United States Court of Appeals For the First Circuit
No. 20-1131
UNITED STATES OF AMERICA,
Appellee,
v.
TIMOTHY FLETCHER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Kayatta, Selya, and Gelpí, Circuit Judges.
K. Hayne Barnwell for appellant. Abigail Frisch Vice, Bristow Fellow, Office of the Solicitor General, United States Department of Justice, with Rachael S. Rollins, United States Attorney, and Alexia R. De Vincentis, Assistant United States Attorney, on brief, for appellee.
December 28, 2022 KAYATTA, Circuit Judge. A jury convicted Timothy
Fletcher of being a felon in possession of a firearm and
ammunition, and of possessing cocaine and cocaine base with intent
to distribute. The district court then imposed a sentence above
the range provided by the United States Sentencing Guidelines.
Fletcher requests a new trial because the district court did not
allow him to call a witness who would have asserted her Fifth
Amendment right to avoid incriminating herself and because one of
the court's instructions ran afoul of Rehaif v. United States, 139
S. Ct. 2191 (2019). He also raises numerous challenges to his
sentence. For the following reasons, we affirm both the conviction
and the sentence.
I.
Shortly before 10:00 p.m. on April 2, 2015, local police
officers trailed Brooke Cotell, a known heroin dealer, to "Simple
Storage," a storage facility in the village of Hyannis in
Barnstable, Massachusetts. An officer observed Fletcher exit
Cotell's vehicle and walk toward Simple Storage, returning fifteen
minutes later. Continuing to follow Cotell's vehicle, officers
observed Fletcher selling one gram of cocaine in what he did not
realize was a controlled buy. After the vehicle parked at the
Clarion Hotel, the officers proceeded to execute a warrant
authorizing the search of Cotell, Fletcher, the vehicle, and a
room reserved at the Clarion by Cotell and Fletcher. The officers
- 2 - found on Fletcher's person eleven individually wrapped baggies
containing what was later confirmed to be cocaine and crack
cocaine. They also found on Fletcher $1,168 in cash, two cell
phones, a key fob for entry to the Simple Storage facility, and a
key to a U-Haul lock.
When questioned, Cotell sought to trade information for
leniency, telling the officers about Fletcher's drug dealing and
his use of a storage unit at Simple Storage. The officers obtained
a warrant to search the storage unit. They also questioned the
owner of the facility, Andrew Adair. At trial, Mr. Adair testified
that Fletcher's mother, accompanied by Fletcher, had rented a
storage unit one year and eight months previously, stating a desire
to store her son's sneaker collection in the unit. During the
ensuing one year and eight months, Mr. Adair saw Fletcher access
the unit about once per month. He saw Fletcher's mother only two
or three times, and never saw anyone else access the unit with
Fletcher. Simple Storage's software confirmed that the fob found
on Fletcher had been used to access the facility on the evening of
Fletcher's arrest.
In the unit rented by Fletcher's mother, the officers
found 223 boxes of sneakers, in and among which were three pistols
and ammunition, bags containing 179.11 grams of cocaine,
2.89 grams of crack cocaine, cutting agents, scales, $1,420 in
cash, and paperwork of various types in Fletcher's name. They
- 3 - also obtained Fletcher's prints from one of the pistols and from
a magazine for one of the other pistols.
Fletcher's defense at trial was that the contraband
found in the storage unit did not belong to him. His counsel
theorized that Cotell or a prior girlfriend, Erica Lopes,
exclusively controlled possession of the drugs. Unconvinced, the
jurors found Fletcher guilty of being a felon in possession of a
firearm and ammunition, and of possessing cocaine and cocaine base
with intent to distribute. The district court imposed a sentence
of 168 months, 31 months above the top of the Guidelines sentencing
range of 110–137 months.
II.
Fletcher's first claim of error during his trial is the
district court's decision not to allow him to call his mother to
testify. Toward the end of the trial, the following discussion
ensued:
[Defense Counsel]: With regard to Ms. Fletcher, Your Honor, my understanding is she's going to invoke her Fifth Amendment privilege with respect to items in the storage unit. I subpoenaed her because of the very fact that I believe that this information is exculpatory to my client. I also understand that -- you know, my intention was to ask other questions with regard to Ms. Fletcher that did not pertain to the storage unit, but did pertain to conversations with Mr. Adair, or what she saw when she arrived to that unit.
- 4 - My desire would be to elicit some questioning not -- that I know will not cover the immediate search or the items inside, other than to say what she found when she arrived to the Simple Storage area.
She will also talk about this individual named Erica Lopes.
She will also reference any knowledge that she might have of Brooke Cotell.
But I do know that she is going to be invoking her Fifth Amendment privilege, and as a result, I think that -- that's why I brought it to the Court's attention.
THE COURT: You're doing the appropriate thing, although I think under our rules, a witness can't be selective about what he or she chooses to testify to. Generally, if you take the oath, you -- and I can't believe that [the prosecutor] wouldn't be asking questions, and why she would take the Fifth Amendment is perfectly apparent to me.
[Defense Counsel]: Your Honor, I would -- I want to ask those questions myself, right. And so I was contacted just this past week by attorneys for Ms. Fletcher, and I do know -- the court may be aware, but she was charged in the state court for possession without -- you know, improper storage, and then that was dropped without prejudice to being refiled. That was only on the one weapon that was physically registered to her.
So, as a result, I do know -- I understand the Court's position, Your Honor, but it is -- it was our intention to call her.
I would ask, at the very least, that if she is called, that I could call her on the stand and
- 5 - then she can invoke her Fifth Amendment privilege on the stand, Your Honor.
THE COURT: Well, as you know, in state court that would never be permitted because the rule is pretty absolute. It's a little more flexible in federal court. I think the leading case is United States v. Johnson, which it's a matter of discretion for the court. Rather than put her to the embarrassment of being on the witness stand and then being taken off . . . I would be willing to simply instruct the jury that it was the intention to call her, that she indicated that she will not testify under her Fifth Amendment right as to any matter that involves the storage locker or its contents. I think that might be better than having her on the stand in front of the jury.
So why don't we handle it that way?
Fletcher did not call his mother, and the court instructed the
jury as follows:
I'm going to tell you now that he would have called his mother, T[]eresa Fletcher, but I've been informed by her lawyer that, if called, she would assert the Fifth Amendment privilege and refuse to answer any question regarding the storage locker or its content. A witness obviously can't selectively testify. So she understands that the defendant under statute will not be called.
As the foregoing excerpts from the trial transcript
demonstrate, no one expressed any doubt that Fletcher's mother
would invoke the Fifth Amendment privilege and refuse to answer
questions "as to any matter that involves the storage locker or
its contents." And given her name on the lease, the contents of
- 6 - the locker, and the specter of refiled criminal charges in state
court, no one disputed that the invocation of her right not to
testify about that subject matter was justified. Finally, no one
objected to the instruction given by the court.
On appeal, Fletcher now reasserts his contention that he
should have been permitted to call his mother to the stand to ask
specific questions such as he proposed. Instead of allowing a
"blanket assertion" of privilege, Fletcher contends that the
district court should have enforced the trial subpoena to bring
his mother and her counsel into court and then conducted a voir
dire inquiry to determine whether any lines of questioning fell
outside the scope of the privilege and could be fairly explored by
both parties.
As to the content of his proposed questions, Fletcher
asserts on appeal that he would have elicited testimony from his
mother "about her observations and knowledge of Lopes and Cotell
including whether she ever saw them access the Simple Storage
building or Unit 26 itself and if so, when, whether she ever saw
them with the key fob and keys to Unit 26, whether she saw either
of them put items in or take items out of Unit 26, whether she
knew anything about their drug dealing or drug possession and/or
whether she knew anything about their motivations or biases against
Fletcher." Fletcher submits that this proposed testimony would
have "put enough meat on the bones" of the defense's theory that
- 7 - "Brooke Cotell or Erica Lopes stored the cocaine in the storage
unit without Fletcher's knowledge." More particularly, Fletcher
contends that the testimony would have bolstered his theory that
Cotell "could have taken his keys and put the cocaine in Unit 26,
allowing her to pass blame to Fletcher if she were ever caught."
We review rulings sustaining invocations of Fifth
Amendment privilege for abuse of discretion. See United States v.
Ramos, 763 F.3d 45, 53 (1st Cir. 2014). Generally speaking, our
case law prefers that the trial court conduct a "particularized
inquiry" to see whether there are specific questions that are
outside the scope of the privilege and can be explored by both
parties without unfairness. United States v. Pratt, 913 F.2d 982,
990 (1st Cir. 1990); see United States v. Cascella, 943 F.3d 1, 5–
6 (1st Cir. 2019) (noting that "a blanket assertion . . . is
'extremely disfavored,'" but stating that "[w]e have nevertheless
at least once allowed such a blanket assertion of privilege when
the district court itself confirmed the witness's inability to
offer any relevant, non-privileged testimony" (citations
omitted)).
Here, the district court did not question Fletcher's
mother or her counsel regarding the scope of her asserted
privilege, nor did it provide any analysis as to how testifying
about certain topics, such as general knowledge about Lopes and
Cotell, could possibly incriminate Fletcher's mother. On the other
- 8 - hand, this was likely the result of Fletcher's rather flimsy
descriptions of what testimony he sought to elicit at trial.
Certainly, Fletcher's description to the district court of the
proposed testimony was much vaguer than his description on appeal.
At trial, his counsel stated only that he wanted to ask questions
of Fletcher's mother about (1) her "conversations with Mr. Adair";
(2) "what she found when she arrived to the Simple Storage area";
(3) "this individual named Erica Lopes"; and (4) "any knowledge
that she might have of Brooke Cotell." Those vague proffers did
not provide much detail to suggest that the testimony would be
both relevant and beyond the scope of the privilege.
In any event, we need not decide whether the district
court abused its discretion because we agree with the government
that the exclusion of Fletcher's mother as a witness was harmless
beyond a reasonable doubt. See Delaware v. Van Arsdall, 475 U.S.
673, 681 (1986); Cascella, 943 F.3d at 6; United States v. Kaplan,
832 F.2d 676, 685 (1st Cir. 1987). "Caught red-handed" comes to
mind as a fair description of Fletcher. The local police saw him
-- not Cotell -- go to the storage unit before the sale; his
paperwork was in the unit; his prints were on one of the pistols;
he carried the key fob and the key to the storage unit; and he was
carrying cocaine when arrested just after making a controlled sale.
Given that evidence, no reasonable jury would find that he used
the storage unit only to store sneakers. See, e.g., United States
- 9 - v. Highgate, 521 F.3d 590, 595 (6th Cir. 2008) ("Although
questioning the arresting officer's credibility could marginally
benefit [the] defense, this testimony would not have altered the
jury's verdict in light of the overwhelming evidence of guilt.").
III.
Fletcher also argues that he is entitled to a new trial
due to a flawed jury instruction on the felon-in-possession charge.
Section 922(g) makes it unlawful for "any person . . . who has
been convicted in any court of, a crime punishable by imprisonment
for a term exceeding one year . . . to . . . possess in or
affecting commerce, any firearm or ammunition . . . ." 18 U.S.C.
§ 922(g). Section 924(a)(8), in turn, makes it a crime punishable
by up to fifteen years to "knowingly violate[]" section 922(g).
18 U.S.C. § 924(a)(8). In Rehaif, decided after Fletcher's verdict
but before sentencing, the Supreme Court held that "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. The district
court's instructions to the jury, delivered before Rehaif was
decided, did not inform jurors of the need to find beyond a
reasonable doubt that Fletcher knew that a crime for which he had
previously been convicted was punishable by more than one year in
prison. Fletcher requests a new trial on this basis.
- 10 - The parties agree that we review this claim for plain
error, given that Fletcher did not object to the jury instructions.
Under the plain error standard, Fletcher "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. Burghardt, 939 F.3d 397, 403 (1st Cir. 2019) (alteration in
original) (quoting United States v. Correa-Osorio, 784 F.3d 11, 18
(1st Cir. 2015)).
The parties also appear to agree that the instructions
were clearly erroneous, if only because the district court had no
foreknowledge of the Rehaif decision. So we ask, next, whether
the error was prejudicial. Id.; United States v. Guzmán-Merced,
984 F.3d 18, 20 (1st Cir. 2020). In this context, prejudicial
means that, but for the error, there is a "reasonable probability"
that the jury would have acquitted Fletcher on this count. Greer
v. United States, 141 S. Ct. 2090, 2098 (2021).
We see no such probability. Fletcher served over four
years of post-conviction imprisonment on a 2005 conviction, and an
additional one year and eleven months on a 2011 probation
violation. It would require something quite extraordinary to
convince a jury that a person who actually served a sentence well
in excess of a year did not know that his offense had been
punishable by more than a year in prison. See Burghardt, 939 F.3d
- 11 - at 404 (reasoning that a defendant's receipt of actual sentences
in excess of one year "would certainly have made clear . . . that
his offenses were punishable by more than one year in prison").1
Fletcher nevertheless points to the passage of time, his
learning difficulties, his use of drugs and alcohol, and his mental
illness as reasons he may not have understood the nature of his
prior convictions. But nothing in the record describes the nature
and severity of those afflictions in a manner that would raise a
reasonable probability that jurors would conclude that Fletcher
had forgotten spending over four years in prison as a result of a
conviction, much less that he had also forgotten about another
imprisonment of almost two years.
We therefore conclude that Fletcher has not shown a
reasonable probability that a proper instruction in light of Rehaif
would have resulted in acquittal. This closes out Fletcher's
grounds for a new trial, so we turn to his complaints regarding
sentencing.
1 Fletcher argues that he "received a substantial amount of credit for time served" on the 2005 conviction and that "it is reasonably likely that he did not understand that the amount of time served in pretrial detention counted towards his sentence." See Greer, 141 S. Ct. at 2103 (Sotomayor, J., concurring in part and dissenting in part) (noting that a defendant "might not understand that pretrial detention was included in his ultimate sentence"). But the credit he received for time-served still left over four years of his sentence that he served after his conviction.
- 12 - IV.
At sentencing, the district court rejected the
government's argument that Fletcher qualified as a career offender
and adopted a Guidelines sentencing range calculation of 110–
137 months. The court then said the following:
However, this is one of those rare cases which I think an upward departure is in order, given the nature and just astonishing criminal record that Mr. Fletcher has compiled. It is not the longest I have ever seen, but it is, certainly given his age, perhaps the most replete that I have encountered.2 So I am going to depart upward to a sentence of 168 months.
Mr. Fletcher, if you would stand, please.
Mr. Fletcher, pursuant to the Sentencing Reform Act of 1984 and having considered the sentencing factors more importantly enumerated at 18, United States code, Section 3553(a), it is the judgment of the court that you be committed to the custody of the Bureau of Prisons for a term of 168 months. This term consists of a term of 120 months on Count One, and terms of 168 months on Counts Two and Three to be served concurrently with Count One.
2 Fletcher's "replete" criminal history was summarized by the government in its sentencing memorandum as follows: Fletcher "indicate[d] that he ha[d] spent well over a third of his life in custody," and he had "numerous arrests and convictions for serious crimes," "repeated violations of his conditions of probation," and "many disciplinary incidents while in custody." The presentence report chronicled this record in detail.
- 13 - Fletcher raises several challenges to this 168-month
sentence, 31 months in excess of the Guidelines sentencing range.
Three of those challenges are based on Fletcher's claims that the
district court disregarded certain procedures that district courts
must follow in issuing departing (as opposed to varying) sentences.
He also contends that the district court did not provide adequate
explanation for his sentence and that his sentence was
substantively unreasonable. We address these challenges in turn.
A.
Fletcher contends that the above-Guidelines sentence was
a departure and, therefore, that the district court erred by
failing to follow certain procedures that must accompany departing
sentences. Specifically, Fletcher argues that the district court
(1) failed to provide reasonable notice that it was contemplating
a departure under Federal Rule of Criminal Procedure 32(h);
(2) misapplied Guidelines section 4A1.3(a)(4) in determining the
extent of the departure; and (3) failed to set forth in writing
the specific reasons why the criminal history category was
inadequate, as required by Guidelines section 4A1.3(c)(1).
Before turning to these three arguments, we first
consider their common premise: that the sentence reflected a
departure, rather than a variance. Fletcher points out that the
district court twice described its sentence as "departing" during
the sentencing hearing. And on the administrative statement of
- 14 - reasons form, the court checked the box for "depart[ing]" and
completed the section titled "Departures Pursuant to the
Guidelines Manual" while leaving blank the section titled "Court
Determination for a Variance." The government nevertheless
contends that the district court engaged in a variance, rather
than a departure, as evidenced by the court's reference to
section 3553(a) factors, which could be used to explain a variance.
We can hardly be surprised that skilled counsel for the
parties can advance cogent but opposing views on whether Fletcher's
above-Guidelines sentence is a departure or a variance. We have
observed that "a departure is just a variance by another name."
United States v. Santini-Santiago, 846 F.3d 487, 490 (1st Cir.
2017). That is because for practical purposes, there is no
departure that could not be justified as a variance. Id.; see
also United States v. Ríos-Rivera, 913 F.3d 38, 45 (1st Cir. 2019)
("[T]here is no discernable difference between departure and
variance sentences."). Yet we have also stated that the difference
between departures and variances "is hardly semantic." United
States v. Miranda-Díaz, 942 F.3d 33, 40 (1st Cir. 2019); see also
United States v. Díaz-Lugo, 963 F.3d 145, 153 n.1 (1st Cir. 2020)
(observing, even while citing Santini-Santiago, that "we have made
it luminously clear that departures and variances are not of the
same genre"); United States v. Rodríguez-Reyes, 925 F.3d 558, 567
(1st Cir. 2019) ("There are significant differences between a
- 15 - departure and a variance."). Although all these statements by our
court are literally correct, it is fair to say that they may invite
confusion. This confusion is, to a certain extent, unavoidable
given that the notion of departures is largely an artifact of the
pre-Booker era, "when the guidelines were mandatory and variances
were little more than a gleam in the eye of the Supreme Court."
Santini-Santiago, 846 F.3d at 490; see United States v. Booker,
543 U.S. 220, 259–60 (2005). But until the rules (see, e.g., Fed.
R. Crim. P. 32(h)) fully reflect the implications of Booker's
decree that courts can vary outside Guidelines sentencing ranges
based on section 3553(a) factors (that are, in turn, broad enough
to encompass the grounds for departures), we cannot entirely
abandon the nomenclature.
So we treat departures and variances like two roads, one
of which can always get you to every place that the other may lead,
yet each of which has acquired its own set of directions. Nor, we
add, are the respective directions as different as some presume.
For example, while Rule 32(h) requires advance notice of the
grounds for any contemplated departure, our case law requires that
sentencing courts also avoid unfair surprise when adopting a
variance. United States v. Vega-Santiago, 519 F.3d 1, 5 (1st Cir.
2008) (en banc) ("[W]hen proposing to adopt a variant sentence
relying on some ground or factor that would unfairly surprise
competent and reasonably prepared counsel, a judge must either
- 16 - provide advance notice or, on request, grant a continuance in order
to accommodate a reasonable desire for more evidence or further
research.").
With the foregoing in mind, we accept Fletcher's premise
that he received a sentence based on an upward departure, as the
district court twice stated. We turn next to Fletcher's three
arguments based on that premise.
1.
Fletcher's principal challenge points to the district
court's failure to give advance notice of its intention to depart,
as required by Rule 32(h). We review this unpreserved challenge
only for plain error. Fletcher's counsel knew at the sentencing
hearing that the court was departing from the Guidelines, that the
court had not given notice under Rule 32(h), and that the court's
rationale for the departure was Fletcher's extensive criminal
history. Yet his counsel neither expressed surprise at the
departure nor otherwise objected to the court's procedure. Indeed,
after explaining its reasoning, the district court expressly asked
counsel whether they "ha[d] anything further," to which Fletcher's
counsel replied, "I do not." See Ríos-Rivera, 913 F.3d at 45
(finding forfeiture of Rule 32(h) argument where, after announcing
the sentence, the district court asked if there was "anything else"
counsel wanted to discuss and defense counsel replied, "That is
all").
- 17 - Under plain error review, Fletcher must show, among
other things, that the error prejudiced him. United States v.
Turbides-Leonardo, 468 F.3d 34, 39 (1st Cir. 2006). In a case
such as this, involving a purported error in adopting a departure,
there is no prejudice where the district court would have properly
imposed the same sentence as a variance. United States v. Laboy-
Nadal, 992 F.3d 41, 43 (1st Cir. 2021).
In explaining its reasoning for the departure, the
district court effectively made clear that it would have issued
the same sentence under the rubric of a variance. It explained
why it found the Guidelines range insufficient, particularly as to
Fletcher's criminal history, without going beyond the scope of the
section 3553(a) factors. More specifically, the district court
explained its sentence by pointing to Fletcher's "astonishing
criminal record . . . given his age." This extensive criminal
history was detailed in the presentence report and the government
urged that the court rely on it as a basis for a bracing sentence
of 210 months.3 Similarly, the district court's statement of
reasons form indicates that the reason for the departure was
3 Referring to some of Fletcher's prior convictions that were chronicled in the presentence report but not accounted for in the Guidelines calculation, the government argued that "even if they're too old to count, . . . they're important for the Court to look to consider the overall history of this defendant. He's been in and out of jail, in and out of state prison, yet he has not deterred [sic] his criminal ways."
- 18 - Guidelines section 4A1.3, i.e., "that the defendant's criminal
history category substantially under-represents the seriousness of
the defendant's criminal history or the likelihood that the
defendant will commit other crimes." These considerations fall
squarely within the section 3553(a) factors. See United States v.
Flores-Machicote, 706 F.3d 16, 21 (1st Cir. 2013) (stating that "a
sentencing judge may consider whether a defendant's criminal
history score substantially under[-]represents the gravity of his
past conduct" as part of the "history and characteristics" factor);
18 U.S.C. § 3553(a)(2)(C) (requiring consideration of "the need
for the sentence imposed . . . to protect the public from further
crimes of the defendant"). And the district court expressly stated
that its sentence was based on "having considered the sentencing
factors" in section 3553(a). Thus, "[e]ven if the district court
imposed a departure rather than a variance, its analysis tracked
the § 3553(a) factors." Laboy-Nadal, 992 F.3d at 43. In short,
whether labeled a departure or a variance, Fletcher's sentence was
going to be the same.
Fletcher nevertheless contends that even if the sentence
could have been imposed as a variance, the lack of notice
prejudiced him because, had he more notice, he likely would have
"argued that he was not a hardened criminal but a man whose prior
crimes were inextricably linked to his struggles with mental
illness and trauma which are best addressed through treatment."
- 19 - But arguments in this vein were centrally germane regardless of
whether any departure was anticipated. Indeed, these arguments
would have been directly relevant even if a Guidelines sentence
-- or a low Guidelines sentence -- had been anticipated. And
Fletcher had plenty of notice that his criminal history was
especially pertinent given the government's focus on it in its
objection to the presentence report, its sentencing memorandum,
and its argument at the sentencing hearing. So we cannot see how
Fletcher's arguments can be said to have been omitted due to lack
of notice.
Fletcher refers us to United States v. Mangone, 105 F.3d
29 (1st Cir. 1997), which held that a district court's failure to
provide notice before departing prejudiced the defendant because
"[a]n increase of two years in time spent behind bars cannot help
but affect one of the most precious rights an individual has, to
live in freedom." Id. at 36. But Mangone was decided pre-Booker,
before it was clear that a sentencing court could simply impose
the same sentence through a variance. Moreover, in Mangone, the
government stated that the Guidelines adequately addressed the
enormity of the offense and did not argue for an upward sentence
based on the rationale relied on by the court. Id. at 34–35. So
the defendant in that case had far less reason to anticipate an
upward sentence on the grounds relied on than Fletcher had in this
case, where the government expressly argued for a higher sentence
- 20 - on the same basis that the district court relied on in imposing
the above-Guidelines sentence.
2.
Fletcher next argues that an error in calculating the
extent of the departure generated a gravitational pull on the
district court's thinking, such that we cannot say that it would
have settled on its 168-month sentence, whether by departure or
variance, absent that pull. See United States v. Rodriguez, 630
F.3d 39, 43 (1st Cir. 2010) (citing Vega-Santiago, 519 F.3d at 5).
Due to the lack of objection below, plain error applies to this
argument as well.4
The alleged error here concerns Guidelines
section 4A1.3(a)(4), which describes a process for departing based
on the extent and nature of a defendant's criminal history.
Fletcher seems to contend that because the presentence report
assigned him a criminal history category of V, an upward departure
should have moved him only to VI, and that such a move would have
generated a range of only 120–150 months, still below the sentence
of 168 months.
4 Fletcher suggests that his counsel lacked the opportunity to object because the district court did not expressly state that it was applying Guidelines section 4A1.3(a)(4) at the sentencing hearing. But it was clear at the hearing that the court's rationale for the departure was Fletcher's extensive criminal history, such that section 4A1.3(a)(4) was in play.
- 21 - But nothing in the Guidelines limited the district court
to merely changing the criminal history category to VI. Rather,
if the court felt that a category of VI also understated the extent
and nature of the actual criminal history, section 4A1.3(a)(4)
expressly supported an effective departure above the range
generated by category VI by means of "incrementally" increasing
the offense level "until [the court] finds a guideline range
appropriate to the case." Such a move here, in turn, generated a
range encompassing 168 months.
Two conclusions flow from the foregoing. First, it is
not clear to us that any error was committed merely because the
court's qualitative assessment of the criminal history drove its
selection of a sentencing range. Section 4A1.3(a)(4) expressly
allows adoption of a range that is "appropriate to the case."
Second, the court's use of its departure authority under
section 4A1.3(a)(4) to select a sentence appropriate to the case
based on its assessment of the extent and nature of Fletcher's
"replete" criminal history makes clear that it would have reached
the same endpoint had it started out down the variance road. So
Fletcher cannot show any prejudice from the alleged misapplication
of section 4A1.3(a)(4) in calculating the extent of the departure.
3.
Fletcher argues that the district court failed to
provide a written statement of reasons required by Guidelines
- 22 - section 4A1.3(c)(1), which he contends was necessary for
meaningful appellate review of the upward departure. The
government appears to concede that we review this argument under
an abuse of discretion standard, because Fletcher and his counsel
would not have become aware of the court's failure to comply with
the writing requirement until after the sentencing hearing. But
"[t]he district court's oral explanation provided this Court with
an adequate record to evaluate the appropriateness of its
departure," and, given that explanation, "we believe that the
district court would have imposed the same sentence" had it
provided a written statement of reasons. United States v. Vázquez-
Martínez, 812 F.3d 18, 25 (1st Cir. 2016). Therefore, any such
error was harmless. See id.5
B.
Shifting tacks slightly, Fletcher argues that the
explanation for his enhanced sentence -- whether called a departure
or variance -- was inadequate. We review this argument for plain
error because Fletcher did not object to the court's explanation
at the sentencing hearing. United States v. Carrasquillo-Sánchez,
9 F.4th 56, 58 (1st Cir. 2021).
5 For the same reasons, we reject Fletcher's challenge under section 3553(c)(2), which similarly requires a written statement of reasons. 18 U.S.C. § 3553(c)(2).
- 23 - We find no plain error in the district court's
explanation of its sentence. An explanation, "though brief," may
nonetheless be sufficient if it "contain[s] a clear, cogent, and
coherent rationale for its decision." United States v. Madera-
Ortiz, 637 F.3d 26, 31 (1st Cir. 2011). All that is required is
that the sentencing court "identify the main factors behind its
decision"; the explanation "need not 'be precise to the point of
pedantry.'" United States v. Merced-García, 24 F.4th 76, 80–81
(1st Cir. 2022) (first quoting United States v. Vargas-García, 794
F.3d 162, 166 (1st Cir. 2015); then quoting United States v. Del
Valle-Rodríguez, 761 F.3d 171, 177 (1st Cir. 2014)).
Here, the explanation that the district court gave for
its sentence identified the main factors behind its decision.
Specifically, the district court explained that the nature,
length, and repleteness of Fletcher's criminal history, especially
for someone of his age, made this a "rare case[]" warranting an
upward departure. We do not find this explanation lacking.
Fletcher contends that his "age is an unremarkable fact
and the Guidelines range already accounts for his criminal record."
"[A] sentencing court must indicate why the defendant's situation
differs from the mine-run of cases when basing an upward variance
on a factor already generally accounted for by the [Guidelines
sentencing range]." Del Valle-Rodríguez, 761 F.3d at 176 (citing
United States v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir. 2006)).
- 24 - But the district court did not merely consider Fletcher's age and
his criminal record independently as two separate factors. Rather,
its decision was based on the repleteness of Fletcher's criminal
record (of 25 years) "given his age" (of 38), and the Guidelines
range did not account for the relationship between these factors.
Moreover, "[t]he explanation must be read in light of
the record as a whole," Madera-Ortiz, 637 F.3d at 31, and here the
record as a whole shows why the district court thought the
Guidelines range insufficient. The government pointed out in its
sentencing memorandum and at the hearing that some of Fletcher's
prior convictions were not considered in the Guidelines range
because they had "aged out." The government also argued that the
facts underlying some of Fletcher's past crimes were violent, even
though the presentence report did not treat them as violent crimes.
The district court concluded that precedent foreclosed treating
those crimes as predicate offenses for career offender status.
Finally, the Guidelines range did not account for the dozens of
disciplinary reports -- many of which were violent -- that Fletcher
incurred while incarcerated, which the court thought were
"relevant and merit[ed] some consideration, not perhaps, decisive
consideration." Accordingly, we find the district court's
explanation, especially when read in light of the record as a
whole, to be adequate.
- 25 - Nor did the district court fail to consider mitigating
circumstances. Our case law is clear that a district court "need
not tick off each and every factor in a mechanical sequence" and
that "we presume -- absent some contrary indication -- that a
sentencing court considered all the mitigating factors and that
those not specifically mentioned were simply unpersuasive."
United States v. Saccoccia, 10 F.4th 1, 10 (1st Cir. 2021); see
also United States v. Millán-Román, 854 F.3d 75, 78 (1st Cir. 2017)
("[W]e do not require an express weighing of mitigating and
aggravating factors or that each factor be individually
mentioned." (quoting United States v. Lozada-Aponte, 689 F.3d 791,
793 (1st Cir. 2012))). Here, the district court expressly stated
that it had considered the section 3553(a) factors, a statement
that is "entitled to some weight." United States v. Vega-Salgado,
769 F.3d 100, 105 (1st Cir. 2014) (quoting United States v.
Clogston, 662 F.3d 588, 592 (1st Cir. 2011)). And Fletcher points
to nothing in the record suggesting the contrary.
C.
Fletcher's final contention is that his sentence was
substantively unreasonable. He argues, in the same vein as his
procedural arguments, that "this is a mine-run case where the
Guidelines cover the seriousness and length of his record."
The government concedes that Fletcher preserved this
claim by requesting a 110-month sentence. But even under the
- 26 - applicable abuse of discretion standard, "we will set aside a
sentence only if the district court's determination falls outside
the 'expansive boundaries' of the entire range of reasonable
sentences." United States v. Vargas-Dávila, 649 F.3d 129, 130
(1st Cir. 2011) (quoting United States v. Martin, 520 F.3d 87, 92
(1st Cir. 2008)). "A sentence will stand so long as there is 'a
plausible sentencing rationale and a defensible result.'" United
States v. Reyes-Rivera, 812 F.3d 79, 89 (1st Cir. 2016) (quoting
Martin, 520 F.3d at 96).
We cannot say that Fletcher's sentence falls outside the
range of reasonable sentences. As described above, the record
contained various reasons for the district court to conclude that
Fletcher's extensive criminal history was not adequately covered
by the Guidelines sentencing range and brought this case out of
the "mine-run" of similar cases. Therefore, we reject Fletcher's
final challenge to his sentence.
For the foregoing reasons, we affirm Fletcher's
conviction and his sentence.
- 27 -