United States Court of Appeals For the First Circuit
No. 19-1603
UNITED STATES OF AMERICA,
Appellee,
v.
ANTHONY FARMER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Landya B. McCafferty, Chief U.S. District Judge]
Before
Thompson, Lipez, and Kayatta, Circuit Judges.
Jessica LaClair for appellant. Seth R. Aframe, Assistant United States Attorney, with whom Scott W. Murray, United States Attorney, was on brief, for appellee.
February 16, 2021 KAYATTA, Circuit Judge. We consider another attempt to
undo a guilty plea based on the Supreme Court's decisions in Rehaif
v. United States, 139 S. Ct. 2191 (2019) and United States v.
Davis, 139 S. Ct. 2319 (2019). Anthony Farmer pled guilty to six
counts stemming from a robbery of a federal confidential informant
during a guns-for-cash deal, including one count of possession of
a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1), and
one count of aiding and abetting the use of a firearm during and
in relation to a crime of violence, in violation of 18 U.S.C.
§§ 2, 924(c). He was sentenced to 198 months' imprisonment.
Relying on Rehaif, Farmer challenges the indictment on
jurisdictional grounds and the plea for plain error because the
government did not charge him with, and he did not plead guilty
to, knowing the facts that made him a person prohibited from
possessing a firearm under 18 U.S.C. § 922(g)(1). Relying on
Davis, Farmer also contends he should be entitled to withdraw his
plea to the section 924(c) count. In the alternative, Farmer
argues he is entitled to a remand for resentencing because the
prosecutor breached the plea agreement and because his sentence is
procedurally and substantively unreasonable.
For the following reasons, we affirm both Farmer's
conviction and the sentence imposed by the district court.
- 2 - I.
Because this appeal follows a guilty plea, we take the
facts from the undisputed portions of the presentence report
("PSR") and the transcripts of key court hearings. United States
v. Romero, 906 F.3d 196, 198-99 (1st Cir. 2018).
In 2014, Farmer was convicted of armed robbery and
conspiracy to commit armed robbery under New Hampshire law. See
N.H. Rev. Stat. Ann. § 636:1. During the course of that robbery,
the victim suffered a gunshot wound to his head. Farmer was
sentenced to three to six years in state prison for the armed
robbery and served over three years in custody.1
Just three months after being released on parole, Farmer
made clear that he had not been rehabilitated. On August 17, 2017,
Farmer and two co-defendants, Aaron Sperow and Raymond Perez,
agreed to sell three firearms to a person who, unbeknownst to them,
was a confidential informant for the Bureau of Alcohol, Tobacco
and Firearms. Perez arranged for the sale to occur at his house.
Farmer provided the guns. After the informant gave Farmer the
money for the firearms, Farmer revealed that the supposed sale was
actually a robbery. He gave a gun to Sperow, who pointed it at
the informant and told him "you've been beat." Farmer explained
1 The maximum term of imprisonment under New Hampshire law for armed robbery with a firearm is twenty years. See N.H. Rev. Stat. Ann. §§ 636:1(III), 651:2(II-g).
- 3 - they were retaliating for a theft by the informant's cousin.
Farmer then struck the informant with his hands, knocking him to
the ground, and continued to pummel him, only stopping when Perez's
mother entered the room.
A short time later, all three defendants were arrested
after being pulled over in a vehicle registered to Farmer. Farmer
had $700 of the informant's previously marked "buy" money, while
Perez and Sperow each had $400. Agents searched the car and found
a backpack like the one Farmer had worn during the robbery that
contained two firearms, ammunition, a ski mask, gloves, and
approximately seventy-one grams of cocaine.
Farmer and his co-defendants were indicted on several
counts. Because of his felony record, Farmer was charged with
violating the federal felon-in-possession statute. As was then
common, the indictment did not assert that Farmer knew he had been
convicted of a crime punishable by imprisonment for a term
exceeding one year. See 18 U.S.C. § 922(g)(1). Farmer was also
charged with aiding and abetting the use of a firearm during and
in relation to a crime of violence, see 18 U.S.C. §§ 2,
924(c)(1)(A), and the indictment specified "robbery of a person
having lawful charge, control and custody of money of the United
States," see 18 U.S.C. § 2114(a), and "assault on a person
assisting a federal officer or employee in the performance of
official duties," see 18 U.S.C. § 111(a)(1), (b), as the predicate
- 4 - crimes of violence.2 In addition, Farmer was charged with aiding
and abetting those predicate offenses, as well as with conspiracy
to commit robbery of money of the United States, in violation of
18 U.S.C. §§ 371, 2114(a), and with possession of cocaine with
intent to distribute, in violation of 21 U.S.C. § 841.
Farmer entered into a plea agreement under which the
government agreed to recommend that Farmer be sentenced at the
bottom of the sentencing guidelines range. Before accepting his
plea of guilty to all counts, the district court informed Farmer
that a conviction for violating section 922(g) required the
government to prove three elements: (1) that Farmer had been
convicted of a crime punishable by imprisonment of a term exceeding
one year; (2) that he knowingly possessed the firearm described in
the indictment; and (3) that the firearm was connected with
interstate commerce. As was common prior to Rehaif, the district
court did not inform Farmer that the government would also have to
prove that Farmer knew when he possessed the firearms that he had
previously been convicted of a crime punishable by more than a
year in prison.
Neither party objected to the PSR prepared by the United
States Probation Office, which calculated Farmer’s guideline
2A duplicative count also charging Farmer with aiding and abetting the "Use of a Firearm During and In Relation to a Crime of Violence," 18 U.S.C. §§ 2 and 924(c), was ultimately dismissed.
- 5 - sentencing range as sixty-three to seventy-eight months, plus a
consecutive, mandatory minimum seven-year sentence on the
section 924(c) count. After hearing from counsel for each party,
as well as Farmer himself, the district court sentenced Farmer to
an upwardly-variant ten-year sentence on the section 924(c) count,
and to the high end of the guidelines range on the remaining
counts, to be served consecutively for a total sentence of
198 months' imprisonment.
Less than a month after the district court sentenced
Farmer, the Supreme Court decided Rehaif v. United States, 139
S. Ct. 2191 (2019) and United States v. Davis, 139 S. Ct. 2319
(2019). In Rehaif, the Court held that "in a prosecution under 18
U.S.C. § 922(g) . . . the Government must prove both that the
defendant knew he possessed a firearm and that he knew he belonged
to the relevant category of persons barred from possessing a
firearm." 139 S. Ct. at 2200. As relevant here, Rehaif's holding
means that had Farmer gone to trial on the section 922(g)(1) count,
the government would have needed to prove beyond a reasonable doubt
that he knew he had been convicted of a crime punishable by
imprisonment for a term exceeding one year when he possessed the
gun. See id. at 2198. We have previously referred to this
knowledge requirement as the "scienter-of-status" element of a
section 922(g) offense. See United States v. Burghardt, 939 F.3d
397, 400 (1st Cir. 2019).
- 6 - In Davis, the Court invalidated the residual clause of
18 U.S.C. § 924(c). 139 S. Ct. at 2324. Consequently, had Farmer
gone to trial on the section 924(c) count, the government would
have needed to show that the predicate crimes of violence "ha[ve]
as an element the use, attempted use, or threatened use of physical
force against the person or property of another." 18 U.S.C.
§ 924(c)(3)(A).
II.
We turn now to the merits of the challenges Farmer raises
in this appeal, starting with his Rehaif-based challenge to his
conviction under 18 U.S.C. § 922(g)(1).
A.
Farmer advances two arguments based on Rehaif. First,
he contends that because his indictment made no mention of his
scienter of status, the district court never acquired jurisdiction
over the section 922(g)(1) charge against him, and jurisdictional
defects are not waived by a plea. Second, he contends that the
plea colloquy and the acceptance of his plea were defective due to
the failure to mention the government's need to prove his scienter
of status.
- 7 - 1.
Farmer's jurisdictional argument does not get out of the
starting blocks. As we observed in Burghardt, the Supreme Court
has already explained that "defects in an indictment do not deprive
a court of its power to adjudicate a case." 397 F.3d at 402
(quoting United States v. Cotton, 535 U.S. 625, 630 (2002)).
Although Farmer attempts to distinguish Cotton, we have
previously relied on Cotton in holding that a "failure adequately
to plead scienter in the indictment" of an Analogue Act violation
is a "non-jurisdictional" defect. See United States v. Ketchen,
877 F.3d 429, 433 n.2 (1st Cir. 2017); see also United States v.
Urbina-Robles, 817 F.3d 838, 842 (1st Cir. 2016) (holding
indictment's omission of element of carjacking offense to be non-
jurisdictional defect). So too here, the government's failure to
allege the scienter-of-status element in the indictment did not
deprive the district court of jurisdiction.3
3 We are not alone in so ruling. See United States v. Hobbs, 953 F.3d 853, 856 (6th Cir. 2020); United States v. Espinoza, 816 F. App'x 82, 84 (9th Cir. 2020); United States v. Moore, 954 F.3d 1322, 1336 (11th Cir. 2020); United States v. Balde, 943 F.3d 73, 90–91 (2d Cir. 2019); see also United States v. Maez, 960 F.3d 949, 956 (7th Cir. 2020) (holding "indictment defects are never jurisdictional" (citing Cotton, 535 U.S. at 631)).
- 8 - 2.
Farmer's challenge to his plea colloquy fares little
better. A guilty plea does not preclude an attack on the plea's
voluntariness. See United States v. Ortiz-Torres, 449 F.3d 61, 68
(1st Cir. 2006). Because Farmer did not raise this objection
below, however, we review his claim for plain error. See
Burghardt, 939 F.3d at 402-03; United States v. Dominguez Benitez,
542 U.S. 74, 80 (2004). Under that familiar standard, a defendant
must show "(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, 18 (1st
Cir. 2015).
The parties agree that, in light of Rehaif, the first
two prongs of plain error review have been satisfied. As to the
third prong, Farmer argues the district court's failure to inform
him of the scienter-of-status element constitutes structural
error, warranting reversal even in the absence of actual
prejudice.4 But we have recently considered and rejected just such
a claim that Rehaif error per se satisfies the third prong of plain
error review. See United States v. Patrone, No. 19-1486, 2021 WL
4Although Farmer appears to direct his structural error argument to the indictment, whether it is understood as a challenge to the indictment or the plea makes no difference.
- 9 - 128473, *3 (1st Cir. Jan. 14, 2021). Accordingly, we turn to the
pivotal question: Has Farmer shown that the error affected his
substantial rights? In other words, has he demonstrated "a
reasonable probability that [he] would not have pled guilty had he
been informed in accordance with Rehaif"? United States v. Guzmán-
Merced, 984 F.3d 18, 20 (1st Cir. 2020).
In assessing whether such a showing has been made in
other cases, we have trained our attention in the first instance
on the extent to which being advised in accordance with Rehaif
would have changed the principal risk/benefit calculation inherent
in the decision to plead guilty. Thus, in Burghardt we observed
that Rehaif would not have favorably altered the risk/benefit
calculation in favor of going to trial for a defendant who had
actually been sentenced several times to more than a year in prison
and who would have risked losing a three-level reduction under the
guidelines (for acceptance of responsibility) by going to trial.
939 F.3d at 403-06. Hence, absent some reason to think otherwise,
there was no reasonable probability that the defendant would have
withdrawn his plea had he been informed in accordance with Rehaif.
Id. By contrast, in Guzmán-Merced, the defendant, who had a
limited education and documented learning disabilities, only
received suspended sentences for his prior offenses (none of which
exceeded one year), never served a single day in prison, and
allegedly committed the section 922(g) violation four years after
- 10 - his prior convictions. 984 F.3d at 20-21. Under those
circumstances, we found that the defendant could have plausibly
thought that requiring the government to prove the scienter-of-
status element beyond a reasonable doubt would have created a
decent enough shot at acquittal to outweigh the risk of a
marginally longer sentence should he go to trial and lose. Id. at
21.
This type of calculus dooms Farmer. Because he actually
served three years in prison on his robbery conviction, he could
not have plausibly thought that Rehaif in any way increased his
chances of an acquittal, and he would have risked losing an
acceptance of responsibility sentencing reduction by not pleading.
He has therefore failed to carry his burden of showing it is
reasonably probable that he would not have pled guilty to the
illegal possession charge under section 922(g)(1) had the district
court told him the government was required to prove beyond a
reasonable doubt the scienter-of-status element.
B.
We turn next to Farmer's contention that his plea was
involuntary because he entered it without knowledge of the decision
of the United States Supreme Court in United States v. Davis, 139
S. Ct. 2319 (2019). Had Davis been decided sooner, he claims, he
would not have pled guilty to the section 924(c) count and the two
predicate crimes of violence charged in support of that count --
- 11 - aiding and abetting robbery of money of the United States, 18
U.S.C. §§ 2, 2114(a), and aiding and abetting assault on a person
assisting an officer of the United States in the performance of
official duties, 18 U.S.C. §§ 2, 111(a)(1), (b). Also, he
continues, had he not pled guilty to those charges, he would have
decided to try to beat the illegal possession charge under
922(g)(1) as well. Farmer not having raised this challenge below,
the parties agree our review of this claim is for plain error.
For the following reasons, we conclude that there was no clear
error.
We begin with section 924(c)(1)(A). Under that section,
any person who commits a "crime of violence" while possessing a
firearm receives a term of imprisonment of at least five years.
The term "crime of violence" is defined in turn as any felony
offense that:
(A) has an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
18 U.S.C. § 924(c)(3).
The foregoing clause (A) is often referred to as the
"elements" clause, while clause (B) is often called the "residual"
clause. See Davis, 139 S. Ct. at 2324. In Davis, the Supreme
- 12 - Court struck down clause (B), the residual clause, as
unconstitutionally vague. Id. And it is that ruling upon which
Farmer predicates his claim of reversible error in the acceptance
of his plea of guilty.
The pertinent offenses to which Farmer pled guilty are
the charge under section 924(c)(1)(A)(ii) for use of a firearm in
committing a crime of violence, and the two counts that each served
as the requisite crime of violence: a charge of using a dangerous
weapon in committing a forcible assault on a person assisting an
officer of the United States under 18 U.S.C. § 111(b); and a charge
of forcibly robbing United States money and endangering the life
of the person in charge of that money by the use of a dangerous
weapon under 18 U.S.C. § 2114(a).
At the plea colloquy, the judge accurately described the
elements of the charged offenses under section 111(b),
section 2114(a), and section 924(c). Farmer claims no error --
much less clear error -- in those descriptions.5 The judge then
described the § 924(c) count as follows:
5 In his reply, Farmer does suggest with little elaboration that the district court's explanation of the section 111(b) charge at the plea colloquy failed to make clear that the "use" of the weapon requires that the weapon be used as a weapon (as opposed to an item of exchange) during commission of the assault. To the extent Farmer intended to make this argument as a challenge to the acceptance of his plea, he waived it by not raising it at all in his opening brief. Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 299 (1st Cir. 2000). And even if he had not waived it,
- 13 - A person commits the crime of use of a firearm during and in relation to a crime of violence as a principal [under section 924(c)(1)(A)(ii)] if, first, he commits a crime of violence for which he may be prosecuted in a court of the United States, here, the crime of robbery of money of the United States and the crime of assault on a person assisting an officer of the United States in the performance of official duties; second, he knowingly uses or carries a firearm during and in relation to such crime, and, third, he knowingly brandishes the firearm during and in relation to such crime.
Farmer points to no clear error in this description that
caused him any prejudice. In particular, he does not contest that
the charged assault under section 111(b) is a crime of violence
under the elements clause of section 924(c), see United States v.
Taylor, 848 F.3d 476, 492-93 (1st Cir. 2017), which was unaffected
by Davis.6 The law is less clear as to whether section 2114(a)
describes a crime of violence under the elements clause. See id.
at 491 (declining to decide the question). Yet on plain error
the district court explained that the government would have to show under section 111(b) that "he use[d] a deadly or dangerous weapon to commit the forcible action" that constitutes the assault. That description makes clear the weapon could not simply be used as an item of exchange. 6 Farmer does argue that, after Davis, aiding and abetting a crime of violence is not categorically a crime of violence. But, as Farmer acknowledges, we have previously rejected that argument under the elements clause. See United States v. García-Ortiz, 904 F.3d 102, 109 (1st Cir. 2018). Thus, even after Davis, we cannot say that it was clear error for the district court to describe aiding and abetting a crime of violence as constituting a crime of violence.
- 14 - review, that very lack of clarity precludes us from finding the
district court's description of section 2114(a) as a crime of
violence to be clear error.
Farmer implies that the district court should have gone
on to explain to him that if the government stumbled and ended up
convicting him of only lesser-included versions of each offense,
those lesser included versions, according to Farmer, would not
have qualified as crimes of violence in the absence of the residual
clause now stricken by Davis. And if he had known that, he says,
he would have taken a shot at trying the charges against him.
On plain error review, there are at least two fatal
defects in this argument. First, Farmer points to no case law
requiring that a judge at a plea colloquy must describe what will
happen if the government can only prove a lesser-included offense
which was not separately charged. Rule 11 only requires the judge
to determine that the defendant understands "the nature of each
charge to which the defendant is pleading" before accepting a
guilty plea. Fed. R. Crim. P. 11(b)(1)(G) (emphasis added). We
see no clear and obvious error in failing to describe the nature
of other, lesser offenses to which the defendant is not pleading.
See Correa-Osorio, 784 F.3d at 22 (rejecting a claim of error that
was contradicted by caselaw and explaining that "the plain-error
standard is extremely difficult to prove" (internal quotation
marks and citation omitted)).
- 15 - Second, even if there had been clear error, Farmer's
challenge still fails because he cannot show prejudice.7 One crime
of violence suffices to satisfy section 924(c). And it is entirely
implausible that Farmer could have thought he could beat the
aggravated section 111(b) claim on the merits.
The charged section 111(b) assault occurred after the
confidential informant gave Farmer the money for the firearms, at
which point Farmer gave a gun to Sperow, who pointed it at the
informant and told him "you've been beat." Farmer asserts that
because he was charged as an aider and abettor of Sperow's assault,
the government would have to prove not only that Sperow assaulted
the informant with the intent to commit robbery, but also that
Farmer had "advance knowledge" that Sperow would do so with such
intent. United States v. Fernández-Jorge, 894 F.3d 36, 52 (1st
Cir. 2018). But according to Farmer, the "assault with the
dangerous weapon was not done with the intent to commit robbery
because at that point, the taking was complete." Instead, Farmer
argues, the purpose of the assault was to punish the informant's
cousin. Farmer therefore contends that it would be difficult to
7 Although, as Farmer notes, the government made no argument under the prejudice prong, we may "'affirm on any basis apparent in the record,' even if it would 'require[] ruling on arguments not reached by the district court or even presented to us on appeal.'" Williams v. United States, 858 F.3d 708, 714 (1st Cir. 2017) (quoting Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 237 n.11 (1st Cir. 2013)).
- 16 - prove Sperow brandished the firearm with intent to rob, let alone
that Farmer had "advance knowledge" of Sperow's intent to assault
with intent to rob.
This defense falters before it even gets out of the gate.
The robbery here was not consummated by the taking of the
informant's money, but by the refusal to give him the firearms.
And the defendants achieved the informant's acquiescence by
Sperow's action of pointing the gun at him. It is thus beyond
reasonable dispute that Sperow brandished the firearm with the
intent to rob the informant. As to Farmer's "advance knowledge"
of Sperow's intent to effectuate a robbery, it was Farmer himself
who, after taking the informant's money, gave the gun to Sperow.
The fact that Farmer then told the informant they were doing all
this because they thought the informant's cousin robbed them does
nothing to negate the fact that Sperow carried out the assault
with a deadly weapon with the intent to rob the informant.
Given the foregoing, we find it implausible that Farmer
would have risked the potential benefits of pleading guilty in
order to take a shot at beating the section 111(b) count, which
charged an offense that constitutes a crime of violence even post-
Davis. And for that reason, he has not shown a reasonable
probability he would not have pled guilty to the section 924(c)
count. See United States v. Takesian, 945 F.3d 553, 566 (1st Cir.
2019) ("'A reasonable probability[] . . . is a probability
- 17 - sufficient to undermine confidence in the outcome' -- i.e., it is
more than a mere possibility, but less than a preponderance of the
evidence." (quoting Dominguez Benitez, 542 U.S. at 83 n.9)).
Accordingly, for each of the foregoing reasons, Farmer's
challenge to the acceptance of his plea based on Davis fails on
plain error review.
C.
We next consider Farmer's challenges to his sentence,
beginning with his argument that the prosecutor breached the plea
agreement by failing to "affirmatively" recommend a bottom-of-the-
guidelines sentence. According to Farmer, that failure entitles
him to a new sentencing hearing before a different judge, in which
the government would fully comply with the agreement.
"A defendant who has entered into a plea agreement with
the government, and himself fulfills that agreement, is entitled
to the benefit of his bargain." United States v. Saxena, 229 F.3d
1, 6 (1st Cir. 2000). To satisfy this obligation, the prosecutor
must pay "more than lip service to, or technical compliance with,
the terms of a plea agreement." United States v. Marín-Echeverri,
846 F.3d 473, 478 (1st Cir. 2017) (quoting United States v.
Almonte-Nuñez, 771 F.3d 84, 89 (1st Cir. 2014)).
In evaluating whether a prosecutor has complied with a
sentencing recommendation in a plea agreement, "we examine the
totality of the circumstances[] to determine whether 'the
- 18 - prosecutor's overall conduct is reasonably consistent with making
such a recommendation, rather than the reverse.'" United States
v. Ubiles-Rosario, 867 F.3d 277, 283 (1st Cir. 2017) (quoting
United States v. Gonczy, 357 F.3d 50, 54 (1st Cir. 2004)) (internal
citation and alterations omitted)). Because Farmer did not object
to the purported breach of the plea agreement during the sentencing
hearing, our review is for plain error. See Almonte-Nuñez, 771
F.3d at 89. For the following reasons, we find no clear and
obvious error.
The plea agreement required the government to recommend
that Farmer be sentenced to the mandatory minimum for the
section 924(c) count and to the bottom of the applicable sentencing
guidelines range for all other counts. The government's sentencing
memorandum fully conformed with that requirement. The problem was
that neither party's sentencing memorandum convinced the court.
The court began the sentencing hearing by noting that it was not
only "troubled" by the low-end guidelines recommendation, but that
it was actually considering an upward variance. After defense
counsel argued, the court remained unassuaged. The prosecutor
then began by trying to assure the court that the recommended
sentence "is still a very significant sentence" and "would
represent a fairly significant increase over [Farmer's] co-
defendants."
- 19 - The prosecutor proceeded to make clear that she
"share[d] absolutely the concerns the Court ha[d] raised" and that
she did not "see any point in belaboring them." She then pointed
out why the court should not vary downward and concluded by saying
that she "would certainly defer to the Court's discretion with
regard to where in the guidelines that sentence ultimately is
placed."
We see no breach of the agreement. To the contrary, we
see a prosecutor who persisted in advocating as agreed even in the
face of headwinds, sought to assure the court that the recommended
sentence took into account the court's concerns, and concluded
with an acknowledgement of the court's wide discretion, even then
implying the government's continued preference for a non-variant
sentence.8 So viewed, the prosecutor's "overall conduct" strikes
us as "reasonably consistent with" the plea agreement, "rather
than the reverse." Ubiles-Rosario, 867 F.3d at 283 (quoting
Gonczy, 357 F.3d at 54); see also United States v. Canada, 960
F.2d 263, 270 (1st Cir. 1992) (noting that a prosecutor is not
obliged to present an agreed recommendation "with any particular
degree of enthusiasm"). Examining the "totality of the
8 Farmer faults the prosecutor for phrasing the low-end recommendation in the past tense, but the context makes clear that in doing so she was simply acknowledging the court's sentencing discretion.
- 20 - circumstances," Ubiles-Rosario, 867 F.3d at 283, we find no clear
or obvious error.
Farmer next attacks the procedural reasonableness of his
sentence, arguing that by failing to group his felon-in-possession
offense with his drug distribution offense, the district court
miscalculated the applicable "Multiple Count Adjustment." As
Farmer acknowledges, he did not raise this challenge below, so
once again we review for plain error. See Molina-Martinez v.
United States, 136 S. Ct. 1338, 1343 (2016).
"All counts involving substantially the same harm shall
be grouped together into a single Group." U.S.S.G. § 3D1.2. The
guidelines provide four rules for determining when counts involve
"substantially the same harm." See id. § 3D1.2(a)-(d). Farmer
relies on the fourth rule, subsection (d), which provides that
counts should be grouped
[w]hen the offense level is determined largely on the basis of the total amount of harm or loss, the quantity of a substance involved, or some other measure of aggregate harm, or if the offense behavior is ongoing or continuous in nature and the offense guideline is written to cover such behavior."
Id. § 3D1.2(d).
Farmer does not explain how the rule laid out in
subsection (d) applies to this case. Rather, he points to the
subsection's instruction that offenses covered by a specified list
of guidelines provisions "are to be grouped," while offenses
- 21 - covered by another list of provisions are "excluded from the
operation" of subsection (d). Id. It is true, as Farmer notes,
that guidelines sections 2D1.1 and 2K2.1, which govern the
offenses at issue here, are included in the list of provisions
that are "to be grouped," see id., and that the relevant
application note states that "most . . . drug offenses, [and]
firearm offenses . . . are to be grouped together" under
subsection (d), id. § 3D1.2, cmt. n.6.
The application note goes on to explain, however, that
"[c]ounts involving offenses to which different offense guidelines
apply are grouped together under subsection (d) if the offenses
are of the same general type and otherwise meet the criteria for
grouping under this subsection." Id. (noting "[t]he 'same general
type' of offense is to be construed broadly"). Even construed
broadly, Farmer's felon-in-possession and drug distribution
offenses are not clearly "of the same general type." Although
firearms are often tools of the drug trade, "it is not inevitable
that firearms located in proximity to drugs are related to the
drug activity." United States v. Espinosa, 539 F.3d 926, 929 (8th
Cir. 2008). In Farmer's case, drugs were found in his backpack
following the use of firearms in an assault and robbery arising
out of an arms deal. Farmer presents no evidence that the drugs
bore any relation to the firearms, other than the fact of physical
proximity. Standing alone, that is insufficient to show the
- 22 - offenses are obviously of the same general type.9 See id. at 929-
30 (upholding decision not to group drug manufacture and firearm
offenses under subsection (d) where firearms were found in a garage
used to produce methamphetamine).
Lastly, Farmer challenges the substantive reasonableness
of his sentence, arguing the three year upward variance he received
and the disparity between his 198-month sentence and the 102-month
sentence of his co-defendant Sperow were unwarranted.
Farmer acknowledges that part of this disparity arises
from that fact that, unlike Sperow, he was charged with and pled
guilty to possession of cocaine with intent to distribute, in
violation of 21 U.S.C. § 841. Nonetheless, Farmer contends, the
remaining disparity between their sentences cannot be adequately
explained by differences in their culpability for the instant
offense, their criminal histories, or their respective mitigating
factors.
As Farmer preserved this claim, we review for abuse of
discretion, looking at "the totality of the circumstances," United
States v. García-Mojica, 955 F.3d 187, 194 (1st Cir. 2020) (quoting
United States v. Vázquez-Martínez, 812 F.3d 18, 26 (1st Cir.
9 In light of this conclusion, we need not resolve the parties' disagreement concerning the government's contention that the failure to group the offenses caused no prejudice because grouping would have resulted in a higher overall guidelines range due to a two-level adjustment for possessing a gun in relation to a drug crime.
- 23 - 2016)), and asking "whether the sentence is the product of 'a
plausible . . . rationale and a defensible result,'" United States
v. Rivera-González, 776 F.3d 45, 51 (1st Cir. 2015) (omission in
original) (quoting United States v. Martin, 520 F.3d 87, 96 (1st
Cir. 2008)).
On appeal, Farmer adds a new, unpreserved argument: The
disparity was on account of race, with Farmer being black and
Sperow white. He offers, though, no hint of any support for the
claim of racial bias other than contending that we should infer
implicit bias because he received an otherwise unjustified upward
variance, while Sperow received a downward variance. So, from
either angle, his argument requires a showing that the different
sentences cannot be explained by appropriate factors in the
record.10
Farmer fails to make such a showing. Farmer was
convicted of an additional offense that Sperow did not commit --
carrying seventy-one grams of cocaine. Farmer brought the guns,
gave one to Sperow, and then he alone beat the victim. Farmer
took the lion's share of the proceeds. And, most significantly,
Farmer and Sperow's criminal history calculations did not take
10 In his reply, Farmer also frames his argument as being that the district court "unreasonably failed to consciously consider that Farmer is black." As this argument was neither made below nor in Farmer's opening brief, it is waived. See Henderson v. Mass. Bay Transp. Auth., 977 F.3d 20, 31 n.10 (1st Cir. 2020).
- 24 - into account that Farmer's prior crime involved robbery, guns, and
a shooting, while Sperow's involved non-violent drug offenses and
a drunk driving offense. Across the board, Farmer presented a
more violently recidivist record than did Sperow.
Repeated episodes of violent conduct are a key factor
judges consider in weighing the appropriate length of a sentence
to deter criminal conduct and protect the public, see 18 U.S.C.
§ 3553(a)(2)(B), (C), and Farmer's history of violent conduct is
precisely what the sentencing judge pointed to in distinguishing
Farmer's sentence from Sperow's.
In a last bid to show the sentencing disparity was
unwarranted, Farmer argues that the district court minimized his
mitigating factors, which he claims were weightier than Sperow's.
The record shows, however, that the district court considered the
mitigating factors and, as a result, gave Farmer a lower sentence
than the one it had initially intended to give. Furthermore, the
court explained that it felt his mitigating factors did not support
a lower sentence when weighed against his criminal record and
violent actions in this case, given the court's paramount concern
with protecting the public.
In sum, Farmer asks us to compare apples to oranges.
Importantly, the district court thoroughly explained its reasons
for sentencing Farmer as it did and welcomed argument and evidence
to the contrary. We cannot say that the disparity between Farmer
- 25 - and Sperow's sentences is inconsistent with the district court's
consideration of appropriate factors.
Finally, leaving no stone unturned, Farmer takes issue
with the district court's failure to complete a form for the
Sentencing Commission entitled "Statement of Reasons" (SOR)
explaining the upward variance it imposed. See 18 U.S.C.
§ 3553(c)(2). Though Farmer contends this failure interfered with
Congress's goal of data collection, he has failed to point to any
way in which he was harmed by the absence of an SOR. An SOR
"serves a largely administrative purpose," Vázquez-Martínez, 812
F.3d at 25, and a "district court's failure to docket, or even
complete, an SOR 'does not require vacation of the sentence absent
a showing of prejudice,'" United States v. Morales-Negrón, 974
F.3d 63, 68 (1st Cir. 2020) (quoting United States v. Fields, 858
F.3d 24, 31 (1st Cir. 2017)). Given the district court's thorough
oral explanation for the sentence and variance and the absence of
any harm to Farmer, we find the district court's failure to issue
an SOR to the Sentencing Commission does not entitle Farmer to a
new sentencing. See Vázquez-Martínez, 812 F.3d at 25-26.
III.
For the foregoing reasons, we affirm Farmer's conviction
and sentence.
- 26 -