United States Court of Appeals For the First Circuit
No. 22-1979
UNITED STATES OF AMERICA,
Appellee,
v.
MICHAEL RAND,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Landya B. McCafferty, U.S. District Judge]
Before
Barron, Chief Judge, Thompson and Gelpí, Circuit Judges.
Noreen McCarthy, with whom The McCarthy Law Firm was on brief, for appellant. Aaron G. Gingrande, Assistant United States Attorney, with whom Jane E. Young, United States Attorney, was on brief, for appellee.
February 23, 2024 GELPÍ, Circuit Judge. Defendant-Appellant Michael Rand
("Rand") was indicted with, and pleaded guilty to, one count of
distributing a controlled substance in violation of 21 U.S.C
§§ 841(a)(1) and (b)(1)(C). Rand was sentenced to time served
followed by 36 months of supervised release. Shortly thereafter,
Rand was cited for four violations of his supervised release,
resulting in a revocation hearing. At the revocation hearing,
Rand was sentenced to 24 months of imprisonment followed by 24
months of supervised release. Rand timely appealed his sentence
on the grounds that it was procedurally and substantively
unreasonable. We affirm.
I. Background
A. Original Offense
On August 31, 2020, a grand jury indicted Rand with one
count of distributing a controlled substance in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(C). While incarcerated and
awaiting trial, Rand completed the Therapeutic Community substance
use treatment program at the Strafford County Department of
Corrections. On December 13, 2021, Rand pleaded guilty to the
indictment. On March 23, 2022, while awaiting sentencing, the
district court released Rand to participate in Turning Point, a
residential substance use treatment program. Rand successfully
- 2 - completed the program. These were the first substance use
treatment programs that Rand had ever completed.
On August 4, 2022, Rand's sentencing hearing took place.
The presentence report ("PSR") determined that Rand's offense
level was 13, reduced down from 16 due to his acceptance of
responsibility. See U.S.S.G. § 3E1.1(a) and (b). His criminal
history category was IV and the advisory sentencing guideline range
for the offense was 33-41 months. The PSR detailed Rand's lifelong
history of drug use which began when he was a teenager. On
March 15, 2022, Rand filed a motion for variance from the
sentencing guideline range noting his success in the substance use
treatment programs and requesting time served. The Government
filed a sentencing memorandum requesting a sentence at the low end
of the sentencing guideline range, requesting the district court
depart downwards as to the criminal history category. The district
court sentenced Rand to time served followed by 36 months of
supervised release.
B. Supervised Release Violations
On September 9, 2022, Rand's probation officer
petitioned for a warrant alleging four violations of Rand's
supervision conditions. Rand later admitted to each of the
violations. First, on August 11, 2022, Rand lied to his probation
officer, violating the standard condition of supervised release
that he answer questions posed by his probation officer truthfully.
- 3 - Rand claimed he contracted COVID to excuse the fact that he had
not reported to his assigned probation officer nor reported where
he was living and working since he had been granted supervised
release. This was a Grade C violation with a sentencing guideline
range of 6-12 months.
Second, on September 1, 2022, Rand violated his
supervision conditions by committing a federal, state, or local
crime: Rand illegally possessed and used cocaine,
methamphetamine, and fentanyl. This was a Grade B violation with
a sentencing guideline range of 12-18 months. Third, that same
day, Rand left his reported residence and failed to notify his
probation officer, resulting in another violation of supervised
release. This was a Grade C violation with a sentencing guideline
Fourth, Rand relapsed and failed to enter an inpatient
substance use treatment program despite being instructed to do so
by his probation officer, resulting in his final violation of a
special probation condition. This was a Grade C violation with a
sentencing guideline range of 6-12 months. Rand was arrested and
taken into custody. While in custody, Rand was unable to
participate in the jail's substance use treatment program due to
an administrative error.
- 4 - C. Revocation Hearing
On December 7, 2022, the district court held Rand's
revocation hearing. As noted, Rand admitted to each of the
violations. The sentencing guideline ranges for someone with
Rand's criminal history are 6-12 months of imprisonment for a Grade
C violation and 12-18 months of imprisonment for a Grade B
violation. The Government proposed twelve months of imprisonment
for the purpose of ensuring a sufficient deterrent effect on Rand.
The Government further noted that twelve months would provide Rand
time to avail himself of the prison's rehabilitative programming
to help ensure that he would be "better equipped this time around
to meet the challenges of sobriety." Rand, in turn, requested a
6-month sentence of imprisonment followed by additional supervised
release so that he could participate in additional residential
substance use treatment programs. At the revocation hearing, Rand
spoke on his own behalf stating that 12 months of imprisonment was
too long for his first violation and that he wanted the chance to
participate in a substance use treatment program since he was
unable to do so while awaiting the revocation hearing.
The district court rejected both the Government's and
Rand's proposed sentences, instead sentencing Rand to 24 months of
imprisonment, the statutory maximum, followed by 24 months of
supervised release. The district court explained its rationale by
noting that "the fact that this [was Rand's] first violation d[id]
- 5 - not in any way outweigh the nature of the violation." The district
court then mentioned Rand's initial sentencing stating that it was
impressed with Rand's success in the substance use treatment
programs. The district court was originally persuaded by Rand's
allocution and the mitigating circumstances of his inauspicious
past, determining that time served was the appropriate sentence
once Rand completed the Turning Point program.
The district court gave an account of the four violations
and noted that even though the possession of controlled substances
was the higher grade violation, "the lying indicate[d] the danger
to the community." The district court explained that 12 months of
imprisonment was not enough to deter Rand and would not protect
the public. Thus, the district court concluded that a maximum
sentence was necessary after Rand lied and absconded immediately
after appearing before the district court, which had credited
Rand's recovery efforts in its original sentencing. The district
court stated that it "considered each factor in [§] 3583(e)" and
decided that a 24-month sentence of imprisonment was sufficient
but not greater than necessary.
II. Discussion
On appeal, Rand argues that his sentence was both
procedurally and substantively unreasonable. Procedurally, Rand
argues that the sentence imposed was unreasonable because: (1) the
district court plainly erred when it failed to adequately explain
- 6 - on the record, and in writing, the reasons for imposing a sentence
above the recommended sentencing guideline range, (2) the district
court plainly erred when it considered impermissible factors under
18 U.S.C. § 3583(e) because it focused on factors that fall under
18 U.S.C. § 3553(a)(1)(A), and (3) the district court plainly
erred when it followed the prosecutor's urging to impose a lengthy
sentence for rehabilitative purposes. Substantively, Rand argues
that the sentence was unreasonable because: (1) there was no
plausible sentencing rationale for exceeding the applicable
sentencing guideline range, (2) Rand's most serious offense was
based on a single positive drug test and his own admission of
having relapsed, (3) the sentence goes against the statutory
presumption against incarcerating a defendant for a single
positive drug test, and (4) neither the prosecutor sought nor the
PSR recommended a sentence above the sentencing guideline range.
We take each of these arguments in turn and, for the reasons stated
below, affirm the district court's revocation sentence.
"With respect to sentencing determinations,
reasonableness has both a procedural and a substantive dimension."
United States v. Del Valle-Rodríguez, 761 F.3d 171, 176 (1st Cir.
2014) (citing United States v. Martin, 520 F.3d 87, 92 (1st Cir.
2008)). Procedurally, we consider errors omitting an adequate
explanation of the rationale for a variant sentence, failure to
consider pertinent sentencing factors, and the determination of a
- 7 - sentence based on clearly erroneous facts. Del Valle-Rodríguez,
761 F.3d at 176. Substantively, we consider the length of the
sentence "in light of the totality of the circumstances." Id.
A. Procedural Reasonableness
1. Standard of Review
Typically, we "review a sentence following revocation of
supervised release for abuse of discretion." United States v.
Alejandro-Rosado, 878 F.3d 435, 438-39 (1st Cir. 2017). However,
when a defendant does not object to the procedural reasonableness
of his sentence below, as is the case here, the challenge is
unpreserved, and therefore reviewed for plain error. Id. at 439.
Plain error review is "a steep climb for defendants on appeal."
Id. To prevail, a defendant must prove "(1) that an error occurred
(2) which was clear or obvious and which not only (3) affected the
defendant's substantial rights, but also (4) seriously impaired
the fairness, integrity, or public reputation of judicial
proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.
2001).
2. The Sentence Was Procedurally Reasonable
We conclude that Rand has failed to demonstrate that the
district court's explanation came close to clear and obvious error.
To begin, Rand's argument that the district court failed to
adequately explain the reasoning for imposing a sentence above the
sentencing guideline range does not hold water. When assessing
- 8 - procedural reasonableness, we examine whether the district court
considered the appropriate sentencing factors and whether the
sentence was adequately explained "to allow for meaningful
appellate review." Gall v. United States, 552 U.S. 38, 50 (2007).
"We approach these arguments mindful that deference to the trial
court is a lineament of appellate review of federal criminal
sentences." Del Valle-Rodríguez, 761 F.3d at 176. The "sentencing
guidelines are only 'the starting point and initial benchmark' for
shaping a sentence." Id. (quoting Gall, 552 U.S. at 49).
When a district court varies upward, it must justify the
variance. Del Valle-Rodríguez, 761 F.3d at 176. Statutorily, at
the time of sentencing, a court must "state . . . the reasons for
its imposition of the particular sentence." 18 U.S.C. § 3553(c).
If the sentence is outside of the sentencing guideline range, "the
specific reason for the imposition of a sentence" must be stated
and "which reasons must also be stated with specificity in a
statement of reasons form." 18 U.S.C. § 3553(c)(2). However,
even though an upward variance should be explained, the district
court is only required to provide a "plausible and coherent
rationale" for the variance. Del Valle-Rodríguez, 761 F.3d at 177
(determining that the district court articulated an adequate
rationale where it expounded upon its assessment of the risk of
future criminal activity, the need to protect the public, and the
defendant's history of failing to comply with conditions). Rand
- 9 - argues that the district court failed to explain the rationale of
the sentence "with specificity," however, under plain error
review, the district court only needs to "touch[] upon" the factors
used to support the sentence. United States v. Márquez-García,
862 F.3d 143, 147 (1st Cir. 2017).
Here, the district court provided a "plausible and
coherent rationale" for the upward variance. Del Valle-Rodríguez,
761 F.3d at 177. The lie to Turning Point about COVID, the fact
that Rand did not contact his probation officer after sentencing,
and the lie to his probation officer about COVID were all discussed
as factors driving the sentencing decision. In fact, the district
court explained that the lying to probation and Turning Point about
COVID were even more concerning than the Grade B violation for
possession of controlled substances. The district court noted
that the fact that Rand lied to both his substance use treatment
program and his probation officer, coupled with his absconding
from his treatment, indicated a high likelihood of recidivism and
a danger to the community. The district court went on to explain
that the suggested 12-month sentence of imprisonment would not
sufficiently deter Rand or protect the public. Rand argues that
because the gravity of the lies he told was reflected in the grade
such an offense was given by the Sentencing Commission and his
likelihood of recidivism was already captured by his criminal
history category, the sentencing guideline range already accounted
- 10 - for the factors on which the district court relied. Accordingly,
he contends that the district court did not adequately explain why
this particular lie posed a greater risk of danger to the public
or a higher risk of recidivism than any other lie that would
constitute a Class C violation and so did not adequately explain
the upward variance. See United States v. Zapete-Garcia, 447 F.3d
57, 60-61 (1st Cir. 2006). But the district court here did not
merely double count Rand's lies and abscondment.
Here, the district court expressly concluded that the
upward variance was because of "[t]he combination of the lying and
the absconding right after [Rand] had appeared in front of [the
district court] [for the original sentencing]." In discussing the
factors that led to its conclusion, the district court specifically
noted that just "two days after the sentencing hearing" Rand left
Turning Point with the intent to "leave for good," lied to Turning
Point about his reasons for not returning, and lied to his
probation officer. (Emphasis added). It is clear from this
explanation that the district court was concerned with the totality
of these individual incidents, all of which occurred in rapid
succession over a brief span of time and so soon after the original
sentencing hearing and the start of Rand's supervised-release
term. Thus, we cannot conclude on this record that the district
court plainly erred by merely double counting individual incidents
already factored into the sentencing guideline range calculation.
- 11 - Further, Rand has failed to demonstrate that the
district court affected his substantial rights when it failed to
provide the written statement of reasons form. See 18 U.S.C.
§ 3553(c)(2). "[R]emand is required only if the sentence was
'imposed as a result of'" the error. Williams v. United States,
503 U.S. 193, 202 (1992) (emphasis in original). "If 'the district
court would have imposed the same sentence' even without the error,
it was harmless." United States v. Tavares, 705 F.3d 4, 25 (1st
Cir. 2013) (quoting Williams, 503 U.S. at 202-03). Here, due to
its oral explanation, it is clear that the district court would
have imposed the same sentence in writing. See United States v.
Vázquez-Martínez, 812 F.3d 18, 25-26 (1st Cir. 2016) (holding error
harmless after concluding that the sentence would be the same in
written form as it was in oral form). Because the lack of a
writing did not affect Rand's substantial rights, and was therefore
harmless, the argument that the lack of a writing is plain error
fails.
Next, Rand's argument that the district court relied on
prohibited factors in its sentencing determination also fails
under plain error review. While explaining the sentence, the
district court stated that it "considered each factor in
[§] 3583(e)[,]" which on its own is "entitled to significant
weight." United States v. Santiago-Rivera, 744 F.3d 229, 233 (1st
Cir. 2014). The district court mentioned the seriousness of Rand's
- 12 - violations, his past criminal history, and the need for deterrence
and community protection. This explanation was not plainly
erroneous. Although the district court did mention Rand's conduct
and characterized it as contemptuous to the court, it made clear
that the sentencing decision was primarily focused on deterrence
and community protection. A sentencing court may "consider a
defendant's history of non-compliance with conditions of
supervised release" when imposing a sentence, as it did here.
United States v. Vargas-Dávila, 649 F.3d 129, 132 (1st Cir. 2011).
A district court is not forbidden to consider "other pertinent
section 3553(a) factors." Id. In fact, § 3553(a)(2)(B) requires
a sentencing court to consider deterrence, consequently inviting
consideration of the defendant's history with supervised release.
See id. Therefore, the district court did not plainly err.
Lastly, Rand argues that the district court plainly
erred when, towards the end of the hearing, it commented that Rand
"need[ed] structured programming" in order to advance his
recovery. According to Rand, this comment indicates the court
imposed the sentence "for rehabilitation purposes." This argument
also fails. However, this discussion was in response to Rand's
request for substance use treatment, not as a justification for
the sentence. The district court was also responding to Rand's
counsel's request that he be placed in a substance use treatment
program because Rand "need[ed] a very serious structured program."
- 13 - Further, "[a] court commits no error by discussing the
opportunities for rehabilitation within prison or the benefits of
specific treatment or training programs." Tapia v. United States,
564 U.S. 319, 334 (2011). Error is only found when the district
court "impose[s] or lengthen[s] a prison sentence . . . to promote
rehabilitation." Id. at 335. Here, the mere discussion of a
structured substance use treatment program, with no indication
that the treatment program was "the driving force behind[] or a
dominant factor in" imposing or lengthening the sentence, cannot
be grounds for reversal. United States v. Vázquez-Méndez, 915
F.3d 85, 88 (1st Cir. 2019).
B. Substantive Reasonableness
We apply the abuse of discretion standard to preserved
challenges to the substantive reasonableness of criminal
sentences. United States v. Vargas-Martinez, 15 F.4th 91, 102
(1st Cir. 2021). "A defendant who, by advocating for a particular
sentence, communicates to the trial judge his view that a longer
sentence is 'greater than necessary' has thereby informed the court
of the legal error at issue in an appellate challenge to the
substantive reasonableness of the sentence." Holguin-Hernandez v.
United States, 140 S. Ct. 762, 766-67 (2020). A defendant who
advocates for a shorter sentence that would prove sufficient
preserves their substantive unreasonableness claim. See id. at
- 14 - 767. Here, Rand argued for a shorter sentence at the revocation
hearing, therefore preserving the claim of error, requiring an
abuse of discretion standard.
2. The Sentence Was Substantively Reasonable
We evaluate substantive unreasonableness claims under
the "totality of the circumstances" to determine if there was a
"plausible sentencing rationale and a defensible result." Martin,
520 F.3d at 92. "The length of an increased sentence is
necessarily a judgment call and, within wide limits, deference is
due to the trier's on-the-spot perceptions." Vargas-Dávila, 649
F.3d at 131. We will vacate a sentence for substantive
unreasonableness only "if it 'falls outside the expansive
boundaries' of the universe of reasonable sentences."
Márquez-García, 862 F.3d at 147 (quoting Martin, 520 F.3d at 92).
First, Rand argues that the sentencing rationale offered
was not plausible because the district court recounted the factors
already considered by the Sentencing Commission. However, as noted
above, the district court discussed multiple specific factors and
instances to justify its upward variance. The district court
raised concerns over the dangerousness of Rand to the community,
and the need to deter him from future criminal activity. The
district court went on to note that Rand, almost immediately after
being released for time served, lied to and absconded from
treatment, did not contact his probation officer, and once in
- 15 - contact after being tracked down, lied to the probation officer,
and disregarded the direction to admit himself into treatment.
The district court noted that it was "[t]he combination of the
lying and the absconding right after [Rand] had appeared in front
of [the district court]" that justified the maximum sentence.
Here, based on the justification provided by the district court,
the rationale was plausible. See Vargas−Dávila, 649 F.3d at 131
(affirming an upward variant for a violation of supervised release
conditions based on "past behavior of the offender and the other
realities of the situation"); Márquez-García, 862 F.3d at 147-48
(affirming an upward variance based on the "short time that had
elapsed between the appellant's release from prison and his
commission of a new . . . crime; the serious (and repetitive)
nature of the new offense; the danger presented to the
community . . . and the need for deterrence").
Rand next argues that the district court punished him
for being candid with his probation officer about his relapse and
that the sentence imposed was based on a single positive drug test.
But this is not true. The district court credited Rand for his
honesty about his relapse with his probation officer, albeit after
he was tracked down. It also made clear that the lying about
having contracted COVID and absconding was the driving force for
the maximum sentence imposed, not the relapse. No indication was
made that Rand was being punished as a result of admitting to his
- 16 - relapse. In addition, the sentence imposed was not the result of
a single positive drug test, but rather the result of a totality
of the circumstances. See United States v. Santiago-González, 825
F.3d 41, 48 (1st Cir. 2016) (explaining that totality of the
circumstances is used for determining substantive reasonableness).
As noted, Rand was sentenced based on four total violations which
included lying and absconding from treatment and supervision. Each
violation, particularly the lying regarding COVID and absconding,
was taken into consideration, weakening Rand's argument that he
was sentenced based on a "single positive drug test."
Further, Rand argues that 18 U.S.C. § 3565(b)(4) should
apply, requiring revocation of probation and resentencing only if
the defendant tests positive for illegal controlled substances
more than three times over the course of a year. Seeing as Rand
only had one positive drug test, he argues that he cannot be
resentenced based on 18 U.S.C. § 3565(b)(4). As this court has
said before, "[t]he fairly obvious flaw in this argument is that
the statute . . . is about probation, not about supervised
release." United States v. Mandarelli, 982 F.2d 11, 12 (1st Cir.
1992) (emphasis in original). "[P]robation is an alternative to
prison" whereas "[s]upervised release is part of a prison sentence,
to be served after imprisonment." Id. (first quoting 18 U.S.C.
§ 3561(a); then quoting 18 U.S.C. § 3583(a)) (emphasis in
original) (internal quotation marks omitted). "The statutes treat
- 17 - the two similarly, but not identically." Mandarelli, 982 F.2d at
12 (comparing § 3565(a)(2) -- setting forth that the "maximum
sentence for probation violation is maximum for underlying
conviction" -- with § 3583(e)'s instruction that the "maximum
sentence for supervised release violation depends on seriousness
of violation, not on underlying conviction"). Rand also argues he
was punished for being addicted to controlled substances which
runs counter to Robinson v. California, 370 U.S. 660 (1962), where
the Supreme Court deemed this rationale unconstitutional. This
argument is misplaced as Robinson addressed a statute making
addiction to narcotics a criminal offense. 370 U.S. at 660. Here,
Rand was in violation of supervised release for possession of
controlled substances, lying to probation and his treatment
center, absconding from treatment, and moving from his residence
without notifying probation, not simply for use of controlled
substances. The argument that Rand was sentenced simply for the
positive drug test, or simply for being addicted to controlled
substances, is inaccurate and therefore fails.
Rand's final argument, that the sentence is
substantively unreasonable because the district court did not
follow the recommendation of the prosecutor and did not provide an
adequate rationale, lacks merit. The district court is not bound
to follow the recommendations of either party when imposing a
sentence as it is the district court's role to ultimately determine
- 18 - what sentence is suitable. See United States v. Vixamar, 679 F.3d
22, 32 (1st Cir. 2012) (explaining the district court's role in
revocation hearings and resentencing). The district court noted
that it had considered both parties' arguments, the violation
report, its knowledge of Rand's original sentencing hearing, and
each factor of 18 U.S.C. § 3583(e). It was well within the
district court's discretion, after adequately explaining the
upward variance, to impose such a sentence. See id. Therefore,
the district court did not abuse its discretion in sentencing Rand
to the statutory maximum based on the totality of the
circumstances.
III. Conclusion
Because we conclude that the revocation sentence imposed
was procedurally and substantively reasonable, the district
court's sentence is
Affirmed.
- 19 -