United States Court of Appeals For the First Circuit

No. 22-1979

UNITED STATES OF AMERICA,

Appellee,

v.

MICHAEL RAND,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Landya B. McCafferty, U.S. District Judge]

Before

Barron, Chief Judge, Thompson and Gelpí, Circuit Judges.

Noreen McCarthy, with whom The McCarthy Law Firm was on brief, for appellant. Aaron G. Gingrande, Assistant United States Attorney, with whom Jane E. Young, United States Attorney, was on brief, for appellee.

February 23, 2024 GELPÍ, Circuit Judge. Defendant-Appellant Michael Rand

("Rand") was indicted with, and pleaded guilty to, one count of

distributing a controlled substance in violation of 21 U.S.C

§§ 841(a)(1) and (b)(1)(C). Rand was sentenced to time served

followed by 36 months of supervised release. Shortly thereafter,

Rand was cited for four violations of his supervised release,

resulting in a revocation hearing. At the revocation hearing,

Rand was sentenced to 24 months of imprisonment followed by 24

months of supervised release. Rand timely appealed his sentence

on the grounds that it was procedurally and substantively

unreasonable. We affirm.

I. Background

A. Original Offense

On August 31, 2020, a grand jury indicted Rand with one

count of distributing a controlled substance in violation of

(a)(1) and (b)(1)(C). While incarcerated and

awaiting trial, Rand completed the Therapeutic Community substance

use treatment program at the Strafford County Department of

Corrections. On December 13, 2021, Rand pleaded guilty to the

indictment. On March 23, 2022, while awaiting sentencing, the

district court released Rand to participate in Turning Point, a

residential substance use treatment program. Rand successfully

- 2 - completed the program. These were the first substance use

treatment programs that Rand had ever completed.

On August 4, 2022, Rand's sentencing hearing took place.

The presentence report ("PSR") determined that Rand's offense

level was 13, reduced down from 16 due to his acceptance of

responsibility. See U.S.S.G. § 3E1.1(a) and (b). His criminal

history category was IV and the advisory sentencing guideline range

for the offense was 33-41 months. The PSR detailed Rand's lifelong

history of drug use which began when he was a teenager. On

March 15, 2022, Rand filed a motion for variance from the

sentencing guideline range noting his success in the substance use

treatment programs and requesting time served. The Government

filed a sentencing memorandum requesting a sentence at the low end

of the sentencing guideline range, requesting the district court

depart downwards as to the criminal history category. The district

court sentenced Rand to time served followed by 36 months of

supervised release.

B. Supervised Release Violations

On September 9, 2022, Rand's probation officer

petitioned for a warrant alleging four violations of Rand's

supervision conditions. Rand later admitted to each of the

violations. First, on August 11, 2022, Rand lied to his probation

officer, violating the standard condition of supervised release

that he answer questions posed by his probation officer truthfully.

- 3 - Rand claimed he contracted COVID to excuse the fact that he had

not reported to his assigned probation officer nor reported where

he was living and working since he had been granted supervised

release. This was a Grade C violation with a sentencing guideline

range of 6-12 months.

Second, on September 1, 2022, Rand violated his

supervision conditions by committing a federal, state, or local

crime: Rand illegally possessed and used cocaine,

methamphetamine, and fentanyl. This was a Grade B violation with

a sentencing guideline range of 12-18 months. Third, that same

day, Rand left his reported residence and failed to notify his

probation officer, resulting in another violation of supervised

release. This was a Grade C violation with a sentencing guideline

range of 6-12 months.

Fourth, Rand relapsed and failed to enter an inpatient

substance use treatment program despite being instructed to do so

by his probation officer, resulting in his final violation of a

special probation condition. This was a Grade C violation with a

sentencing guideline range of 6-12 months. Rand was arrested and

taken into custody. While in custody, Rand was unable to

participate in the jail's substance use treatment program due to

an administrative error.

- 4 - C. Revocation Hearing

On December 7, 2022, the district court held Rand's

revocation hearing. As noted, Rand admitted to each of the

violations. The sentencing guideline ranges for someone with

Rand's criminal history are 6-12 months of imprisonment for a Grade

C violation and 12-18 months of imprisonment for a Grade B

violation. The Government proposed twelve months of imprisonment

for the purpose of ensuring a sufficient deterrent effect on Rand.

The Government further noted that twelve months would provide Rand

time to avail himself of the prison's rehabilitative programming

to help ensure that he would be "better equipped this time around

to meet the challenges of sobriety." Rand, in turn, requested a

6-month sentence of imprisonment followed by additional supervised

release so that he could participate in additional residential

substance use treatment programs. At the revocation hearing, Rand

spoke on his own behalf stating that 12 months of imprisonment was

too long for his first violation and that he wanted the chance to

participate in a substance use treatment program since he was

unable to do so while awaiting the revocation hearing.

The district court rejected both the Government's and

Rand's proposed sentences, instead sentencing Rand to 24 months of

imprisonment, the statutory maximum, followed by 24 months of

supervised release. The district court explained its rationale by

noting that "the fact that this [was Rand's] first violation d[id]

- 5 - not in any way outweigh the nature of the violation." The district

court then mentioned Rand's initial sentencing stating that it was

impressed with Rand's success in the substance use treatment

programs. The district court was originally persuaded by Rand's

allocution and the mitigating circumstances of his inauspicious

past, determining that time served was the appropriate sentence

once Rand completed the Turning Point program.

The district court gave an account of the four violations

and noted that even though the possession of controlled substances

was the higher grade violation, "the lying indicate[d] the danger

to the community." The district court explained that 12 months of

imprisonment was not enough to deter Rand and would not protect

the public. Thus, the district court concluded that a maximum

sentence was necessary after Rand lied and absconded immediately

after appearing before the district court, which had credited

Rand's recovery efforts in its original sentencing. The district

court stated that it "considered each factor in [§] 3583(e)" and

decided that a 24-month sentence of imprisonment was sufficient

but not greater than necessary.

II. Discussion

On appeal, Rand argues that his sentence was both

procedurally and substantively unreasonable. Procedurally, Rand

argues that the sentence imposed was unreasonable because: (1) the

district court plainly erred when it failed to adequately explain

- 6 - on the record, and in writing, the reasons for imposing a sentence

above the recommended sentencing guideline range, (2) the district

court plainly erred when it considered impermissible factors under

(e) because it focused on factors that fall under

(a)(1)(A), and (3) the district court plainly

erred when it followed the prosecutor's urging to impose a lengthy

sentence for rehabilitative purposes. Substantively, Rand argues

that the sentence was unreasonable because: (1) there was no

plausible sentencing rationale for exceeding the applicable

sentencing guideline range, (2) Rand's most serious offense was

based on a single positive drug test and his own admission of

having relapsed, (3) the sentence goes against the statutory

presumption against incarcerating a defendant for a single

positive drug test, and (4) neither the prosecutor sought nor the

PSR recommended a sentence above the sentencing guideline range.

We take each of these arguments in turn and, for the reasons stated

below, affirm the district court's revocation sentence.

"With respect to sentencing determinations,

reasonableness has both a procedural and a substantive dimension."

United States v. Del Valle-Rodríguez,

(1st Cir.

2014) (citing United States v. Martin,

(1st Cir.

2008)). Procedurally, we consider errors omitting an adequate

explanation of the rationale for a variant sentence, failure to

consider pertinent sentencing factors, and the determination of a

- 7 - sentence based on clearly erroneous facts. Del Valle-Rodríguez,

. Substantively, we consider the length of the

sentence "in light of the totality of the circumstances."

A. Procedural Reasonableness

1. Standard of Review

Typically, we "review a sentence following revocation of

supervised release for abuse of discretion." United States v.

Alejandro-Rosado,

(1st Cir. 2017). However,

when a defendant does not object to the procedural reasonableness

of his sentence below, as is the case here, the challenge is

unpreserved, and therefore reviewed for plain error.

.

Plain error review is "a steep climb for defendants on appeal."

To prevail, a defendant must prove "(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." United States v. Duarte,

(1st Cir.

2001).

2. The Sentence Was Procedurally Reasonable

We conclude that Rand has failed to demonstrate that the

district court's explanation came close to clear and obvious error.

To begin, Rand's argument that the district court failed to

adequately explain the reasoning for imposing a sentence above the

sentencing guideline range does not hold water. When assessing

- 8 - procedural reasonableness, we examine whether the district court

considered the appropriate sentencing factors and whether the

sentence was adequately explained "to allow for meaningful

appellate review." Gall v. United States,

(2007).

"We approach these arguments mindful that deference to the trial

court is a lineament of appellate review of federal criminal

sentences." Del Valle-Rodríguez,

. The "sentencing

guidelines are only 'the starting point and initial benchmark' for

shaping a sentence."

(quoting Gall,

).

When a district court varies upward, it must justify the

variance. Del Valle-Rodríguez,

. Statutorily, at

the time of sentencing, a court must "state . . . the reasons for

its imposition of the particular sentence."

(c).

If the sentence is outside of the sentencing guideline range, "the

specific reason for the imposition of a sentence" must be stated

and "which reasons must also be stated with specificity in a

statement of reasons form."

(c)(2). However,

even though an upward variance should be explained, the district

court is only required to provide a "plausible and coherent

rationale" for the variance. Del Valle-Rodríguez,

(determining that the district court articulated an adequate

rationale where it expounded upon its assessment of the risk of

future criminal activity, the need to protect the public, and the

defendant's history of failing to comply with conditions). Rand

- 9 - argues that the district court failed to explain the rationale of

the sentence "with specificity," however, under plain error

review, the district court only needs to "touch[] upon" the factors

used to support the sentence. United States v. Márquez-García,

(1st Cir. 2017).

Here, the district court provided a "plausible and

coherent rationale" for the upward variance. Del Valle-Rodríguez,

. The lie to Turning Point about COVID, the fact

that Rand did not contact his probation officer after sentencing,

and the lie to his probation officer about COVID were all discussed

as factors driving the sentencing decision. In fact, the district

court explained that the lying to probation and Turning Point about

COVID were even more concerning than the Grade B violation for

possession of controlled substances. The district court noted

that the fact that Rand lied to both his substance use treatment

program and his probation officer, coupled with his absconding

from his treatment, indicated a high likelihood of recidivism and

a danger to the community. The district court went on to explain

that the suggested 12-month sentence of imprisonment would not

sufficiently deter Rand or protect the public. Rand argues that

because the gravity of the lies he told was reflected in the grade

such an offense was given by the Sentencing Commission and his

likelihood of recidivism was already captured by his criminal

history category, the sentencing guideline range already accounted

- 10 - for the factors on which the district court relied. Accordingly,

he contends that the district court did not adequately explain why

this particular lie posed a greater risk of danger to the public

or a higher risk of recidivism than any other lie that would

constitute a Class C violation and so did not adequately explain

the upward variance. See United States v. Zapete-Garcia,

(1st Cir. 2006). But the district court here did not

merely double count Rand's lies and abscondment.

Here, the district court expressly concluded that the

upward variance was because of "[t]he combination of the lying and

the absconding right after [Rand] had appeared in front of [the

district court] [for the original sentencing]." In discussing the

factors that led to its conclusion, the district court specifically

noted that just "two days after the sentencing hearing" Rand left

Turning Point with the intent to "leave for good," lied to Turning

Point about his reasons for not returning, and lied to his

probation officer. (Emphasis added). It is clear from this

explanation that the district court was concerned with the totality

of these individual incidents, all of which occurred in rapid

succession over a brief span of time and so soon after the original

sentencing hearing and the start of Rand's supervised-release

term. Thus, we cannot conclude on this record that the district

court plainly erred by merely double counting individual incidents

already factored into the sentencing guideline range calculation.

- 11 - Further, Rand has failed to demonstrate that the

district court affected his substantial rights when it failed to

provide the written statement of reasons form. See

(c)(2). "[R]emand is required only if the sentence was

'imposed as a result of'" the error. Williams v. United States,

(1992) (emphasis in original). "If 'the district

court would have imposed the same sentence' even without the error,

it was harmless." United States v. Tavares,

(1st

Cir. 2013) (quoting Williams,

). Here, due to

its oral explanation, it is clear that the district court would

have imposed the same sentence in writing. See United States v.

Vázquez-Martínez,

(1st Cir. 2016) (holding error

harmless after concluding that the sentence would be the same in

written form as it was in oral form). Because the lack of a

writing did not affect Rand's substantial rights, and was therefore

harmless, the argument that the lack of a writing is plain error

fails.

Next, Rand's argument that the district court relied on

prohibited factors in its sentencing determination also fails

under plain error review. While explaining the sentence, the

district court stated that it "considered each factor in

[§] 3583(e)[,]" which on its own is "entitled to significant

weight." United States v. Santiago-Rivera,

(1st

Cir. 2014). The district court mentioned the seriousness of Rand's

- 12 - violations, his past criminal history, and the need for deterrence

and community protection. This explanation was not plainly

erroneous. Although the district court did mention Rand's conduct

and characterized it as contemptuous to the court, it made clear

that the sentencing decision was primarily focused on deterrence

and community protection. A sentencing court may "consider a

defendant's history of non-compliance with conditions of

supervised release" when imposing a sentence, as it did here.

United States v. Vargas-Dávila,

(1st Cir. 2011).

A district court is not forbidden to consider "other pertinent

section 3553(a) factors."

In fact, § 3553(a)(2)(B) requires

a sentencing court to consider deterrence, consequently inviting

consideration of the defendant's history with supervised release.

See id. Therefore, the district court did not plainly err.

Lastly, Rand argues that the district court plainly

erred when, towards the end of the hearing, it commented that Rand

"need[ed] structured programming" in order to advance his

recovery. According to Rand, this comment indicates the court

imposed the sentence "for rehabilitation purposes." This argument

also fails. However, this discussion was in response to Rand's

request for substance use treatment, not as a justification for

the sentence. The district court was also responding to Rand's

counsel's request that he be placed in a substance use treatment

program because Rand "need[ed] a very serious structured program."

- 13 - Further, "[a] court commits no error by discussing the

opportunities for rehabilitation within prison or the benefits of

specific treatment or training programs." Tapia v. United States,

(2011). Error is only found when the district

court "impose[s] or lengthen[s] a prison sentence . . . to promote

rehabilitation."

. Here, the mere discussion of a

structured substance use treatment program, with no indication

that the treatment program was "the driving force behind[] or a

dominant factor in" imposing or lengthening the sentence, cannot

be grounds for reversal. United States v. Vázquez-Méndez,

(1st Cir. 2019).

B. Substantive Reasonableness

1. Standard of Review

We apply the abuse of discretion standard to preserved

challenges to the substantive reasonableness of criminal

sentences. United States v. Vargas-Martinez,

(1st Cir. 2021). "A defendant who, by advocating for a particular

sentence, communicates to the trial judge his view that a longer

sentence is 'greater than necessary' has thereby informed the court

of the legal error at issue in an appellate challenge to the

substantive reasonableness of the sentence." Holguin-Hernandez v.

United States,

(2020). A defendant who

advocates for a shorter sentence that would prove sufficient

preserves their substantive unreasonableness claim. See

at

- 14 - 767. Here, Rand argued for a shorter sentence at the revocation

hearing, therefore preserving the claim of error, requiring an

abuse of discretion standard.

2. The Sentence Was Substantively Reasonable

We evaluate substantive unreasonableness claims under

the "totality of the circumstances" to determine if there was a

"plausible sentencing rationale and a defensible result." Martin,

. "The length of an increased sentence is

necessarily a judgment call and, within wide limits, deference is

due to the trier's on-the-spot perceptions." Vargas-Dávila,

. We will vacate a sentence for substantive

unreasonableness only "if it 'falls outside the expansive

boundaries' of the universe of reasonable sentences."

Márquez-García,

(quoting Martin,

).

First, Rand argues that the sentencing rationale offered

was not plausible because the district court recounted the factors

already considered by the Sentencing Commission. However, as noted

above, the district court discussed multiple specific factors and

instances to justify its upward variance. The district court

raised concerns over the dangerousness of Rand to the community,

and the need to deter him from future criminal activity. The

district court went on to note that Rand, almost immediately after

being released for time served, lied to and absconded from

treatment, did not contact his probation officer, and once in

- 15 - contact after being tracked down, lied to the probation officer,

and disregarded the direction to admit himself into treatment.

The district court noted that it was "[t]he combination of the

lying and the absconding right after [Rand] had appeared in front

of [the district court]" that justified the maximum sentence.

Here, based on the justification provided by the district court,

the rationale was plausible. See Vargas−Dávila,

(affirming an upward variant for a violation of supervised release

conditions based on "past behavior of the offender and the other

realities of the situation"); Márquez-García,

(affirming an upward variance based on the "short time that had

elapsed between the appellant's release from prison and his

commission of a new . . . crime; the serious (and repetitive)

nature of the new offense; the danger presented to the

community . . . and the need for deterrence").

Rand next argues that the district court punished him

for being candid with his probation officer about his relapse and

that the sentence imposed was based on a single positive drug test.

But this is not true. The district court credited Rand for his

honesty about his relapse with his probation officer, albeit after

he was tracked down. It also made clear that the lying about

having contracted COVID and absconding was the driving force for

the maximum sentence imposed, not the relapse. No indication was

made that Rand was being punished as a result of admitting to his

- 16 - relapse. In addition, the sentence imposed was not the result of

a single positive drug test, but rather the result of a totality

of the circumstances. See United States v. Santiago-González,

(1st Cir. 2016) (explaining that totality of the

circumstances is used for determining substantive reasonableness).

As noted, Rand was sentenced based on four total violations which

included lying and absconding from treatment and supervision. Each

violation, particularly the lying regarding COVID and absconding,

was taken into consideration, weakening Rand's argument that he

was sentenced based on a "single positive drug test."

Further, Rand argues that

(b)(4) should

apply, requiring revocation of probation and resentencing only if

the defendant tests positive for illegal controlled substances

more than three times over the course of a year. Seeing as Rand

only had one positive drug test, he argues that he cannot be

resentenced based on

(b)(4). As this court has

said before, "[t]he fairly obvious flaw in this argument is that

the statute . . . is about probation, not about supervised

release." United States v. Mandarelli,

(1st Cir.

1992) (emphasis in original). "[P]robation is an alternative to

prison" whereas "[s]upervised release is part of a prison sentence,

to be served after imprisonment."

(first quoting

(a); then quoting

(a)) (emphasis in

original) (internal quotation marks omitted). "The statutes treat

- 17 - the two similarly, but not identically." Mandarelli,

(comparing § 3565(a)(2) -- setting forth that the "maximum

sentence for probation violation is maximum for underlying

conviction" -- with § 3583(e)'s instruction that the "maximum

sentence for supervised release violation depends on seriousness

of violation, not on underlying conviction"). Rand also argues he

was punished for being addicted to controlled substances which

runs counter to Robinson v. California,

(1962), where

the Supreme Court deemed this rationale unconstitutional. This

argument is misplaced as Robinson addressed a statute making

addiction to narcotics a criminal offense.

. Here,

Rand was in violation of supervised release for possession of

controlled substances, lying to probation and his treatment

center, absconding from treatment, and moving from his residence

without notifying probation, not simply for use of controlled

substances. The argument that Rand was sentenced simply for the

positive drug test, or simply for being addicted to controlled

substances, is inaccurate and therefore fails.

Rand's final argument, that the sentence is

substantively unreasonable because the district court did not

follow the recommendation of the prosecutor and did not provide an

adequate rationale, lacks merit. The district court is not bound

to follow the recommendations of either party when imposing a

sentence as it is the district court's role to ultimately determine

- 18 - what sentence is suitable. See United States v. Vixamar,

(1st Cir. 2012) (explaining the district court's role in

revocation hearings and resentencing). The district court noted

that it had considered both parties' arguments, the violation

report, its knowledge of Rand's original sentencing hearing, and

each factor of

(e). It was well within the

district court's discretion, after adequately explaining the

upward variance, to impose such a sentence. See

Therefore,

the district court did not abuse its discretion in sentencing Rand

to the statutory maximum based on the totality of the

circumstances.

III. Conclusion

Because we conclude that the revocation sentence imposed

was procedurally and substantively reasonable, the district

court's sentence is

Affirmed.

- 19 -