United States v. Brown

26 F.4th 48

• Court: Court of Appeals for the First Circuit
• Decided: February 16, 2022
• Docket: 20-1959P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 20-1959

UNITED STATES OF AMERICA,

Appellee,

v.

EDWARD BROWN,

Defendant, Appellant.

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

[Hon. George Z. Singal, U.S. District Judge]

Before

Thompson and Kayatta, Circuit Judges, and Katzmann,* Judge.

Benjamin L. Falkner, with whom Krasnoo, Klehm & Falkner LLP was on brief, for appellant. Seth R. Aframe, Assistant United States Attorney, with whom John L. Farley, Acting United States Attorney, was on brief, for appellee.

February 16, 2022

* Of the United States Court of International Trade, sitting by designation. THOMPSON, Circuit Judge. Before us a second time, Edward

Brown, who has been in prison for the last thirteen years for tax

fraud and his role in a well-publicized armed standoff with the

U.S. Marshals Service, appeals from his lengthy, but shorter-than-

original, sentence of 300 months in prison. Lodging claims of

both constitutional and sentencing error, he seeks to have his new

sentence tossed in exchange for a sentence of time served. After

careful review, we disagree, and so affirm.

BACKGROUND

I. The Crimes

The story of this case begins back in 2006.1 Then,

Edward Brown and his wife, Elaine Brown, were indicted by a federal

grand jury on charges related to their failure to pay taxes.2 They

went to trial, although Edward attended only a few days before he

decided to stop showing up. Their defense was that the government

had no legal authority to collect the taxes. Eventually, a jury

convicted both Edward and Elaine. But neither showed up for

sentencing. They were each sentenced, in absentia, to 63 months

1 In considering the defendant's challenge to his sentence, we take the facts from the trial record, the undisputed portions of the presentence investigation report, and the transcript of the sentencing hearing. See United States v. Rivera-Morales, 961 F.3d 1, 5 (1st Cir. 2020). 2 Because these individuals both play a key role in this case and share the same surname, we will refer to them by their given names and mean no disrespect in doing so.

- 2 - in prison. Neither Edward nor Elaine surrendered to the federal

authorities to serve their sentences.

It is that failure to surrender which leads us to the

crimes of conviction at issue in Edward's appeal today.3 Warrants

for the Browns' arrest issued. Meanwhile, Edward was holed up at

his New Hampshire residence along with Elaine. Though the U.S.

Marshals Service knew where the Browns were, getting them into

custody proved less than straightforward (to say the least). For

about eight months, Edward made violent threats toward the

government officials attempting to arrest them, such as (as one of

the Marshals recalled at trial): "If anything happens to my wife

or I, then everybody associated with this case will get theirs."

As another Marshal recalled at trial, Edward said he thought the

police were afraid to arrest him and that, if the authorities

arrested him, "people are going to die. The Marshal is going to

die. . . . It's going to be a war." The Browns also made repeated

public statements about their standoff, welcoming into their

fortified home a number of supporters who agreed to help them out,

including Daniel Riley, Jason Gerhard, Cirino Gonzalez, and Robert

Wolffe.4

3 If the reader thirsts for a more detailed account of the events, we've detailed them twice before. See United States v. Brown, 669 F.3d 10, 14–17 (1st Cir. 2012); United States v. Gerhard, 615 F.3d 7, 12–18 (1st Cir. 2010). 4All four of these helpers were later arrested and charged. Three went to trial, were convicted, and received considerable

- 3 - Realizing that a standard arrest wouldn't do for this

high-risk circumstance, the Marshals began to develop plans to try

to safely arrest the Browns. In the first attempt, officers tried

to move clandestinely onto the property and arrest Edward on his

routine of grabbing the mail at the end of his driveway. That

attempt, though, failed when Riley, who was out walking a dog,

encountered hidden officers. Riley was taken into custody, and

when Edward heard the commotion, he was seen ascending a tower on

top of his home and brandishing a .50-caliber rifle, pointing it

toward the driveway.

After that failed attempt, the Marshals backed off for

a few months while they hatched a new plan. In the meantime, they

began to round up some of the Browns' soon-to-be convicted co-

conspirators, who Marshals, for strategic reasons, had up to that

point allowed to enter and exit the compound. And those arrests

yielded a wealth of information about what the Marshals were facing

inside the Brown enclave.

For example, Riley told the Marshals that he purchased

twelve pounds of Tannerite, an explosive amalgam, at Edward's

request. Gonzalez, Riley relayed, had brought firearms to the

sentences of imprisonment: 432 months for Riley, 240 months for Gerhard, and 96 months for Gonzalez. Gerhard, 615 F.3d at 12. Wolffe was handed a 30-month sentence after pleading guilty. Judgment, United States v. Wolffe, No. 07-cr-189-04 (D.N.H. Aug. 1, 2008), ECF No. 497.

- 4 - compound and had performed armed patrols around the property with

an assault rifle. Riley also told the Marshals that numerous

handguns and rifles were stashed throughout strategic locations in

the house. And he noted at least two black-powder explosive

devices were in the home, plus he believed there were ten-to-

twenty more of them in there. While detained, Riley also admitted

to another inmate that he had assembled spring guns and placed

explosive containers on trees around the home. Wolffe told the

Marshals about the cache of firearms in the home, and that Edward

and Riley had tested which firearms were best suited to make the

biggest explosions when fired at the Tannerite devices.

Flash forward to October 2007, and it was time for the

Marshals to test their newest game plan for seizing the Browns.

The new strategy began with undercover Marshals contacting the

Browns through a confidential informant. Along with the informant,

three undercover Marshals retrieved some property from Elaine's

dental office (which she had requested) and brought it to the

Browns at their compound. After the delivery was complete, Edward

brought beer onto the porch for the four retrievers and for a

fourth undercover Marshal who had since arrived. After using the

agreed-upon time-to-make-a-move codeword the Marshals had

established, the undercover officers grabbed Edward, tasered him,

and took him into custody. Other Marshals seized Elaine, and

everyone walked away unscathed.

- 5 - After the arrest, authorities searched the Browns'

property. Numerous improvised explosive devices were scattered

thereabout, which experts from the Bureau of Alcohol, Tobacco,

Firearms and Explosives had to remove. Officials also found trip

wires, shotgun shells from spring guns, and Tannerite bombs and

plastic bags containing propane cans nailed to trees around the

property. Inside the house, officials recovered eighteen firearms

ranging from pistols to .50-caliber rifles. They also turned up

approximately 60,000 rounds of live ammunition, including armor-

piercing and incendiary rounds. In a single closet in the Browns'

master bedroom, agents located twenty-two assembled and active

pipe bombs. Elsewhere in the house, they found nine fully

assembled spring guns, including evidence that they at one point

had been mounted in the tree line. Agents also recovered cans of

gun powder, some of which had nails taped to them. And, if all of

that wasn't enough, even more explosive-making materials were

recovered in various spots in the home.

II. The Resulting Proceedings

Following their capture, a federal grand jury indicted

Edward and Elaine, charging Edward on seven counts. Count I

charged conspiracy to prevent officers of the United States from

discharging their duties, in violation of 18 U.S.C. § 372. Count

II -- conspiracy to commit an offense against the United States,

in violation of 18 U.S.C. §§ 371 and 111(a) & (b). Count III

- 6 - charged him with carrying and possessing a firearm in connection

with a crime of violence, in violation of 18 U.S.C. § 924(c)(1).

Count V -- being a felon in possession of a firearm, in violation

of 18 U.S.C. § 922(g)(1). Count VII -- obstruction of justice, in

violation of 18 U.S.C § 1503. Count IX charged Edward with failing

to appear for his tax-fraud trial, in violation of 18 U.S.C.

§ 3146. And Count X -- failing to appear for sentencing in the

tax-fraud case, in violation of 18 U.S.C. § 3146.5 Edward and

Elaine went to trial, and they both were convicted on all counts.

Following on from his occasional outbursts at the trial,

Edward was rather combative at his original sentencing and

accompanying competency proceeding. Throughout the proceedings,

he often lodged his own objections, even though he was represented

by counsel. He butted in to argue about a competency witness's

testimony while he was still on the stand, interrupted the

government's counsel (one time, for example, to call him a liar),

and interrupted the judge to argue with him and call him

"beautiful." At one point when he was being removed from the

courtroom, Edward accused the judge of being a "criminal" and a

"communist." After being returned to the courtroom following a

"timeout," Edward even told the judge that the district court

5Counts IV, VI, and VIII charged only Elaine, but the parties often describe the counts as they are numerated in the indictment, so we will follow the same trend.

- 7 - readying to sentence him was "not a court." After Edward exercised

his allocution rights, the judge proceeded to explain the sentence

he imposed. But interjecting himself during that process, Edward

demanded to be taken out of the courtroom again, as in his telling,

he had "had enough of this trash." The court obliged his request.

Speaking of his allocution, Edward went on an extended

rant about what he sees as a crisis of our country. Edward revealed

to the court that he is a member of a group called the United

States Constitution Rangers, whose goal is to "defend[] the

Constitution and the people of the United States Republic."

According to Edward, one core principle of the Rangers' philosophy

is that its members "will ignore . . . any laws or orders that

violate" certain constitutions and their Bill of Rights. And he

openly questioned the authority of the federal laws, suggesting

that the United States Constitution from 1789 was illegally

replaced in 1879. Edward further informed the court that he

intended to "expose a [criminal] cell in the government."

Addressing his crimes, Edward told the court that he "could have

killed all five of those agents [who came to arrest him] easily

and lawfully."

In handing down the sentence, the district court

explained its rationale. Noting that Edward had "engaged in a

long period of lawlessness and endangered multiple government

officials in the discharge of their duties," the court found Edward

- 8 - (who, recall, was no longer in the courtroom at his own request)

to be "entirely unrepentant" and concluded Edward "would have

killed multiple marshals if they hadn't dealt with him so

effectively." The court went on to note how Edward had recruited

others into his beliefs, all of whom ended up with lengthy prison

sentences. And the court explained that it was imposing a "severe

punishment . . . to promote respect for the law and to deter others

who attempted to engage in this type of conduct."

Ultimately, and considering the severity of Edward's

conduct, the judge handed down a sentence as follows: 72 months

total on Counts I, V, and VII; 60 months on Count II, to run

concurrently with the sentence on Counts I, V, and VII; 12 months

total on Counts IX and X;6 and then the mandatory-minimum 360

months on Count III, the charge under § 924(c), to be served

consecutively to the other sentences. As the court tallied that

up, it meant a "total term of 444 months['] imprisonment." And

that "term of imprisonment" was to run consecutively to the term

6The transcript of the sentence orally announced by the court reflects that the 12-month sentence on Counts IX and X ran concurrently to the sentences on Counts I, II, V, and VII. The written judgment, though, specified that the 12-month sentence ran consecutively -- not concurrently -- to those other counts. More on that later.

- 9 - that Edward was already serving for the tax-fraud convictions,

which had begun running on October 4, 2007.7

Flash forward to 2016, when Edward filed his second

motion to vacate, set aside, or correct his sentence under 28

U.S.C. § 2255. We granted him leave (and his wife, too) in 2019

to file this second or successive § 2255 motion, see 28 U.S.C.

§ 2255(h), attacking his § 924(c) conviction based on Johnson v.

United States, 576 U.S. 591 (2015). The district court granted

Edward's motion with the government's assent, vacated the § 924(c)

count based on United States v. Davis, 139 S. Ct. 2319 (2019), and

ordered resentencing.8

Before resentencing, Dr. Jill Durand, a licensed

psychologist retained by Edward, evaluated him and issued a report.

In it, Dr. Durand described Edward as "self-confident, grandiose

and strong in his convictions." Recounting her interviews with

Edward, she noted that he "maintained and expressed his unchanging

beliefs regarding the US Government, distrust of the Court system,

7The court also sentenced Edward to three years of supervised release. 8 In Davis, the Supreme Court held that the residual clause of 18 U.S.C. § 924(c) (i.e., the clause defining a "crime of violence" as felonies "that by their nature, involve a substantial risk that physical force against the person or property of another may be used in the course of committing the offense," 139 S. Ct. at 2323–24 (cleaned up)) is unconstitutionally vague, id. at 2336. Johnson found a similarly worded provision of the Armed Career Criminal Act unconstitutionally vague. 576 U.S. at 606.

- 10 - and his position that he did not have a proper hearing in Court."

Edward also described the court as "unethical and immoral" and

part of a criminal justice system that is a "racketeering

organization with instructions from a European cartel," and stated

that he views judges as unconstitutional. Regarding his crimes,

he maintained that he "didn't do anything wrong" concerning his

failure to pay his taxes. Edward, she noted, "believes that he

has been the victim of an unjust system and that his actions were

warranted, justified or not unlawful." Nonetheless, Dr. Durand

opined that there is "little concern" that Edward would pose a

danger to others if released. Still, she cautioned of the

possibility that Edward would ignore or evade a probation officer's

attempts to supervise him upon his release from prison.

Edward, represented by counsel, objected to being

resentenced. He argued that it would violate the Double Jeopardy

and Due Process Clauses of the Constitution to sentence him again,

as, according to his math, he had already served the complete time

he was sentenced on all but the § 924(c) sentence, which was

vacated. We'll get into that more later, but the district judge

rejected his argument. And putting that argument aside, Edward

asked in the alternative that he be sentenced to time served.

Conversely, the government sought a Guidelines-range sentence of

between 360 months to life.

- 11 - At the resentencing hearing, Edward, at the court's

invitation, allocuted anew, with a couple of his recitals invoking

a sense of déjà vu. He said he was investigating a "criminal

element within the government" and that the U.S. government remains

beholden to a European cartel. He also debuted a new claim -- the

Department of Justice is a "terrorist organization." When probed

about the circumstances of his standoff with the Marshals, he told

the court that he was "going to defend [him]self," including with

his .50-caliber rifle if he had to. When asked directly whether

he thought he was violating the law with the months-long standoff,

he responded "No." Nor did he violate the law when he failed to

pay his taxes, proclaiming those laws invalid. And, falling back

on an old refrain, he questioned the authority of the judge to

pass sentence on him under the criminal laws.

Notwithstanding his views about the validity of the

proceedings, Edward disavowed any intent to hurt anyone in the

standoff and told the judge that he did not want or need his

firearms anymore. And though he denied the validity of the laws,

he conceded that he had no choice but to follow them and committed

to the court to doing so.

In the end, the district judge imposed a 300-month

sentence -- that is, 144 months below the prior sentence and 60

months below the Guidelines range. The court explained that

sentence was warranted due to the nature and seriousness of the

- 12 - crime, the characteristics of Edward, the need to deter Edward and

others from committing the same crime, the need for just punishment

and to promote respect for the law, and the need to protect the

public from any further crimes committed by Edward. Specifically,

the judge focused on the fact that Edward not only harbors his

beliefs about the validity of the government and the laws, but he

went further, acting on those avowals and putting others in danger.

Edward, he observed, was the ringleader of the standoff, recruiting

others and "brainwash[ing]" one, leading them to incur lengthy

prison sentences. Finally, the judge emphasized that Edward did

not appear to show remorse for his actions. Rather, he continues

to believe that he never did anything wrong.

Standing at 78 years old at the time of resentencing,

Edward objected to the substantive reasonableness of his sentence.

His timely appeal followed.

DISCUSSION

I. The Constitutional Challenges

Edward first raises two constitutional objections to his

sentence. He claims that his new sentence violated the Double

Jeopardy and Due Process Clauses of the Constitution because he

had already served the entirety of all sentences imposed for all

counts except for the final sentence on the § 924(c) count. And,

because the § 924(c) conviction was vacated, he says that the

district court could not have resentenced him on the counts as to

- 13 - which he had already served his sentences. We review these

preserved issues of constitutional law de novo. United States v.

Szpyt, 785 F.3d 31, 36 (1st Cir. 2015).

A. Double Jeopardy

The Double Jeopardy Clause of the Fifth Amendment

provides that "[n]o person shall . . . be subject for the same

offence to be twice put in jeopardy of life or limb." U.S. Const.,

amend. V. The guarantee against double jeopardy "has been said to

consist of three separate constitutional protections." United

States v. DiFrancesco, 449 U.S. 117, 129 (1980) (quoting North

Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other

grounds by Alabama v. Smith, 490 U.S. 794 (1989)). First, the

clause "protects against a second prosecution for the same offense

after acquittal." Pearce, 395 U.S. at 717. Second, it "protects

against a second prosecution for the same offense after

conviction." Id. And third, as particularly relevant here, "it

protects against multiple punishments for the same offense." Id.

The Supreme Court has limited the application of double-

jeopardy principles in some respects, concluding, for example,

that a successful appeal does not, in general, bar a defendant

from being retried, Bullington v. Missouri, 451 U.S. 430, 438

(1981), or from receiving a harsher sentence, Pearce, 395 U.S. at

723. Particularly with sentencing, the Court has made clear that

criminal sentences do not carry the same constitutional finality

- 14 - and conclusiveness as attaches with a jury's verdict of acquittal.

DiFrancesco, 449 U.S. at 132-33. Thus, the touchstone for the

double-jeopardy analysis is whether the defendant had a legitimate

"expectation of finality in the original sentence." See id. at

139; see also Evans v. Michigan, 568 U.S. 313, 319-20 (2013)

(explaining that double jeopardy does not preclude retrial after

a properly granted mistrial because "no expectation of finality

attaches to a properly granted mistrial"); United States v.

Pimienta-Redondo, 874 F.2d 9, 16 (1st Cir. 1989) (en banc).

In conducting that analysis, we remain mindful that

generally, as the Supreme Court has noted, "[a] criminal sentence

is a package of sanctions that the district court utilizes to

effectuate its sentencing intent." Pepper v. United States, 562

U.S. 476, 507 (2011) (quoting United States v. Stinson, 97 F.3d

466, 469 (11th Cir. 1996) (per curiam)). Indeed, the sentencing

factors of 18 U.S.C. § 3553(a) "are used to set both the length of

separate prison terms and an aggregate prison term comprising

separate sentences for multiple counts of conviction." Dean v.

United States, 137 S. Ct. 1170, 1175 (2017). Thus, the so-called

sentencing-package doctrine comes into the fold in cases that

"typically involve multicount indictments and a successful attack

by a defendant on some but not all of the counts of conviction."

Greenlaw v. United States, 554 U.S. 237, 253 (2008). And in those

circumstances, "[b]ecause a district court's 'original sentencing

- 15 - intent may be undermined by altering one portion of the calculus,'"

Pepper, 562 U.S. at 507 (quoting United States v. White, 406 F.3d

827, 832 (7th Cir. 2005)), appeals courts "may vacate the entire

sentence on all counts so that, on remand, the trial court can

reconfigure the sentencing plan to assure that it remains adequate

to satisfy the sentencing factors" of § 3553(a), Greenlaw, 554

U.S. at 253.

Applying that doctrine, we have held that "where the

Guidelines contemplate an interdependent relationship between the

sentence for the vacated conviction and the sentence for the

remaining convictions -- a sentencing package -- a district court

may, on a petition under 28 U.S.C. § 2255, resentence on the

remaining convictions." United States v. Rodriguez, 112 F.3d 26,

30-31 (1st Cir. 1997) (footnote omitted). We, as have our judicial

superiors, have recognized that "when a defendant is found guilty

on a multicount indictment, there is a strong likelihood that the

district court will craft a disposition in which the sentences on

the various counts form part of an overall plan." Pimienta-

Redondo, 874 F.2d at 14. And, "[w]hen the conviction on one or

more of the component counts is vacated, common sense dictates

that the judge should be free to review the efficacy of what

remains in light of the original plan, and to reconstruct the

sentencing architecture upon remand, within applicable

constitutional and statutory limits, if that appears necessary in

- 16 - order to ensure that the punishment still fits both crime and

criminal." Id.; see United States v. García-Ortiz, 657 F.3d 25,

31 (1st Cir. 2011) ("When a defendant successfully challenges one

of several interdependent sentences, the proper course often is to

remand for resentencing on the other (non-vacated) counts.").

Further, we have previously concluded that a district

court does not offend double jeopardy when it resentences, in

forming a sentencing package anew, on counts surviving appeal or

a § 2255 petition. See Pimienta-Redondo, 874 F.2d at 16. In

Pimienta-Redondo, we faced two defendants' double-jeopardy

challenge to their resentencing after one of their two counts of

conviction was vacated. Id. There, the defendants were initially

sentenced to consecutive terms of imprisonment on each of the two

counts of conviction. Id. at 11. On appeal, we affirmed one

count, vacated the other, and remanded. Id. at 11–12. On remand,

the district court gave each defendant the same aggregate sentence

-- just via a longer sentence on a single count. Id. at 12.

On appeal again from resentencing, the defendants

contended that increasing their sentence on the surviving count of

conviction violated their double-jeopardy protections. Id. at 16.

Relying on the sentencing-package doctrine, we rejected their

argument and concluded there is no double-jeopardy violation in

the district court's resentencing a defendant to a longer sentence

on counts unaffected by appeal. Id. Indeed, we recognized that

- 17 - "[w]here the defendant challenges one of several interdependent

sentences (or underlying convictions) he has, in effect,

challenged the entire sentencing plan." Id. (quoting United States

v. Shue, 825 F.2d 1111, 1115 (7th Cir. 1987)). Thus, we said, a

defendant "can have no legitimate expectation of finality in any

discrete portion of the sentencing package after a partially

successful appeal," and thus no double-jeopardy claim. Id.

(quoting Shue, 825 F.2d at 1115). Instead, the trial court may

resentence a defendant on the remaining counts "to effectuate [its]

original sentencing intentions." Id.

Edward says Pimienta-Redondo actually commands that his

resentencing violated the Double Jeopardy Clause. He clings to

our statement there that a "defendant 'has no legitimate

expectation of finality in the original sentence[s] when he has

placed those sentences in issue by direct appeal and has not

completed serving a valid sentence.'" Id. (emphasis added)

(alteration in original) (quoting United States v. Andersson, 813

F.2d 1450, 1461 (9th Cir. 1987)). According to Edward then, he,

unlike the defendants in Pimienta-Redondo, has completed the valid

sentences on all but the now-vacated § 924(c) conviction. Indeed,

no matter how you calculate the original sentence (whether

accepting that the sentence on Counts IX and X ran concurrently or

consecutively to the sentences on Counts I, II, V, and VII), it is

undisputed that Edward had served at least 84 months on the counts

- 18 - of conviction in this case by the time he was sentenced.9 Thus,

Edward says, he completed the entirety of the constituent sentences

on Counts I, II, V, VII, IX, and X -- leaving only the 360-month

consecutive sentence on the § 924(c) conviction remaining to

serve.

The problem with that distinction, though, is that

Pimienta-Redondo does not clarify what the "valid sentence" to be

served is: a string of constituent sentences or the aggregate

sentencing package. And on top of that, Pimienta-Redondo itself

recognized explicitly that when a vacated count tears apart the

overall sentencing plan, "common sense dictates that the judge

should be free to review the efficacy of what remains in light of

the original plan, and to reconstruct the sentencing architecture

upon remand." 874 F.3d at 14. Pimienta-Redondo thus does not

control the outcome here.

And when we look to our sister circuits around the

country, they are nearly uniform in their conclusion that a

defendant has no legitimate expectation of finality for double-

9 Recall that the court's oral sentence stated that 12-month sentence on Counts IX and X ran concurrently to the sentences on Counts I, II, V, and VII. The written judgment, though, specified that the 12-month sentence ran consecutively -- not concurrently -- to those other counts. As stated, the discrepancy is irrelevant here because even if the sentence on Counts IX and X did run consecutively, the total on Counts I, II, V, VII, IX, and X would be 84 months. And it is undisputed that Edward had served at least that amount before resentencing.

- 19 - jeopardy purposes even where she served the entirety of a

constituent sentence in a sentencing package. See United States

v. Triestman, 178 F.3d 624, 631–32 (2d Cir. 1999) (Sotomayor, J.);

United States v. Smith, 115 F.3d 241, 247 (4th Cir. 1997); United

States v. Benbrook, 119 F.3d 338, 340–41 (5th Cir. 1997);

Pasquarille v. United States, 130 F.3d 1220, 1222–23 (6th Cir.

1997); United States v. Smith, 103 F.3d 531, 535 (7th Cir. 1996);

United States v. Alton, 120 F.3d 114, 116 (8th Cir. 1997); United

States v. McClain, 133 F.3d 1191, 1192–94 (9th Cir. 1998); United

States v. Easterling, 157 F.3d 1220, 1223–24 (10th Cir. 1998);

United States v. Townsend, 178 F.3d 558, 569-70 (D.C. Cir. 1999).

In fact, the only circuit Edward points to that in theory

has accepted his argument -- the Fourth Circuit -- quickly

distinguished its prior holding and reached the opposite

conclusion on the same issue less than a year later. Compare

United States v. Silvers, 90 F.3d 95, 101 (4th Cir. 1996) ("As the

government concedes, reimposition of sentence on counts upon which

Silvers had fully satisfied his sentence violated the Double

Jeopardy Clause."), with Smith, 115 F.3d at 247 (distinguishing

Silvers where the defendant had not "fully discharged" his

aggregate sentence). And subsequent panels of the Fourth Circuit

have considered themselves bound by Smith -- not Silvers. See

United States v. Douthit, 133 F.3d 918, at *1 n.* (4th Cir. 1998)

(unpublished table decision) ("[B]ecause Smith recognized the

- 20 - apparent conflict and distinguished Silvers, we are bound as a

panel of the court by its holding." (citation omitted)); United

States v. Butler, 122 F.3d 1063, at *1 n.* (4th Cir. 1997)

(unpublished table decision) (same).

Our sister circuits have reasoned that if a sentence is

properly viewed as a package -- that is, "one unified term of

imprisonment," Townsend, 178 F.3d at 570 (quoting Easterling, 157

F.3d at 1224) -- then a defendant cannot have a legitimate

expectation in finality where she "ha[s] not satisfied [her]

sentence on the remaining counts in any meaningful sense," id.;

see Pasquarille, 130 F.3d at 1223–24 ("Because the defendant has

no legitimate expectation of finality in any discrete part of an

interdependent sentence after a partially successful appeal or

collateral attack, there is no double jeopardy bar to enhancing an

unchallenged part of an interdependent sentence to fulfill the

court's original intent." (quoting United States v. Harrison, 113

F.3d 135, 138 (8th Cir. 1997))). Thus, "the legal interdependence

of sentences under the Guidelines permits a court to reconsider

related sentences in the context of a collateral attack."

Triestman, 178 F.3d at 631 (cleaned up) (quoting United States v.

Mata, 133 F.3d 200, 202 (2d Cir. 1998)).

That is so because, in general, defendants do not

"receive[] separate and distinct sentences" for related

convictions -- they "receive[] one aggregate sentence for th[e]

- 21 - interdependent offenses." Benbrook, 119 F.3d at 340. Thus, by

attacking one portion of a sentencing package, a defendant

"necessarily attack[s] the whole." Id. Defendants "cannot

selectively craft the manner in which the court corrects th[e]

judgment" to dismember the sentencing package favorably to them.

Alton, 120 F.3d at 116 (quoting Gardiner v. United States, 114

F.3d 734, 736 (8th Cir. 1997)). Nor does resentencing in any real

way disadvantage the defendant: Rather than enacting a double

punishment for the non-§ 924(c) counts, a full resentencing to

restructure the original sentencing package does "nothing more

than put [the defendant] in the same position [she] would have

occupied had [she] not been convicted under [§] 924(c) in the first

place." Triestman, 178 F.3d at 631 (quoting Mata, 133 F.3d at

202).10

10 Trying to dodge the onslaught of circuits rejecting his theory, Edward claims his view is commanded by Supreme Court precedent, citing to Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873). There, the defendant was convicted on one count and erroneously sentenced to both one year in prison and a fine, though the statute only authorized either punishment, not both. Id. at 175. The defendant paid his fine and then began to serve the sentence for five days. Id. Realizing the error, the court tried to resentence the defendant to one year in prison, this time without a fine. The Supreme Court reversed, observing that the new sentence would have the prisoner pay the fine and be imprisoned for a year and five days. Id. The Court said that by the defendant's "fully suffer[ing] one of the alternative punishments . . . the power of the court to punish further was gone." Id. at 176. Yet the Supreme Court has since cabined Lange's reach only to "the uncontested proposition that the Double Jeopardy Clause prohibits punishment in excess of that authorized by the legislature," and clarified that it does not stand "for the broader

- 22 - So it follows, we echo our sister circuits in concluding

that "[w]hen a defendant elects to challenge one part of a

sentencing package whose constituent parts are truly

interdependent," reconstituting "the entire sentencing package

does not constitute a double jeopardy violation." Id. (internal

quotation marks omitted) (quoting Mata, 133 F.3d at 202); see also

United States v. Cain, 837 F. App'x 853, 856 (2d Cir. 2021)

(continuing to apply this rule post-Davis).

Edward's double-jeopardy claim thus rises and falls with

whether his original sentence is properly considered a package.

We have acknowledged that a total aggregate sentence on multiple

counts does not always mean there is a true sentencing package.

See Rodriguez, 112 F.3d at 30 n.1. To determine whether a true

sentencing package exists, we look to whether "the guidelines

establish an interdependent relationship between the sentence

vacated or subject to amendment and the sentence for the remaining

convictions." United States v. Jordan, 162 F.3d 1, 6 (1st Cir.

rule suggested by its dictum," referring specifically to the quoted language Edward harps on. Jones v. Thomas, 491 U.S. 376, 382-83 (1989). Moreover, even accepting Lange's dictum, it does not change the analysis here because the "punishment" to be "fully suffered" by Edward is not any single sentence (as it was in Lange), but the total sentencing package. See Townsend, 178 F.3d at 570 (recognizing that distinction). And that's particularly so where, as here, some of the defendant's original constituent sentences were reduced in light of the now-vacated portion of the package. The defendant can have no legitimate expectation of finality in those constituent sentences when she seeks to upset other portions of the package.

- 23 - 1998). And we search for whether "the same basic course of conduct

underlies both the vacated count and the count on which the

conviction is affirmed." Rodriguez, 112 F.3d at 30; see also

United States v. Lassiter, 1 F.4th 25, 30 (D.C. Cir. 2021) (noting

that "[o]ne indicator of the sentencing judge's intent [regarding

a sentencing package] is the substantive relationship between the

various counts").

Applying this framework, we are quite confident that

Edward's original 444-month sentence was one package. For one,

all the counts of conviction arise out of the same events:

Edward's failure to appear for his trial and sentencing in the

tax-fraud case, his subsequent walling off in his booby-trapped

New Hampshire property with a host of firearms and explosives, and

his threats against the law-enforcement agents trying to wrangle

him out of his fortress to serve his sentence on the tax-fraud

counts. See also Townsend, 178 F.3d at 567 ("Sentences which

include § 924(c) counts are particularly well suited to be treated

as a package.").

For another, it is quite clear that the mandatory-

minimum sentence on the § 924(c) count substantially influenced

the judge's initial sentence on the remaining counts. Under the

2008 Sentencing Guidelines in effect at Edward's original

sentencing, he faced an effective Guidelines range of 570 to 622

months. See U.S.S.G. §§ 3D1.1(a), 3D1.1(b)(1), 3D1.3(a), 5G1.2(a)

- 24 - (2008) (providing that the offense level is determined by taking

the highest offense level of the counts in the group of charges,

and then adding it consecutively to the mandatory-minimum

sentence). Edward's sentence was substantially lower than the

government's suggested Guidelines sentence of 570 to 622 months.

And although Edward received statutory-maximum sentences on Counts

I and II, see 18 U.S.C. § 372; id. § 371, he received sentences

well below the maximums on the remaining counts, see id.

§ 924(a)(2) (maximum ten years' imprisonment for Count V); id.

§ 1503(b)(3) (same for Count VII); id. § 3146(b)(1)(A)(ii)

(maximum five years' imprisonment for Counts IX and X). Had the

district court thought the mandatory-minimum sentence on the

§ 924(c) count too harsh, it could have always departed even lower

than it did and sentenced Edward to a single day on the remaining

counts. See Dean, 137 S. Ct. at 1177; United States v. Sanders,

197 F.3d 568, 573 (1st Cir. 1999) (noting that a mandatory-minimum

consecutive sentence does not break apart a sentencing package;

rather, the mandatory minimum requires the sentencing court to

"consider[] how far it want[s] to go above" that mandatory

minimum). The court's decision in the first go-round to sentence

Edward to a prison term at least 126 months less than the

Guidelines range -- even when the judge emphasized that Edward was

"entirely unrepentant," that his actions were "reprehensible," and

that the judge "had no doubt in [his] mind that Mr. Brown would

- 25 - have killed multiple marshals" -- further reveals that the initial

sentence operates as one package. See Lassiter, 1 F.4th at 31

(noting that it is "especially" appropriate to presume a sentencing

package "when the judge imposed a below-guidelines sentence for

the violent felony").

On top of that, the Guidelines range Edward faced on the

non-§ 924(c) counts was lower than it would have been had he not

been charged under § 924(c). The § 924(c) conviction helped keep

certain Specific Offense Characteristic enhancements off the non-

§ 924(c) charges. See U.S.S.G. § 2k2.4 app. note 4 (2008). And

that further bespeaks the interrelatedness of the sentences in the

package. See Rodriguez, 112 F.3d at 28, 30-31 (noting that

sentences were interrelated where the § 924(c) count prohibited

adding certain enhancements to other counts).

To cinch things, Edward has made no attempt to rebut the

interrelatedness of the various sentences making up his original

444-month total term of imprisonment. Rather, he put all his eggs

in the basket of the contention that the completion of a

constituent sentence gave him a legitimate expectation of finality

in the original sentence on that particular count, and thus "the

'sentencing package doctrine' does not apply to him." Concluding,

as we do, that a defendant has no legitimate expectation of

finality until she has served the entire package of interrelated

sentences, his argument thus founders. Edward's rights under the

- 26 - Double Jeopardy Clause were not violated here, particularly where

he received a new aggregate sentence substantially below the

aggregate sentence initially imposed: 300 months compared to the

original 444. See Triestman, 178 F.3d at 632 (noting the defendant

"could not legitimately have expected a better result" where he

received a "significantly reduced" aggregate sentence on

resentencing).

B. Due Process

Given that conclusion, Edward's due-process claim fares

no better. Edward contends that his due-process rights were

violated because he "had a right to rely on the validity of the

original sentences and to expect that when he had served his time

behind bars, those sentences were complete." Notwithstanding the

fact that his formulation of this claim is nearly identical to how

he portrayed his double-jeopardy claim, Edward contends the due-

process claim is entirely separate. But see United States v.

Davis, 112 F.3d 118, 123-24 (3d Cir. 1997) (characterizing the

due-process inquiry, too, as whether the defendant had a legitimate

expectation of finality).

To make out his claim, Edward points to our discussion

in Breest v. Helgemoe, 579 F.2d 95 (1st Cir. 1978). There,

addressing a due-process challenge to a resentencing, we

acknowledged the "real and psychologically critical importance" a

prospective date of release may play for a defendant. Id. at 101.

- 27 - Thus, we said that "[a]fter a substantial period of time . . . ,

it might be fundamentally unfair, and thus violative of due process

for a court to alter even an illegal sentence in a way which

frustrates a prisoner's expectations by postponing his parole

eligibility or release date far beyond that originally set." Id.;

see also Rodriguez, 112 F.3d at 31 & n.4 (acknowledging there could

be due-process concerns with resentencing a defendant after, for

example, long delay or actual release from custody). And we've

since clarified:

[T]here may be limits on the right to correct an erroneous sentence in cases "with extreme facts: a long delay, actual release of the defendant from custody based on the shorter sentence, singling out of the defendant for a belated increase apparently because of his commission of another offense for which parole revocation would have been available, and other troubling characteristics."

Rodriguez, 112 F.3d at 31 n.4 (quoting United States v. Goldman,

41 F.3d 785, 789 (1st Cir. 1994)).

Edward reminds us that he had served over seven years of

his standoff-related convictions in prison at the time of

resentencing (and about thirteen years in total including the tax-

fraud convictions). Thus, his argument goes, he has served a

"substantial period of time" -- including actually "complet[ing]

sentences of incarceration" -- resulting in his having a right to

rely on the original length of the sentences on the non-§ 924(c)

counts.

- 28 - The problem for Edward, though, is that his argument

presumes that he can have a legitimate right to rely on the length

of constituent sentences in a sentencing package -- which we just

rejected in his double-jeopardy argument. And, to boot, he cannot

identify any other court that has accepted his argument. Instead,

the courts of appeals have rejected his argument in short order.

See, e.g., Townsend, 178 F.3d at 570 (rejecting due-process claim

"[b]ecause [the defendant] could not expect finality of his

sentence on some counts even while he challenged others, [and thus]

resentencing was not fundamentally unfair"); Easterling, 157 F.3d

at 1223–24 (rejecting due-process argument for the same reason as

the double-jeopardy claim). Indeed, the Fourth Circuit has

described this argument as "merely a rehash" of the double-jeopardy

argument and concluded that, since the defendant did not receive

separate sentences but rather one package, he could have no right

to rely on those sentences where he challenged one piece of the

sentencing puzzle. Smith, 115 F.3d at 248.

We similarly reject Edward's contention that he had a

right to rely on the length of his non-§ 924(c) sentences that

built part of his sentencing package. Since Edward was sentenced

to "a total term of 444 months['] imprisonment," he could have no

reliance interest in the length of those constituent sentences.

We think that particularly so where, as here, Edward had served

just about a fifth of that total sentence by the time of

- 29 - resentencing. See Rodriguez, 112 F.3d at 27–28, 31 (finding no

fundamental unfairness where the defendant had served more than

three years of an about 10-year sentence and he received a 45-

month reduction at resentencing). And it was Edward -- not the

government -- who petitioned to have his § 924(c) conviction

vacated. What's more, in the end, Edward's new sentence was 144

months shorter than his original sentence.11 Thus, Edward

effectively received the same sentence as he would have had the

§ 924(c) count never been charged in the first place. See

Pasquarille, 130 F.3d at 1223 (finding no due-process violation

where "the defendant's total sentence ha[d] been reduced and he

was resentenced according to the court's original sentencing

plan," thus "put[ting] him back in the position he would have

faced" without the § 924(c) conviction). That was not

fundamentally unfair.

II. Sentencing Reasonableness

Constitutional concerns quenched, we turn to review the

sentence's reasonableness. To do so, we engage in our familiar

bifurcated inquiry. United States v. Maldonado-Peña, 4 F.4th 1,

55 (1st Cir. 2021). We start by checking the procedural

reasonableness of the sentence. Id. After we do so, we then turn

We acknowledge that, even with this reduced sentence, 11

Edward will be 91 years old by the time he is slated for release.

- 30 - to evaluate a defendant's arguments that his sentence is also

substantively unreasonable. Id.

A. Procedural Reasonableness

So we begin with Edward's procedural-reasonableness

challenge. "A sentence is procedurally unreasonable when the

district court commits a procedural error 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

range.'" United States v. Pupo, 995 F.3d 23, 28 (1st Cir. 2021)

(quoting United States v. Díaz-Rivera, 957 F.3d 20, 25 (1st Cir.

2020)).

In assessing preserved claims of procedural

reasonableness, we apply a "multifaceted abuse-of-discretion

standard whereby we afford de novo review to the sentencing court's

interpretation and application of the sentencing guidelines,

examine the court's factfinding for clear error, and evaluate its

judgment calls for abuse of discretion." Maldonado-Peña, 4 F.4th

at 55–56 (cleaned up) (quoting United States v. Arsenault, 833

F.3d 24, 28 (1st Cir. 2016)). For judgment calls, we chalk the

district court's decision up to an abuse of discretion only when

we're "left with a definite conviction that 'no reasonable person

- 31 - could agree with the judge's decision.'" Id. (quoting United

States v. McCullock, 991 F.3d 313, 317 (1st Cir. 2021)). If a

defendant fails to preserve his procedural-reasonableness claim,

though, we then apply the "quite formidable" plain-error standard.

McCullock, 991 F.3d at 317.

Edward lodges a single attack on the procedural

reasonableness of his sentence. He contends the district court

violated his First Amendment rights to maintain and express his

beliefs when it relied on those beliefs to increase Edward's

sentence. Specifically, Edward takes issue with the district

court's emphasis of the fact that, even after his time already

served in prison, he continues to believe that the criminal laws

are not valid and denies any wrongdoing.

Edward's counsel argued to the district court that it

was inappropriate for the court to rely on Edward's beliefs in

fashioning a sentence. Edward's counsel did not, however, lodge

any formal objection to the procedural reasonableness of the

sentence on that ground.12 Nonetheless, even assuming favorably

to Edward that he preserved his claim of procedural reasonableness,

12 We have also seemed to imply that this particular ground of sentencing error is related to substantive -- not procedural -- reasonableness. See United States v. Alvarez-Núñez, 828 F.3d 52, 55 (1st Cir. 2016); but see United States v. Williamson, 903 F.3d 124, 136 (D.C. Cir. 2018) (lumping this ground in as a procedural error). We assume without deciding that a sentencing judge's improper reliance on a defendant's protected First Amendment activity can make out a claim of procedural unreasonableness.

- 32 - his claim fails under even the more-defendant-friendly abuse-of-

discretion framework.

In determining how best to fashion a criminal sentence,

"the sentencing authority has always been free to consider a wide

range of relevant material." United States v. Alvarez-Núñez, 828

F.3d 52, 55 (1st Cir. 2016) (quoting Payne v. Tennessee, 501 U.S.

808, 820–21 (1991)). This gives the sentencing judge room to

conduct "an inquiry broad in scope, largely unlimited either as to

the kind of information [it] may consider, or the source from which

it may come." Id. (quoting United States v. Tucker, 404 U.S. 443,

446 (1972)).

There are limits to that general rule, though. As

relevant here, one of those limits is that "a defendant's abstract

beliefs, however obnoxious to most people, may not be taken into

consideration by a sentencing judge." Wisconsin v. Mitchell, 508

U.S. 476, 485 (1993). However, as with most legal propositions,

context is key. "[T]he Constitution does not erect a per se

barrier to the admission of evidence concerning one's beliefs and

associations at sentencing simply because those beliefs and

associations are protected by the First Amendment." Dawson v.

Delaware, 503 U.S. 159, 165 (1992). Accordingly, though the

Supremes have found First Amendment error in a sentencing court's

review of merely "abstract beliefs," see Dawson, 503 U.S. at 167,

the Court has also readily permitted consideration of a defendant's

- 33 - beliefs when they are "relevant to the issues involved," id. at

164; see Alvarez-Núñez, 828 F.3d at 55 ("The upshot is that conduct

protected by the First Amendment may be considered in imposing

sentence only to the extent that it is relevant to the issues in

a sentencing proceeding."). For example, the Court has found no

error where a sentencing judge considered "the elements of racial

hatred" in the defendant's crime as well as the defendant's "desire

to start a race war" when relevant to the sentencing metrics.

Barclay v. Florida, 463 U.S. 939, 949 (1983) (plurality opinion);

see id. at 970 & n.18 (Stevens, J., concurring in the judgment).

But it has assigned error to the consideration of a defendant's

membership in the Aryan Brotherhood when it had no relevance to

the crimes at issue. Dawson, 503 U.S. at 166–67.

As we've explained, a defendant's beliefs may become

relevant at sentencing "in a multiplicity of ways." Alvarez-

Núñez, 828 F.3d at 55-56. Beliefs and associations "may

legitimately be used to rebut mitigating evidence proffered by the

defendant." Id. at 56. Protected conduct may also become relevant

to evaluate a defendant's remorse, likelihood of reoffending, or

the extent of punishment needed for deterrence. Id. (collecting

cases); see United States v. Williamson, 903 F.3d 124, 136 (D.C.

Cir. 2018) (finding no First Amendment violation in considering

protected activity that bore on "the seriousness of [the] offense

and on the need to protect the public generally . . . from harm").

- 34 - Given that framework, Edward's claim readily fails.

Though Edward thinks the district court could not fashion a

sentence relying on his beliefs about the authority of the

government or the criminal laws, those beliefs are highly relevant

to the § 3553(a) factors. See Alvarez-Nunez, 828 F.3d at 55-56.

Regarding his crimes, Edward maintained that he "didn't do anything

wrong" concerning his failure to pay taxes, and he said that "the

law is wrong." When asked directly whether he thought he was

violating the law with the months-long standoff, he said no. He

told the judge that the laws are not valid. He also questioned

the authority of the judge to pass sentence on him under the

criminal laws. And Dr. Durand noted in her evaluation that Edward

"believes that he has been the victim of an unjust system and that

his actions were warranted, justified or not unlawful."

As the district court amply explained, Edward's

statements go "beyond simply his beliefs." Rather, the judge saw

Edward's statements as "a recipe for trouble," suggesting that

Edward may be dangerous when released from prison. Those beliefs

also, in the judge's view, reflected that Edward did not intend to

obey the law. And, as the district judge put it, the problem is

not that Edward holds these abstract beliefs: "The problem is

that he acts on his beliefs, and, by acting on his beliefs, he put

in danger multiple individuals." And those concerns played into

the court's consideration of the relevant sentencing factors,

- 35 - which it said included (among others) the need to promote respect

for the law, the need to deter Edward and others from committing

the same crimes, and the need to protect the public from further

crimes committed by Edward. See 18 U.S.C. § 3553(a)(2).

We find no procedural error in the district court's

reliance on Edward's beliefs in considering these sentencing

factors. See, e.g., United States v. Schmidt, 930 F.3d 858, 868

(7th Cir. 2019) ("[T]he court properly considered Mr. Schmidt's

white supremacist ideas and hatred for the United States as

evidence that he presents a threat of future dangerousness to the

community." (cleaned up)); United States v. DeChristopher, 695

F.3d 1082, 1098 (10th Cir. 2012) ("Defendant's statements that he

would 'continue to fight' and his view that it was 'fine to break

the law' were highly relevant to the[] sentencing factors.");

United States v. Smith, 424 F.3d 992, 1016–17 (9th Cir. 2005) (no

error in considering the defendant's allocution statements,

including about the district court's "lack of jurisdiction,"

because they were relevant to the defendant's remorse and threat

to the public on release); United States v. Simkanin, 420 F.3d

397, 417–18 (5th Cir. 2005) (finding no constitutional error where

the district court relied on the defendant's "specific beliefs

that the tax laws are invalid and do not require him to withhold

taxes or file returns . . . [because they] are directly related to

- 36 - the crimes in question and demonstrate a likelihood of

recidivism").

Edward further contends that the district court erred in

relying on these personal, strongly held beliefs because he, at

other points, appeared to show that there should be no concern

that he would follow the law upon release. For example, Edward

told the court that he "will follow" the criminal laws even though

"they're not valid" because he has "no choice." And he emphasized

his good behavior in prison as showing that he has submitted to

the government's authority notwithstanding his beliefs.

We will not second-guess the sentencing judge's

determination of the sincerity of Edward's statements absent a

finding of clear error. See United States v. Ubiles-Rosario, 867

F.3d 277, 292 n.15 (1st Cir. 2017); United States v. Cortés-Medina,

819 F.3d 566, 573 (1st Cir. 2016) ("[T]he district court is in the

best position to weigh the credibility of a claim of rehabilitation

and to balance the sentencing scales in light of such a claim.").

Edward has made no effort to demonstrate that standard here, and

we at any rate find no error in the district court's assessment.

The district court considered Edward's statements and

rejected them. Though the judge acknowledged Edward's seemingly

good behavior in prison, he suggested that it was not very

applicable to determining Edward's potential behavior after

release to society because prison is "designed to eliminate

- 37 - resistance." And the judge also acknowledged Edward's statements

that he "will follow" the law, but emphasized that it was "hard to

accept" that Edward wouldn't break the law again or would follow

conditions of release since Edward "indicate[d] to this minute

that . . . they're not valid laws" and that he does not accept the

authority of the court. From our vantage, that appraisal was not

clearly erroneous.

B. Substantive Reasonableness

Satisfying the procedural-reasonableness probe, we turn

now to test the sentence's substantive reasonableness.

"A sentence is substantively reasonable if the

'sentencing court has provided a plausible sentencing rationale

and reached a defensible result.'" Pupo, 995 F.3d at 29 (quoting

United States v. Flores-Quiñones, 985 F.3d 128, 133 (1st Cir.

2021)). This review is highly deferential. United States v.

Fuentes-Moreno, 954 F.3d 383, 396 (1st Cir. 2020). We evaluate

the reasonability of the overall sentence "in light of the totality

of the circumstances." United States v. Flores-Machicote, 706

F.3d 16, 20 (1st Cir. 2013). And we recognize that we owe deference

to the sentencing court's informed discretion in fashioning an

appropriate sentence, ever cognizant of the fact that "[t]here is

more than one reasonable sentence in virtually any case." Fuentes-

Moreno, 954 F.3d at 396 (quoting United States v. Matos-de-Jesús,

856 F.3d 174, 179 (1st Cir. 2017)). Thus, we will find a sentence

- 38 - substantively unreasonable "only if it falls beyond the expansive

universe of reasonable sentencing outcomes." United States v.

Benoit, 975 F.3d 20, 24 (1st Cir. 2020) (quoting United States v.

Rodríguez-Torres, 939 F.3d 16, 43 (1st Cir. 2019)). In other

words, "we do not reverse simply because we would have sentenced

the defendant differently." Id.

Edward submits four reasons his sentence was

unreasonable: (1) the district court's reliance on Edward's

beliefs; (2) the total sentence as compared to the sentences given

his co-defendants; (3) the total sentence considering his advanced

age; and (4) the total sentence, taking everything into account,

was longer than necessary to achieve the sentencing goals of

§ 3553(a). We take each in turn, though mindful that a sentence's

substantive reasonableness must be eyeballed in light of the

totality of the circumstances. See Flores-Machicote, 706 F.3d at

20.

1. Belief system

First, Edward contends, tacking on to his procedural-

reasonableness argument, that the district court's reliance on his

beliefs resulted in a substantively unreasonable sentence. But,

for the same reasons this failed as a procedural-reasonableness

argument, it fails as a substantive-reasonableness argument, too.

Onward.

- 39 - 2. Co-defendant disparity

Next, Edward contends that there was an unwarranted

disparity between the sentence he received and the sentences his

co-conspirators received on resentencing. In imposing sentence,

a district court must consider "the need to avoid unwarranted

sentence disparities among defendants with similar records who

have been found guilty of similar conduct." 18 U.S.C.

§ 3553(a)(6). Though that is typically concerned with national

disparities, we have also considered claims that a sentence is

substantively unreasonable because of a disparity relative to a

co-defendant's sentence. See United States v. Grullon, 996 F.3d

21, 35 (1st Cir. 2021).

Not all co-defendant disparities in sentencing yield a

substantively unreasonable sentence. As we've explained, "[t]he

key word is 'unwarranted' -- that is, § 3553(a)(6) does not ban

all disparities, just 'unwarranted' ones." United States v.

Romero, 906 F.3d 196, 211 (1st Cir. 2018). A defendant "is not

entitled to a lighter sentence merely because his co-defendants

received lighter sentences." United States v. Dávila-González,

595 F.3d 42, 50 (1st Cir. 2010) (quoting United States v. Wallace,

573 F.3d 82, 97 (1st Cir. 2009)). To make out a well-founded claim

of sentencing disparity, a defendant must compare apples to apples.

United States v. Mateo-Espejo, 426 F.3d 508, 514 (1st Cir. 2005).

Among other things that may throw off a direct comparison, we have

- 40 - looked at a co-defendant's cooperation, the nature of her

cooperation, and her choice to plead guilty instead of going to

trial, see United States v. Reyes-Santiago, 804 F.3d 453, 467 (1st

Cir. 2015) (collecting cases), as well as her relative culpability

or role in the crime, see United States v. Reverol-Rivera, 778

F.3d 363, 366 (1st Cir. 2015). In the end, cases of identically

situated defendants "are unusual to say the least." Grullon, 996

F.3d at 35-36.

Applying those principles here, Edward's challenge

fails. Edward clamors that his co-defendants each received

sentences of time served on resentencing even though their original

sentences were substantially higher than what they had to that

point served.13 Yet Edward fails to grapple with the reasons the

sentencing judge gave for the disparity.

First, the judge explained that Elaine, Riley, and

Gerhard each showed that they had "learned" during their prison

terms that what they had done was wrong. As the judge put it,

"[t]hey appeared broken by the period of incarceration," leaving

13 At the time of resentencing, Elaine had served 85 months of her 420-month sentence. Mot. on Resentencing at 1 & n.2, United States v. Brown, No. 09-cr-30 (D.N.H. Jan. 16, 2020), ECF No. 311. Riley had served, as best we can tell, around 12 years of his 36- year sentence. And Gerhard, too, had served over 12 years of his original 20-year prison sentence. Def.'s Obj. to Resentencing & Sentencing Mem. at 3, United States v. Gerhard, No. 07-cr-189 (D.N.H. Jan. 20, 2020), ECF No. 713.

- 41 - the judge with no doubt that there was "no risk" that any of them

would engage in the same behavior. Edward, though, didn't give

the judge the same confidence given his comments that he still

thinks he did nothing wrong, and about the authority of the law

and the courts.

Second, Edward acknowledges that he "may have been more

culpable" than his co-defendants but suggests he wasn't more-

culpable enough to justify serving almost double time in prison.

Yet the district court disagreed. It noted that Edward was "the

leader and instigator of the entire standoff." It also emphasized

that Edward dragged others into his crime to support his standoff,

"brainwash[ing]" one of the co-defendants. Both rationales were

supported by the record.

Ultimately, the sentencing judge assessed Edward's

greater culpability, combined with all the other factors relevant

to his sentencing (including his continued belief he did nothing

wrong), and concluded that he merited a substantially higher

sentence than his co-defendants. He gave a plausible rationale

and reached a defensible result relative to Edward's co-

defendants, so we find no abuse of discretion. See Grullon, 996

F.3d at 36; Reverol-Rivera, 778 F.3d at 367.

3. Age

Finally, Edward appears to contend that the district

court failed to consider his advanced age and the fact that, under

- 42 - the average life-expectancy, he has received "[i]n effect" a life

sentence. This argument, too, fails.

True, a sentencing court is required to consider a

defendant's age as a potential mitigating factor. See 18 U.S.C.

§ 3553(a)(1) (identifying as a sentencing factor "the history and

characteristics of the defendant"). Also true, "in general, '[t]he

propensity to engage in criminal activity declines with age,' and

so persons convicted of a crime late in life may be unlikely to

recidivate." United States v. Pacheco-Martinez, 791 F.3d 171, 180

(1st Cir. 2015) (alteration in original) (quoting United States v.

Johnson, 685 F.3d 660, 661–62 (7th Cir. 2012)).

But even accepting that, a defendant's age is but one of

many factors a sentencing court must consider. See United States

v. Rivera-Morales, 961 F.3d 1, 21 (1st Cir. 2020); see also 18

U.S.C. § 3553(a). The judge here surveyed all the relevant factors

(including the seriousness of the crime, Edward's continued lack

of remorse, and his continued rejection of the authority of the

laws and the court) and concluded they outweighed this mitigating

factor. Indeed, even considering Edward's advanced age, this could

well be a case where Edward's crimes (committed when he was already

64 years old), as well as his continued rejection of the authority

of the criminal laws, revealed that he "may be one of the few

oldsters who will continue to engage in criminal activity until he

- 43 - drops." Pacheco-Martinez, 791 F.3d at 180 (cleaned up) (quoting

Johnson, 685 F.3d at 662).

As we have explained time and again, a sentence is not

rendered unreasonable simply because the sentencing court didn't

apply as much emphasis to some mitigating factors as the defendant

hoped. See, e.g., Pupo, 995 F.3d at 32; United States v. Dávila-

Bonilla, 968 F.3d 1, 12 (1st Cir. 2020). And as we've explained

specifically in the context of a nearly identical argument, a

weighty sentence given to a defendant of advanced age is not

substantively unreasonable where the sentencing judge, considering

all the relevant factors, offers a plausible rationale and delivers

a defensible result. See Pacheco-Martinez, 791 F.3d at 180

(finding no substantive unreasonableness in spite of the

defendant's age because, in part, he "ha[d] shown no sign of

changing his ways" and, at sentencing, expressed no remorse but

instead "assert[ed] that the court lacked jurisdiction over him");

United States v. Angulo-Hernández, 565 F.3d 2, 13 (1st Cir. 2009)

(no substantive unreasonableness where the defendant's advanced

age "was outweighed by the severity of [his] current offense and

history of drug crimes"). The judge did so here.

4. Zooming out

All told, the district court, in light of all the

circumstances here, provided a plausible rationale and delivered

a defensible result. In fact, the result it delivered was a

- 44 - sentence substantially below the Guidelines range. See United

States v. Cameron, 835 F.3d 46, 52 (1st Cir. 2016) ("It is a rare

below-the-range sentence that will prove vulnerable to a

defendant's claim of substantive unreasonableness." (quoting

United States v. King, 741 F.3d 305, 310 (1st Cir. 2014)).

Considering all of Edward's arguments as a whole, we spy no error.

CONCLUSION

Our work complete, the judgment below is affirmed.

- 45 -