United States Court of Appeals For the First Circuit
No. 22-1763
UNITED STATES OF AMERICA,
Appellee,
v.
FRANCIS CAHILL, a/k/a Bruce Cossett,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. Lance E. Walker, U.S. District Judge]
Before
Barron, Lynch, Howard, Circuit Judges.
Theodore M. Cooperstein, with whom Susan J. Clouthier and Clouthier Cooperstein PLLC were on brief, for appellant. Brian S. Kleinbord, Assistant United States Attorney, with whom Darcie N. McElwee, United States Attorney, was on brief, for appellee.
October 26, 2023 LYNCH, Circuit Judge. Defendant Francis Cahill pleaded
guilty to one count of possession of a firearm by a convicted
felon. See 18 U.S.C. § 922(g)(1). The district court sentenced
him to a 72-month term of imprisonment, varying upward from the
applicable guideline sentencing range (GSR). On appeal, Cahill
challenges the court's acceptance of his guilty plea and its
sentence. We conclude that there was no error and affirm the
sentence and conviction.
I. Background
Where, as here, the defendant challenges the district
court's sentencing and its acceptance of his guilty plea, "we glean
the relevant facts from the change-of-plea colloquy, the
unchallenged portions of the presentence investigation report
(PSR), and the record of the disposition hearing." United States
v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009). Neither party in this
case objected to the revised presentence report, upon which we
rely.
Francis Cahill was born in Vermont in 1949. In 1978,
at 28 years old and after a decade spent accruing multiple
convictions for assault, burglary, robbery, and other crimes,
Cahill was convicted in Texas of murdering his father-in-law.1
1 Cahill maintains that the gun at issue was defective and had discharged accidentally while he was out hunting with the victim. His account is directly contradicted by what the victim's - 2 - Ten years later, he was paroled to the State of Vermont, from which
he absconded in May of 1991.
In July 1992, Cahill was convicted of possessing
firearms as a felon, in violation of 18 U.S.C. § 922(g), in the
United States District Court for the District of Vermont. Because
this appeal involves Cahill's second conviction under that
statute, we briefly recount the details of that first case.
Cahill was accused of possessing no fewer than four
firearms between March of 1990 and May of 1992. Two of them were
given to him by his brother. One was given to him by a
correctional officer during a hunting trip. He kept that rifle
for five months, then gave it to a felon who had been convicted in
Vermont of armed robbery and unlawful possession of a firearm.
The fourth gun was a rifle he had borrowed from a friend. It was
discovered in May of 1991 when Cahill placed a recorded call to
another friend asking him to remove that gun from the location
where Cahill had hidden it.2
wife told the police at the time: namely, that Cahill, after shooting her husband, had held her and her daughter at gunpoint for approximately thirty minutes to prevent them from providing assistance. 2 At the time, Cahill was detained at the Correctional Center in Vermont after being arrested and later charged with one count of burglary and two counts of assault. He had allegedly punched his ex-girlfriend in the head multiple times, stopping only when she promised not to leave him. She then reportedly went to the hospital but could not receive treatment because the defendant removed her from the premises. The same woman reported - 3 - Cahill was sentenced to 262 months of imprisonment and
five years of supervised release. He finished the custodial
portion of his sentence in late 2010, at which point he was
transferred to the custody of the Texas Department of Corrections
to address a parole violation in connection with the 1978 murder
conviction. In March of 2018, he was paroled to a halfway house
in Texas, but absconded less than five months later. He then
returned to his native Vermont before settling in Corinth, Maine.
In 2020, Cahill was once again accused of a serious criminal
offense. As the presentence report notes, a Maine resident went
to the police on May 15, 2020, with his ear bleeding and both
forearms "bruised and bloody," claiming that Cahill had gone onto
his property and hit him in the head with a crowbar. Contacted
by the police, Cahill admitted that he had done so, but alleged
that they had argued and that the victim had tried, unsuccessfully,
to hit him first. Cahill was arrested based on the other party's
account and his admission, but no charges were issued.
an earlier incident in which the defendant had allegedly pushed her to the ground and dragged her. The burglary charge, also supported by the ex-girlfriend's statements to the police, involved the defendant's alleged breaking into a camp and stealing items. The charges went forward but the court declared a mistrial after it discovered that jury members had improperly discussed the case among themselves. The State Attorney's Office then dismissed the case, noting that the defendant was already being prosecuted by the federal government under 18 U.S.C. § 922(g).
- 4 - In 2021, with assistance from the FBI, the Denton, Texas
Police Department discovered that Cahill might be in Maine. The
Texas authorities then requested help from the Maine State Police,
which determined Cahill's location through his driver's license
and the registration of the car he was known to drive. The
defendant was arrested on August 17, 2021. After being advised
of his rights under Miranda, he confessed to having two firearms
by the dresser in his bedroom.
The police obtained a warrant to search for those
firearms but were unable to find them in Cahill's bedroom. The
owner of the house, a friend of Cahill's, then admitted that he
had moved the guns from his tenant's bedroom to his own closet.
Afterwards, he gave the weapons, both loaded, to the officers.
The police also found several boxes of ammunition and a firearm
cleaning kit in Cahill's bedroom.
A federal grand jury in Maine indicted Cahill in January
2022 on one count of unlawful possession of a firearm in violation
of 18 U.S.C. § 922(g)(1), listing the 1978 murder conviction as
the predicate felony. On March 31, 2022, he appeared at the United
States District Court for the District of Maine and entered a
guilty plea. The court sentenced him on October 3, 2022, to
seventy-two months of imprisonment and three years of supervised
release.
Cahill timely filed a notice of appeal. He raises two
- 5 - grounds of appeal to us: first, that the district court erred in
accepting his guilty plea, and second, that its sentence was
substantively unreasonable. We review each challenge in turn.
II. Discussion
A. Review of the defendant's guilty plea.
A guilty plea is constitutionally valid only if it is
entered "voluntarily, knowingly, and intelligently." Bradshaw v.
Stumpf, 545 U.S. 175, 183 (2005). "[A] plea does not qualify as
intelligent unless a criminal defendant first receives 'real
notice of the true nature of the charge against him, the first and
most universally recognized requirement of due process.'" Bousley
v. United States, 523 U.S. 614, 618 (1998) (quoting Smith v.
O'Grady, 312 U.S. 329, 334 (1941)). Accordingly, before it may
accept a guilty plea, the court is required to "inform the
defendant of, and determine that the defendant understands, . . .
the nature of each charge to which the defendant is pleading."
Fed. R. Crim. P. 11(b)(1)(G). The record must show that the
defendant "correctly understood the essential elements of the
crime with which he was charged." See Bousley, 523 U.S. at 618.
The district court must also determine that there is a
factual basis for the defendant's guilty plea. See Fed. R. Crim.
P. 11(b)(3). "The purpose of this requirement is to 'protect a
defendant who is in the position of pleading voluntarily with an
understanding of the nature of the charge but without realizing
- 6 - that his conduct does not actually fall within the charge.'"
United States v. Ventura-Cruel, 356 F.3d 55, 59-60 (1st Cir. 2003)
(quoting Advisory Committee Notes to the 1966 Amendment, Fed. R.
Crim. P. 11).
Cahill argues that the district court failed to assure
itself, and to create a sufficient record demonstrating, that his
guilty plea was constitutionally valid and in accordance with Rule
11. Because he did not make this objection at the district court,
plain error review applies. United States v. Guzmán-Merced, 984
F.3d 18, 20 (1st Cir. 2020).
"The defendant's burden under the plain error standard
is a heavy one." United States v. Ramirez-Benitez, 292 F.3d 22,
27 (1st Cir. 2002). The defendant must prove "(1) an error,
(2) that is clear or obvious, (3) which affects his substantial
rights . . . and which (4) seriously impugns the fairness,
integrity, or public reputation of the proceeding." United States
v. Correa-Osorio, 784 F.3d 11, 17-18 (1st Cir. 2015).
To assess whether the court's acceptance of Cahill's
guilty plea was valid under the principles set forth above, we
review the record and, in particular, the transcript of the change
of plea hearing. We hold that the plea colloquy sufficiently
demonstrates that Cahill understood the nature of the charge
against him.
- 7 - At the change of plea hearing, the district court, before
accepting Cahill's guilty plea, asked him and his counsel "a few
questions" to ensure that Cahill was pleading knowingly and
voluntarily. The court first asked Cahill whether he was pleading
guilty because he was actually guilty. It then asked Cahill's
counsel whether he was "satisfied" of the defendant's actual guilt.
Counsel responded that he was and that he "should indicate to the
Court that [his] assessment of the prosecution's theory [was] based
on . . . constructive possession." The court then asked whether
Cahill had "receive[d] a copy of the indictment," had had "enough
time to discuss the charge" with his counsel, and had had "the
elements and the nature of the charge" explained to him by his
counsel, obtaining affirmative answers to each question. The
court then explained the rights that Cahill would waive by pleading
guilty and the potential penalties that might be imposed.
The court proceeded to ascertain whether there was an
adequate factual basis for Cahill's guilty plea. It asked the
prosecutor "to summarize the evidence the Government would expect
to offer should the matter proceed to trial." The government
indicated that a document describing such evidence, referred to as
the "prosecution version," had been filed on the docket. Cahill's
counsel confirmed to the Court that he had "reviewed" the
prosecution version with Cahill "several times," that he was
satisfied that the government could "produce the evidence
- 8 - described in that document," and that a jury could find Cahill
guilty beyond a reasonable doubt based on the admissible portion
of that evidence.
The court then asked Cahill whether he understood the
evidence at issue in the case and had "read and discussed with
[his] attorney" the "document . . . referred to as the prosecution
version." Cahill confirmed that he had and that he did not
"disagree with any of the information contained in that document."
Faced with this record, Cahill, on appeal, mounts two
closely adjacent arguments. First, he argues that the record
fails to show, to a sufficient degree, that he understood the
charge and that his plea was knowing and voluntary. Second, he
argues that "[t]he district court erred by not explaining all the
elements of the crime" before accepting his guilty plea.
Cahill's arguments focus on his possible
misunderstanding of the essential element of possession in the
context of 18 U.S.C. § 922(g). Possession of a firearm may be
actual or constructive. United States v. Gúzman-Montañez, 756
F.3d 1, 8 (1st Cir. 2014). "Constructive possession exists when
a person knowingly has the power and intention at a given time to
exercise dominion and control over an object either directly or
through others." United States v. McLean, 409 F.3d 492, 501 (1st
Cir. 2005) (quotation omitted). Cahill argues that his answers
at sentencing show only that he knew the guns were in the room,
- 9 - but not that he intended to exercise dominion or control over them.
He argues that the court "did not explore and establish[] and [he]
did not confirm" that he had the requisite intent, and so he may
have pled guilty based on a mistaken understanding of the law and
the government's burden.
We discern no such error. Cahill's counsel assured the
court that he had discussed and reviewed the indictment and the
prosecution's statement of facts with his client. Cahill
confirmed that account and told the court that his counsel had
explained to him the nature and elements of the charge. As a
general rule, the court is entitled to rely upon those assurances,
and, absent any indication in the record of coercion, confusion,
or misrepresentation, we see no reason to depart from that rule.
Contrary to Cahill's argument, the district court was not required
here to "explain the elements of each charge to the defendant on
the record." Bradshaw, 545 U.S. at 183; see also United States
v. Cruz-Rivera, 357 F.3d 10, 13 (1st Cir. 2004) ("[Rule 11] does
not require the court to explain the technical intricacies of the
charges in the indictment."). "[T]he record accurately reflects
that the nature of the charge and the elements of the crime were
explained to [Cahill] by his own, competent counsel." Bradshaw,
545 U.S. at 183. Cahill's plea is constitutionally valid.
Indeed, Cahill and his counsel provided not only general
assurances that they understood the government's case, but, when
- 10 - asked by the court whether he was satisfied that the defendant had
pleaded guilty because he was actually guilty, his counsel stated
that he was and indicated that he "assess[ed]" the "prosecution's
theory" as "based on . . . constructive possession." The court
permissibly relied upon defense counsel's assurances that he had
discussed the case with his client and, presumably, adequately
counseled him as to his potential criminal liability. As the
Supreme Court has noted, "[w]here a defendant is represented by
competent counsel, the court usually may rely on counsel's
assurance that the defendant has been properly informed of the
nature and elements of the charge to which he is pleading guilty."
Bradshaw, 545 U.S. at 183.
Having probed the foundation for the counseled
defendant's guilty plea and found it to be solid, the court did
not have to then explain to him the "intricacies" of constructive
possession or the other legal doctrines that might be at issue in
his case.3 See Cruz-Rivera, 357 F.3d at 13. Such is the rule;
3 Cahill also suggests that there was an inadequate factual basis for the plea because the element of possession was not sufficiently supported. We disagree. "To establish a sufficient factual foundation for a plea, 'the government need only show a rational basis in fact for the defendant's guilt.'" United States v. Torres-Vázquez, 731 F.3d 41, 44 (1st Cir. 2013) (quoting United States v. Ramos-Mejía, 721 F.3d 12, 16 (1st Cir. 2013)). The government has shown in its statement of facts, which was accepted by the defense, that Cahill admitted to having two firearms in his bedroom and that the police were subsequently able to locate those guns along with ammunition and a weapons cleaning kit. The record plainly supports the existence of constructive - 11 - and it is sound, as it affords proper deference to the role of
defense counsel in our adversarial system.
B. Review of the sentence for substantive reasonableness.
The government recommended a sentence of sixty months of
imprisonment, which exceeded the range of thirty to thirty-seven
months calculated in the PSR. The report had noted, as potential
grounds for a departure, that Cahill's criminal history category
"substantially underrepresent[ed]" his criminal history and risk
of recidivism, "as evidenced by [his] absconding from parole in
the State of Texas and from supervised release from the District
of Vermont in 2018." The report referenced, further, the fact
that Cahill had confessed to hitting someone in the head with a
crowbar in 2020.
The government argued in favor of an upward variance or
departure because of the defendant's history of violent crime and
the fact that he had already been convicted in the past of unlawful
possession of firearms. A longer sentence would be necessary,
then, "to specifically deter the defendant from committing more
crimes and to protect the public."
The defense argued that a sentence above the guidelines
range was not warranted. For one, Cahill had not used the guns
at issue and he had kept them for an innocent purpose: so that
possession for the purposes of the plea.
- 12 - family members could go hunting when they came to visit. Cahill's
advanced age and health issues also meant that he did not "pose an
ongoing threat to the community." Finally, his convictions were
stale and not representative of his current self.
After hearing character testimony from Cahill's
witnesses and considering the parties' arguments, the court
imposed its sentence. It began by adopting the PSR, as revised
and accepted by the parties, as part of its findings. Noting that
it had considered the Sentencing Guidelines and the factors listed
in 18 U.S.C. § 3553(a), the court then found that, due to Cahill's
"unrelenting" criminal history and manifest "tendency toward
violence," he "pose[d] a particular danger to the community," which
was aggravated by his possession of firearms. The court expressly
took into account Cahill's age and "physical condition," but found
that an upward variance would be necessary to protect the public
and to provide a "deterrent effect[] which perhaps m[ight] seize
upon [Cahill] in this late season." Having explained its
findings, the court imposed a sentence of seventy-two months of
imprisonment and three years of supervised release.
On appeal, Cahill argues that his seventy-two-month
sentence is substantively unreasonable because it is excessive.
"We review challenges to the substantive reasonableness of a
sentence for abuse of discretion." United States v. Bruno-Campos,
978 F.3d 801, 808 (1st Cir. 2020).
- 13 - "In the sentencing context, 'reasonableness is a protean
concept.'" United States v. Clogston, 662 F.3d 588, 592 (1st Cir.
2011) (quoting United States v. Martin, 520 F.3d 87, 92 (1st Cir.
2008)). "Even so, the inquiry is not standardless: the hallmarks
of a substantively reasonable sentence are a 'plausible sentencing
rationale' and a 'defensible result.'" United States v. Miranda-
Díaz, 942 F.3d 33, 42 (2019) (quoting Martin, 520 F.3d at 96). A
"plausible sentencing rationale" is one that is "tailored to the
facts and circumstances of the case at hand." Id. at 43. We
undertake the reasonableness inquiry mindful that "it is not our
task simply to second-guess a sentencing court's considered
decisions about matters squarely within its discretion." Id. at
42.
An "adequate explanation" is required when the district
court imposes a variant sentence, as it did here. Bruno-Campos,
978 F.3d at 809. But the court need not "be precise to the point
of pedantry" when articulating its rationale. United States v.
Del Valle-Rodríguez, 761 F.3d 171, 177 (1st Cir. 2014).
Here, the court did articulate a plausible rationale for
its upwardly variant sentence: namely, that Cahill's criminal
history, marked by violent crimes and a proclivity for reoffending,
meant that a longer sentence was necessary to protect the community
and to specifically deter him.
- 14 - Cahill argues that the district court's reference to his
"unrelenting" and "violen[t]" criminal history was supported
solely by the 1978 murder conviction, which "was already accounted
for in the PSR guidelines calculation." And so, the argument
goes, there was no "factual basis" for that characterization and
it could not support a variance. We disagree. The district court
expressly adopted the entirety of the revised presentence
investigation report, to which neither party objected, as part of
its findings. That report amply supports the court's conclusion,
which is, then, adequately explained. Given the report's sheer
length, the court's choice to incorporate it by reference, rather
than recite all of the defendant's past criminal conduct, was
understandable. And, in any case, the court need only offer a
"plausible sentencing rationale" that achieves a "defensible
result," Miranda-Díaz, 942 F.3d at 42 (quotation omitted); it need
not explicitly articulate all of the facts that it has considered
in arriving at a conclusion, particularly when, as here, those
facts are clear from the record.
Thus, the court did not abuse its discretion in finding,
based on the PSR, that Cahill was particularly inveterate in his
recidivism and particularly resistant to the "normative
expectations of civil society which are embodied in the criminal
code." That he has collected more than a dozen convictions in his
lifetime, much of which has been spent incarcerated, is proof
- 15 - enough of that. But the timing of those convictions is also
suggestive, in that they recur with almost clockwork regularity.
In the past, after being convicted of serious crimes, the defendant
has quickly reoffended. This happened, for example, in his
twenties, when, after pleading guilty to misdemeanor assault for
raping a woman at knifepoint and being given a non-custodial
sentence, he continued to rack up multiple burglary convictions
and parole violations. The pattern continued into his middle age,
when Cahill violated his conditions of parole and earned his first
felon-in-possession conviction shortly after serving the custodial
portion of his murder sentence. In 2018, history repeated itself
as Cahill once again absconded from parole soon after his release
from prison and proceeded to squirrel away more guns in full
defiance of the law. The same conduct, repeated over time, becomes
even more concerning, as it shows undiminished disregard for the
law and an inability to absorb the lessons that criminal punishment
is meant to inculcate. See Miranda-Díaz, 942 F.3d at 43 ("[T]he
appellant's repeated return to criminal behavior despite earlier
encounters with the criminal justice system reflected an abject
failure to renounce criminality and amply justified an upwardly
variant sentence.").
The court's finding that Cahill's criminal history was
marked by a tendency towards violence is also adequately explained
and supported by the record. The murder conviction suffices to
- 16 - establish that conclusion, not least because of the considerable
deference we pay to the sentencing court's judgment. The court
was certainly not required to credit Cahill's bare assertion that
the homicide was accidental when there was a valid conviction to
the contrary.
Finally, Cahill argues that the district court's
"dismiss[al]" of the mitigating factors he had presented -- namely, his
age, physical condition, and the alleged fact that the guns were meant
to be used for hunting by guests -- was erroneous. First, the court
did expressly consider those factors, so Cahill's argument consists of
nothing but an attempt "to substitute his judgment for that of the
sentencing court." Clogston, 662 F.3d at 593 (noting that the
"weighting" of the "relevant [sentencing] factors" is "largely within
the court's informed discretion"). And the court's finding that Cahill
was a "danger to the community," in spite of his age and orthopedic
issues, was supported by a "plausible sentencing rationale," see
Miranda-Díaz, 942 F.3d at 42 (quotation omitted). The very purpose of
a weapon, and a firearm especially, is that it allows its bearer to
inflict great harm regardless of his physical strength. Even the most
enfeebled can pull a trigger.
Because the district court articulated a plausible
sentencing rationale and achieved a defensible result, we hold that the
sentence was substantively reasonable.
The appellant's conviction and sentence are affirmed.
- 17 -