencing court's justification must be."

Here, the court failed to justify its sentence. The

court handed down a sentence that exceeded the top of the

applicable guidelines range by a multiple of four, but it did not

state its reasons for doing so. The stated rationale was:

To reflect the seriousness of the offense, promote respect for the law, provide just punishment for the offense, afford adequate deterrence, and to protect the public from additional crimes by . . . Reyes, the [c]ourt concludes that a sentence outside the guideline range is a sentence sufficient but not greater than necessary to comply with the purposes set forth in Title

(a).

In so stating, the judge offered the same boilerplate language

that we have ruled inadequate in at least three separate sentencing

cases. See Serrano-Berríos,

(finding revocation

sentencing rationale inadequate where the same language was used);

United States v. Flores-Nater,

(1st Cir. 2023)

(vacating and remanding a sentence for failure to explain where

this language was employed); United States v. Muñoz-Fontanez,

(1st Cir. 2023) (holding that this

non-case-specific language was an inadequate explanation for an

upward variance). As we have held before, the given justification

is generic and "scarcely constitutes a plausible rationale

- 18 - sufficient to justify a steep upward variance." Flores-Nater,

.6 In fact, "it simply rehearses -- but does not apply

-- certain of the factors that Congress has instructed courts to

consider in imposing sentences."

(citing

(a)(2)). So, we reiterate that this language is not enough.

Yet it is true that a sentence may also be justified

through "fair inference from the sentencing record." United States

v. Montero-Montero,

(1st Cir. 2016). For example,

we found an upwardly variant sentence justified through "fair

inference" where "an offender . . . committed a gun-related felony

less than a year after completing a substantial incarcerative term

for unlawful possession of a machine gun." United States v.

Márquez-García,

(1st Cir. 2017).

But there is no such fair inference to be drawn here.

The court, before handing down Reyes's sentence, remarked that:

Reyes has shown that he is unable to comply with the law or the conditions of supervision imposed on him by this [c]ourt by continuing

6 We acknowledge that Flores-Nater analyzes this issue under substantive reasonableness. 64 F.4th at 655. But as we stated in Flores-Nater, "a district court's procedural duty to adequately explain an upwardly variant sentence bears a strong family resemblance to its duty to spell out a plausible sentencing rationale in order to undergird the substantive reasonableness of a sentence." Id. at 655 n.2 (citing United States v. Vargas- Martinez,

, 102 n.7 (1st Cir. 2021)). So, "an adequate explanation for an upwardly variant sentence and the plausible rationale element of the test for substantive reasonableness are almost always two sides of the same coin."

(internal quotation marks omitted) (quoting United States v. Ortiz-Pérez,

(1st Cir. 2022)).

- 19 - to use . . . controlled substances illegally, by not notifying [about] contact with a law enforcement officer within 72 hours, and by not abiding by the rules of [outpatient] treatment to which he has been referred.

The court then recited the facts of Reyes's case before it

concluded that "[t]he probation office has extinguished every

resource, including [outpatient] and inpatient treatment in

previous revocations; drug testing, medicated assistance, drug

treatment and cognitive behavioral interventions."

None of these statements are sufficient. When a court

supplies a "mere listing of the facts . . ., without emphasis on

any particular circumstance," it becomes "impossible to tell" why

the court landed on a sentence that quadrupled the guidelines

sentencing range. Muñoz-Fontanez,

. Here, the

court merely recounted Reyes's technical Grade C violations that

led to the revocation hearing.7 So, while the court's statement

that Reyes had "shown that he [was] unable to comply with the law

or the conditions of supervision" explains why Reyes's supervised

release was being revoked, it does not explain the sentencing

rationale or justify the upward variance. A summary of the events

that preceded the revocation hearing -- without more -- is an

impermissible basis for a large upward variance.

7A technical violation is a "violation[] of the terms of release that did not involve committing new crimes." Serrano-Berríos,

n.2.

- 20 - Still, the court did state that "[t]he probation office

ha[d] extinguished every resource," which could serve as an

implicit justification for the sentence. One possible

interpretation could be that the court believed Reyes was beyond

help and that incarceration was the only option. To resolve this

issue, we look to our precedent in Serrano-Berríos, a substantially

similar case. On revocation, Serrano-Berríos's guidelines

sentencing range was eight to fourteen months, but he was given a

two-year sentence. Serrano-Berríos,

. During

sentencing, the court made a nearly identical statement to the one

here: "[t]he probation officer has extinguished a release source,

including outpatient and inpatient treatment, drug testing, and

cognitive behavioral interventions."

.

There, we examined the two potential justifications that

could be inferred from the court's statement: (1) that "probation

had eliminated treatment as an option for [defendant] to use if

released" or (2) that "due to [defendant's] admitted relapses, the

district court itself had lost faith in his ability to succeed at

staying clean."

. Because neither of these explanations

had solid foundation in the record, we expressed skepticism as to

whether either would be sufficient justification.

But we

ultimately did not decide the issue.

Instead, we declined to

engage with any implied rationale because we were "unwilling to

rely on such a strained reading of the court's comments to justify

- 21 - an upward variance."

The same holds here. So, while the

government may contend that the court's comment provides a "fair

inference," we have already analyzed this statement and found it

lacking. See

In any event, the justification, whether inferred or

explicit, must demonstrate that this case differs from the norm,

or, in other words, "the mine-run of Grade C revocation cases."

(cleaned up) (citing Rivera-Berríos,

). As

illustrated by the guidelines sentencing range of three to nine

months, there is nothing obvious in the record that demonstrates

how Reyes's case differs from "the mine-run of Grade C revocation

cases."

To the extent there is some distinctive quality to

Reyes's case, it is unclear why the government and Reyes's

agreement on an above-guidelines sentence of twelve months --

rejected by the court with no explanation or elaboration -- was

insufficient to address it. See Flores-Nater,

("Although the court was not required to explain why it rejected

the . . . upwardly variant sentence recommended by the parties, it

should have given at least some indication as to why it believed

that [its] upward variance was the option of choice." (internal

citation omitted)); United States v. Franquiz-Ortiz,

(1st Cir. 2010) (expressing concern where "it is not clear why

the court regarded the above-guideline joint recommendation of the

parties as insufficient punishment"). Notably, "by imposing the

- 22 - statutory maximum sentence, the court left no room for harsher

sentences for those with higher criminal history categories and

more serious violations." Franquiz-Ortiz,

. Based

on the record before us, we have no way of discerning why the court

levied the harshest possible sentence for Reyes's Grade C

violations.

In sum, even if we adopted a strained reading of the

court's comments, none of the rationales explain why Reyes's case

was so distinct from the mine-run of Grade C revocation cases that

he deserved a 400% increase over the guidelines sentencing range.

This case is not one where "the offense of conviction is obviously

more horrific than the heartland offense falling within the

applicable guideline," and "we can perhaps infer . . . what sparked

the perceived need for an upward variance." Flores-Nater,

. Rather, this case is about a person who is living with a

substance use disorder, which is hardly an unusual circumstance

and certainly not one inherently deserving of additional

punishment.

We note, though, that we are not definitively stating

that an upward variance is unwarranted in this case. Rather, it

is that we cannot infer a reason for the upwardly variant sentence

from the "nature and circumstances of the offense." United States

v. Martin,

(1st Cir. 2008). If the court deemed

the number of revocations, Reyes's behavior, or some other aspect

- 23 - of the record uniquely unacceptable, it should have so stated.

See Muñoz-Fontanez,

("When imposing a significant

variance, a sentencing court must make clear which specific facts

of the case motivated its decision and why those facts led to its

decision."). Given that the strength of the justification must

increase proportionally with the length of an upwardly variant

sentence, we will not contort ourselves to cobble together a

speculative justification for a massive upward variance. Thus,

the district court's failure to justify its sentence was an abuse

of discretion.8 See, e.g., Rivera-Berríos,

(vacating sentence for failure to explain a one-year increase over

the top of the guidelines range); Franquiz-Ortiz,

(vacating sentence for failure to explain a fourteen-month

increase over top of guidelines range); Serrano-Berríos,

(vacating sentence in part due to a failure to explain a

ten-month increase over top of guidelines range).

III. Conclusion

For the foregoing reasons, we vacate Reyes's

thirty-six-month sentence and remand for resentencing consistent

with this opinion. The court may base its sentence on the existing

8Because we have resolved this appeal on the procedural reasonableness ground, we do not address Reyes's substantive reasonableness challenge.

- 24 - record and any facts, to the extent they are offered and

admissible, that occurred after the prior date of sentencing.

- 25 -