United States Court of Appeals For the First Circuit
Nos. 23-1496, 23-1497
UNITED STATES OF AMERICA,
Appellee,
v.
JOEL DUDLEY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Rikelman, Lynch, and Howard, Circuit Judges.
Luke Rosseel, with whom Rosseel Law was on brief, for appellant. Brian S. Kleinbord, Assistant United States Attorney, with whom Darcie N. McElwee, United States Attorney, was on brief, for appellee.
April 29, 2024 LYNCH, Circuit Judge. Appellant Joel Dudley challenges
the 2023 revocation of his supervised release and his sentence of
two terms of two years of incarceration, to be served
consecutively, followed by supervised release for life. The
revocation at issue is the second revocation from his prior
convictions in 2014 for possession of child pornography and making
a false declaration before the court. See United States v. Dudley,
804 F.3d 506, 509 (1st Cir. 2015). This revocation was based on
the district court's finding that he had violated five conditions
of his supervised release, including by sharing images of himself
sexually abusing his daughter C.D. when she was approximately four
years old and engaging in sexual contact with, exchanging sexually
explicit messages with, and receiving and possessing a
pornographic video of C.D. when she was seventeen years old. We
hold that the district court judge did not err or abuse his
discretion in revoking Dudley's supervised release and that
Dudley's sentence is procedurally and substantively reasonable and
affirm.
I.
We "must interpret the evidence in the light most
favorable to the government" when reviewing a finding that a
defendant has violated the terms of his supervised release under
the clear error standard. United States v. Oquendo-Rivera, 586
F.3d 63, 67 (1st Cir. 2009).
- 2 - A. 2014 Original Criminal Conviction
In August 2012, agents from U.S. Homeland Security
Investigations (HSI) found two CDs containing child pornography at
Dudley's residence in Westbrook, Maine, while executing a search
warrant based on information that someone at that address was
sharing child pornography files online. Dudley, 804 F.3d at 508-
09. In an interview with the HSI agents, Dudley admitted to
downloading 500-600 child pornography videos. When asked "whether
he had ever videotaped or photographed local children," Dudley
"stated that he had taken a picture of his daughter in the bathtub"
and "that he had made the picture a 'hidden' file on his computer."
He was arrested and indicted on one count of possession of child
pornography. Id. at 509. Before trial, Dudley filed a motion to
suppress statements he made to the HSI agents. Id. He testified
at the hearing on his motion. Id. The district court denied the
motion, and the government further charged Dudley with one count
of making a false declaration before the court based on his
testimony at the suppression hearing. Id.
Dudley was found guilty on both counts at two separate
jury trials. Id. Although the guideline range was 235 to 293
months, the district court sentenced him to a lesser total combined
sentence of ninety-six months, followed by ten years of supervised
- 3 - release,1 after expressing the concern that a long prison sentence
would leave a then-young Dudley "hardened to [his] prior conduct"
and that it "may well increase the likelihood of recidivism."
Dudley appealed, contesting the district court's denial of his
motion to suppress in the possession matter and arguing that the
court erred by allowing the government to play two short video
excerpts obtained from Dudley containing child pornography for the
jury during the trial. Id. at 508, 515-16. This court affirmed
his conviction, rejecting both arguments. Id. at 515, 518, 520.
On April 20, 2019, Dudley was sent to a residential
reentry center ("RRC") in Portland, Maine, to finish serving his
initial period of imprisonment. Dudley was returned to the Bureau
of Prisons after RRC staff seized from him a cell phone containing
two images of nude prepubescent minors and a typed document
describing in graphic detail Dudley sexually abusing his three
minor daughters.
B. 2019 First Supervised Release
On July 19, 2019, Dudley was placed on supervised
release. Within two months he violated the conditions of his
release by failing to update his sex offender registration, as
1 This sentence was imposed for Dudley's possession of child pornography conviction. He was also sentenced to sixty months imprisonment followed by three years of supervised release on his perjury conviction, to be served concurrently with the possession conviction.
- 4 - required under the Sex Offender Registration and Notification Act,
and having other individuals access the internet on his behalf in
violation of the Computer and Internet Monitoring Program. Based
on this information, Michael Barker, Dudley's probation officer at
the time, filed a petition to revoke Dudley's supervised release
on September 23, 2019. Barker testified that Dudley's ex-wife had
told him that Dudley had attempted to contact their daughter C.D.,
then age fourteen, while at the RRC in order to get her to "meet
up" with him, even though Barker had informed Dudley that he was
not allowed to have any face-to-face contact with his minor
children. Barker also testified that a Department of Health and
Human Services investigation was "able to substantiate that Mr.
Dudley abused his daughter by forcing her to watch child
pornography." Dudley's supervised release was revoked at a
November 13, 2019, hearing, and he was sentenced to fifteen months
in prison followed by ten years of supervised release.
C. 2020 Second Supervised Release
On October 16, 2020, Dudley was once again placed on
supervised release after serving this additional sentence. On
September 12, 2022, Dudley's new probation officer Kate Phillips
petitioned to revoke his supervised release for the second time
after learning that Dudley had unapproved contact with C.D., then
age seventeen; had exchanged sexually explicit messages with her;
and had been using an unreported cell phone number and Facebook
- 5 - account under a false name. On the morning of September 12, 2022,
Dudley informed Phillips that C.D. had spent the night with him in
his camper after she had a violent altercation with her mother.
Also on September 12, 2022, C.D.'s mother showed Phillips messages
on C.D.'s cell phone that Dudley had sent to C.D. via Facebook
Messenger under the alias "John Smith" using an unreported cell
phone. In these messages, which date to as early as September 8,
2022, Dudley discussed viewing inappropriate sexual photos and
videos of C.D. and his desire to engage in digital penetration,
oral sex, and intercourse with his daughter.
On September 14, 2022, after learning that Dudley had
instructed his then-girlfriend Roxann Arnett to give C.D. his
unreported cell phone, law enforcement authorities recovered the
cell phone from C.D. The cell phone was logged into two Facebook
accounts, one belonging to "John Smith," which was linked to the
sexual messages. Also on September 14, 2022, officers from the
probation office and HSI searched Dudley's camper, truck, and
primary residence and discovered additional unreported electronic
devices, including a tablet.
On January 5, 2023, Phillips filed an amended petition
to revoke Dudley's supervised release. The amended petition
charged Dudley with additional violations after a forensic
examination of Dudley's and C.D.'s cell phones revealed a video of
a minor who appeared to be C.D. masturbating, and reports by a
- 6 - cooperating witness ("CW") revealed that Dudley had shown the CW
images of himself sexually abusing C.D. as a young child in March
2022, and that the CW had witnessed Dudley engaging in
inappropriate sexual contact with C.D. in April 2022.
D. 2023 Revocation Challenged on Appeal
Dudley's revocation hearing took place on June 5, 8, and
12, 2023. The CW testified on June 5, 2023, as described below.
The CW and Dudley had become friends while they were participating
in a sex offender treatment group in Maine in 2021. At the time
of the hearing, the CW had pled guilty in the Maine federal
district court to one count of possession of child pornography and
had signed a cooperation agreement with the government, and he
testified in the hope of receiving a lesser sentence for this
crime.
In the spring of 2022, Dudley showed the CW photos stored
in a "locked," password-protected file on his tablet which depicted
Dudley sexually abusing C.D. when she was approximately four years
old. Dudley told the CW "the story about what he was doing" as he
showed him "[e]ach picture." Dudley also told the CW to take his
electronic devices for him "when his probation officer would show
up" so that she wouldn't find the images. Later that spring, the
CW went to the Maine Mall with Dudley. The men went inside the
mall, met C.D., and then all three returned to Dudley's van. In
the van, Dudley "started touching [C.D.]'s breasts" and "put his
- 7 - hand underneath her dress and said, oh, I don't see no underwear
on you." C.D. then "said my mom went and took me and put me on
birth control," and Dudley said, "oh, okay." At that point, the
CW left the van and waited outside for half an hour. When the CW
returned, C.D. left the van. The CW asked Dudley "did you have
fun," and Dudley "said[] yeah."
Dudley testified in his own defense at the revocation
hearing and denied that he possessed the unreported cell phone or
tablet, claiming they were exclusively used by Arnett for their
business, although admitting the cell phone was registered in his
name. Dudley denied that he used the "John Smith" Facebook account
to contact C.D. but admitted that he attempted to contact C.D.
through Facebook Messenger before his probation conditions
prohibited such contact and that he did not receive a reply. He
also denied that he had ever shown the CW child pornography or
engaged in sexual activity with any minors, including his daughter.
On June 12, 2023, the district court found that the
government had proven by a preponderance of the evidence that
Dudley had violated five conditions of his supervised release.2
2 In addition to the violations Dudley contests on appeal, the court found that Dudley had violated the conditions of his supervised release by having unapproved contact with a minor (C.D.), using and possessing unapproved electronic devices, failing to update the State of Maine Sex Offender registry about his employment change within three business days, operating a vehicle without a valid driver's license and resisting arrest, communicating with a felon without prior permission, and testing
- 8 - During sentencing, Dudley allocuted on his own behalf and stated
"whatever [the CW] has said about me is a lie" and "I don't know
anything about the John Smith texts." The court revoked Dudley's
supervised release for the second time and sentenced him to the
statutory maximum of two terms of two years of incarceration to be
served consecutively, followed by supervised release for life.3
Dudley timely appeals, challenging the court's findings
that he had shown child pornography to the CW in violation of 18
U.S.C. § 2252A(a)(5)(B) (a Grade A violation), that he had engaged
in sexual contact with C.D. in his van in violation of Me. Stat.
tit. 17-A, § 260(1)(G) (a Grade C violation), and that he had
received and possessed child pornography of seventeen-year-old
positive for marijuana. He does not challenge these findings on appeal.
3 The maximum prison term that a court may impose at supervised release revocation is set forth in 18 U.S.C. § 3583(e)(3) and is based on the class of the defendant's underlying offense. 18 U.S.C. § 3583(e)(3). Dudley was convicted under Docket 2:13-CR-116 of a Class D felony and Docket 2:13-CR- 04 of a Class C felony, and accordingly could be sentenced to up to two years imprisonment on each docket. Under 18 U.S.C. § 3583(h), the court may also impose a term of supervised release to follow imprisonment after revocation. 18 U.S.C. § 3583(h). For Docket 2:13-CR-116, the maximum term of supervised release that could be imposed was twenty-one months, less the term of imprisonment imposed for the revocation, and for Docket 2:13-CR- 04, the maximum term of supervised release that could be imposed was life.
- 9 - C.D. on his unreported cell phone in violation of 18 U.S.C.
§§ 2252A(a)(2)(A) and (5)(B) (a Grade A violation).
II.
"We review the district court's ultimate decision to
revoke supervised release for abuse of discretion, and the
underlying finding of a violation of supervised release for clear
error." United States v. Wright, 812 F.3d 27, 30 (1st Cir. 2016).
Clear error is an "'exceedingly deferential'" standard of review,
and a reviewing court "will not 'disturb either findings of fact
or conclusions drawn therefrom unless the whole of the record
compels a strong, unyielding belief that a mistake has been made.'"
United States v. Munera-Gomez, 70 F.4th 22, 34 (1st Cir. 2023)
(quoting United States v. Matos, 328 F.3d 34, 39-40 (1st Cir.
2003)).
A.
The district court did not clearly err in finding that
Dudley had violated his supervised release based on the evidence
presented and did not abuse its discretion in revoking his term of
supervised release. First, the court did not clearly err by
crediting the CW's testimony. "[I]t is always permissible for a
judge, acting in his capacity as a factfinder, to use his knowledge
and experience to assess the credibility of witnesses and to
evaluate the evidence." United States v. Teixeira, 62 F.4th 10,
19 (1st Cir. 2023). Credibility determinations may be reversed
- 10 - only when the reviewing court is "definitely and firmly convinced
that a mistake has been made." United States v. Mendoza-Maisonet,
962 F.3d 1, 16 (1st Cir. 2020) (quoting United States v. Oquendo-
Rivera, 750 F.3d 12, 16 (1st Cir. 2014)). While a credibility
determination may be clearly erroneous where "objective evidence
. . . contradict[s] the witness'[s] story; or the story . . . [is]
internally inconsistent or implausible on its face," Oquendo-
Rivas, 586 F.3d at 67 (quoting Anderson v. City of Bessemer, 470
U.S. 564, 575 (1985)), a credibility determination based on live
testimony that is "not internally inconsistent, can virtually
never be clear error," United States v. Rivera-Carrasquillo, 933
F.3d 33, 42 (1st Cir. 2019) (quoting Anderson, 470 U.S. at 575)),
because the district court "judge heard the witnesses from both
sides and eyed their manner," id. The record well supports the
district court's findings.
Here, the CW's testimony is corroborated by other
evidence that Dudley sexually abused C.D. both when she was a young
child and a teenager, including C.D.'s aunt's testimony that C.D.
had told her that Dudley sexually assaulted C.D. when she was
"about eight years old" and "when he got out of jail," C.D.'s
written statement that "my father. . . . hurt me as a child and I
don't want anything to do with him" (emphasis added), and messages
- 11 - Dudley sent to his daughter under the alias John Smith,4 which
reference C.D. not remembering "some of the things that we did
growing up," and in-person contact between Dudley and C.D. in
September 2022.
The CW's testimony is neither inconsistent nor
implausible. Dudley has fallen far short of "definitely and firmly
convinc[ing]" us "that a mistake has been made." See Mendoza-
Maisonet, 962 F.3d at 16 (quoting Oquendo-Rivas, 750 F.3d at 16).
Further, Dudley's argument that the CW was motivated to falsely
testify against Dudley "to decrease his sentence in his own
criminal case" both fails to undermine the credibility finding and
is itself implausible. The CW informed his probation officer,
4 While Dudley has repeatedly denied that he sent the John Smith messages, the government provided ample evidence that he did. Dudley used this alias during a phone call with the South Portland Police Department on September 11, 2022, during which he told the police that he was on his way to pick up his daughter, C.D. Phillips also found sexual messages that were from "John Smith" on a tablet recovered from Dudley's property and that were sent from a Facebook account logged into on his cell phone. The verified phone number connected with the John Smith Facebook account was (207) 450-0956, which is the phone number of Dudley's unreported cell phone. Phillips also testified that she had no doubt in her mind that Dudley was the "John Smith" messaging with C.D. and that the messages "indicate a father and daughter relationship." C.D. repeatedly calls Dudley "Dad" in the messages, and Dudley refers to "daddy daughter time", references "pre[y]ing on my daughter," and writes, "[i]f I wasn't your dad I could hit more buttons th[a]n you even know lol." The messages also include references to Dudley's fiancée Arnett and his two former wives, C.D.'s friend, and Dudley's job, and in one message Dudley misspells "choke" as "chock," which is the same misspelling Dudley used in a sexually explicit letter he wrote to C.D.'s friend.
- 12 - Chuck Grenier, about Dudley showing him the child pornography on
his tablet in March 2022, and Grenier shared this report with
Phillips on May 11, 2022, before a search warrant for the CW's
electronic devices was issued on May 12, 2022, and well before the
CW was arrested in July 2022 and signed a cooperation agreement
with the government. Because the court's credibility finding was
not clearly erroneous, Dudley's argument that "it was an abuse of
discretion to revoke supervised release based on" the CW's
testimony because a "revocation of supervised release based on [a]
clearly erroneous violation finding amounts to an abuse of
discretion," also fails.
The district court also did not abuse its discretion by
revoking Dudley's supervised release based on the evidence that he
had received and possessed child pornography on his cell phone.
Dudley argues that only hearsay evidence was offered for this
violation, and that by admitting this alleged hearsay "without an
adequate excuse for failing to produce the declarant," the court
abridged his "limited confrontation right" in a supervised-release
revocation hearing. This argument fails even if Dudley had
presented it to the trial court, which he did not.5
5 Because Dudley raised this issue for the first time on appeal, we would ordinarily review it only for plain error, see United States v. Dávila-Reyes, 84 F.4th 400, 417 (1st Cir. 2023), meaning he must "show '(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the [appellant's] substantial rights, but also (4) seriously impaired the fairness,
- 13 - Dudley has failed to show any abuse of discretion here.
Dudley argues that the revocation petition and report written by
Phillips and Phillips' testimony that HSI agents found "numerous
videos and images of [C.D.] masturbating" on Dudley's and C.D.'s
phones were hearsay statements. He argues these statements were
hearsay because Phillips did not testify that she had personally
viewed the video on Dudley's cell phone. He also argues for the
first time in his reply brief that "there was no cause for relying
on the hearsay note that was attributed to [C.D.], rather than the
government calling her to testify." Even if these statements were
hearsay,6 the court would not have erred by admitting them.
Supervised release revocation hearings are not subject to the
integrity, or public reputation of judicial proceedings.'" United States v. Márquez-García, 862 F.3d 143, 145 (1st Cir. 2017) (alteration in original) (quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)). Dudley made no effort to argue the plain-error standard in his opening brief, so his claim could be considered waived. See United States v. Ponzo, 853 F.3d 558, 574 (1st Cir. 2017). Despite this, we review this claim because his opening brief did "make apparent his theory of the district court's plain error, and he did squarely address the plain error factors in his reply brief," United States v. Facteau, 89 F.4th 1, 44 n.29 (1st Cir. 2023). "Moreover, '[w]here a defendant's claim would fail even if reviewed for plain error, we have often simply proceeded to the merits.'" Id. (alteration in original) (quoting United States v. Grullon, 996 F.3d 21, 32 (1st Cir. 2021)). Further, because Dudley's claim would fail even if he had not raised it for the first time on appeal, we bypass plain error and review the argument for abuse of discretion.
6 Defense counsel never asked Phillips for the basis for her knowledge, so the record is silent regarding whether Phillips had personal knowledge from viewing the child pornography video found on Dudley's cell phone herself.
- 14 - Federal Rules of Evidence. See Teixeira, 62 F.4th at 17. Hearsay
is admissible if it bears sufficient indicia of reliability, as
was true here. United States v. Franklin, 51 F.4th 391, 396-97
(1st Cir. 2022). A defendant at a supervised release revocation
hearing also "has only a limited right of confrontation, which
requires a court to . . . 'weigh both the apparent reliability of
the hearsay evidence and the government's proffered reason for not
producing the declarant.'" United States v. Rodriguez, 919 F.3d
629, 635 (1st Cir. 2019) (quoting United States v. Fontanez, 845
F.3d 439, 443 (1st Cir. 2017)).
Because Dudley did not object to this evidence on
confrontation grounds before the trial court, the government never
had the opportunity to explain why it did not produce the HSI
agents, or C.D., and the district court had no reason to engage in
the balancing analysis. Yet the record shows Phillips' statements
are supported by sufficiently strong indicia of reliability.7 They
are highly detailed and are independently corroborated by other
evidence, most notably by C.D.'s message to Dudley's "John Smith"
account stating, "you just watched a video of me mast[u]rbating,"
7 Even if the government had offered only a weak explanation, the district court would not have abused its discretion in crediting Phillips' report and testimony. "In the Rule 32.1(b)(2)(C) context, strong evidence of reliability can counterbalance a weak reason for not producing the declarant." Fontanez, 845 F.3d at 443; see also United States v. Marino, 833 F.3d 1, 6 (1st Cir. 2016).
- 15 - as well as the CW's testimony and C.D.'s aunt's testimony that
Dudley had sexually assaulted C.D. and C.D.'s written statement
that her father had "hurt" her and caused her "tra[u]ma and pain."
See Franklin, 51 F.4th at 396-97.
Further, Dudley does not dispute the accuracy of C.D.'s
written statement (other than claiming its "vague language could
apply equally to allegations of emotional abuse as it could to
physical abuse"), and a good explanation for why C.D. was not
called to testify is evident from C.D.'s aunt's testimony and
C.D.'s written statement: the concern that she would not be able
to testify truthfully because of pressure from Dudley to lie.
B.
Dudley attempts an illogical and ill-conceived argument
that the district court judge should have recused himself because
he was biased or could be thought to be biased against Dudley based
on a ruling the judge had made during the trial that resulted in
Dudley's original conviction, which this court affirmed on appeal.
See Dudley, 804 F.3d at 516-18. It is difficult to understand how
a ruling, affirmed on appeal, could possibly provide any basis for
a recusal argument. A recusal decision "is committed largely to
the discretion of the trial court, and we review it solely to
evaluate whether the decision below amounted to an abuse of
discretion." United States v. Giorgi, 840 F.2d 1022, 1034 (1st
Cir. 1988). "[A]n abuse of discretion will be found only if a
- 16 - reasonable reading of the record fails to support the conclusion
that the judge's impartiality was not subject to question." United
States v. Torres-Estrada, 817 F.3d 376, 380 (1st Cir. 2016)
(quoting In re Bulger, 710 F.3d 42, 45 (1st Cir. 2013)). A judge's
"alleged bias and prejudice . . . must be personal and it must
stem from an extrajudicial source." In re Cooper, 821 F.2d 833,
838 (1st Cir. 1987) (emphasis added). "[L]itigants are not
entitled to have a judge disqualify himself merely because they
fear an adverse decision." United States v. Cowden, 545 F.2d 257,
265 (1st Cir. 1976). Further, the judge's alleged observation
that Dudley was "always playing games with [the] court" "do[es]
not constitute disqualifying bias and prejudice" because it was
"formed on the basis of the evidence." See Cooper, 821 F.2d at
838.
The district judge also did not, as Dudley contends,
express bias or partiality by questioning Dudley during his
testimony. Judges have a "well-established" right to "participate
actively in the trial proper," United States v. Laureano-Perez,
797 F.3d 45, 70 (1st Cir. 2015) (quoting United States v. Ofray-
Campos, 534 F.3d 1, 33 (1st Cir. 2008)), including by "asking
questions 'to elicit facts to facilitate a clear presentation of
the issues,'" id. (quoting United States v. Meléndez-Rivas, 566
F.3d 41, 50 (1st Cir. 2009)). They "are to be given the 'widest
possible latitude' in making judgements about the need to clarify
- 17 - testimony." United States v. Rosario-Peralta, 199 F.3d 552, 560-
61 (1st Cir. 1999) (quoting Rodriguez v. Banco Cent. Corp., 990
F.2d 7, 12 (1st Cir. 1993)). Here, the district court judge's
questions were permissible because they "facilitate[d] a clear
presentation of the issues," Laureano-Perez, 797 F.3d at 70
(quoting Meléndez-Rivas, 566 F.3d at 50), and "analyze[d],
dissect[ed], . . . and comment[ed] on the evidence," United States
v. Raymundí‑Hernández, 984 F.3d 127, 146 (1st Cir. 2020) (quoting
Logue v. Dore, 103 F.3d 1040, 1045 (1st Cir. 1997)). Although
Dudley argues that the questions showed bias by "seeking to elicit
otherwise unstated inculpatory testimony," "the concern with
judicial interrogation is not with 'the damaging truth that the
questions might uncover,'" and if the "court's questioning of a
witness exposes bad facts, inconsistences, or weaknesses in the
case itself, the exposure itself is not . . . worrisome prejudice."
United States v. Rivera-Rodriguez, 761 F.3d 105, 113 (1st Cir.
2014) (quoting United States v. Martin, 189 F.3d 547, 554 (7th
Cir. 1999)).
C.
The sentence imposed by the district court is well
justified and neither procedurally nor substantively unreasonable.
1.
- 18 - We review Dudley's sentence only for abuse of
discretion, a highly deferential standard.8 Dudley first argues
that his sentence is procedurally unreasonable because the CW's
testimony should not have been credited, an argument we have
rejected. His argument that the district court "fail[ed] to
adequately explain the sentence" also fails. The sentence was
well explained. "When imposing a supervised release revocation
sentence, a district court is obliged to consider the various
factors specified in 18 U.S.C. § 3583(e)," a list which
borrows heavily from the factors enumerated in 18 U.S.C. § 3553(a), and includes the nature and circumstances of the offending conduct; the need to deter further criminal misbehavior; the need to protect the community from "further crimes of the defendant"; and the need to consider the policy statements promulgated by the Sentencing Commission.
8 "Review of the reasonableness of a sentence is for abuse of discretion if the objection was preserved or for plain error if the challenge was raised for the first time on appeal." United States v. Acevedo-Vázquez, 977 F.3d 85, 88 (1st Cir. 2020). Although we would ordinarily review Dudley's procedural error claim for plain error because he failed to argue that his sentence was procedurally unreasonable before the district court, see United States v. Rodriguez-Monserrate, 22 F.4th 35, 40 (1st Cir. 2021), given that his argument fails under both the plain error and abuse of discretion standards, we assume favorably for Dudley that the abuse of discretion standard applies. We also review Dudley's substantive error claim for abuse of discretion because Dudley asked the sentencing court for a lower sentence than he received, thereby preserving his "objection to his sentence on the ground of substantive reasonableness." United States v. Jurado- Nazario, 979 F.3d 60, 64 (1st Cir. 2020).
- 19 - United States v. Daoust, 888 F.3d 571, 576 (1st Cir. 2018)
(internal citations omitted).
The district court fulsomely satisfied all of these
criteria. It first stated that it had "reviewed and applie[d]
each of the factors set forth in 3553(a)," and "take[n] into
account the history and personal characteristics of this
defendant," with whom the court had been "involved . . . going
back to 2014 and then his first revocation in 2019." The court
then stated that "the most important factors" to its decision were
"just punishment for what [Dudley] did, the fact that deterrence
of this defendant simply does not work, there's nothing that deters
his conduct," and the "need to protect the public from this
defendant." The court also noted that Dudley had "lied to the
Court, both in his testimony and his allocution." Dudley argues
that because the court imposed the statutory maximum penalty in
each of his two cases, to run consecutively, an effective upward
variance from the twenty-four to thirty-month guideline range, see
U.S.S.G § 7B1.4(a),9 "this explanation was inadequate." Not so.
9 U.S.S.G. § 7B1.4(a) provides guideline ranges for imprisonment after revocation of supervised release based on a defendant's violation grade and criminal history category. U.S.S.G. § 7B1.4(a). The most serious violation Dudley was found by the district court to have committed was a Grade A violation. Dudley's criminal history category is IV, which is the criminal history category applicable to him at the time he was originally sentenced to a term of supervision. His guideline imprisonment range was thus twenty-four to thirty months.
- 20 - "[A]fter considering the relevant sentencing factors," a district
court revoking a defendant's supervised release "can sentence the
offender to a prison stint within the applicable statutory
maximum." United States v. Tanco-Pizarro, 892 F.3d 472, 476 (1st
Cir. 2018). Although the court's burden to "explain . . . why it
chose a particular sentence . . . . certainly increases the more
the court drifts away from the advisory-sentencing range . . . .
'a variant sentence' is often 'based on a complex of factors whose
interplay and precise weight cannot . . . be precisely
described,'" and in such cases, the court need only "'identif[y]
the primary reasons underpinning its decision.'" Id. at 482
(alteration and fourth omission in original) (quoting United
States v. Matos-de-Jesús, 856 F.3d 174, 179 (1st Cir. 2017)).
2.
Dudley's sentence was also not substantively
unreasonable given this fact record, his demonstrated
incorrigibility, his recidivism despite being given a lower
sentence at his original conviction, and the harm he inflicted on
others. In reviewing substantive reasonableness, we consider only
"whether the sentence, in light of the totality of the
circumstances, resides within the expansive universe of reasonable
sentences." United States v. King, 741 F.3d 305, 308 (1st Cir.
2014). Since 2019, Dudley has flagrantly and repeatedly violated
the conditions of his supervised release by engaging in prohibited
- 21 - and sexually inappropriate contact with his own minor daughter,
using and possessing prohibited electronic devices to view child
pornography, failing to update his registration with the sex
offender registry, and consorting with known felons, among other
violations. As the trial judge cogently noted, the prior
revocation and incarceration did not deter Dudley in the least
from violating the conditions of his supervised release again.
Upwardly variant sentences in cases involving egregious violations
of supervised release "based on . . . the need to achieve adequate
deterrence, to protect the community, and to promote respect for
the law" are reasonable. See United States v. Flores-Quiñones,
985 F.3d 128, 134-35 (1st Cir. 2021) (rejecting challenges to
procedural and substantive reasonableness where the appellant
demonstrated "repeated and flagrant disrespect for the terms of
his supervised release"); see also Daoust, 888 F.3d at 577-78
(affirming an upwardly-variant sentence for a revocation of
supervised release as substantively reasonable); Tanco-Pizarro,
892 F.3d at 484 (affirming a sixty-month sentence after revocation
as substantively reasonable even though it was "well above the
nonbinding range of 6 to 12 months, and right at the statutory
maximum").
For the above stated reasons, we affirm.
- 22 -