United States v. Frederickson

988 F.3d 76

• Court: Court of Appeals for the First Circuit
• Decided: February 16, 2021
• Docket: 20-1033P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 20-1033

UNITED STATES OF AMERICA,

Appellee,

v.

DANIEL FREDERICKSON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Landya B. McCafferty, U.S. District Judge]

Before

Lynch, Lipez, and Barron, Circuit Judges.

Leonardo A. Angiulo for appellant. Lucy Sun, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.

February 16, 2021 LIPEZ, Circuit Judge. In August 2019, the United States

Probation Department in Worcester, Massachusetts ("the Probation

Office" or "Probation"), petitioned for the arrest of appellant

Daniel Frederickson for violating his supervised release by

committing a new offense -- assaulting a U.S. Probation Office

employee. A criminal complaint was also issued against

Frederickson for the alleged assault. After a three-day trial, a

jury acquitted Frederickson of the criminal assault charge.

Subsequently, the district judge who presided at the jury trial

also presided at a supervised release revocation hearing and

revoked Frederickson's supervised release on the basis of the same

conduct. The court sentenced Frederickson to twenty-four months

in prison followed by eight months of supervised release.

Frederickson appeals, alleging that the court improperly

used acquitted conduct to revoke his supervised release, that the

evidence did not support a finding of revocation, and that the

sentence imposed was unreasonable. After careful review, we

affirm.

I.

We recount the facts as presented at Frederickson's

revocation hearing in the light most favorable to the government,

see United States v. Oquendo-Rivera, 586 F.3d 63, 66-67 (1st Cir.

2009), except where presenting conflicting testimony is necessary

to understand the legal issues in this appeal. At the revocation

- 2 - hearing, the parties relied primarily on transcripts of

Frederickson's criminal assault trial. The government

supplemented its evidence with two additional witnesses, but

Frederickson relied solely on his presentation at trial, which

consisted of his testimony as the only witness in his defense.

Hence, in recounting the facts, we rely heavily on memorialized

trial testimony as proffered by the parties and supplemented by

the government at the revocation hearing.

A. Supervised Release and the Assault

In November 2017, Frederickson pled guilty to conspiracy

to possess with intent to distribute steroids, in violation of 21

U.S.C. § 846, and possession of a tableting machine, in violation

of 21 U.S.C. § 843(a)(6). He was sentenced to three years of

supervised release. As a condition of his release, Frederickson

was required to submit to regularly scheduled drug testing at the

U.S. Probation Office. He was also prohibited from committing any

additional state or federal crimes.

Paul Walter, who was twenty-six years old at the time of

these events, was a student intern in the Probation Office

beginning in January 2017. As an intern, he was responsible for,

among other things, answering the phone, handling faxes,

monitoring home detention, and collecting urine samples. Walter

testified that, beginning in late 2017, he collected urine samples

from Frederickson one to three times a month until August 20, 2019.

- 3 - On that date, Frederickson arrived at the Probation

Office for a scheduled urine test. Walter greeted Frederickson,

observed him pass through a metal detector, and unlocked the

bathroom door for Frederickson to enter from the lobby. Walter

then entered the bathroom from a second door leading to the

offices, handed Frederickson a urine sample cup, and left the

bathroom through that same door to allow Frederickson to provide

the sample. Shortly thereafter, Frederickson either knocked on

the door to the offices or yelled for Walter to reenter the

bathroom. Walter and Frederickson provided conflicting accounts

of what happened next.

Walter contends that when he reentered the bathroom, he

inspected Frederickson's sample and determined that there was an

insufficient amount of urine. Walter asked whether Frederickson

needed additional time or a glass of water to produce a sufficient

sample, but Frederickson declined. Walter testified that

Frederickson suddenly began walking toward him and asking

questions such as "Why are we here?" and "What do you even do

here?" Walter tried to leave the bathroom but was met by a closed

fist punch to the left side of his face by Frederickson. Walter

contends that Frederickson proceeded to violently assault him by

placing him in a chokehold, strangling him, and slamming his head

against a wall, table, and the floor while Walter pleaded for his

life.

- 4 - According to Frederickson, when Walter initially entered

the bathroom to provide the sample cup, Walter made several

comments about Frederickson's appearance, such as, "[y]ou look

good," and "you have really nice calf muscles," and asked

Frederickson whether he had been working out. Frederickson

testified that he felt as though Walter was "hitting on [him]."

According to Frederickson, when Walter reentered the bathroom to

inspect the sample, he said it was insufficient and proceeded to

"pat" Frederickson's genitals, and stated "you can do a little

better than that." Frederickson said he was "stunned" by Walter's

sexual assault and immediately punched Walter in his left eye.

Frederickson contends that thereafter he was in a state of shock

and remembers only that he ended up on the bathroom floor holding

Walter down by his shoulders and asking him "What the hell was

that?" and "What do you even do here?"

The only other individual present in the Probation

Office at the time of the assault was Probation Officer Ryan Skal,

who testified at the trial that he heard a loud thumping coming

from the bathroom and went to investigate. When he opened the

bathroom door, Officer Skal observed Frederickson holding Walter

in a chokehold on the floor. He testified that Walter appeared to

be struggling to breathe. He closed the bathroom door and ran to

call for emergency services. After calling 911 and reporting the

assault, Officer Skal returned to the bathroom and observed

- 5 - Frederickson continuing to strangle Walter. Skal urged

Frederickson to desist and, "after a few prompts," Frederickson

acquiesced. Officer Skal then ordered Frederickson to leave the

Probation Office immediately, and Frederickson complied. Officer

Skal did not testify that Frederickson had told him that Walter

had sexually assaulted him.

After Frederickson left the Probation Office, Worcester

Police Officer Keith Garlick recognized Frederickson's name

because he was "familiar with the family." Officer Garlick

notified Frederickson's family of the assault allegations and,

shortly thereafter, Frederickson's sister drove him to the

Worcester Police Station. Officer Garlick testified, as one of

the two additional witnesses presented by the government at the

revocation hearing, that he arrested Frederickson without

Mirandizing1 him and that Frederickson remained silent and had no

visible injuries.

B. The Jury Verdict and Supervised Release Revocation

Frederickson was indicted on one count of assaulting a

federal employee, in violation of 18 U.S.C. § 111. The Worcester

District Court had also issued a criminal complaint charging

Frederickson with various state crimes, but all were dismissed

after Frederickson was federally indicted. The Probation Office

1 See Miranda v. Arizona, 384 U.S. 436, 444-45, 467-74 (1966).

- 6 - separately sought revocation of Frederickson's supervised release

for his November 2017 offense on the ground that Frederickson had

violated the conditions of his release by "committ[ing] another

federal, state, or local crime." At the government's request, the

court continued the revocation hearing until after the assault

trial.

The trial occurred in December 2019 and lasted three

days. On the final day, the court instructed the jury on the

elements of forcibly assaulting a federal employee. The court

also instructed the jury on self-defense:

The defendant has testified that he acted in self-defense. Therefore, in addition to proving all the elements of the crime beyond a reasonable doubt, the [g]overnment must also prove beyond a reasonable doubt that the defendant did not act in self-defense. A defendant may use force in self-defense against a federal officer if: One, the defendant reasonably believed that the use of force was necessary to defend himself against an immediate use of unlawful force or unlawful contact; and two, the defendant used no more force than appeared reasonably necessary in the circumstances. However, a person who is the initial aggressor cannot later claim self- defense as a justification for the assault.

After approximately three hours of deliberations, the jury

returned a verdict of not guilty.

Directly following the acquittal, the court convened a

bail hearing regarding Frederickson's ongoing detention for his

alleged supervised release violation based on the same conduct --

- 7 - assaulting Walter. Despite the acquittal, the government insisted

on pursuing the supervised release violation, given the lower

burden of proof (by a preponderance of the evidence) applicable at

revocation proceedings. The court ordered Frederickson detained

pending the revocation hearing.

The day before the revocation hearing, the court

convened a telephone conference primarily to hear argument as to

"whether the court may consider acquitted conduct in reaching its

decision on revocation." At that hearing, the government notified

Frederickson that it intended to argue at the revocation hearing

that Frederickson violated supervised release by (1) assaulting a

federal employee in violation of 18 U.S.C. § 111 (the federal

assault charge that was the subject of the criminal trial), and

(2) committing simple assault and battery in violation of Mass.

Gen. Laws ch. 265, § 13A (the state assault and battery charge

that was dismissed).

The revocation hearing was held on December 20, 2019.

At the outset, the court announced its legal conclusions as to the

issues discussed at the telephone conference. The court concluded

that nothing "prevent[ed] [it] from considering whether the

defendant violated 18 U.S.C. [§] 111 under a preponderance of the

evidence standard, and on that basis [the court could revoke

Frederickson's] supervised release." The court further concluded

- 8 - that it could also consider whether Frederickson's conduct

violated state or local law.

Frederickson argued that he acted in self-defense,

relying on his memorialized trial testimony. The government

similarly relied on the evidence it presented at trial, which

consisted of photographic evidence of Walter's injuries and the

crime scene, Walter's medical records, and the testimony of four

witnesses -- Walter; Officer Skal; Officer Anthony Correa, who

responded to the 911 call at the Probation Office; and Barbara

Hazen, a receptionist at the Probation Office who did not witness

the assault but arrived at the office shortly after the assault

occurred. The government supplemented its evidence at the

revocation hearing with the live testimony of two additional

witnesses: (1) Officer Keith Garlick, who testified that

Frederickson had no visible injuries and did not report being

sexually assaulted; and (2) Alicia Howarth, a Probation supervisor

who testified that Walter's employment file contained no

disciplinary proceedings or allegations of sexual assault.

After orally reviewing the evidence, the court stated

that it "intend[ed] to use the self-defense instruction, the law

that [it] gave the jury in the trial." It further clarified that

it had assessed the evidence and would apply the preponderance of

the evidence standard. The court proceeded to announce its

findings on self-defense before turning to the elements of assault.

- 9 - Regarding self-defense, the court concluded that "the

government ha[d] met its burden [of demonstrating] by a

preponderance of the evidence that the defendant did not act in

lawful self-defense [because] . . . [e]ven if the defendant

believed that Paul Walter unlawfully had physical contact with

him, the defendant used more force than appeared reasonably

necessary in the circumstances." The court noted that the only

unlawful physical contact that Frederickson testified to was

Walter's sexual assault at the beginning of the encounter, which

the court found did not justify Frederickson's prolonged

retaliation. With respect to the alleged sexual assault, the court

noted that

there [was] just no reason for Mr. Frederickson not to say to Officer Skal or to anyone that night "I was sexually assaulted. . . . I'm on top of him because he assaulted me" . . . . Mr. Frederickson remained without any sort of responsiveness and didn't mention to Officer Garlick, who apparently knows the family, "Officer Garlick, I was sexually assaulted" and talk to him, tell him that. Nothing. There was nothing that was mentioned.

Turning to the elements of assault and battery, the court

held that there, too, the government had met its burden on each

element of 18 U.S.C. § 111 and Mass. Gen. Laws ch. 265, § 13A. It

concluded that Frederickson willfully touched Walter in an

offensive manner likely to cause bodily harm. The court noted

that "Mr. Walter testified that Mr. Frederickson began to make him

- 10 - feel uneasy in terms of the questions and the look on his face,

and then out of the blue, according to Mr. Walter," Frederickson

struck him. The court stated that it found that the assault had

occurred "by a preponderance" and "frankly [that it was]

undisputed[,] because Mr. Frederickson admitted that he sucker

punched Mr. Walter."

The court revoked Frederickson's supervised release and

imposed the maximum allowable sentence -- twenty-four months in

prison followed by eight months of supervised release.

II.

On appeal, Frederickson challenges the revocation of his

supervised release as well as the sentence imposed by the district

court. Specifically, he argues that: (1) the district court was

barred from relying on acquitted conduct to revoke his supervised

release; (2) even if the acquitted conduct could be used, the

record does not support a finding of revocation; and (3) the

sentence imposed is unreasonable.

A. Acquitted Conduct as a Basis for Revocation

Frederickson contends that the government was

collaterally estopped from relying on acquitted conduct to

demonstrate that he committed a crime in violation of the terms of

his supervised release. As noted, prior to the revocation hearing,

the court conducted a telephonic hearing to consider whether

acquitted conduct could be used at the revocation hearing. Hence,

- 11 - we review this preserved issue of law de novo. United States v.

Cruz-Rivera, 904 F.3d 63, 65 (1st Cir. 2018).

The Fifth Amendment guarantee against double jeopardy

bars the government from retrying an individual for the "same"

offense. U.S. Const. amend. V. In Ashe v. Swenson, the Supreme

Court identified collateral estoppel as an "ingredient" in the

Fifth Amendment's prohibition on double jeopardy. 397 U.S. 436,

442-46 (1970). In effect, collateral estoppel applies the

principles of double jeopardy to a subsequent prosecution of a

"different" offense if, "to secure a conviction[,] the prosecution

must prevail on an issue the jury necessarily resolved in the

defendant's favor in the first trial." Currier v. Virginia, 138

S. Ct. 2144, 2150 (2018). For Ashe's collateral estoppel bar to

apply, "[the court] must be able to say that 'it would have been

irrational for the jury' in the first trial to acquit without

finding in the defendant's favor on a fact essential to conviction

in the second." Id. at 2150 (quoting Yeager v. United States, 557

U.S. 110, 127 (2009) (Kennedy, J., concurring in part and

concurring in the judgment)).

We recognize that there is a broader argument that

collateral estoppel, as grounded in the Double Jeopardy Clause,

simply does not apply to revocation proceedings, which often entail

a loss of liberty but are not criminal prosecutions. See United

States v. Correa-Torres, 326 F.3d 18, 22 (1st Cir. 2003). Indeed,

- 12 - the Tenth Circuit has stated that a "revocation proceeding . . .

simply is not a criminal prosecution to which Double Jeopardy

protections apply." Lynch v. O'Dell, 163 Fed. App'x 704, 707 (10th

Cir. 2006). The government attempts, in a perfunctory manner, to

raise a similar argument. Even if we excused the government's

probable waiver of this argument, we would decline to reach it,

opting instead for affirmance on the narrow ground that collateral

estoppel, assuming it applies, does not bar the government's use

of acquitted conduct in this case.2

Although we have not previously addressed whether

collateral estoppel prohibits the use of acquitted conduct to

revoke supervised release, we do not write on a blank page. In

United States v. Watts, the Supreme Court held that "an acquittal

in a criminal case does not preclude the [g]overnment from

relitigating an issue when it is presented in a subsequent action

governed by a lower standard of proof." 519 U.S. 148, 156 (1997)

(per curiam) (quoting Dowling v. United States, 493 U.S. 342, 349

(1990)). In Watts, the police discovered cocaine base and two

Apparently concerned that we might rule otherwise -- that 2

the Double Jeopardy Clause barred the government's use of acquitted conduct to seek revocation -- the government, for the first time on appeal, invokes the dual sovereignty doctrine to argue that double jeopardy does not apply at all because the government sought revocation on the basis of Frederickson's simultaneous violation of state law. Since we are only assuming that collateral estoppel, grounded in the Double Jeopardy Clause, applies here, we need not consider the government's dual sovereignty argument.

- 13 - loaded guns in the defendant's home. Id. at 149. A jury convicted

the defendant of possession with intent to distribute but acquitted

on the charge of using a firearm in relation to a drug offense.

Id. at 149-50. At sentencing, the district court nevertheless

found by a preponderance of the evidence that the defendant had

used the guns in connection with the drug offense and, therefore,

was subject to an increased sentence. Id. at 150.

The Ninth Circuit vacated Watts' sentence and remanded

for resentencing. United States v. Watts, 67 F.3d 790, 796-98

(9th Cir. 1995). The circuit court reasoned that, although a

district court can consider conduct "other than that of which a

defendant was convicted" in calculating a sentence, it could not

"reconsider facts that the jury necessarily rejected by its

acquittal of the defendant on another count." Id. at 796.

The Supreme Court reversed, concluding that the Ninth

Circuit "failed to appreciate the significance of the different

standards of proof that govern at trial and sentencing," and

"misunderstood the preclusive effect of an acquittal" when it held

that the government was barred from relitigating the acquitted gun

charge at sentencing. Watts, 519 U.S. at 155. The Court explained

that "it is impossible to know exactly why a jury found a defendant

not guilty on a certain charge" in the absence of specific factual

findings. Id. An acquittal, the Court reasoned, does not

establish that the jury rejected any facts or concluded that the

- 14 - defendant was innocent of the charged conduct; it establishes only

that the government failed to prove an essential element of the

offense beyond a reasonable doubt. Id. Hence, the Court

concluded, the jury's acquittal on the gun charge did not "preclude

a finding by a preponderance of the evidence," at sentencing, "that

the defendant did, in fact, use or carry . . . a weapon . . . in

connection with a drug offense." Id. at 157. In other words,

collateral estoppel did not bar the district court's examination

of the acquitted conduct in light of the lower burden of proof.

See id.

The subsequent proceeding here, a revocation hearing, is

similarly governed by a lower standard of proof. To prove

Frederickson violated the terms of his supervised release, the

government needed only to show by a preponderance of the evidence

that he committed a crime while on supervised release. See, e.g.,

United States v. Marino, 833 F.3d 1, 8 (1st Cir. 2016). Applying

the straightforward logic of Watts, we conclude, as have several

of our sister circuits, that the government's use of acquitted

conduct to prove assault by a preponderance of the evidence at

revocation does not violate principles of collateral estoppel.

See, e.g., United States v. Waller, 616 Fed. App'x 628, 629 (4th

Cir. 2015) (holding that "[b]ecause the standard of proof is less

than that required for a criminal conviction," a district court

may revoke supervised release "even if the defendant is acquitted

- 15 - on criminal charges arising from the same conduct"); Poirier v.

Doyle, 40 Fed. App'x 211, 213 (7th Cir. 2002) (allowing the

"revocation of parole [even when] based on criminal conduct for

which the defendant was acquitted"); see also United States v.

Teran, 98 F.3d 831, 836 (5th Cir. 1996) ("Regardless of [the

defendant's] acquittal by a jury, the revoking court had a

preponderance of evidence before it to support the finding of th[e]

probation violation."); United States v. McPherson, 814 F. App'x

957, 962 (6th Cir. 2020) (similar); Standlee v. Rhay, 557 F.2d

1303, 1305-06 (9th Cir. 1977) (similar).

Frederickson nevertheless argues that where, as here,

the acquitted conduct is the sole basis for a deprivation of

liberty rather than a factor in determining the degree of

punishment at sentencing, Watts is inapplicable and collateral

estoppel should apply. However, Frederickson misunderstands the

liberty interests at stake in a revocation hearing. Although

revocation often leads to reimprisonment, and thus "entail[s] a

loss of freedom and a deprivation of liberty," it is not considered

an independent criminal prosecution. Correa-Torres, 326 F.3d at

22. Revoking supervised release deprives an individual "only of

[] conditional liberty" dependent upon observing the restrictions

imposed by the district court as a condition of release from

imprisonment for the earlier criminal conviction. See Morrissey

v. Brewer, 408 U.S. 471, 480 (1972). For that reason, the grounds

- 16 - for revocation "need only be found by a judge under a preponderance

of the evidence standard, not by a jury beyond a reasonable doubt."

Johnson v. United States, 529 U.S. 694, 700 (2000).

Frederickson also contends that Watts is inapplicable

because a conclusive finding of self-defense can be gleaned from

the jury's verdict. He argues that, because he conceded that he

assaulted Walter -- though he disputes the severity of the assault

-- the only explanation for the jury's verdict of not guilty is

that he prevailed on his theory of self-defense.

Assuming arguendo that the jury's verdict was based on

self-defense, which, as we have explained, is impossible to know

conclusively, see Watts, 519 U.S. at 155, Frederickson's argument

would still fail because of the differing burdens of proof. At

trial, Frederickson initially was required only to proffer

evidence of self-defense that could support a reasonable jury

finding in his favor. See United States v. Bello, 194 F.3d 18, 27

(1st Cir. 1999) (quoting Mathews v. United States, 485 U.S. 58, 63

(1988)). Having met that low threshold, Frederickson was then

entitled to the instruction that the court gave, as we quoted in

Section I(B): that the government had the burden of disproving

self-defense beyond a reasonable doubt. See United States v. Wilk,

572 F.3d 1229, 1237-38 (11th Cir. 2009); Pattern Criminal Jury

Instruction for the District Courts of the First Circuit § 5.04

(1997); see also Tr. of Jury Trial Day 3 at 34, United States v.

- 17 - Frederickson, 4:19-cr-40039-LBM-1 (Dec. 1, 2019). Applying the

reasoning of Watts, the verdict for Frederickson only meant that

the government failed to disprove self-defense beyond a reasonable

doubt. The government faced a different, lesser burden at the

revocation hearing: disproving self-defense by a preponderance of

the evidence. See 18 U.S.C. § 3583(e)(3); see also Watts, 519

U.S. at 155-57.

Frederickson also invokes principles of fundamental

fairness to argue that collateral estoppel should apply because

the court, at the government's request, delayed the revocation

proceeding until after the criminal trial, allowing the government

to get the proverbial "second bite at the apple." This argument

misapprehends the dual effect of new criminal conduct committed

while on supervised release. In addition to running afoul of a

criminal statute, the offending conduct simultaneously and

independently violates the terms of release for the initial

offense. See United States v. McInnis, 429 F.3d 1, 5 (1st Cir.

2005). The government is entitled to pursue both a new criminal

conviction and revocation as "part of the penalty for the initial

offense." Id. In doing so, nothing compels the government to

choose a particular sequence because a violation of supervised

release does not depend upon whether the violative conduct is the

subject of a criminal charge or conviction. U.S. Sent'g Guidelines

Manual § 7B1.1, cmt. 1 (U.S. Sent'g Comm'n 2018) (explaining how

- 18 - to calculate the grade of a supervised release violation).

Practically speaking, the government may seek to secure a criminal

conviction first because, once it has proven that the defendant

committed a new crime beyond a reasonable doubt, that conviction

necessarily demonstrates by a preponderance of the evidence at

revocation that the defendant violated the terms of supervised

release by committing a new crime.

Frederickson nevertheless urges us to adopt the

reasoning of Commonwealth v. Brown, 469 A.2d 1371 (Pa. 1983), a

case that predates Watts, in which the Supreme Court of

Pennsylvania concluded that Pennsylvania law reflects a "clear

assumption" that when a revocation hearing is delayed until after

a criminal trial based on the same conduct, "the [government] will

be bound by the finding of the criminal trial" at the revocation

hearing. Id. at 1376-78. Pennsylvania law obviously does not

apply in this case, and Frederickson does not point to any similar

assumption in federal law. Indeed, as we have explained, nothing

prohibits the government from seeking, in no particular order, to

hold a defendant accountable for both committing a new criminal

offense and violating a term of supervised release.

Lastly, Frederickson argues that delaying his revocation

hearing until after his trial deprived him of procedural due

process. Frederickson misunderstands the procedures due him prior

to revoking his supervised release. In the context of revocation,

- 19 - procedural due process is satisfied if, in a timely manner, the

defendant is afforded,

(A) written notice . . . ; (B) disclosure of the evidence against [him]; (C) an opportunity to appear, present evidence, and question any adverse witness unless the court determines that the interest of justice does not require the witness to appear; (D) notice of [his] right to . . . counsel . . . ; and (E) an opportunity to make a statement and present any information in mitigation.

Fed. R. Crim. P. 32.1(b)(2). Frederickson does not argue that he

was deprived of any of those procedural protections. Moreover, at

Frederickson's revocation hearing, which occurred less than five

months after the assault on Walter, the court relied, almost

exclusively, on evidence proffered and examined at trial. In

effect, then, Frederickson received much more than due process

requires at revocation: he received all of the due process

protections that come hand-in-hand with a criminal trial on the

merits. Frederickson's due process argument fails.

B. Sufficiency of the Evidence

Frederickson contends that even if acquitted conduct can

be used to revoke supervised release, the evidence presented by

the government was insufficient to prove, by a preponderance of

the evidence, that he committed an assault and was not acting in

self-defense. We review a district court's decision to revoke

supervised release for abuse of discretion and factual findings

supporting that decision for clear error. Oquendo-Rivera, 586

- 20 - F.3d at 66-67. As we have previously recognized, sufficiency

challenges to supervised release revocations are "notoriously hard

to win," because (1) we must view the evidence in the light most

favorable to the government, (2) the district court's choice among

competing, yet plausible, inferences from the evidence does not

amount to clear error, and (3) credibility determinations are

primarily for the district court. Marino, 833 F.3d at 8.

The district court concluded that Frederickson did not

act in lawful self-defense when he assaulted Walter because "[e]ven

if [Frederickson] believed that Paul Walter unlawfully had

physical contact with him, [Frederickson] used more force than

appeared reasonably necessary in the circumstances." Frederickson

contends that the record does not support the severe, protracted

assault described by the court. Frederickson points to

inconsistencies between Walter's testimony, Officer Skal's

testimony, and Walter's medical records. He also questions the

district court's reluctance to credit his claim of sexual assault.

At trial, Walter testified that the assault began with

a closed fist punch delivered by Frederickson to Walter's left

eye. He then described the ensuing altercation as follows:

Mr. Frederickson grabbed me in a front chokehold, slammed my head against the wall, the table, and eventually to the floor. . . . As I was kicking the door and I still had air to speak, I was screaming for help, kicking the door, the floors, walls, in an attempt to make any noise so somebody could hear

- 21 - me. . . . I felt a lot of pain and kind of, I guess, shock. . . . I was being strangled against my will . . . . [I said] You're going to kill me. . . . I told [Officer Skal] "Get him off me. He's going to kill me." . . . Officer Skal left the bathroom. . . . At this point I had pretty much given up that anybody was going to be in the office. . . . My body began to not tense up as much, and I kind of accepted that I might be breathing my last breath underneath that toilet. . . . Some time later [Officer Skal] came [back] . . . . Mr. Frederickson was still on top of me. Officer Skal told him to "Get off him," and Mr. Frederickson eventually complied with that. . . . [After Frederickson left,] I attempted to get up . . . . I got out towards the lobby door, crawling. I then attempted to stand up, and I fell over and slammed my head against the wall in the lobby.

Walter testified that when he went to the hospital, he

was experiencing severe symptoms:

[His] face felt extremely swollen . . . [his] jaw [felt] broken. [He] couldn't really open [his] left eye. [His] leg was extremely strained. [He] couldn't really walk. [His] neck was strained . . . . [He] had a cut in . . . [his] back [and] head and swelling of the back of [his] head.

He further testified that he told the doctors that he had sustained

a punch to the face with a closed fist, he was strangled, his leg

hurt, his face was swollen, and he had a headache.

Frederickson points to notes in the emergency room

doctor's medical report indicating that Walter was negative for

neck pain, skin wounds, dizziness, trouble swallowing, nosebleeds,

nausea, change in vision, and headaches, as support for his

- 22 - argument that the assault was not as severe as Walter claimed at

trial. Although there were small discrepancies in the report vis-

á-vis Walter's testimony, the medical records in their totality

support Walter's description of a severe assault. The records

identify Walter's reason for visiting the emergency room as an

"assault[] while at work . . . in locked bathroom, [patient] was

punched to [left] side of face, slammed down on the ground, hit

[right] side of face, strangled [for] 'a couple minutes.'" The

records further state that Walter presented as "assaulted by

client, was choked and struck with fist on left jaw," reported

pain in his jaw and leg, was positive for facial swelling, and

contusions of the head and face. Moreover, the court placed

considerable weight on the photographs of Walter's injuries and of

blood on the wall after the altercation. The court also found the

corroborating testimony of Officer Skal "utterly credible."

Officer Skal's testimony did corroborate Walter's

description of the assault in all major respects. Specifically,

Officer Skal testified that he heard thumping in the bathroom,

opened the bathroom door, saw Frederickson on top of and choking

Walter, perceived the situation as "extremely dangerous," and

immediately retreated to call 911. The assault then continued

while Officer Skal left the bathroom, called 911, reported the

assault, and entered the bathroom a second time to observe

Frederickson still on top of Walter. Officer Skal further

- 23 - testified -- and Officer Garlick later corroborated -- that

Frederickson had no visible injuries following the altercation.

Frederickson points to several inconsistencies in the

testimony of Walter and Officer Skal: (1) Walter said the reason

Officer Skal entered the bathroom was that Walter was screaming

for help and kicking the door, floor, and wall, while Officer Skal

testified that it was because he heard a "thumping sound, almost

like a bowling ball hitting a marble floor"; (2) Walter testified

that his head was under the toilet when Officer Skal entered the

bathroom, while Officer Skal testified that Walter's head was

"positioned almost under the sink"; (3) Walter testified that he

and Frederickson were in the same spot when Officer Skal returned

the second time, while Officer Skal testified that "[t]hey were

not . . . [and Walter's] body was a little bit more upright"; and

(4) Walter testified that he got out of the bathroom by crawling

out of the door and into the lobby covered in blood, while Officer

Skal testified that he helped Walter out of the bathroom.

The minor inconsistencies cited by Frederickson do not

undermine the court's determination that the combined testimony of

Walter and Officer Skal supported Walter's version of events. The

court explained that Officer Skal "was there. He heard what was

happening. He opened the door twice, and both times saw [Mr.]

Walter being assaulted in a manner consistent with Mr. Walter's

testimony." As we have explained, credibility determinations are

- 24 - primarily for the district court, Marino, 833 F.3d at 8, and the

court resolved the inconsistencies cited by Frederickson by

explaining, "I think both Officer Skal and Walter [we]re [] in

shock on some level, and so the fact that they might not remember

certain details about the way the legs were and the arms were

flailing during the assault, that in the [c]ourt's view, is

understandable."

Frederickson also contends that the court erred in

doubting his allegation of sexual assault primarily because he

failed to report the assault. Frederickson faults the court for

"speculating" and "prescrib[ing]" how he should have processed the

assault. At the revocation hearing, the court concluded that it

could discern no reason for Frederickson's failure to tell Officer

Skal or Officer Garlick that he was sexually assaulted, or to

otherwise report Walter for such a serious offense. As we describe

in more detail when discussing the reasonableness of

Frederickson's sentence, the court's skepticism regarding

Frederickson's alleged failure to report was but one factor

supporting its conclusion that Frederickson lacked credibility.3

3 See, e.g., Reyes v. Mitchell, 2020 WL 1550238, No. 18-40147- WGY, slip op. at 10-13 (D. Mass. Apr. 1, 2020) (explaining that a delay or failure to report a sexual assault can be used to impeach a witness' credibility). That is not to say, however, that a delay or failure to report should be viewed uncritically as the sole basis for disbelieving a victim of sexual assault. Indeed, research shows that sexual assault victims "experience a range of conduct, suffer a range of harms, [] respond [to assault] in

- 25 - Viewing the evidence in the light most favorable to the

government, as we must, we conclude that the district court's

finding that Frederickson assaulted Walter in excess of the bounds

of lawful self-defense is not clearly erroneous and, therefore,

the court did not abuse its discretion in revoking Frederickson's

supervised release.

C. Reasonableness of the Sentence

Frederickson claims that the court erred in imposing an

unreasonably long sentence based on improper sentencing factors

and without resolving critical factual conflicts. We review a

district court's chosen sentence for abuse of discretion. United

States v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011). The

"touchstone" of our review is reasonableness, which may involve

both procedural and substantive inquiries. Id.

In assessing procedural unreasonableness, we ask whether

the court made any procedural errors during the sentencing phase,

such as "failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to

consider the 18 U.S.C. § 3553(a) factors, selecting a sentence

divergent ways," and may choose not to report or to delay reporting because they feel responsible, embarrassed, ashamed, or for a variety of other reasons. See, e.g., Jamie R. Abrams, The #METOO Movement: An Invitation for Feminist Critique of the Rape Crisis Framing, 52 U. Rich. L. Rev. 749, 772-776 (May 2018); see also Kathryn M. Stanchi, The Paradox of the Fresh Complaint Rule, 37 B.C.L.R. 441, 459-462 (May 1996).

- 26 - based on clearly erroneous facts, or failing to adequately explain

the chosen sentence -- including an explanation for any deviation

from the Guidelines range." United States v. Politano, 522 F.3d

69, 72 (1st Cir. 2008) (quoting Gall v. United States, 522 U.S.

38, 51 (2007)). If no procedural errors have been committed, and

the appellant is arguing substantive unreasonableness, we ask

whether the district court provided a "plausible" explanation for

its sentencing determination and whether, based on the totality of

the circumstances, the overall result is "defensible." United

States v. Innarelli, 524 F.3d 286, 292 (1st Cir. 2008).

Frederickson says that he is challenging only the

substantive reasonableness of his sentence but, as the government

notes, two of his arguments -- that the court failed to consider

all appropriate sentencing factors and failed to resolve critical

factual issues -- raise procedural concerns. See Politano, 522

F.3d at 72. Hence, we begin our review of the alleged procedural

errors with a brief overview of Frederickson's sentencing hearing.

The court began its sentencing explanation by stating

that the applicable guidelines range of twelve to eighteen months

in prison was insufficient, and that Frederickson's conduct

warranted an upward variance to the maximum allowable sentence.

The court remarked that it viewed even that sentence -- twenty-

four months in prison and eight months on supervised release -- to

be inadequate, but the sentence could not exceed the statutory

- 27 - maximum. The court proceeded to explain that it had considered

all relevant factors, including the nature and circumstances of

the violation as well as Frederickson's criminal history and

personal characteristics, and determined that a statutory maximum

sentence was not greater than necessary.

The court outlined the two primary goals served by its

sentence: general deterrence and public protection. The court

explained that a severe sentence was warranted to deter others

from assaulting members of the U.S. Probation Office while on

supervised release, which is designed to help federal prisoners

reintegrate into society. The court also noted that Frederickson's

history of violent crime and his two previous violations of

supervised release within the prior year -- one for assaulting his

parents and one for participating in an unarmed robbery -- made

him a "menace" and a danger to the public. According to the court,

by committing yet another offense while on supervised release,

Frederickson "thumbed [his] nose at the [c]ourt, at Probation, and

at law enforcement" and demonstrated that he could not be trusted

to comply with the terms of continued supervised release.

Frederickson contends that the court's focus on those

two goals demonstrates that the sentence was improperly driven by

a vindictive motive and that the court failed to take mitigating

factors into account. We disagree. Frederickson points to nothing

in the court's sentencing colloquy that demonstrates an improper

- 28 - motive. See United States v. Pimienta-Redondo, 874 F.2d 9, 13

(1st Cir. 1989) ("Absent proof of an improper motive -- or some

sound reason to suspect the existence of one -- no reasonable

apprehension of vindictiveness can flourish."). To the contrary,

the court explained that it had considered each of the factors

prescribed by statute for determining the appropriate sentence for

a violation of supervised release, which include "the history and

characteristics of the offender; the nature and circumstances of

the new offense; the need to deter further criminal conduct; and

the need to protect the community from the offender's penchant for

criminal behavior." United States v. Márquez-García, 862 F.3d

143, 145 (1st Cir. 2017) (citations omitted); see also 18 U.S.C.

§§ 3583(e), 3553(a).4

The court further explained that it had reviewed all of

the information submitted by both parties, including factual

objections and legal arguments, Walter's victim impact statement,

Frederickson's supervised release violation report, the parties'

sentencing memos, and the letters of support from Fredrickson's

family and friends. The court even remarked that the letters

submitted on Frederickson's behalf, which, according to the court,

portrayed someone very different from the person described in the

4Section 3583(e) directs a district court to consider the sentencing factors set forth in § 3553(a) in determining whether to modify or revoke a defendant's supervised release.

- 29 - violation report, provided a glimmer of hope that Frederickson may

receive familial support upon his release from prison.

That the court chose to highlight only two factors in

more detail -- deterrence and public protection -- does not

undermine the "significant weight" we afford a court's statements

regarding the factors and information it considered at sentencing.

Márquez-García, 862 F.3d at 145 ("Although a sentencing court must

consider each of the factors that section 3583(e) identifies, the

court is not obliged to address these factors 'one by one, in some

sort of rote incantation when explicating its sentencing

decision.' Rather, the court need only identify the principal

factors upon which it relies to reach its sentencing decision."

(citations omitted) (quoting United States v. Dixon, 449 F.3d 194,

205 (1st Cir. 2006))); United States v. Santiago-Rivera, 744 F.3d

229, 233 (1st Cir. 2014) ("[T]he sentencing judge explicitly noted

that he had considered all of the section 3553(a) factors. Such

a statement is entitled to significant weight . . . .").

Frederickson also claims that the court failed to

resolve factual conflicts regarding the impetus, nature, and

extent of the assault. According to Frederickson, the court failed

to adequately explain which version of events it found credible

and, therefore, the lengthy sentence it imposed is not supportable.

Here, too, we disagree. Immediately prior to sentencing, while

revoking Frederickson's supervised release, the court explained

- 30 - that it found the testimony of Walter "credible by a preponderance

of the evidence" and the testimony of Officer Skal "utterly

credible." It further concluded that Frederickson's conduct

reflected that he had a "serious issue, a serious problem" and

that he did not act in lawful self-defense when he assaulted

Walter.

As Frederickson points out, the court's statements do

not include an explicit finding that Frederickson was not credible

or that he lied about being sexually assaulted by Walter.

Nevertheless, we read the court's findings as a rejection of

Frederickson's version of events. As noted, the court began its

findings by expressing considerable skepticism regarding

Frederickson's testimony, discerning "no reason for Mr.

Frederickson not to say to Officer Skal or to anyone that night

that . . . 'I was sexually assaulted. . . . I'm on top of him

because he assaulted me.'" The court further commented that the

evidence showed that "Mr. Frederickson remained without any sort

of responsiveness and didn't mention to Officer Garlick, who

apparently knows the family, 'Officer Garlick, I was sexually

assaulted' and talk to him, tell him that. Nothing. There was

nothing that was mentioned." The court went on to carefully

explain how, in its view, virtually all of the evidence

corroborated Walter's version of events. It explicitly found

- 31 - Walter's testimony, as corroborated by the only eyewitness,

Officer Skal, credible and supportable.

The court further described Frederickson's conduct as

"gravely concerning," and it concluded that Frederickson had

proven "that [he] cannot be trusted to comply with the terms and

conditions of supervision." The court stated that "if [it] could

order [him] to be locked up for longer, [it] would" because "[t]he

public deserves that[,] Paul Walter deserves that[,] [e]very

probation officer deserves that." The court warned Frederickson

that "if you come before this [c]ourt ever again and if you lay

hands on one other person, you will not get probation and

interactive journaling. No. You will get the sentence that you

deserve."5

Juxtapose those statements with the court's praise of

Walter's work as a Probation intern "working with [Frederickson,]

supervising [his] drug testing," "engaging with [him] in

interactive journaling," and "working with [him] to help [him]

integrate into society, become law-abiding." Indeed, speaking

directly to Walter, the court said:

You must not turn away from a career in criminal justice based on this hideous experience. . . . You became a victim because of your service, because of your courage, and

5 Interactive journaling is a "cognitive behavioral treatment approach" in which a member of the Probation Office assists ex- convicts with journaling to help "[i]dentify [their] thoughts and actions leading to behaviors."

- 32 - I hope you redouble your efforts. I trust that you will have support along the way. You did not deserve this, sir, but thank you for your service.

In short, the court's statements reflect an adoption of

Walter's version of events, which necessarily entails a rejection

of Frederickson's allegation of sexual assault. Contrary to

Frederickson's assertions, the court did not leave unresolved a

critical factual dispute between Walter and Frederickson and,

thus, we discern no procedural unreasonableness with

Frederickson's sentence.

Turning to substantive reasonableness, we must consider

whether the challenged sentence falls within the "expansive

'universe of reasonable sentencing outcomes.'" United States v.

Díaz-Lugo, 963 F.3d 145, 157 (1st Cir. 2020) (quoting Clogston,

662 F.3d at 592). In doing so, we may not substitute our own

judgment for the judgment of the sentencing court. Id. "[A]s

long as the sentencing court has mulled all the relevant factors,"

and reached a defensible result, Frederickson cannot prevail by

merely complaining about the court's assessment of those factors.

Id.

As explained above, the court considered each of the

statutory factors, see 18 U.S.C. §§ 3583(e), 3553(a), finding that

Frederickson committed a serious violent offense, had a proclivity

for recidivism, and was a danger to the public. The court weighed

- 33 - the last two factors the heaviest, concluding that Frederickson

was a menace and that his two prior supervised release violations

demonstrated a lack of appreciation for the terms of supervised

release and the judicial system as a whole. The circumstances of

Frederickson's prior violations support the court's conclusion.

In March 2018, Frederickson pled guilty to assaulting

both of his parents. Following an argument, Frederickson violently

pushed them both to the ground and caused his father to flee the

home. His parents were both granted emergency restraining orders.

Frederickson was found in violation of his supervised release and

sentenced to time served, followed by twenty-four months of

Frederickson was found in violation of supervised

release again in October 2018. While responding to a report of an

unarmed robbery of a woman in Worcester, a police officer

identified and pulled over a suspected vehicle. Frederickson was

driving the vehicle, and the woman's purse, which contained a

bottle of unspecified pills, was found inside. He was sentenced

to four months' imprisonment, followed by twelve months of

Given the violent circumstances of this offense and the

court's explicit consideration of Frederickson's prior supervised

release violations, we conclude that the court applied the

appropriate sentencing factors, provided a plausible rationale for

- 34 - its judgment, and imposed a defensible sentence based on its

supportable view of the facts. Frederickson's sentence was

substantively reasonable.

Affirmed.

- DISSENTING OPINION FOLLOWS -

- 35 - BARRON, Circuit Judge, dissenting. The majority

concludes that the District Court implicitly found that Daniel

Frederickson was not telling the truth about what had been done to

him right before he violently lashed out at the probation officer

who was overseeing his drug test, see Slip Op. at 32, and that the

District Court relied on that implicit finding to justify its

decision to revoke Frederickson's supervised release in full, see

id. at 32-34. The majority relies for this conclusion chiefly on

the passages in the District Court's opinion that praise without

qualification the probation officer for his service, see id. at

34, and that question why Frederickson did not tell anyone about

his allegation that the officer assaulted him right beforehand,

see id. at 33. But, while those statements do provide some support

for the majority's characterization of the District Court's

reasoning, other statements in the District Court's opinion point

against it and prevent me from signing on to the majority's ruling.

For starters, the District Court stated in describing

the basis for finding that Frederickson had violated the terms of

his supervised release that "[e]ven if [he] believed that [the

officer] unlawfully had physical contact with him, [he] used more

force than appeared reasonably necessary in the circumstances."

(emphasis added). Far from rejecting the credibility of

Frederickson's claim that he had been assaulted first, that

statement expressly concludes that his manner of attacking the

- 36 - officer was itself so violent that it constituted a criminal

assault no matter what had occurred beforehand.

Several other statements by the District Court then go

on to reinforce the impression that it was focused on the

especially violent nature of Frederickson's attack, rather than

whether he had been victimized in his own right first. The

District Court states at one point, for example, that while

Frederickson "testified that [the officer] touched him

inappropriately one time at the beginning of the encounter," there

was "[n]o testimony of any other unlawful contact or that [the

officer] responded to the defendant's punch with ongoing unlawful

force or contact, and yet [] Frederickson's assault on [the

officer] continued." (emphasis added). The District Court then

emphasizes at another point that, in its view, there was

"additional proof that more force was used than necessary,"

(emphasis added), namely the extent of the officer's injuries as

documented by photographs, his testimony, and his hospital

records.

Further, when the District Court states that

Frederickson's attack on the officer was "out of the blue," it

qualifies that assertion by noting that such a description of the

event was "according to" the officer. It thus appears to be

relying on a fact that it determined was "frankly . . . undisputed"

-- specifically that "Frederickson admitted that he sucker

- 37 - punched" the officer -- and that in and of itself hardly undermines

Frederickson's account of what had been done to him. Additionally,

when the District Court states that it "f[ound] [the officer's]

testimony about the assault credible by a preponderance of the

evidence," it refers specifically to the violence that

Frederickson used in attacking the officer and not to what had

transpired just before.

Finally, by the time of the revocation decision, a jury

had already acquitted Frederickson of the assault at issue after

it had been instructed that the government needed to prove beyond

a reasonable doubt that Frederickson was not acting in self-defense

and after it had heard Frederickson testify that he had been

sexually assaulted in the restroom. I agree that the District

Court was not bound by that jury's verdict, see United States v.

Paneto, 661 F.3d 709, 715 (1st Cir. 2011), and there are certainly

grounds to doubt Frederickson's account. But, I am still hesitant

to conclude that the District Court intended to reject without

ever expressly saying so a seeming premise of that jury’s verdict

-- namely, that Frederickson was credible in contending that he

had been sexually assaulted immediately prior to attacking the

officer. See Dimick v. Schiedt, 293 U.S. 474, 486 (1935)

("Maintenance of the jury as a fact-finding body is of such

importance and occupies so firm a place in our history and

jurisprudence that any seeming curtailment of the right to a jury

- 38 - trial should be scrutinized with the utmost care."); United

States v. Bell, 808 F.3d 926, 928 (D.C. Cir. 2015) (Kavanaugh, J.,

concurring in the denial of petitions for rehearing en banc)

("[F]ederal district judges have power in individual cases to

disclaim reliance on acquitted or uncharged conduct."); United

States v. McReynolds, 964 F.3d 555, 565 (6th Cir. 2020) (explaining

that the fact that a district court may rely on acquitted conduct

at sentencing "is not a greenlight for the district court to do

whatever it wants at sentencing regardless of the jury's verdict

and without explanation"); cf. United States v. Lombard, 102 F.3d

1, 5 (1st Cir. 1996) ("Certainly situations exist where the

sentencing court might persuasively explain the use of acquitted

conduct.").

Thus, for these reasons, unlike the majority, I am

uncertain whether the District Court settled on the complete

revocation of Frederickson's supervised release because it

disbelieved his story altogether, because it believed his claim

that he had been sexually assaulted while taking the drug test but

concluded that his violent response was grossly disproportionate,

or because it thought that it was so evident that his violent

conduct was of a kind that warranted such a revocation (at least

given the evidence of his past violence while on supervised

release) that there was no need to make a finding one way or the

other as to whether he had been assaulted first or not.

- 39 - Accordingly, in my view the proper course is to vacate and remand

the District Court's revocation decision so that it may clarify

the rationale for it and thereby ensure that Frederickson receives

the kind of explanation to which he is entitled for this severe

punishment. See United States v. Ofray-Campos, 534 F.3d 1, 43

(1st Cir. 2008) (finding procedural error where the district

court's explanation for a significant upward variance was "neither

sufficiently particularized nor compelling to survive . . . review

for reasonableness"). I therefore respectfully dissent.

- 40 -