United States Court of Appeals For the First Circuit

No. 21-1704

UNITED STATES OF AMERICA,

Appellee,

v.

DAVID DAOUD WRIGHT,

Defendant, Appellant.

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

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Barron, Chief Judge, Selya and Howard, Circuit Judges.

Michael Tumposky, with whom Jessica Hedges and Hedges & Tumposky, LLP were on brief, for appellant. Randall E. Kromm, Assistant United States Attorney, with whom Rachael S. Rollins, United States Attorney, was on brief, for appellee.

May 10, 2024 HOWARD, Circuit Judge. David Wright challenges his

360-month aggregate sentence as procedurally and substantively

unreasonable. He asserts that the sentencing court made a

"grouping" error that affected the sentence that he received, and

that the court also failed to adequately explain its upwardly

variant sentence. Concluding that any grouping error had no impact

on his sentence and that the court provided an adequate explanation

for its variant sentence, we affirm.

I. Background

This is Wright's second direct appeal. The factual

background underlying his convictions is set forth in our opinion

from his first appeal. United States v. Wright,

, 13-14

(1st Cir. 2019). Here, we focus only on those facts relevant to

his sentence.

In June 2015, Wright was indicted for conspiracy to

provide material support to a designated foreign terrorist

organization, in violation of 18 U.S.C. §§ 2339B(a)(1)-(2) ("Count

1"); conspiracy to obstruct justice, in violation of

("Count 2"); and obstruction of justice, in violation of

, and aiding and abetting, in violation of

("Count 3"). Superseding indictments added a count for

conspiracy to commit acts of terrorism transcending national

boundaries, in violation of 18 U.S.C. §§ 2332b(a)(2) and (c)

("Count 4") and an additional count for obstruction of justice, in

- 2 - violation of § 1519 ("Count 5").

A jury convicted Wright on all counts, and the district

court sentenced him to 28 years' imprisonment and lifetime

supervised release.

On appeal, we affirmed Wright's convictions on Counts

2-5 but overturned his conviction on the material-support count

based upon an error in the jury instructions. Wright, 937 F.3d at

28, 37. We therefore vacated his conviction on Count 1 and

remanded to the district court for further proceedings. Id. at

37. The government later dismissed Count 1, and an amended

judgment issued. After a resentencing hearing before of a

different judge, Wright was sentenced to imprisonment for 30 years

-- two years more than before -- and lifetime supervised release.

A. First Sentencing

We recount the relevant details of Wright's first

sentencing, which shed light on certain issues addressed in his

resentencing. In the pre-sentence investigation report ("PSR")

prepared in advance of the first sentencing, the probation officer

recommended that all five counts of conviction be grouped together

pursuant to U.S. Sentencing Guidelines ("USSG") §3D1.2, which

instructs courts to group all counts involving "substantially the

same harm." The government did not object to this recommendation

to group the counts, but it did object to the PSR's conclusion

that Count 1, rather than Count 4, should be used to establish the

- 3 - base offense level for sentencing.

The PSR determined that Count 1 -- providing material

support to a designated foreign terrorist organization -- had the

highest offense level of the counts in the group and thus produced

the offense level applicable to the group pursuant to USSG §3D1.3,

which provides that a group's offense level is the "highest offense

level of the counts in the [g]roup." The PSR noted that the base

offense level for that count was 26, pursuant to USSG §2M5.3(a).

Because the offense involved the provision of material support

with the "intent, knowledge, or reason to believe [that support

would] be used to commit or assist in the commission of a violent

act" the PSR added two levels pursuant to USSG §2M5.3(b). And

because the offense was a felony involving a federal crime of

terrorism, the PSR added 12 more levels pursuant to USSG §3A1.4.

Finally, because of the obstruction of justice counts, two more

levels were added pursuant to USSG §3C1.1. Thus, the Guidelines

calculation resulted in a total offense level of 42 for Count 1.

And because Wright's criminal history category was VI, The PSR

calculated that the applicable Guideline Sentencing Range ("GSR")

to be 360 months to life.

The government disputed that Count 1 had the highest

offense level of the counts in the group. It instead identified

Count 4 -- conspiracy to commit acts of terrorism transcending

national boundaries. In pressing that view, the government took

- 4 - the position that the base offense level for Count 4 should be

derived from the conspiracy to commit murder guideline, USSG

§2A1.5, which provides for a base offense level of 33, and not, as

the PSR recommended, from the guideline for threatening or

harassing communications, hoaxes, and false liens, USSG §2A6.1,

which provides for a base offense level of 12. In the government's

view, after adding the 12-level terrorism enhancement, the total

offense level for Count 4 was 45 (higher than Count 1's total

offense level of 42), and thus the applicable GSR for the group

was life, based upon Wright's criminal history category of VI.

The original sentencing judge adopted the PSR in full,

thereby agreeing with the probation officer that the correct GSR

was 360 months to life. The court then imposed a below-guidelines

sentence of 28 years' imprisonment and lifetime supervised

release, consisting of 20 years' imprisonment on Counts 1, 3, and

5, to be served concurrently with a sentence of five years'

imprisonment on Count 2, and an incarcerative term of eight years

on Count 4, to be served consecutively to the 20-year sentence.

After imposing that sentence, the district court issued

an opinion in which it explained that, on reflection, it should

have adopted the government's calculation of the base offense level

for Count 4. Thus, in the court's view, Count 4 should have

produced the offense level for the group, and the GSR should have

been immurement for life. Nevertheless, the court left the

- 5 - sentence intact, observing that it was too late to change the

judgment and that it would have imposed the same sentence in any

event. See Fed. R. Crim. P. 35(a).

Wright appealed his convictions, but neither he nor the

government appealed his sentence. As stated, we affirmed all of

his convictions except for the conviction on Count 1, and we

remanded for resentencing on the remaining counts. Wright, 937

F.3d at 37.

B. Resentencing

At resentencing, whether USSG §§2A1.5 (murder

conspiracy) or 2A6.1 (threatening communications) produced the

base offense level for Count 4 was again in dispute.

The resentencing court concluded that the "law of the

case" doctrine bound it to find that §2A6.1 -- threatening or

harassing communications, hoaxes, and false liens -- produced the

base offense level for Count 4. It reasoned that the court had

reached that conclusion at the first sentencing, and the government

had not appealed. Withal, the court noted that it agreed with the

government's interpretation and that the court's agreement with

that position would "affect [its] judgment in th[e] case about the

section 3553 factors."

The government also raised an issue that had not been

contested at the first sentencing. It contended that Count 4 --

the remaining terrorism count -- should not be grouped with Counts

- 6 - 2, 3, and 5 -- the obstruction counts. In support, the government

argued that Count 4 met the conditions of USSG §3D1.1(b)(1), which

excludes from grouping "[a]ny count for which the statute (A)

specifies a term of imprisonment to be imposed; and (B) requires

that such term of imprisonment be imposed to run consecutively to

any other term of imprisonment," because 18 U.S.C. § 2332b -- the

statute prohibiting the conduct underlying Count 4 -- requires

that "the term of imprisonment imposed under this section [not]

run concurrently with any other term of imprisonment" and

authorizes a punishment for "any term of years" up to life. 18

U.S.C. §§ 2332b(c)(1)(A) and (F), (c)(2) (emphasis added). Wright

and the probation officer disputed that Count 4 met the conditions

for exclusion from grouping, reasoning that § 2332b(c) does not

"specify a term of imprisonment to be imposed," and that,

therefore, Count 4 should be grouped with the other counts under

a straightforward application of the grouping rules. Wright

further contended that the government had waived any argument

against grouping, because, at the first sentencing, the parties

had not disputed that the counts should be grouped.

The government claimed that no waiver occurred because

it did not need to argue against grouping at the first sentencing

proceeding. According to the government, even grouping all the

counts together would still result in a GSR of life; thus,

declining to group the counts would have put the total offense

- 7 - level "beyond . . . the sentencing table."1 The court agreed with

the government and decided to forgo grouping.

With this foundation established, the court then

calculated the GSR. It noted that, under the law of the case, the

base offense level for Count 4 was derived from §2A6.1, which

provided for a base offense level of 12. The terrorism enhancement

provided in §3A1.4 established a minimum offense level of 32; thus,

the adjusted offense level was increased to 32. Because the court

declined to group the obstruction counts with Count 4, it

determined that the 2-level enhancement for obstruction of justice

under §3C1.1 should not apply to the offense level for Count 4.

However, it also found that, because there were now two groups

(Count 4 constituting one, and Counts 2, 3, and 5 constituting

another) with the same offense level (Counts 2, 3, and 5 combined

for an offense level of 32), two levels should be added under USSG

§3D1.4(a).2 Thus, the total offense level was 34, and because the

1 The sentencing table incrementally increases the GSR with the offense level and criminal history category at issue. USSG Sentencing Table, ch. 5, pt. A. The highest offense level contained in the sentencing table is 43, and produces a GSR of life; thus, where the applicable offense level is equal to or greater than 43, the GSR will be life. Id. 2 When a defendant has been convicted of more than one count, and those counts constitute more than one group, the court must first determine the offense level applicable to each group by applying §3D1.3, and then apply §3D1.4 to determine the combined offense level applicable to all groups. USSG §3D1.1(a). Pursuant to §3D1.4, to determine the combined offense level applicable to the groups, a court must count the group with the highest offense level as one unit and then increase the offense

- 8 - criminal history category was VI, the GSR was 262 to 327 months.

USSG ch. 5, pt. A (sentencing table).

The court then discussed the

(a) factors

and sentenced Wright to an above-GSR total sentence of 30 years'

imprisonment (360 months) and lifetime supervised release. The

sentence consisted of 25 years' imprisonment on Count 4 and five

years' imprisonment on the remaining counts, to be served

consecutively with the 25-year sentence for Count 4.

This appeal followed.

II. Discussion

Our review of Wright's sentence is twofold. First, "we

. . . determine whether the sentence imposed is procedurally

reasonable." United States v. Flores-Quiñones,

, 133

(1st Cir. 2021) (quotations omitted). If we conclude that it is,

we next determine "whether it is substantively reasonable."

Generally speaking, a sentence is procedurally reasonable unless

the district court commits a procedural error, such as "failing to

calculate (or improperly calculating) the [GSR], treating the

level of that group depending on the seriousness of the offense levels of the other groups. The resulting offense level is the "combined offense level." USSG §3D1.4. As relevant here, §3D1.4(a) provides that one additional unit is counted for each group that is equally serious, and that if there are two units, two levels are added to the offense level. Lastly, USSG §3D1.5 instructs courts to use the "combined offense level" to determine the "total punishment" under Chapter Five of the USSG. Commentary to §3D1.5; Commentary to §5G1.2.

- 9 - [g]uidelines as mandatory, failing to consider the § 3553(a)

factors, selecting a sentence based on clearly erroneous facts, or

failing to adequately explain the chosen sentence -- including an

explanation for any deviation from the [GSR]." United States v.

Díaz-Rivera,

, 25 (1st Cir. 2020) (quoting United States

v. Bermúdez-Meléndez,

(1st Cir. 2016)). And a

sentence is substantively reasonable as long as the "sentencing

court has provided a 'plausible sentencing rationale' and reached

a 'defensible result.'" Flores-Quiñones, 985 F.3d at 133

(quotations omitted).

We review preserved claims of procedural and substantive

unreasonableness under the deferential abuse-of-discretion

standard, reviewing findings of fact for clear error and issues of

law de novo. United States v. Dávila-Bonilla,

, 9 (1st

Cir. 2020). We review unpreserved claims of error under the

plain-error standard. United States v. Vélez-Andino,

, 112-13 (1st Cir. 2021).

A. Grouping Errors

Wright first argues that the resentencing court's

grouping of his offenses of conviction constituted a procedural

error that affected his sentence. Moreover, he contends that the

government waived any argument to the contrary when it agreed

during the first sentencing proceeding that all four counts should

be grouped together. The government does not defend the court's

- 10 - grouping ruling. Nevertheless, it contends that any error was

harmless under the circumstances because the GSR was not affected

by the error.3

Wright does not dispute that the GSR would have been the

same regardless of the alleged error. Specifically, it is

undisputed that, even if all of the counts had been grouped

together, the two-level adjustment under §3D1.4 would not have

applied, but the two-level obstruction enhancement under §3C1.1

would have enhanced the offense level for Count 4. Thus, the total

offense level would have been 34, and the GSR still would have

been 262 to 327 months.

Because the government does not dispute that there was

an error, and that the GSR was the same regardless of that error,

the only issue is whether the error affected the sentence imposed.

Where "the [GSR] would have been the same regardless of whether

the district court's [g]uidelines calculations were correct, we

have generally found any potential error harmless." United States

v. Graham,

, 62 (1st Cir. 2020) (collecting cases).

But we must nevertheless be "sure that the error did not affect

the sentence imposed." United States v. Alphas,

, 780

3The government also contends that Wright waived any challenge to the grouping ruling on appeal because he mischaracterized the nature of that ruling in his opening brief. For present purposes, it suffices to assume that Wright's challenge is preserved -- nevertheless, we note that we doubt that he waived it.

- 11 - (1st Cir. 2015). "In other words, resentencing is required if the

error either affected or arguably affected the sentence."

Wright contends that the grouping error was not harmless

because, even though the GSR would have been the same, "the court

calculated the total punishment separately for each 'group,' and

then ran those sentences consecutively." The record supports

Wright's assertion that the court made separate calculations. In

explaining the sentence that it imposed, the court stated that it

was treating Count 4 and Counts 2, 3, and 5 as "two crimes" and

that "[o]ne part is the . . . terrorist conspiracy" and the "other

part is the obstruction." And he is correct that the court

determined the sentence for Count 4 first, before determining the

sentences for Counts 2, 3, and 5, and then imposing those sentences

consecutively.

Nevertheless, reading the record as a whole, it is clear

that the court's grouping ruling did not affect the overall

sentence imposed. Instead, the record shows that, independent of

the grouping ruling, the court imposed the sentence in two parts

because (1) it was focused on the fact that Count 4 had to be

imposed consecutively, and thus logically should be considered

separately; and (2) it was responding to the government's repeated

requests throughout the resentencing proceeding that the court

impose a serious sentence for Count 4, with a focus on what a

reasonable sentence for that count would be, separate and apart

- 12 - from determining a reasonable overall sentence and a reasonable

sentence for the obstruction counts.

The government trained its arguments on ensuring that

the sentence imposed for Count 4 reflected what it viewed as a

sufficiently serious sentence because of another issue that had

arisen during the first sentencing. In that proceeding, the court

had initially stated that the sentence for Count 4 would be 28

years, and that all counts would run concurrently. However, when

the government reminded the court that the sentence for Count 4

had to be imposed consecutively to those of the other counts, the

first sentencing court responded that it would instead "make [Count

4] an 8-year count, so that the total sentence is 28 years," and

the resulting judgment reflected that approach. At the

resentencing proceeding, the government explained that it didn't

"want to have the same issue arise in this sentencing as the last

one" -- that is, it did not want Count 4 to result in a sentence

that was, in the government's view, of insufficient length. Thus,

it requested a specific sentence for Count 4 -- a sentence of at

least 30 years.

Although the sentencing court did not at that point in

the hearing indicate what its sentence for Count 4 would be, it

told the government to "[a]ssume [it] w[ouldn]'t do it quite that

way" -- referring to the first sentencing court's alleged failure

to adequately consider the sentence for Count 4. Additionally, in

- 13 - its assessment of the § 3553(a) factors, the court specifically

stated that the terrorist conspiracy count was a "very serious

offense," that Congress ha[d] "annunciate[d] heavy sentences" for

it, and that "the guidelines [for it] are quite strong." Those

statements are best read to refer to the fact that, pursuant to 18

U.S.C. § 2332b, Count 4 carries a maximum sentence of life, and to

the fact that, in the court's view, the correct GSR for Count 4

was in fact life imprisonment (despite the court's acknowledgement

that it was bound by the law of the case to find that it was 262

to 327 months). The court further stated that it had to be

"respectful of those kinds of choices," indicating its agreement

with the government that Count 4 required a serious sentence and

should be considered separately.

The court also stated that it must consider the

obstruction counts and the terrorist counts separately because

that's "where we start in thinking about consecutive [sentences],"

referring to the requirement that the sentence for the terrorism

count be consecutive and that, in the court's view, it therefore

should be considered separately.

Finally, the court stated that, "as [the government]

pointed out," it had to consider first the appropriate sentence

for the terrorism crime and only then the appropriate sentence for

the obstruction crimes "not merely as a matter of properly

constructing the guideline calculation" (emphasis added). Thus,

- 14 - it indicated that there was a reason for imposing Wright's sentence

in two parts that was independent of the Sentencing Guidelines:

Wright's conviction on Count 4 independently required a serious

sentence.

In summary, Wright is correct that the court calculated

the punishment for the terrorism count and for the obstruction

counts separately and then imposed those sentences consecutively.

The record, however, makes clear that there was a reason

independent of the grouping ruling that caused the court to do

this. The court performed two separate calculations because, in

its view, Congress required the court to impose a sentence on the

terrorism count consecutively and because the court agreed with

the government's argument that Count 4 deserved a serious sentence.

Accordingly, any grouping error was harmless under the

circumstances.

B. Vindictiveness Claim

Wright next contends both that the resentencing court

failed to adequately explain why its imposition of a more severe

sentence than the one vacated on appeal was not vindictive, and

also that there was no adequate reason for a higher sentence. The

sentence, according to Wright, was thus generally unreasonable for

lack of proper explanation and because it violated his right to

due process.

Generally speaking, under the so-called Pearce rule, a

- 15 - presumption of vindictiveness may arise when a judge imposes a

more severe sentence after a new trial, unless "the reasons for

. . . doing so must affirmatively appear [and] . . . . [are] based

upon objective information concerning identifiable conduct on the

part of the defendant occurring after the time of the original

sentencing proceeding." North Carolina v. Pearce,

(1969). The rule ensures that defendants do not face higher

sentences simply because they choose to exercise their right to

appeal or to collaterally attack their conviction. See

.

We have held, though, that "[t]he Pearce presumption

does not arise where 'different sentencers assessed the varying

sentences that [a] defendant received.'" United States v. Clark,

(1st Cir. 1996) (emphasis in original) (quoting

Texas v. McCullough,

(1986)), superseded on other

grounds United States v. Nagell,

(1st Cir. 2018).

Here, there is no indication that the resentencing court imposed

a more severe sentence because Wright appealed. Indeed, the court

expressly acknowledged its obligation when it stated that,

although it had reviewed the first sentencing court's decisions,

it had to make an "independent judgment." Accordingly, we reject

Wright's due-process-based procedural-reasonableness challenges.

C. Claims of Inadequate Explanation

Wright next contends that his sentence must be vacated

- 16 - because the facts that the court found supported a below-guidelines

sentence -- not the upwardly variant sentence that the court

imposed -- and although the court noted certain facts that could

have supported the upward variance, it never tied them to the

sentence imposed or to the GSR.

As an initial matter, in his brief Wright framed this

argument as one of substantive unreasonableness, but during

argument before us he asked that we consider whether it amounted

to either a substantive or procedural error. Although arguments

raised for the first time at oral argument are normally deemed

waived, see United States v. García-Ortiz,

, 84 (1st

Cir. 2008), we will nevertheless consider his argument from both

angles.

The government contends that our review is for plain

error because Wright never made any objection that the court had

not, or had not adequately, explained the upward variance. But,

if construed as a substantive challenge, Wright's argument is

preserved regardless of whether he objected. In Holguin-Hernandez

v. United States,

(2020), the Supreme Court

explained that "where a criminal defendant advocates for a sentence

shorter than the one ultimately imposed" -- as Wright did here --

the defendant "has thereby informed the court of the legal error

at issue in an appellate challenge to the substantive

reasonableness of the sentence."

. A concurring

- 17 - opinion in Holguin-Hernandez explained that the majority opinion

should not be read to suggest that "a generalized argument in favor

of less imprisonment will insulate all arguments regarding the

length of a sentence from plain-error review."

(Alito,

J., concurring) (emphasis in original). But we have indicated

that where, as here, a defendant asserts on appeal that his

sentence is substantively unreasonable because the court did not

give an adequate explanation for an upward variance, we will treat

that issue as preserved so long as the defendant had requested in

district court a shorter sentence than the one imposed. See, e.g.,

United States v. García-Mojica,

, 192, 194 (1st Cir.

2020). Thus, insofar as his challenge is substantive, our review

is for abuse of discretion.

i. Procedural Reasonableness

To the extent that Wright alleges a procedural error

based on the insufficiency of the court's explanation, our cases

require that a contemporaneous objection be made to preserve the

claim. United States v. Merced-García,

, 80-81 (1st

Cir. 2022). Therefore, because no such objection was made, Wright

must show plain error -- that is, "(1) that an error occurred (2)

which was clear or obvious and which not only (3) affected [his]

substantial rights, but also (4) seriously impaired the fairness,

integrity, or public reputation of judicial proceedings."

(alterations in original) (quotations omitted).

- 18 - We begin by reviewing whether the court's explanation (or

lack thereof) constituted a procedural error. A claim of such an

error is based on

(c), which provides that "[t]he

court, at the time of sentencing, shall state in open court the

reasons for its imposition of the particular sentence[.]" To

satisfy that requirement, the court must identify the "main factors

behind its decision." United States v. Vargas-García,

(1st Cir. 2015).

Here, the district court's explanation did not fall short

of that requirement, and it certainly did not clearly or obviously

do so. When it considered the § 3553(a) factors, the court began

by noting "the seriousness of the offense." In doing so, it

hearkened back to its earlier statement in the proceeding that,

although the PSR's view of the GSR for Count 4 was the law of the

case, the court in fact agreed with the government that the GSR

should have been life, and the court's view of that question would

"affect [the court's] judgment . . . about the section 3553

factors." The court further noted that Congress has "annunciate[d]

heavy sentences, [and] the guidelines are quite strong" -- again

referring to its view of the correct GSR and to Count 4's maximum

sentence of life -- and stated that it had to be "respectful of

those kinds of choices."

The court next found that Wright's role in his crimes

was not just "game-playing" or "role-playing," as he had testified

- 19 - at trial, and noted that it would "take . . . into consideration"

Wright's deceptive testimony in imposing a sentence. More

specifically, the court found that Wright had "lied [and] . . .

misrepresent[ed] . . . what his [true] role was" and that although

such conduct had not been charged as perjury, the court had to

consider what "that mean[t] in terms of culpability."

Third, the court noted that it viewed the terrorism and

the obstruction charges as "working hand in hand and accelerating

each other" in a way that is "about as significant [a crime] as

society faces in the absence of actual homicide."

Finally, the court discussed general deterrence and

observed that, because of the need for that deterrence, "this is

an area in which a serious sentence is imposed."

The court did not expressly link these reasons to the

upward variance. Nevertheless, "that linkage may fairly be

inferred from a review of the sentencing transcript." United

States v. Davis,

, at *2 (1st Cir. 2022). And the

reasons that the court gave could certainly be considered "as

falling outside the factors explicitly considered by the

Guidelines." García-Mojica, 955 F.3d at 193. At the very least,

Wright has not shown how the court's failure to expressly link the

reasons to the upward variance was an error that was plain.

By extension, Wright also has not demonstrated that the

district court plainly erred when it opted not to impose a sentence

- 20 - below the GSR. Wright does point to several instances in which

the court suggested that the GSR was, in its view, too high. The

court observed that Wright appeared to recognize why his crime was

wrong, which it noted "suggests some modification . . . of the

guidelines." The court also acknowledged that Wright was "thirsty

for knowledge [and] opportunities," and therefore the lack of

programming in prisons due to the COVID-19 pandemic "counsel[ed]

against a more severe sentence than in the range of the low end of

the guidelines." But such statements do not necessarily connote

that the court believed that a downward variance was warranted

(and surely do not clearly or obviously suggest that); rather, a

reasonable interpretation of them is that, without such factors,

the court might have imposed a higher sentence than the one it

imposed. Accordingly, under the circumstances, "no clear or

obvious 'lack of explanation' error" under § 3553(c) occurred.

Vargas-García,

.

ii. Substantive Reasonableness

We next turn to whether that same alleged lack of or

insufficient explanation made Wright's sentence substantively

unreasonable. As stated, our review is for abuse of discretion.

And in the context of an upwardly variant sentence, as with any

other sentence, "the distinguishing characteristics of a

substantively reasonable sentence are 'a plausible rationale' and

'a defensible result.'" United States v. Valle-Colón, 21 F.4th

- 21 - 44, 50 (1st Cir. 2021) (quoting United States v. Rivera-Morales,

, 21 (1st Cir. 2020)).

Our reasons for concluding that there was no clear or

obvious procedural error also lead us to conclude that there was

no such substantive error under an abuse-of-discretion standard.

See

(discussing the "overlap" between procedural and

substantive challenges of that nature). Specifically, the

sentencing court discussed three factors that we can infer the

court believed were not adequately accounted for in the GSR and

justified an upward variance, and which together constitute a

plausible rationale: (1) the seriousness of the offense, which the

court viewed as greater than the GSR suggested -- both because of

the Congressionally determined maximum sentence attached to Count

4 and because of the court's view that what it deemed the law of

the case was not correct; (2) that Wright's deceptive testimony at

trial was problematic and made him more culpable; and (3) that the

combination of the obstruction and the terrorism involved in

Wright's case made the crime extremely serious. Furthermore,

although the court acknowledged and discussed certain factors that

it viewed as mitigating, a fair inference from the court's

discussion (though it did not say so explicitly) is that the court

gave such mitigating factors less weight than it gave the

aggravating factors. See United States v. Clogston,

(1st Cir. 2011) ("That the sentencing court chose not to attach

- 22 - to certain of the mitigating factors the significance that the

appellant thinks they deserved does not make the sentence

unreasonable."); United States v. Montero-Montero,

(1st Cir. 2016) (noting that, in context of procedural

reasonableness, that the explanation of the sentence must be either

"explicit" or a "fair inference from the sentencing record").

Nor can we say that the result was not defensible. The

upward variance was 33 months above the top of the GSR, or an

approximately ten-percent increase over that upper limit. Given

the serious nature of the offenses of conviction and the conduct

involved, the court could have reasonably viewed the sentence as

"sufficient, but not greater than necessary," to achieve the

"legitimate goals of sentencing." Vargas-García,

(quoting

(a)).4

We also reject Wright's assertion that the court "claim[ed] 4

that [it] was imposing a below-Guideline sentence." The court stated that the 300-month sentence it was imposing for Count 4 was "below various of the guidelines that [the court] had talked about." But, read in context, it is clear that the court was referring to the GSR that the government had contended attached to Count 4 due to §2A1.5, a position with which the court stated it agreed and which was discussed at length during the proceeding. Moreover, and in any event, any notion that the court did not realize that it was imposing a sentence above the GSR is refuted by its written statement of reasons, in which the court checked a box indicating that the sentence it imposed was "above the guideline range." See United States v. Martin,

(1st Cir. 2008) (explaining that, in evaluating the reasonableness of a sentence, we review "the district court's . . . near- contemporaneous written statement of reasons" among other things).

- 23 - III. Conclusion

For the foregoing reasons, we affirm Wright's sentence.

- 24 -