United States Court of Appeals For the First Circuit
No. 19-2232
UNITED STATES OF AMERICA,
Appellee,
v.
STEPHAN KULJKO, JR., a/k/a Steven J. Kuljko, a/k/a Stephan Kuljko,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Howard, Chief Judge, Selya, Circuit Judge, and Gelpí,* District Judge.
John F. Palmer for appellant. Donald C. Lockhart, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.
June 15, 2021
* Of the District of Puerto Rico, sitting by designation. SELYA, Circuit Judge. Mounting several disparate claims
of error, defendant-appellant Stephan Kuljko, Jr., a convicted
fraudster who hornswoggled dozens of victims out of millions of
dollars, asks us to annul the verdict returned by a jury after a
lengthy trial, set aside his convictions, and vacate his 156-month
incarcerative sentence. Concluding, as we do, that the appellant's
arguments are as empty as the glittering assurances that he offered
to those whom he defrauded, we affirm his convictions and sentence.
I
We briefly rehearse the travel of the case. The
government's investigation yielded copious evidence that the
appellant had masterminded two serpentine schemes, both
fraudulent, over a protracted period of time. One scheme involved
a bank account, supposedly frozen, which (the appellant
represented) contained large sums of money. The other scheme
involved an emerald, supposedly huge and extremely valuable, which
(the appellant represented) was being held in South America.
Spinning tales of riches there for the taking, the appellant
hoodwinked over forty victims and bilked millions of dollars from
them over a period that stretched for more than a decade.
When the facts surrounding the appellant's nefarious
activities came to light, a federal grand jury sitting in the
District of Massachusetts charged him with various crimes. A
superseding indictment, handed up on November 6, 2018, charged the
- 2 - appellant with five counts of wire fraud, see 18 U.S.C. § 1343,
and one count of obstruction of justice, see id. § 1503(a). The
obstruction-of-justice count was premised on an allegation that
the appellant, shortly after the original indictment was returned,
took steps to conceal some twenty-three motor vehicles that were
among the fruits of his fraudulent activity.
The appellant maintained his innocence and a twelve-day
jury trial ensued. The jury found the appellant guilty on four of
the five wire-fraud counts and on the obstruction-of-justice
count. The appellant was acquitted on the remaining wire-fraud
count. The district court sentenced the appellant to an upwardly
variant 156-month term of immurement. This timely appeal followed.
II
In this venue, the appellant advances two claims of trial
error and a cluster of claims of sentencing error.1 Since none
possesses even a patina of plausibility, we make short shrift of
them.
A
The appellant first argues that his convictions cannot
stand because the district court improperly refused to remove a
1To the extent that the appellant suggests other claims of error, such claims are either fatally underdeveloped, patently meritless, or both. We therefore reject them out of hand.
- 3 - juror (whom we shall call Juror 31) for cause. Some stage-setting
is useful.
Jury empanelment took place on August 5, 2019 (the day
before the trial itself started). At the lunch break, Juror 31 —
then a member of the venire — exchanged a brief salutation with an
assistant United States attorney (the AUSA) in the courthouse
cafeteria.2 The prosecutor reported this exchange to the district
court, which proceeded to conduct an individualized voir dire of
the juror. In response to the court's queries, Juror 31 said, in
substance, that her coworker's husband (the AUSA) worked in the
building; that she thought he might be a prosecutor; that she did
not know his surname; that she had met him "probably five times
and never had a conversation with him"; and that "he saw me at
lunch and said hi." She assured the court that — even assuming
that the AUSA toiled in the same office as the prosecutor — it
would not affect her ability to serve as a juror "because I only
know his wife, and we don't have conversations about him or what
happens here."
After the court's interrogation of Juror 31 had
concluded and the juror had left the courtroom, the district court
found her credible and advised counsel that it did not "see a
reason to excuse her." The appellant's attorney asked the court
2 In Boston, the United States Attorney's Office is housed in the same courthouse as the United States District Court.
- 4 - to pose an additional question. The court obliged, had Juror 31
brought back to the courtroom, and inquired whether, given that
the AUSA was married to her coworker and served in the same office
as the prosecutor, it would "be awkward or uncomfortable if it
turned out you were on a jury that found a defendant not guilty
because it would be uncomfortable with your colleague at all?"
The juror replied in the negative and the district court again
found that she was qualified to serve on the jury. The appellant
neither objected nor asked the court to remove Juror 31 for cause.
And after the venire had been whittled down, the appellant's
attorney did not use a peremptory strike to eliminate Juror 31.
It thus came to pass that Juror 31 was seated as one of the twelve
trial jurors.
Before opening statements the next day, the district
court pointed out that, according to a memorandum describing
witness interviews, the AUSA — although not participating in the
appellant's trial — had participated in some portion of an
interview of a prospective witness. The court stated that, given
that the AUSA's wife worked with Juror 31, "[i]t would probably be
preferable not to mention [the AUSA's] name." Neither side
objected, and in line with the court's stated preference, the
AUSA's name was never mentioned before the jury.
On the third day of trial, the appellant — for the first
time — asked the district court to excuse Juror 31. The court
- 5 - refused to do so. Two days later, the court revisited the matter
and asked defense counsel if he wanted to say anything more about
the possibility of excusing Juror 31. Counsel responded that, had
he known that the AUSA "was actually participating" at the witness
interview, he "would have exercised a peremptory [strike] to get
rid of her."3 The district court said that it would "think about
it further."
The next day, defense counsel told the court that he
still believed that Juror 31 should be excused for cause. The
court reserved decision and, on the following day, again questioned
Juror 31. She assured the court once more that her passing
acquaintance with the AUSA had "no connection" to her duties as a
juror. She then declared that "[m]y responsibility here is as
part of this jury." When the court inquired if there was "any
reason why you couldn't continue to be an open-minded, fair and
impartial juror, fair to both sides," she replied, "None
3 The record reflects that the memorandum describing, inter alia, the witness interview in question (which was the source of the information concerning the AUSA's participation) was delivered to defense counsel before the jury was sworn. We need not pursue this point, though, because counsel's assertion that he "would have exercised a peremptory [strike] to get rid of her" is of no consequence. After all, in the absence of a showing of bias — and none has been made here, see text infra — a party "cannot be granted a new trial if the only purpose is 'to recreate the peremptory challenge process because counsel lacked . . . information.'" Sampson v. United States, 724 F.3d 150, 164 (1st Cir. 2013) (quoting McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 555 (1984)).
- 6 - whatsoever." The court, satisfied that Juror 31 would serve
impartially, again refused to remove her. Juror 31 served on the
jury through the end of the trial and was one of the jurors who
returned the verdict.
Against this backdrop, the appellant argues that the
district court should have excused Juror 31 for actual bias or, at
least, for implied bias. Preserved challenges to the seating of
a juror are reviewed for abuse of discretion. See United States
v. Kar, 851 F.3d 59, 68 (1st Cir. 2017); United States v. Godfrey,
787 F.3d 72, 81 (1st Cir. 2015). Here, it is quite likely that
the appellant's challenge (or at least some aspects of it) was
either waived or forfeited. See, e.g., United States v. Soto, 799
F.3d 68, 96 (1st Cir. 2015); United States v. Chapdelaine, 989
F.2d 28, 32 (1st Cir. 1993). But even if we assume, for argument's
sake, that the appellant's challenge was fully preserved, it
nonetheless fails.
A district court has considerable leeway in probing
concerns about juror impartiality and in determining what remedial
measures, if any, may be appropriate. See United States v. Tejeda,
481 F.3d 44, 52 (1st Cir. 2007); United States v. Rodríguez-Ortiz,
455 F.3d 18, 23 (1st Cir. 2006). Where, as here, the district
court has had the opportunity to question the challenged juror and
to see and hear her responses in real time, the party who
challenges the court's decision to allow the juror to sit
- 7 - ordinarily faces an uphill climb. See Amirault v. Fair, 968 F.2d
1404, 1405 (1st Cir. 1992) (noting that "issues of juror
credibility and honesty are determinations 'peculiarly within a
trial judge's province' and are accorded great deference" (quoting
Wainwright v. Witt, 469 U.S. 412, 428 (1985))).
In the case at hand, there is no hint of an abuse of
discretion. Notably, the appellant finds no fault with the scope
of the district court's interrogation of Juror 31. He argues
instead that Juror 31's answers to the court's questions somehow
require a finding that Juror 31 was either actually or impliedly
biased.
The claim of actual bias is fanciful. The district
court, after careful questioning, explicitly found that Juror 31
was credible in declaring her impartiality. That finding was
premised not only on the juror's avowals but also on the court's
assessment of her demeanor. Moreover, the finding was consistent
with the uncontradicted facts concerning the tenuousness of Juror
31's derivative relationship with the AUSA. The appellant has
identified no principled way in which we could second-guess it.
The claim of implied bias is also without merit. Such
a claim requires "'exceptional' or 'extreme' circumstances" giving
rise to an implication of bias. Id. at 1406 (quoting Smith v.
Phillips, 455 U.S. 209, 222 (1982) (O'Connor, J., concurring)).
As we explain below, no such circumstances existed here.
- 8 - The appellant says, in effect, that bias should be
implied because the juror had a coworker whose husband (the AUSA)
labored in the same office as the prosecutor and participated in
the pretrial interview of a witness. While we do not gainsay that
even such an attenuated relationship was enough to spur a vigilant
trial court to consider whether bias could be implied, the
underlying hypothesis is sufficiently conjectural that bias could
not be implied as a matter of law. See United States v. Wood, 299
U.S. 123, 149 (1936) (warning against an imputation of bias that
"rests on an assumption without any rational foundation"). And
here, the court's rejection of such an implication, after a
painstaking inquiry, was well within the wide margins of its
discretion. Its search into the possibility of bias was both
cautious and thorough: it questioned Juror 31 at some length,
found her credible, and concluded — supportably, we think — that
an implication of bias was unwarranted. On this record, that
conclusion demands our deference.
To cinch the matter, we have rejected claims of implied
bias based on scenarios more conducive to juror removal than that
presented here. See, e.g., Kar, 851 F.3d at 64, 68 (finding no
implied bias when juror was "[f]amily friend" and "maybe once or
twice" babysat for prosecution team's paralegal); United States v.
Burgos-Montes, 786 F.3d 92, 111 (1st Cir. 2015) (finding no implied
bias when juror and defense witness were distant cousins); cf.
- 9 - United States v. Torres, 960 F.2d 226, 228 (1st Cir. 1992) (finding
no plain error when juror who knew prosecutor's brother was not
excused for implied bias). The appellant's claim of error is,
therefore, unavailing.
B
The appellant's second claim of error targets a comment
made by the prosecutor during his rebuttal argument. In his
closing, defense counsel had suggested that two of the government's
witnesses may have fabricated their account of a three-way
telephone conversation in which they claimed to have participated.
Counsel pointed out that there was "no documentary evidence of
this call" and added that the jurors would not "find a single
mention of a three-way call" involving the two government witnesses
and the appellant in the compendious telephone records (spanning
a ten-to-twelve year period) that the government had introduced
into evidence.
Responding in rebuttal, the prosecutor noted that
defense counsel had not asked the custodian of the telephone
records:
[W]hen she was on the stand with all of those phone records whether there is any verification in the records, she could have answered him, because you can do it yourself if you want to wade through 5,000 pages of phone records. . . . What you won't find is anything indicating that that's a three-way phone call because phone records don't identify three-way phone calls.
- 10 - Immediately after this comment, defense counsel objected. The
district court noted the objection and reminded the jury that "as
I've instructed [you] and will reiterate, anything the lawyers say
is not evidence, and if your memory of the evidence individually
and collectively differs from what any lawyer says, it's your
memory that controls." At that point, the prosecutor resumed his
rebuttal argument, telling the jury (without any further
objection) that he was only suggesting that "the records don't
indicate . . . a third party involved. It doesn't mean it didn't
happen . . . ."
Given the appellant's contemporaneous objection, his
claim of error — insofar as it relates to the quoted statement —
is preserved. Review is, therefore, de novo. See United States
v. Berroa, 856 F.3d 141, 161 (1st Cir. 2017); United States v.
Sepúlveda-Hernández, 752 F.3d 22, 31 (1st Cir. 2014).
An attorney's summation is not meant to be used as a
device for the introduction of new facts into evidence. In this
instance, the appellant complains that a portion of the
prosecutor's comment — "phone records don't identify three-way
phone calls" — states a fact not in evidence. The appellant's
complaint is literally true: the government does not point to any
competent evidence in the record verifying the asserted fact that
"phone records don't identify three-way phone calls." The ultimate
test, though, is whether the error caused harm. See Berroa, 856
- 11 - F.3d at 162. Here, the error was manifestly harmless. We explain
briefly.
In this context, harmless error review takes into
account a multiplicity of factors, including the severity of the
impropriety, the nature of the impropriety (that is, whether or
not it was deliberate, whether or not it was isolated, and the
like), the strength of the government's case against the defendant,
and how the district court responded to the impropriety (especially
the timing, nature, and force of any curative instructions). See
id. The bottom-line question is whether the impropriety "so
poisoned the well that the trial's outcome was likely affected."
United States v. Mejia-Lozano, 829 F.2d 268, 274 (1st Cir. 1987);
see United States v. Morales-Cartagena, 987 F.2d 849, 854 (1st
Cir. 1993).
Here, the impropriety was not severe. Although the
prosecutor should not have made the statement, he went on to
explain what he meant in a way that both mitigated the force of
the comment and indicated that any misconduct was not deliberate.
Moreover, the reference was fleeting; it was an isolated comment
in the course of a twelve-day trial. Cf. United States v. Peña-
Santo, 809 F.3d 686, 700 (1st Cir. 2015) (finding no error where
"prosecutor's improper statement was isolated and not
deliberate").
- 12 - Importantly, the court gave a swift and strong curative
instruction — an instruction that apparently met with the
appellant's satisfaction (he neither objected to its phrasing nor
asked for some further admonition). By the same token, the
appellant does not fault the instruction in his appellate briefing.
What is more, the jury hardly could have overlooked the court's
prophylactic language: the court made the same point in its
preliminary jury instructions at the start of trial and reiterated
the caution in the jury charge. The presence, content, and timing
of curative instructions are salient factors in assessing the
harmfulness vel non of an improper comment by a prosecutor during
closing argument. See, e.g., United States v. Soto-Beníquez, 356
F.3d 1, 43 (1st Cir. 2003). In this case, those factors favor a
finding of harmlessness.
Last — but surely not least — the evidence of the
appellant's guilt was overwhelming. The government presented
twenty-five witnesses and complemented their testimony with an
avalanche of documentary proof. The strength of the evidence is
always an "important integer" in the harmless error calculus.
United States v. Kilmartin, 944 F.3d 315, 338 (1st Cir. 2019).
And although the phone records themselves are silent as to whether
the appellant had placed three-way calls, the evidence tilts
heavily toward a conclusion that the call to which the prosecutor
alluded had actually occurred. This evidence included testimony
- 13 - from the other two participants in the three-way call, as well as
an email — sent a few hours after the call's completion — that
confirmed its existence. And, finally, there was evidence of a
pattern: no fewer than four other victims testified about similar
three-way calls. Indeed, the jury heard a recording of one of
these three-way calls.
The short of it is that the claim of error fails: the
prosecutor's comment did not poison the well. On this record, it
would strain credulity to think that the untoward comment affected
or influenced the jury verdict in any way. The impropriety was,
therefore, harmless.
We add a coda. Although the appellant points to other
comments by the prosecutor that he now says were questionable,
none of those comments drew a contemporaneous objection. Thus,
review would be only for plain error, see Sepúlveda-Hernández, 752
F.3d at 31; United States v. Sánchez-Berríos, 424 F.3d 65, 73 (1st
Cir. 2005), and plain error is plainly absent.
C
We next address the appellant's multiple claims of
sentencing error. After exploring the relevant procedural
history, we explain why those claims are impuissant.
Following the jury verdict, the district court ordered
the preparation of a presentence investigation report (the PSI
Report). The PSI Report identified forty-six victims of the
- 14 - appellant's fraudulent schemes and established an amount of loss
in excess of $2,700,000. The probation office recommended a total
offense level of 314 and a criminal history category (CHC) of II
(based on the appellant's prior convictions for theft and domestic
violence). These recommendations yielded a tentative guideline
sentencing range (GSR) of 121-151 months in prison. The PSI Report
further advised that either an upward departure or an upward
variance might be appropriate because the appellant's CHC
substantially underrepresented the seriousness of his criminal
record and the likelihood of recidivism.
At the disposition hearing, the district court — ruling
favorably on two defense objections — rejected the proposed role-
in-the-offense adjustment and deleted the criminal history point
that had been assigned for the appellant's domestic violence
conviction. Taking those changes into account, the court set the
appellant's total offense level at 29 and placed him in CHC I.5
4 The probation office started with a base offense level of 7, see USSG §2B1.1(a)(1); applied a 16-level enhancement due to the amount of loss, see id. §2B1.1(b)(1)(I); added 4 levels because the offense resulted in substantial financial hardship to five or more victims, see id. §2B1.1(b)(2)(B); assayed a 2-level upward role-in-the-offense adjustment, see id. §3B1.1(c); and topped its calculations with a 2-level enhancement for obstruction of justice, see id. §3C1.1. 5 The appellant had at least five prior convictions that — because they were remote in time — were not factored into the assessment of his CHC. See USSG §4A1.2(e).
- 15 - It proceeded to recast the GSR at 87-108 months. Neither side
objected to this recasted GSR.
Early on, the court indicated that it was disposed either
to depart or vary upward based on factors such as the inadequacy
of the appellant's CHC and the likelihood of recidivism. The court
reiterated its inclination to depart or vary upward once it
formulated the reduced GSR.
After making its preliminary thinking known, the court
solicited the attorneys' views. The question, it said, was
"considering all the Section 3553[a] factors, what's the most
appropriate sentence, what's the sentence that's sufficient and no
more than necessary[?]" The government asked for a 121-month
sentence, and the appellant (through counsel) sought a 70-month
sentence. The appellant himself declined to allocute. Following
a short recess, the court imposed a 156-month term of immurement.
Our approach to claims of sentencing error is familiar:
Appellate review of a criminal defendant's claims of sentencing error involves a two-step pavane. See United States v. Matos-de-Jesús, 856 F.3d 174, 177 (1st Cir. 2017). Under this bifurcated framework, we first examine the validity vel non of any claims of procedural error. See id. If the sentence passes procedural muster, we then examine any challenge to its substantive reasonableness. See id.
United States v. Miranda-Díaz, 942 F.3d 33, 39 (1st Cir. 2019).
- 16 - Preserved claims — whether procedural or substantive —
are reviewed for abuse of discretion. See Gall v. United States,
552 U.S. 38, 51 (2007); United States v. Martin, 520 F.3d 87, 92
(1st Cir. 2008). We have made it clear, though, that "[t]he abuse-
of-discretion standard is not monolithic." United States v.
Rivera-Morales, 961 F.3d 1, 15 (1st Cir. 2020). "[W]ithin it, we
review the sentencing court's findings of fact for clear error and
questions of law . . . de novo." Id.; see United States v. Flores-
Machicote, 706 F.3d 16, 20 (1st Cir. 2013).
Unpreserved claims of error — if reviewable at all — are
scrutinized under less appellant-friendly standards. Pertinently,
forfeited claims are reviewed only for plain error. See United
States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). "The plain
error hurdle is high." United States v. Hunnewell, 891 F.2d 955,
956 (1st Cir. 1989). "Review for plain error entails four
showings: (1) that an error occurred (2) which was clear or
obvious and which not only (3) affected the [appell]ant's
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings." Duarte,
246 F.3d at 60. Under plain error review, the appellant "must
carry the devoir of persuasion as to all four of these elements."
United States v. Pinkham, 896 F.3d 133, 136-37 (1st Cir. 2018).
In this case, the appellant advances three claims of
procedural sentencing error and a claim that his sentence is
- 17 - substantively unreasonable. We begin our analysis with his trio
of procedural claims, none of which was raised in the court below.
Our review, therefore, is only for plain error. See Duarte, 246
F.3d at 60.
The appellant suggests that, under Federal Rule of
Criminal Procedure 32(h), he was entitled to receive (yet did not
receive) advance notice of the district court's intention to vary
upward. He is wrong both as to what Rule 32(h) requires and as to
what notice he received.
It is clear beyond hope of contradiction that Rule 32(h)
requires advance notice of departures, not variances. See Irizarry
v. United States, 553 U.S. 708, 714 (2008); United States v.
Daoust, 888 F.3d 571, 575 (1st Cir. 2018); United States v.
Santini-Santiago, 846 F.3d 487, 490 (1st Cir. 2017). And at any
rate, the court below gave the appellant ample advance notice that
it was mulling an upward variance. Indeed, at the disposition
hearing, the appellant's counsel — in response to a direct question
— assured the court that he was neither surprised by, nor
unprepared for, the court's consideration of a substantial upward
variance. There was no error in this regard, plain or otherwise.
Next, the appellant argues that the sentence was not
adequately explained. This argument, too, is hopeless. The
- 18 - sentencing court described the factors material to its upward
variance in great detail and tied those factors expertly to the
considerations limned in 18 U.S.C. § 3553(a). No more was
exigible. See United States v. Rodríguez-Cruz, 997 F.3d 362, 367
(1st Cir. 2021) ("Although a sentencing court is duty-bound to
consider the section 3553(a) factors, it need not descant upon
each and every such factor."); United States v. Clogston, 662 F.3d
588, 592 (1st Cir. 2011) (similar); United States v. Vargas-Dávila,
649 F.3d 129, 131 (1st Cir. 2011) (similar). Nothing resembling
plain error occurred.
The appellant's last claim of procedural error posits
that the sentencing court erred by relying on factors "already
accounted for in the Guideline[s]." Specifically, he submits that
the court below — once it had settled upon the proper GSR — should
not have considered "amount of loss," "substantial financial
hardship," "obstruction of justice, and the ten-year duration of
the fraudulent conduct." These factors, he says, already were
considered by the court in formulating enhancements that merged
into the ultimate GSR calculation and should not have been
considered again in fashioning an upward variance. Although the
appellant does not use the term, this argument is nothing more
than a jeremiad against what the appellant perceives as double-
- 19 - counting (that is, the use of a particular fact in more than one
way in the sentencing calculus).
The claim that the sentencing court double-counted
certain sentencing factors rests on a kernel of truth — but that
kernel of truth does not take the appellant very far. "In the
sentencing context, double counting is a phenomenon that is less
sinister than the name implies." United States v. Zapata, 1 F.3d
46, 47 (1st Cir. 1993). "When formulating its overall sentencing
rationale, a sentencing court is not normally foreclosed from
considering the same nucleus of operative facts that grounded an
enhancement." United States v. Sepúlveda-Hernández, 817 F.3d 30,
35 (1st Cir. 2016). "It follows that a sentencing court may rely
on a factor that is already included in the calculation of the GSR
to impose an upward or downward variance as long as the court
'articulate[s] specifically the reasons that this particular
defendant's situation is different from the ordinary situation
covered by the guidelines calculation.'" United States v. Bruno-
Campos, 978 F.3d 801, 806 (1st Cir. 2020) (quoting United States
v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir. 2006)).
So it is here. The redundancy of which the appellant
complains is nothing more than a reflection that certain facts
relevant to his sentencing were present in extraordinary or
exaggerated degrees. Some examples will suffice to illustrate the
point.
- 20 - To begin, the appellant defrauded forty-six individuals
— far above the "five or more" victims needed to justify the
imposition of a sentencing enhancement under USSG §2B1.1(b)(2)(B).
See, e.g., Bruno-Campos, 978 F.3d at 806; United States v. Díaz-
Lugo, 963 F.3d 145, 155 (1st Cir. 2020). So, too, the amount of
loss was more than just a monetary estimate: it was composed of
funds swindled from individuals who (in many instances) could ill
afford the losses. Similarly, the imposition of an obstruction-
of-justice enhancement (for concealing the twenty-three vehicles)
did not render that fact irrelevant for purposes of the upward
variance where, as here, the appellant used the identity of an
innocent third party (his daughter) to facilitate the cover-up.
Distinctions of this sort also can be drawn with respect to the
other factors that the appellant says were double-counted. On
this record, the appellant has failed to show any clear or obvious
error in the district court's use of double-counting.
Finally, the appellant challenges the substantive
reasonableness of his 156-month prison sentence. This challenge
must be treated as preserved and, thus, our review is for abuse of
discretion. See Holguin-Hernandez v. United States, 140 S. Ct.
762, 766 (2020); Bruno-Campos, 978 F.3d at 808.
"Our case law makes pellucid that the hallmarks of a
substantively reasonable sentence are a plausible sentencing
- 21 - rationale and a defensible result." Rodríguez-Cruz, 997 F.3d at
366; see Clogston, 662 F.3d at 593. When — as in this case — the
sentencing court pronounces an upwardly variant sentence, it "must
provide an adequate explanation for the variance." Rodríguez-
Cruz, 997 F.3d at 366. Notwithstanding this obligation, the
sentencing court need not "be precise to the point of pedantry."
Id. (quoting United States v. Del Valle-Rodríguez, 761 F.3d 171,
177 (1st Cir. 2014)).
Here, the district court found the GSR "greatly
insufficient" to capture the gravity of the offenses of conviction.
What is more, it found the GSR inadequate "to protect the public
from" the appellant. The court proceeded to quote from victim-
impact statements and noted that — with respect to one victim in
particular — the appellant had continued to squeeze the victim for
funds even after he knew that the victim needed money to care for
his brother (who was suffering from multiple sclerosis). The court
observed that it could not "remember anybody who committed more
despicable, more fraudulent crimes than [the appellant], knowing
that these people were sacrificing the well-being of their
famil[ies]."
Nor did the court's sentencing rationale stop there. It
went on to find that the appellant's CHC "grossly
underrepresent[ed]" the risk of his recidivism; that the frauds
had lasted over a decade; that the appellant had bilked his victims
- 22 - out of millions of dollars but had never helped to pay for the
education of his own children; that he had used his daughter's
name to help facilitate his obstruction of justice; and that the
court wished to send a strong message not only to the appellant
but also to those who might be tempted to perpetrate similar
frauds.
In sum, the district court articulated its sentencing
rationale in clear and unmistakable terms. That rationale was
plausible (indeed, compelling). The court reasonably concluded
that the facts of the case made manifest the appellant's venality,
his utter disregard for the plight of others, and the danger that
he presented to the community. In view of this plausible
rationale, we have no quarrel with the court's determination that
an upwardly variant sentence was in order.
This leaves only the question of whether the 156-month
prison sentence represents a defensible result. The mere fact
that the length of the sentence reflects a substantial increase
over the top of the GSR does not render it substantively
unreasonable. See Flores-Machicote, 706 F.3d at 25. Instead,
"the inquiry is fact-sensitive and case-specific." Rodríguez-
Cruz, 997 F.3d at 367; see Martin, 520 F.3d at 91. Here, moreover,
the egregious nature of the appellant's frauds and the callous
manner in which they were committed provide a solid foundation for
the upward variance.
- 23 - On occasion, extravagant criminality may call for an
extravagant sentence. This is such a case: although the extent
of the upward variance is substantial, so, too, is the scope of
the appellant's frauds and the extent of his esurient greed. When
all is said and done, the record leaves no doubt that even the top
of the GSR was incommensurate with the appellant's wrongdoing.
Evaluating the record as a whole, we are confident that the
appellant's upwardly variant sentence falls within the "broad
universe" of reasonable sentencing outcomes. Rivera-Morales, 961
F.3d at 21. Accordingly, we reject the appellant's challenge to
the substantive reasonableness of his sentence.
III
We need go no further. For aught that appears, the
appellant was fairly tried before an able and thoughtful judge and
an impartial jury, justly convicted, and lawfully sentenced. For
the reasons elucidated above, the judgment of the district court
is
Affirmed.
- 24 -