United States Court of Appeals For the First Circuit

No. 23-1292

UNITED STATES OF AMERICA,

Appellee,

v.

CALVIN MENDES,

Defendant, Appellant.

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

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Montecalvo, Selya, and Rikelman, Circuit Judges.

Syrie D. Fried and Good Schneider Cormier Fried & Brooks on brief for appellant. Joshua S. Levy, Acting United States Attorney, and Alexia R. De Vincentis, Assistant United States Attorney, on brief for appellee.

July 11, 2024 SELYA, Circuit Judge. Defendant-appellant Calvin Mendes

challenges his upwardly variant sentence, which was imposed

following the revocation of a term of supervised release. He

contends that his sentence is procedurally flawed because, inter

alia, the district court failed to adequately explain its rationale

and improperly considered an arrest that did not result in a

conviction. Concluding, as we do, that the appellant's sentence

was adequately explained, was not based on an improper appraisal

of the appellant's earlier arrest, and was otherwise within the

bounds of the district court's discretion, we affirm.

I

We briefly rehearse the relevant facts and travel of the

case.

A

On March 6, 2020, the appellant pleaded guilty to charges

of conspiracy to distribute and possess with intent to distribute

100 grams or more of heroin, 400 grams or more of fentanyl,

cocaine, cocaine base, oxycodone, and marijuana; possession with

intent to distribute fentanyl; and being a felon in possession of

a firearm and ammunition. See

;

(a)(1);

(g)(1). The United States District

Court for the District of Massachusetts sentenced him to serve

concurrent thirty-month terms of immurement, to be followed by

- 2 - three years of supervised release. His supervised release term

commenced in September of 2020.

The appellant repeatedly violated the conditions of his

supervised release. As a result, the district court revoked his

supervised release no fewer than three times. The first revocation

occurred on February 11, 2022, after the appellant admitted to

four violations of his supervised release conditions. The district

court sentenced him to a single day of imprisonment (for which he

was credited with time served) and imposed a new nineteen-month

term of supervised release.

The second revocation took place on December 15, 2022

(after the appellant admitted to six more violations of his

conditions of supervised release). The district court again

imposed an incarcerative sentence of one day (for which he was

credited with time served), along with a new twelve-month term of

supervised release.

In the weeks following the second revocation, the

appellant violated several conditions of his supervised release.

This conduct resulted in a third revocation hearing, held on March

23, 2023. The probation office alleged that the appellant had

violated six categories of his conditions of release. We briefly

describe the conduct underlying the alleged violations before

turning to the district court's disposition of them.

- 3 - Violation I alleged that the appellant distributed

obscene matter in December of 2022, thus committing another crime.

The government subsequently withdrew Violation I because it

concluded that the appellant's conduct did not constitute a crime

under Massachusetts law. In line with this concession, the

district court agreed not to consider this violation.

Violation II alleged that the appellant tested positive

for controlled substances on four occasions and used substitute

urine in connection with a drug test on yet another occasion.

These acts were said to have occurred between December of 2022 and

January of 2023. The appellant admitted to this violation.

Violations III and IV alleged that the appellant failed

to work regularly at a lawful occupation and failed to be truthful

with his probation officer about his occupation. In January of

2023, the appellant's former employer verified that the appellant

had last worked in June of 2022. When questioned, the appellant

reported that he was still employed, even though he had lost his

job. In the end, however, the appellant admitted to both

violations.

Violation V alleged that the appellant failed to refrain

from committing another crime. The genesis of this violation arose

on February 3, 2023, when the appellant was arrested in a house.

The police discovered that the appellant was staying in the house,

along with another person who had previously been convicted of a

- 4 - felony. They found controlled substances in the house (cocaine

and Suboxone) — including in the room where the appellant was

staying. They also found paraphernalia that was indicative of

drug distribution.

Violation VI arose from the same arrest as Violation V.

It alleged that the appellant failed to refrain from associating

with any persons engaged in criminal activity or convicted of a

felony. The underpinning for this charge comprised evidence that

the appellant lived with another person who had been convicted of

a felony. The appellant admitted to this violation.

B

The day before the third revocation hearing, the

appellant filed a motion to continue on the ground that he did not

have enough time to investigate Violation V. The district court

denied the motion, but agreed not to consider this violation on

the merits. The government did not object but informed the

district court that there was a "slight hiccup," because the

removal of Violation V would "drastically change[] the guideline

sentencing range that the [c]ourt would be considering and the

government's recommendation for sentencing." The court replied

that it understood that "the guideline range would be restricted,"

but asked: "there is no restriction for this [c]ourt to upwardly

depart, is there?" The government responded — without any

objection from the appellant — that no such restriction existed.

- 5 - It subsequently clarified that the maximum available sentence that

the court could impose was sixty months.

Although the guideline sentencing range (GSR) for the

violations was five to eleven months, the government argued for a

thirty-month incarcerative sentence with no new supervised release

term. Such a sentence was appropriate, the government suggested,

because the appellant's several revocation proceedings had shown

a "repeated pattern of disrespect to the Probation Office and

disregard for the conditions that [the court] ha[d] imposed." To

support this suggestion, the government pointed to the appellant's

continued drug use in the two months following his second

revocation and to Violations III and IV. These actions, the

government submitted, indicated that the appellant chose "just

kind of [to] continue to go on about his business in the way that

he deemed appropriate" and not adhere to the terms of his

supervised release. As a result, the government posited that a

significant prison sentence was warranted to promote respect for

the law.

In further support, the government also pointed to

Violations I and V. The government, of course, had agreed that

neither of these would be considered on the merits in the

revocation hearing. Although it conceded that it was not

"proceeding" with Violation V, the government nonetheless asserted

that the presence of drugs and drug paraphernalia found during the

- 6 - appellant's arrest was especially concerning given that the

appellant had originally been convicted of distributing drugs.

So, too, the government argued that, even though the conduct

underlying Violation I was not unlawful, it was "very concerning"

and should still be considered an "aggravating factor" in the

court's sentencing decision.

The appellant objected to the government's reliance on

Violations I and V. The government's argument concerning the

February 3 arrest, the appellant suggested, was tantamount to

asking the district court to consider the substance of the

allegation in Violation V, even though this violation was "not

part of this hearing." When the district court replied that it

"didn't hear the government say anything about violation No. 5,"

the appellant replied that consideration of Violation VI should

not include information about what was found at the house during

the arrest.

When all was said and done, the government recommended

a thirty-month incarcerative sentence, and the appellant opposed

the recommendation. Such a sentence, the appellant argued, was

"excessive," especially given that the evidence clearly

established no more than that the appellant lived with someone who

had been convicted of a felony. As an alternative, the appellant

proposed a term of incarceration of twelve months and one day. In

support, he pointed to the probation office's initial sentencing

- 7 - recommendation of eleven months. And in his allocution, the

appellant urged the court to consider his mental health struggles,

background, and lack of housing. Although he knew that the drug

dealing that led to his original conviction was wrong, he "just

did something to . . . help [him] and [his] daughter in that

situation at the time."

In pronouncing sentence, the district court noted that

— despite the fact that "the Probation Department ha[d] tried to

help [the appellant]" — the appellant had repeatedly violated the

terms of his supervised release. Nor was "this . . . the first

time that [the appellant had] appeared before [the court] for

revocation. It's not the second time. It's the third time." The

court emphasized the gravity of the appellant's underlying drug

offense, stressing the dangerousness of distributing fentanyl — a

drug that is "killing people every day." The appellant's

explanations for distributing fentanyl, the district court

continued, were no excuse: "I don't care what excuse you have. I

don't care that you're homeless. You can't distribute Fentanyl

amongst our population and expect to stay out of jail." The court

concluded by noting that, perhaps with an "extended time of

incarceration," the appellant would "get the message" that, if he

wanted to be involved in his daughter's life, "[he] better resolve

that [he] will not further deal in drugs, especially in Fentanyl,

and that if [he is] ever on supervised release again, that [he]

- 8 - will comply to the letter with any conditions that are imposed,

which [he had] not done."

In the end, the court sentenced the appellant to a term

of immurement of thirty months with no supervised release to

follow. This timely appeal ensued.

II

The appellant argues that the district court's upwardly

variant sentence was procedurally flawed for four reasons. First,

he argues that the sentence was procedurally flawed because the

district court "did not explain why the large degree of upward

departure or variance from the guideline range was warranted."

Second, he argues that the district court unreasonably relied on

unproven criminal conduct. Third, he argues that the district

court impermissibly took into account community-based

considerations concerning the dangers of fentanyl. Fourth, he

argues that the district court's sentence constituted an

"[u]nauthorized [u]pward [d]eparture [u]nder USSG §7B1.4." We

consider each of these arguments in turn.

A

Before reaching the substance of the appellant's

arguments, we reflect briefly upon the applicable standards of

review. Claims of sentencing error, if preserved, are ordinarily

reviewed for abuse of discretion. See United States v. Leach,

(1st Cir. 2023). In this case, the parties dispute

- 9 - whether the appellant preserved any or all of his procedural

challenges. This distinction typically has consequences:

unpreserved claims of sentencing error are ordinarily reviewed

only for plain error. See

Here, however, we need not resolve this contretemps:

under either standard, the government prevails. To confirm this

conclusion, we assay the appellant's claims for abuse of discretion

(the standard of review that is most favorable to the appellant).

See United States v. Bermúdez-Meléndez,

(1st

Cir. 2016).

In reviewing for abuse of discretion, "we assay the

district court's factfinding for clear error and afford de novo

consideration to its interpretation and application of the

sentencing guidelines." United States v. Flores-Machicote,

(1st Cir. 2013). "The touchstone of abuse of

discretion review in federal sentencing is reasonableness."

United States v. Vargas-Dávila,

(1st Cir. 2011).

A sentence is procedurally reasonable if the district court

committed no procedural sentencing errors, such as "failing to

calculate (or improperly calculating) the Guidelines range,

treating the Guidelines 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 Guidelines

- 10 - range." United States v. Martin,

(1st Cir. 2008)

(quoting Gall v. United States,

(2007)).

B

The appellant first argues that the district court

failed adequately to explain how his conduct fell outside of the

mine-run of violations such that it justified an upward variance

of nineteen months. Aside from noting that the appellant had

"flouted [his] supervised release conditions" and "ha[d] not

gotten the message" that he needed to comply with these conditions,

the district court's only justification for its variance —

according to the appellant — was that this hearing was the

appellant's third revocation hearing and that the probation office

"no longer ha[d] anything left." This justification, the appellant

says, was insufficient, especially given that "the farther a

sentence varies from the advisory range, the more explicit the

explanation for the variance must be."

We agree that the district court must adequately explain

both the magnitude and the extent of a variance. See United States

v. Flores-Nater,

(1st Cir. 2023). As we

previously have stated, "[w]hen a district court varies upward, it

must justify the variance," United States v. Rand,

(1st Cir. 2024), and ensure that its justification "is

sufficiently compelling to support the degree of the variance,"

Gall,

. Even so, the district court need not supply

- 11 - an exhaustive rationale; rather, it is only required to provide a

"plausible and coherent" one. Rand,

(quoting

United States v. Del Valle-Rodríguez,

(1st Cir.

2014)). Measured against this benchmark, we think that the

district court's explanation in this case was more than sufficient:

the court adequately explained both why it was imposing an upwardly

variant sentence and the extent of the variance.

The driving force was the appellant's repeated

violations of the conditions of his supervised release. As the

district court emphasized on several occasions, this was not the

first time that the appellant had flouted the conditions of his

supervised release. The appellant had "not once, not twice, but

three times" faced revocation for numerous violations. The

district court reasoned that a higher sentence was warranted

because "it is clear that [the appellant had] not gotten the

message that [he has] to comply with" the terms of the supervised

release. The district court expressed its hope that the extended

term of incarceration would make the appellant "get the message

and understand that, if [he] want[s] to see and have a part in the

life of that 8-year-old daughter of [his], [he] better change the

way [he] live[s]."

Repetition of unlawful conduct is often deserving of

greater punishment than an isolated instance of such misconduct.

See United States v. Centariczki,

(1st Cir.

- 12 - 2024); United States v. Soto-Soto,

(1st Cir.

2017); cf. William Painter, Chaucer Newly Painted (1623) ("They

that deceive me once I them beshrow, They that deceive me twice I

say the same also, But if they shall deceive me any moe, For that

my selfe not them I will beshrow."). A sentencing court does not

abuse its discretion when it relies on a defendant's repeated

supervised release violations to impose an upward variance. Here,

the appellant was given a succession of opportunities to reform

his ways but repeatedly failed to do so. Under these

circumstances, the district court's explanation of its

justification for imposing an upwardly variant sentence was

adequate. So, too, this chiaroscuro record of noncompliance with

supervised release conditions justified the extent of the upward

variance. See Centariczki,

; Soto-Soto,

.1

Our holding in Soto-Soto illustrates the point. See

. There, the defendant pleaded guilty to being a felon

in possession of a firearm and was sentenced to an eighteen-month

term of immurement, followed by three years of supervised release.

1To be sure, palpable misconduct may serve to justify a range of upward adjustments. Within the guardrails of reasonableness, the dimensions of the particular enhancement are for the sentencing court. See Flores-Machicote,

; United States v. Stone,

(1st Cir. 2009). We conclude — without serious question — that the extent of the upward variance in this case was sufficiently justified.

- 13 - See id. at 446-47. While on supervised release, he was brought

before the district court three times for failing to comply with

the conditions of his release. See id. at 447-48. At the final

revocation hearing, the district court sentenced him to the

statutory maximum of two years. See id. at 448. This sentence

substantially exceeded the top of the applicable GSR (eleven

months). See id. We rejected the defendant's assertion that the

sentence was substantively unreasonable and that there was no

plausible rationale for the sentence, because the defendant's

course of conduct as a serial violator of his supervised release

conditions "gave the district court ample reason to believe that

only a substantial sentence would deter him from his wayward

practices." Id. at 450.2

We conclude that the district court provided a

"plausible and coherent rationale" for the upward variance by

emphasizing the appellant's serial noncompliance with the

conditions of his supervised release. Rand,

(quoting Del Valle-Rodriguez,

). We further

conclude that the extent of the upward variance — though

2 That the issue in Soto-Soto was one of substantive reasonableness does not diminish its persuasive force. "[W]e have explained before that 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.'" United States v. Ortiz-Pérez,

(1st Cir. 2022) (quoting United States v. Valle-Colón,

(1st Cir. 2021)).

- 14 - substantial — was commensurate with the extent of the appellant's

serial violations. The appellant accumulated no fewer than

fourteen violations since the start of his original term of

supervised release — several of which occurred within mere weeks

of a prior revocation. The district court, therefore, did not

abuse its discretion when it concluded that such blatant and

frequent disregard for its conditions warranted a steep upward

variance (nineteen months).

In an effort to blunt the force of this reasoning, the

appellant cites our decisions in United States v. Ortiz-Rodríguez,

(1st Cir. 2015), and United States v. Rivera-

Berríos,

(1st Cir. 2020). In each instance,

we held a sentence unreasonable because the district court

predicated its decision to impose an upwardly variant sentence on

factors already accounted for in the guideline calculation. See

Ortiz-Rodríguez,

; Rivera-Berríos,

.

The case before us is a horse of a different hue. In

imposing the upwardly variant sentence, the district court

unambiguously relied on the appellant's continuing disregard of

the conditions of his supervised release. The applicable

sentencing guidelines do not account for either the number of times

a defendant violates the terms of his supervised release or the

number of previous revocations of supervised release. See USSG

- 15 - §7B1.4. Consequently, we conclude that the district court did not

abuse its discretion when it imposed the upwardly variant sentence.

C

The appellant next argues that his sentence was

procedurally flawed because the district court relied on unproven

criminal conduct. There is a "strong[] . . . inference," the

appellant complains, that the district court not only believed

that the appellant had committed a felony drug offense that led to

his arrest in February of 2023 (notwithstanding the fact that there

was no conviction at the time) but also took this conduct into

account when imposing its sentence. To support this inference,

the appellant highlights the fact that the district court

criticized his dealings in fentanyl and "excoriated him for being

a drug dealer in the present." (Emphasis in original.)

This plaint lacks force. As the record makes clear, the

district court criticized the appellant's past dealings in

fentanyl. It was those past dealings — for which the appellant

had been sentenced to a prison term — to which the district court

was referring when it reprimanded the appellant for committing "a

serious drug offense." Seen in context, the reference was not to

the February 2023 arrest.

The district court's explicit mention of fentanyl

bolsters our conclusion. After all, the record before the district

court indicated that the drugs involved in the appellant's 2023

- 16 - arrest were cocaine and Suboxone — not fentanyl. It follows, then,

that the appellant's complaint that the district court used an

unproven allegation as a building block in imposing an upwardly

variant sentence is unsupported by the record.

The district court's determination in this case is

plainly distinguishable from the determination in United States v.

Marrero-Pérez,

(1st Cir. 2019), on which the

appellant relies. There, the court rested its decision to impose

a longer sentence on arrests, police reports, and warrants despite

the fact that no conviction had resulted. See

We vacated the

sentence because the district court erroneously equated this

unsubstantiated material with evidence of the defendant's guilt.

See

.

The case at hand is readily distinguishable. The record

offers no indication that the district court attributed the

criminal activity alleged in connection with the February 2023

arrest to the appellant. The court considered the details of the

arrest solely for their relevance to Violation VI — the appellant's

failure to refrain from associating with a person engaged in

criminal activity. The limited nature of this use is made manifest

by the district court's responses to the appellant's objection to

the government's mention of the February 2023 arrest. The court

observed, "I didn't hear the government say anything about

violation No. 5, and your client admitted to violation No. 6."

- 17 - Because the court did not use the February arrest as evidence that

the appellant was guilty of the misconduct described in Violation

V, the appellant's claim of error founders.

D

The appellant next argues that the district court

improperly relied on community-based considerations concerning the

dangerousness of fentanyl. This argument does not withstand

scrutiny: the district court simply did not look to community-

based considerations when it fashioned the variance.

We previously have stated that a sentencing court may

properly consider community-based considerations in imposing a

sentence. See Flores-Machicote,

. An example is

a decision that identifies "the location where the offense

occurred" and goes on to discuss whether the affected community

was "experiencing a greater-than-customary incidence of related

crime." United States v. Flores-González,

, 408 (1st

Cir. 2023) (en banc); see Flores-Machicote,

.

Here, the district court did not invoke any community-

based considerations. Importantly, its discussion of the

dangerousness of fentanyl did not rely on any heightened danger to

the specific community where the appellant committed his original

crime. Instead, it merely discussed the general danger associated

with the drug. What is more, it is luminously clear that the

district court referred to the dangers of fentanyl not as the

- 18 - foundation for an upwardly variant sentence but, rather, to

admonish the appellant for abusing the "break" that he had received

with respect to his original offenses and for repeatedly violating

the terms of his supervised release.

The court emphasized the serious harms associated with

fentanyl in an effort to ensure that the appellant bore the burden

of his failed attempt to excuse his previous dealings in fentanyl

and his subsequent repeated violations of the terms of his

supervised release. That emphasis was well within the ambit of

the district court's discretion.

E

The appellant's final claim of error — that the district

court engaged in an "[u]nauthorized [u]pward [d]eparture [u]nder

USSG §7B1.4" — is equally unpersuasive. He constructs this

argument around the premise that the district court exhibited a

willingness to consider Violation V, even though it had previously

stated that it would not do so. This receptiveness, the appellant

says, was evident when the district court asked the government if

"there is no restriction for th[e] [c]ourt to upwardly depart"

from the guidelines even without considering Violation V.

The appellant reads the record through rose-colored

glasses. The record makes pellucid that the district court's

question to the government was merely intended to assure the

government that it could still advocate for a thirty-month sentence

- 19 - without Violation V. If anything, this question shows that the

district court was already inclined to impose a longer sentence

regardless of Violation V. Because we conclude that the district

court did not consider Violation V in sentencing, the appellant's

argument stumbles at the starting gate.

The appellant's subsequent contention that the district

court improperly imposed an upward departure fares no better. To

begin, there is a difference between a departure and a variance.

A departure "is a term of art under the Guidelines and refers only

to non-Guidelines sentences imposed under the framework set out in

the Guidelines." United States v. Nelson,

(1st

Cir. 2015) (quoting United States v. Aponte-Vellón,

(1st Cir. 2014)). A variance, by contrast, "result[s] from a

court's consideration of the statutory sentencing factors

enumerated in

(a)."

(quoting Aponte-Vellón,

).

Here, it is clear that the district court imposed an

upward variance — and not a departure. After all, the district

court's intent to vary upward is evidenced by its explicit

reference to section 3553(a). See United States v. Oquendo-Garcia,

(1st Cir. 2015) (holding that district court's

explicit invocation of section 3553(a) during explanation of

defendant's sentence suggested intent to vary rather than depart).

This is the case notwithstanding the district court's unfortunate

- 20 - use of the term "depart." See Nelson,

(holding

that deviation from GSR was variance, even though district court

used term "depart"). This conclusion is also buttressed by the

fact that the probation office, in the Presentence Investigation

Report, explicitly stated that it could not identify any grounds

that would warrant a departure. As such, we have little difficulty

concluding that the district court imposed a variance — not a

departure — and that it did not abuse its discretion when it chose

to impose an above-guidelines sentence of thirty months.3

III

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

the judgment of the district court is

Affirmed.

3 We add, moreover, that the appellant's suggestion that an upward departure following the revocation of supervised release is authorized only it if falls within the application notes of section 7B1.4 is without merit. See USSG §7B1.4.

- 21 -