United States Court of Appeals For the First Circuit

No. 23-1855

UNITED STATES OF AMERICA,

Appellee,

v.

NATHAN REARDON,

Defendant, Appellant.

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

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

Before

Gelpí, Selya, and Rikelman, Circuit Judges.

Matthew K. Winchester and Law Offices of Matthew K. Winchester on brief for appellant. Darcie N. McElwee, United States Attorney, and Benjamin M. Block, Assistant United States Attorney, on brief for appellee.

August 5, 2024 SELYA, Circuit Judge. Defendant-appellant Nathan

Reardon challenges his top-of-the-range sentence following the

revocation of a term of supervised release. Concluding, as we do,

that the appellant's sentence is procedurally sound and

substantively reasonable, we affirm.

I

We briefly rehearse the relevant facts and travel of the

case. In 2022, the appellant pleaded guilty to five counts of

bank fraud. See

. Those charges arose in

connection with fraudulent loan applications that he submitted for

pandemic-relief funds. The district court sentenced him to five

concurrent twenty-month terms of imprisonment, to be followed by

three years of supervised release. We vacated one condition

embedded in the district court's judgment — a special condition of

supervised release that banned the appellant from self-employment

— because it was imposed without adequate explanation. See United

States v. Reardon (Reardon I),

(1st Cir. 2024).

This was the only aspect of the judgment that the appellant

challenged in Reardon I. On remand, the district court entered an

amended judgment that did not affect the revocation sentence.1

1This amended judgment retained the self-employment condition, but the district court provided a fuller explanation for it. We note that the appellant has not argued on appeal that our recent decision vacating the self-employment ban undermined the district court's ability to enforce that restriction at the

- 2 - The appellant's supervised release term commenced on

July 7, 2023. Within less than six weeks, the probation office

filed a petition to revoke his supervised release. As relevant

here, the petition alleged that the appellant had violated the

following four supervised release conditions:2 1) that he provide

his probation officer with any requested financial information; 2)

that he shall not be self-employed, shall be continuously employed

by a disinterested third party, shall not open any businesses,

sole proprietorships, partnerships, limited partnerships, or

corporations, and shall dissolve any corporations and businesses

that existed on the date of his sentencing (as said, we previously

vacated the self-employment condition for lack of adequate

explanation as to why it was the minimum restriction necessary to

protect the public, see Reardon I,

); 3) that

he truthfully answer any questions asked by his probation officer;

and 4) that he not incur new credit charges or open additional

lines of credit without advance approval.

According to the probation office (which filed a

revocation report), the appellant engaged in the following conduct

during the first several weeks of his supervised release term:

time of these violations. Given the lack of any objection, we are confident that this development does not affect our analysis.

The petition also alleged a fifth violation that the 2

government later declined to pursue. That alleged violation is of no relevance here.

- 3 - • On July 10, the appellant was instructed to complete

forms related to his financial resources and return

them with supporting documentation by July 26. On

July 26, the appellant returned the forms without

supporting documentation and was instructed to

resubmit the forms with the required documents by

August 2. On August 2, the appellant again failed

to submit all the financial documents that he had

been instructed to provide. The missing documents

included tax returns, information related to

monetary "gifts" he had received from his father,

copies of his bankruptcy filing, and information

regarding ongoing civil suits.

• On August 10, the appellant was found to have three

electronic bank transaction cards in his name.

Neither the cards nor the associated accounts had

been reported to the probation office in his

financial disclosure forms.

• In early August, the appellant met with a town

manager in Maine and professed his intention to

invest approximately $2,500,000 in the renovation

of a local property with the goal of converting it

into apartments and a restaurant.

- 4 - • In August, the probation office received

information that, from shortly before his release

from federal custody to around August 10, the

appellant acted as a landlord for properties

managed by a company that he used to own but had

subsequently transferred to his father. His

probation officer had advised him in July — in

response to the appellant's inquiry about whether

he could work for his father — that the probation

office would review a proposed plan for such an

arrangement but would not grant the appellant

blanket permission to work for his father without

a specific plan in place.

• The appellant represented himself in electronic

communications and on his personal website as the

"President/Founder/CEO" of a business called

Membership Auto. In response to the probation

office's directive that he cease making this

representation if it was not true, the appellant

explained that Membership Auto had never existed

other than as a "business idea." Nevertheless, the

representation remained on his LinkedIn page as of

August 31. What is more, online records showed

Membership Auto to have existed beyond merely an

- 5 - "idea"; for example, it had been listed by the

Florida Division of Corporations Fictitious Name

Detail in expired status and had been named as a

defendant in a civil suit.

• In mid-August, the appellant signed (without prior

approval from the probation office) a loan

agreement between him and his father.

On August 24, 2023, the district court held a preliminary

hearing and determined that there was probable cause to believe

that the appellant had violated the conditions of his supervised

release. The court then held a detention hearing and ordered the

appellant detained pending further proceedings. At his revocation

hearing on October 13, 2023, the appellant did not contest the

alleged violations. Without objection, the district court

calculated a guideline sentencing range of three to nine months.

The government argued for a nine-month sentence followed by a

renewed term of supervised release lasting thirty-six months. To

this end, the government noted the "immediacy" of the appellant's

supervised release violations and suggested that the appellant

acted with "a unique and kind of breezy disregard" for his

conditions. The government also suggested that the appellant had

violated his conditions "in a really open and notorious fashion."

The appellant, meanwhile, sought a sentence of time

served or, alternatively, three to six months in home confinement.

- 6 - While acknowledging that his supervised release term

"certainly . . . didn't get off to a good start," he introduced

four exhibits in an attempt to show that he had made efforts to

comply with the supervised release conditions. These exhibits

included a note from a family friend expressing willingness to

hire the appellant to work at a convenience store; messages sent

by the appellant to his "IT person," asking for the Membership

Auto information to be removed from his website and email

signature; correspondence between the appellant and his tax

attorney, seeking tax documents; and communications from the

appellant to his probation officer providing updates on his efforts

to compile financial documents and also asking for clarification

about whether he was allowed to help with his father's apartments.

The appellant emphasized that he intended to seek employment away

from his father's business, that he posed no immediate danger to

the community, that his wife and five children would face hardship

if he were again incarcerated, and that being imprisoned for a

longer period of time would make it more difficult for him to pay

his restitution. The appellant also indicated that his probation

officer had not given him the sufficiently clear guidance that he

needed to "stay away" from his father's rental business. Finally,

his wife addressed the court to ask that her husband be allowed to

come home for the sake of his children.

- 7 - In pronouncing sentence, the district court acknowledged

that it was "required to consider all of the . . . statutory

sentencing factors" and said that it had done so. The court also

acknowledged that it was "mindful of all of the mitigating factors"

highlighted by the appellant, including "that this [wa]s [the

appellant's] first violation" and that the appellant's conduct did

not injure "the community . . . in the most primitive way." At

the same time, the court stated that it was "concern[ed]" about

how soon the violations began after the start of the appellant's

supervised release term and "the relatively flamboyant way in

which" the appellant violated his conditions. The court also

stated that it was afraid that if the appellant were to "skim coat

over how cavalierly [he] violated [his] conditions of release," he

would be "likely to do it again." The court urged the appellant

to practice self-reflection and humility and observed that his

"dedicated resistance to complying with the Court's

order . . . ha[d] the patina of irrationality."

When all was said and done, the court imposed a nine-

month term of imprisonment, followed by a twenty-five-month term

of supervised release. This timely appeal ensued.

II

In this venue, the appellant argues that his sentence

was procedurally flawed because the district court focused

inordinately on a sentencing factor that it was not bound to

- 8 - consider at the expense of adequately assessing the sentencing

factors that it was statutorily required to consider. In much the

same vein, the appellant also argues that the court "failed to

meaningfully address several mitigation points" that he had

brought to its attention. Finally, he argues that his top-of-the-

range sentence is substantively unreasonable.

In evaluating sentencing appeals, we typically start by

"examin[ing] any claims of procedural error" and — if no procedural

error is found — we proceed to examine any challenge to the

substantive reasonableness of the sentence. United States v. Díaz-

Lugo,

(1st Cir. 2020); see United States v.

Miranda-Díaz,

(1st Cir. 2019). Following this

format, we turn first to the appellant's claims of procedural

error.

A

The parties agree that the appellant failed to preserve

his procedural claims. Thus, we review those claims for plain

error. See United States v. Duarte,

(1st Cir.

2001). Under the plain error standard, the appellant must show

"(1) that an error occurred (2) which was clear or obvious and

which not only (3) affected the defendant's substantial rights,

but also (4) seriously impaired the fairness, integrity, or public

reputation of judicial proceedings."

We discern no plain

error here.

- 9 - 1

To begin, the appellant argues that the district court

committed procedural error by failing to consider the relevant

statutory sentencing factors. See United States v. Colón-De Jesús,

, 20 (1st Cir. 2023). We do not agree.

Where, as here, a sentence is imposed following the

revocation of a term of supervised release, the district court is

guided by

(e). See United States v. Soto-Soto,

(1st Cir. 2017). Section 3583(e) directs the

court to consider sentencing factors such as the nature of the

offense, the offender's history and characteristics, the need for

deterrence, and the need to protect the public. Id.; see

(e) (incorporating by reference several sentencing factors

limned in

(a)). In the appellant's view, the

district court's explanation for its sentence focused almost

exclusively on the matters discussed in

(a)(2)(A)

and failed to assess the section 3583(e) factors.3

We think that the appellant's characterization of the

district court's statements represents a triumph of hope over

3 Section 3583(e) does not incorporate section 3553(a)(2)(A), which directs the court to consider "the need for the sentence imposed . . . to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense." See United States v. Tanco-Pizarro,

(1st Cir. 2018).

- 10 - reason. The district court's sentence paid due heed to the

sentencing factors limned in section 3583(e). The court's emphasis

on the appellant's flagrant disregard for the court's directives,

as well as its concern that he would "likely" transgress his

supervised release conditions again if his present violations were

too lightly glossed over, logically relate to the appellant's

"history and characteristics" and the need for his sentence "to

afford adequate deterrence to criminal conduct."4

(a)(1), (a)(2)(B). At no point did the district court state

or otherwise indicate that its judgment was predicated wholly on

the section 3553(a)(2)(A) factor.

On plain error review, we deem the district court's

explanation sufficient to ground a conclusion that the district

court adequately considered the relevant sentencing factors.

After all, the district court — when explicating a sentence — "is

not required to address [the relevant] factors, one by one, in

some sort of rote incantation." United States v. Ortiz-Pérez, 30

4 Although the appellant argues that the deterrence factor could not have been relevant because none of his supervised release violations were criminal, he cites no authority for the proposition that a district court, when imposing a revocation sentence, may consider the adequate deterrence of criminal conduct only if the revocation is based on new instances of criminal conduct. In this instance, the appellant's violations involved blatant disregard for the court's authority and attempts at illicit money-making. It was reasonable for the district court to conclude from this behavior that the sentence it imposed was necessary to deter further criminal conduct.

- 11 - F.4th 107, 111 (1st Cir. 2022) (quoting United States v. Dixon,

(1st Cir. 2006)). Nor is the court required to

assign each factor equal weight. See id. at 113. As long as "the

sentencing transcript, read as a whole, evinces a sufficient

weighing of the [relevant] factors," no more is exigible. United

States v. Dávila-González,

(1st Cir. 2010).

That ends this aspect of the matter. On this record, we

can readily infer from the district court's explanation which

section 3583(e) factors drove its decision to impose a top-of-the-

range sentence. And if more were needed, "the fact that the court

stated that it had considered all the [relevant] factors is

entitled to some weight."

2

We turn next to the appellant's claim that the district

court committed procedural error by "fail[ing] to meaningfully

address proffered mitigation." This claim, too, lacks force.

The appellant chiefly relies on United States v. Colón-

Cordero, in which we held that the district court erred because it

was very "plain from the record that the district court never

engaged with Colón's intellectual disability as a mitigating

characteristic," despite the fact that this intellectual

disability was Colón's primary basis for requesting a lower

sentence.

(1st Cir. 2024). Here, the appellant

argues that the district court failed to consider several

- 12 - mitigating factors (such as the fact that his conduct was not

criminal, that he had made several restitution payments, that he

had tried to comply with his supervised release conditions, that

his violations did not harm the public, and that his further

incarceration would cause familial hardship).

The case at hand is readily distinguishable from Colón-

Cordero. There, we reasoned that the district court's sentencing

was deficient because the court did not either acknowledge "Colón's

dominant mitigation argument" or "say enough from which we could

fairly infer how it felt about [that argument]."

. We

were careful to tie our holding to the facts of the case, noting

that, "given Colón's paramount emphasis [on his intellectual

disability] as the mitigation argument, . . . the sentencing court

should have engaged with it."

(emphasis in original).

Here, by contrast, none of the allegedly mitigating

factors that the appellant alluded to were so singularly forceful.

In addition, the court below acknowledged that it was "mindful of

all of the mitigating factors" advanced by the appellant — and it

specifically referred to some of the more cogent mitigation points

that the appellant accuses it of ignoring. On this record, there

is no sound basis for us to hold — on plain error review — that

the district court failed to consider the appellant's proffered

mitigation. We cannot find plain error simply because the district

court did "not speak to [the appellant's] arguments one by one and

- 13 - expressly dispose of each of them." Díaz-Lugo,

;

see United States v. Ruperto-Rivera,

(1st Cir. 2021)

("That the court did not explain in exquisite detail why it chose

to afford relatively little weight to the factors that the

appellant advanced in mitigation is not the sort of stuff out of

which a claim of sentencing error can be constructed.").

B

This brings us to the appellant's challenge of the

substantive reasonableness of his sentence. Our review is for

abuse of discretion. See Holguin-Hernandez v. United States,

(2020).

"[T]he hallmarks of a substantively reasonable sentence

[are] 'a plausible sentencing rationale and a defensible result.'"

Díaz-Lugo,

(quoting United States v. Martin,

(1st Cir. 2008)). Because the appellant's only attack

on the substantive reasonableness of the sentence is that "[o]n

these facts, nine months was not a defensible result," our analysis

focuses on the "defensible result" element.

"To undercut the substantive reasonableness of a within-

guidelines sentence, . . . a[n] [appellant] must furnish 'powerful

mitigating reasons and persuade us that the district judge was

unreasonable in balancing pros and cons despite the latitude

implicit in saying that a sentence must be "reasonable."'" United

States v. Morales-De Jesus,

(1st Cir. 2018)

- 14 - (quoting United States v. Navedo-Concepción,

(1st

Cir. 2006)); see United States v. Clogston,

(1st

Cir. 2011) ("There is no one reasonable sentence in any given case

but, rather, a universe of reasonable sentencing outcomes.").

Here, the appellant has offered no compelling arguments in

mitigation.

To be sure, the appellant strives to persuade us that a

top-of-the-range sentence is inconsistent with the fact that he

attempted to comply with his supervised release conditions. In

his view, his attempts are demonstrated by the exhibits that he

introduced at his revocation hearing. We are not convinced.

There is no need to tarry. The appellant has not shown

that he was unable to comply with his supervised release conditions

or even that his efforts to comply were particularly robust. At

best, the exhibits he presented to the district court show that he

made some effort to comply with a few of the conditions. It was

within the district court's discretion to conclude that these

feeble efforts did not mitigate the appellant's flagrant

noncompliance. In short, the appellant's attempts to comply do

not suffice to undermine the district court's well-reasoned

finding that the appellant violated his supervised release

conditions in a "relatively flamboyant way," which warranted a

top-of-the-range sentence.

- 15 - This is especially true when one considers the lengthy

list of violations described in the probation office's revocation

report. Based on the facts memorialized in that report and

accepted by the district court, a top-of-the-range sentence is

readily defensible.

The appellant has a fallback position. He contends that

his sentence is unreasonable because — as he sees it — several of

the sentencing factors supported a non-custodial sentence. But

even if some factors supported a non-custodial sentence — a matter

on which we take no view — it was well within the encincture of

the district court's discretion to decide that other factors (such

as the history and characteristics of the offender) weighed more

heavily in favor of a top-of-the-range custodial sentence. See

Clogston,

("A sentencing court is under a mandate

to consider a myriad of relevant factors, but the weighting of

those factors is largely within the court's informed

discretion."). The appellant's suggestion that only a non-

custodial sentence was within the realm of reasonableness is no

"more than a thinly disguised attempt . . . 'to substitute his

judgement for that of the sentencing court.'" United States v.

Vargas-García,

(1st Cir. 2015) (quoting Clogston,

). Accordingly, we reject the appellant's claim of

error.

- 16 - Finally, the appellant asserts — without explaining his

reasoning — that the "import of [

(a)(6), that is,

'the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of

similar conduct'] militated against a custodial sentence" for a

case like the case at hand. The appellant does not cite any

authority for this ipse dixit, and we are aware of none. Nor does

he develop his assertion in any meaningful way. We therefore deem

the argument waived. See United States v. Zannino,

(1st Cir. 1990) (explaining "settled appellate rule that issues

adverted to in a perfunctory manner, unaccompanied by some effort

at developed argumentation, are deemed waived").

III

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

the judgment of the district court is

Affirmed.

- 17 -