United States Court of Appeals For the First Circuit
No. 21-1913
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERTO REYES-CORREA, a/k/a Robertito,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Gelpí, Thompson, and Montecalvo Circuit Judges.
Samuel P. Carrion, Assistant Federal Public Defender, with whom Eric Alexander Vos, Federal Public Defender, Franco L. Pérez-Redondo, Assistant Federal Public Defender, Supervisor, Appeals Division, and Kevin E. Lerman, Research & Writing Attorney, were on brief, for appellant. David C. Bornstein, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
August 31, 2023 MONTECALVO, Circuit Judge. In this appeal, Roberto
Reyes-Correa ("Reyes") challenges a statutory maximum
thirty-six-month sentence that the district court imposed
following a revocation of supervised release. Reyes argues that
the district court, in arriving at the sentence, improperly relied
on ex parte communications with a probation officer, which Reyes
claims constitutes reversible error. Reyes also contends that the
district court's upwardly variant sentence was procedurally and
substantively unreasonable. Because we agree that the district
court's failure to adequately justify the sentence was procedural
error, we vacate the sentence and remand to the district court for
resentencing.
I. Background
To begin, we recount the facts leading up to the
revocation sentence at issue here. In 2014, Reyes pled guilty to
conspiring to possess cocaine with intent to distribute near a
protected location.1 Reyes had been charged with being a
"facilitator" and a lookout for a drug trafficking organization,
which entailed acting as a messenger and an intermediary "when
clients did not want to go into the housing project." At the time
of his guilty plea, Reyes was a first-time offender with no prior
arrests or convictions. Following Reyes's plea, the court
1 Reyes was convicted pursuant to 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 846, and 860.
- 2 - sentenced him to thirty-seven months' imprisonment followed by a
six-year supervised-release term. Shortly thereafter, Reyes filed
an assented-to motion to reduce his sentence. The district court
granted the motion, and Reyes's sentence was reduced to thirty
months, with no change to the supervised release term.
A. First Supervised Release Term
In July 2016, Reyes was released from prison and entered
supervised release. Before his arrest, Reyes had struggled with
a substance use disorder, informing the Probation Office
("Probation") that "he ha[d] a history of Percocet use,
approximately four pills a day" and "that he used cocaine daily,
spending about $100 a day."2 Upon release, as required by the
conditions of his probation, Reyes began attending an outpatient
substance abuse treatment program. In December 2017, Reyes's
probation officer notified the district court that Reyes had tested
positive for marijuana four times over the previous eight months.
The probation officer requested that no action be taken because
Reyes had been referred to an inpatient residential substance abuse
treatment program. In February 2018, however, Reyes tested
2 Percocet is a brand name for Oxycodone, which is a prescription opioid. Commonly Used Drugs Charts, National Institute on Drug Abuse, https://nida.nih.gov/research- topics/commonly-used-drugs-charts#prescription-opioids (last visited Aug. 30, 2023).
- 3 - positive for buprenorphine.3 Shortly after, Reyes left the
program, and the court issued a warrant for his arrest. When Reyes
was arrested and brought before the district court, he admitted to
violating conditions of his supervised release by consuming drugs
and abandoning his treatment without authorization. The court
revoked his term of supervision and sentenced him to nine months
in prison followed by five years of supervised release.
B. Second Supervised Release Term
In March 2019, Reyes completed his reimprisonment term
and began his second term of supervised release, now with a
different probation officer. Three months into his term of
supervision, Reyes's probation officer claimed Reyes had violated
the conditions of release and requested that a warrant issue to
arrest Reyes. The probation officer alleged that Reyes had failed
to show up for two scheduled urine testing appointments and three
drug treatment program sessions. He also stated that Reyes had
been "prescribed psychotropic medications to stabilize [his]
mental health disorders" and though instructed to pick up the
medication, Reyes had failed to provide evidence that he had done
3Buprenorphine is a "medication to treat opioid use disorder." Buprenorphine, Substance Abuse and Mental Health Services Administration, https://www.samhsa.gov/medications- substance-use-disorders/medications-counseling-related- conditions/buprenorphine (last visited Aug. 30, 2023). Due to "buprenorphine's opioid effects, it can be misused, particularly by people who do not have an opioid dependency." Id.
- 4 - so. The probation officer cited this failure as another violation
of Reyes's supervised release conditions. The district court then
issued a warrant for Reyes's arrest.
When Reyes was arrested and brought before the court, he
admitted to the alleged violations. The court once again revoked
his supervised release and sentenced him to one year in prison
followed by four years of supervised release. In addition to the
standard conditions, the court added that Reyes must "reside at
the [r]esidential [r]eentry [c]enter" for the first six months of
his supervised release.
C. Third Supervised Release Term
In July 2020, Reyes was released for his third term of
supervised release -- the term at issue in this appeal. Due to
the COVID-19 pandemic, the residential reentry center where Reyes
resided had to "lockdown every participant," which meant that
Reyes's access to "substance abuse and mental health treatment
[was] very limited." In an informative motion to the court, the
probation officer explained that Reyes had a "substance abuse
history" and that one year prior, Reyes had undergone a psychiatric
evaluation that diagnosed him with "Bipolar disorder, Type 1, mixed
episodes." As a result of the limited treatment at the residential
reentry center, the probation officer stated that Reyes had "been
struggling with his substance abuse problem and [e]specially with
his mental health condition." So, in November 2020, the court
- 5 - suspended the residential reentry center condition, allowed Reyes
to move into his mother's home, and referred Reyes to outpatient
treatment for his "dual disorder."
Over the next seven months, the probation officer filed
two informative motions detailing Reyes's progress. Reyes had
continued with treatment but also "demonstrated [a] hostile,
defiant and disrespectful attitude towards treatment personnel
while [being] resistant to treatment regulations." But he would,
at points, also apologize and "recognize[] his attitude problem,
explosive behavior and mental health condition while admitting his
need of treatment." As the COVID-19 pandemic raged on, Reyes's
treatment reports were delayed, and Reyes's progress appeared to
slow.
In May 2021, Reyes informed his probation officer that
he had been pulled over several days prior for speeding and driving
without a license. The probation officer told Reyes that he had
violated a release condition by failing to notify the probation
officer within three days of any contact with a law enforcement
officer. Reyes also began missing treatment appointments, and in
June 2021, Reyes's mother contacted the probation officer to report
that Reyes had been hospitalized for four days for expressing
suicidal ideations.
Given the above, the probation officer asked the court
to take no action with regard to the earlier alleged violation in
- 6 - order to give Probation and the treatment center the time to
"emotionally stabilize [Reyes] and continue with the
implementation of the dual treatment."
Two weeks later, however, on July 6, 2021, the probation
officer requested that the court issue an arrest warrant for Reyes.
First, the probation officer explained that a confidential source
informed Probation that Reyes had been "acting erratically and
under the effects of what appear[ed] to be synthetic cannabinoids."
The officer also received "videos and a picture depicting [Reyes]
under the strong effect of a controlled substance." Second, the
treatment center had informed the probation officer that Reyes had
not been "ingesting his medication properly and [that] last week
he did not pick up his prescribed medication." On July 23, 2021,
Reyes was arrested.
D. The Revocation Proceeding at Issue in This Appeal
On August 6, 2021, following his arrest, Reyes appeared
before a magistrate judge and waived the preliminary hearing. On
October 18, 2021, the court held Reyes's revocation hearing. Reyes
did not contest any of the allegations in Probation's motion. He
instead explained his struggles with bipolar disorder and severe
depression. He stated that his "defiant" behavior was not due to
his substance use disorder but instead was linked to his mental
health conditions and that "the medication [was] what [was]
crucial." Taking that into account, Reyes requested a sentence of
- 7 - twelve months' imprisonment with no supervised release to follow.
The government also recommended a twelve-month sentence. The
government took no position on the supervised release term and
deferred to the court's judgment.
The court revoked Reyes's supervised release term based
on Reyes's use of illegal substances, his failure to notify
Probation regarding his contact with law enforcement, and his
failure to follow the instructions of the outpatient treatment
program. The court explained that because the violations were
Grade C, the applicable guidelines sentencing range was three to
nine months' imprisonment.4 The court then sentenced Reyes to
thirty-six months' imprisonment, the statutory maximum for Reyes's
violation. See 18 U.S.C. § 3583(e)(3). Upon doing so, the court
recounted the facts of Reyes's case and noted that it had "viewed
the video" of Reyes under the effect of synthetic cannabinoids.
Reyes's defense counsel specifically objected to (1) the
probation officer's ex parte submission of videos as "a matter of
procedure" and (2) the excessive length of the sentence as
substantively unreasonable. While objecting to the sentence
length, Reyes's counsel also pointed to the fact that Reyes's
4 Supervised release violations are categorized into three grades. U.S.S.G. § 7B1.1(a). Grade C is the least severe and covers conduct that constitutes "(A) a federal, state, or local offense punishable by a term of imprisonment of one year or less; or (B) a violation of any other condition of supervision." Id. § 7B1.1(a)(3).
- 8 - violations were "Type C violations" and not "equal to someone that
has . . . committed a crime." Reyes's counsel concluded by
highlighting Reyes's contributing mental health issues, noting
that Reyes was making "progress," and arguing that it was
"excess[ive] to have a 36-month [] sentence" for Reyes. The court
denied the objections.
Following sentencing, Reyes spoke with the probation
officer and learned that the probation officer had recommended a
nine-month sentence and not a thirty-six-month sentence. When
announcing Reyes's sentence, the court mistakenly stated that it
"agree[d] with the probation officer" on the sentence length.
After Reyes alerted the court of this error, the court struck the
phrase "[t]he [c]ourt agrees with the probation officer" from the
hearing transcript.
Reyes then brought this appeal.
II. Discussion
Reyes first argues that the district court violated his
due process rights in relying on ex parte communications at his
revocation hearing. Second, Reyes argues that his
thirty-six-month sentence was both procedurally and substantively
unreasonable. "We review preserved challenges for abuse of
discretion." United States v. Cruz-Ramos, 987 F.3d 27, 44 (1st
Cir. 2021).
We take each argument in turn.
- 9 - A. The District Court's Ex Parte Communications with the Probation Officer
Reyes contends that, at the revocation hearing, when the
district court stated that it had received and viewed videos from
the probation officer, it demonstrated that it had engaged in
improper ex parte communications with the probation officer. Reyes
also points to a post-hearing order where the district court
revealed that the probation officer had prepared "wording" for the
court ahead of the revocation hearing. As a result, Reyes argues
that he had no opportunity to meaningfully respond to the videos
or the "wording" because he had no notice that the court would
rely on them. In Reyes's view, the ex parte communications
violated his due process rights, and so, at minimum, he should
have his sentence remanded for reconsideration. Because Reyes
objected to the ex parte communications at his revocation hearing,
we review this claim for abuse of discretion. See id.
A sentencing court may "conduct an inquiry broad in
scope, largely unlimited either as to the kind of information [it]
may consider, or the source from which it may come." Pepper v.
United States, 562 U.S. 476, 489 (2011) (quoting United States v.
Tucker, 404 U.S. 443, 446 (1972)). Nonetheless, this inquiry does
have limits and "is bounded by both Federal Rule of Criminal
Procedure 32 and the demands of due process." United States v.
Bramley, 847 F.3d 1, 5 (1st Cir. 2017). Federal Rule of Criminal
- 10 - Procedure 32.1 sets out requirements and dictates that, at a
revocation hearing, a defendant is entitled to:
(A) written notice of the alleged violation; (B) disclosure of the evidence against the person; (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 the person's right to retain counsel or to request that counsel be appointed if the person cannot obtain counsel; and (E) an opportunity to make a statement and present any information in mitigation.
Fed. R. Crim. P. 32.1(b)(2). And we have held that Rule 32.1 and
"the Due Process Clause of the United States Constitution require
that a defendant be apprised of the information to be relied on in
sentencing and an opportunity to challenge and rebut such
information." United States v. Berzon, 941 F.2d 8, 16 (1st Cir.
1991).
So, as the sentencing court prepares for the revocation
and sentencing hearing, "[e]x parte communication between the
probation officer and the court is usually permissible where the
court is merely seeking advice or analysis, . . . and the probation
officer and the court may consult privately about certain issues
incident to criminal sentencing." United States v. Marrero-Pérez,
914 F.3d 20, 25 (1st Cir. 2019) (internal citations omitted). But
if "the probation officer reveals new facts relevant to the
sentencing calculus, those facts cannot be relied upon by the
sentencing court unless and until they are disclosed to the parties
- 11 - and subjected to whatever adversarial testing may be appropriate."
Bramley, 847 F.3d at 7. As a result, "[a] district court's use of
new information (meaning information not already found in the
district court's record) that is significant (meaning 'materially
relied on' by the district court in determining a sentence) can be
reversible error." United States v. Ramos-Carreras, 59 F.4th 1,
5 (1st Cir. 2023) (quoting United States v. Rivera-Rodríguez, 489
F.3d 48, 54 (1st Cir. 2007)).
1. The District Court's Receipt of Videos
Reyes first contends that the district court improperly
received videos of him using synthetic cannabinoids. Because
defense counsel was not included on any communication sending the
videos to the court, Reyes's defense counsel concluded that the
videos were likely sent through "ex parte communications between
the probation officer and the [c]ourt."
There is no doubt that defense counsel is correct. The
videos do not qualify as permissible ex parte communications
seeking "advice or analysis," so if the videos were not disclosed
to Reyes, the court should not have received them ex parte. See
Marrero-Pérez, 914 F.3d at 25. The operative question here then
is whether the videos were new information.
They were not. To begin, Reyes did not contest any of
the allegations of the arrest warrant motion, which included the
allegations that he had been using synthetic cannabinoids and that
- 12 - he had been captured on video doing so. Indeed, the videos were
one of the reasons that the probation officer requested the arrest
warrant. Furthermore, the government not only mentioned the videos
at the preliminary hearing but also stated that they had provided
Reyes with the videos. As a result, Reyes's argument that he was
unprepared for the videos to play a role in his ultimate sentencing
is unpersuasive.
Reyes accurately points out, however, that the
preliminary hearing was before a magistrate judge and a transcript
of the preliminary hearing had not been filed at the time of the
final revocation hearing. As such, anything said at the
preliminary hearing should not be considered part of the record.
United States v. Colón-Maldonado, 953 F.3d 1, 13 n.10 (1st Cir.
2020) (declining to consider testimony from the preliminary
hearing where "no transcript of that testimony was filed before
(or at) the final revocation hearing, and the district judge gave
no indication he'd listened to an audio recording or reviewed some
other record of the testimony"). But we can still use the
preliminary hearing transcript to confirm that Reyes had notice
and access to the videos. Even if we credit Reyes's point, it is
difficult to characterize the videos as "new information" or
extra-record evidence, especially given the probation officer's
explicit mention of the videos in the arrest warrant motion. As
- 13 - a result, the district court's ex parte receipt of the videos was
not reversible error or an abuse of discretion.5
2. The Probation Officer's "Wording"
Reyes next argues that the district court erred by
adopting the probation officer's "wording" during Reyes's
revocation hearing. To confirm that the probation officer had
recommended a nine-month sentence, the court had requested the
probation officer's "wording" that the officer provided to the
court before the hearing. In Reyes's view, this reveal meant that
the probation officer "wr[o]te out the court's wording to pronounce
punishment for [the] violations." In other words, Reyes argues
that, through this "wording," the probation officer essentially
instructed the court how to rule.
As we stated above, a judge may have ex parte
communications with a probation officer "where the court is merely
seeking advice or analysis." Marrero-Pérez, 914 F.3d at 25; see
also Bramley, 847 F.3d at 6 (noting that a court's "communications
5 Reyes also argues that the court materially relied on the videos and that the videos "apparently had a major impact on the court," which was improper. But the necessary inquiry is whether the information at issue was both new and materially relied upon. See Ramos-Carreras, 59 F.4th at 5; see also United States v. Millán-Isaac, 749 F.3d 57, 70 (1st Cir. 2014) (evaluating "the record closely to determine whether the court considered new information at sentencing" before considering "whether [the court] materially relied on that information in crafting [defendant's] sentence"). Because we establish that Reyes had notice of the videos, the information was not new, and we need not address this argument.
- 14 - with [a] probation officer are fundamentally different from its
communications with third parties" because the probation officer
"is simply an extension of the court itself"). And as even Reyes
appears to concede, the "wording" contained the probation
officer's recommendations. There is nothing in the record to
indicate that there was anything beyond advice and analysis in the
non-binding recommendation provided to the district court.
Assuming without deciding, however, that there was
something more than advice and analysis in the "wording," any error
was harmless. See United States v. Tavares, 705 F.3d 4, 26 (1st
Cir. 2013) (confirming the "validity of harmless-error analysis in
procedural error cases" (citing United States v. Booker, 543 U.S.
220 (2005))). An error is harmless if "the error did not affect
the district court's selection of the sentence imposed." Williams
v. United States, 503 U.S. 193, 203 (1992).
The court confirmed that the probation officer
recommended a nine-month sentence in their "wording." The court,
presumably having read the recommendation before sentencing,
nonetheless sentenced Reyes to thirty-six months' imprisonment.
Whatever may have been revealed in the recommendation, it was
employed to support a nine-month sentence -- a sentence roundly
rejected by the district court. Even when confronted with the
chance to take another look at the probation officer's
recommendation, the court adhered to its sentence and instead chose
- 15 - to amend the transcript. Given the stark difference between the
probation officer's recommendation and the court's ultimate
sentence, it is unlikely there was anything in the recommendation
that influenced the sentence. Thus, to the extent there was an
error, it did not affect the court's sentence.
B. Procedural Reasonableness of the Sentence
Reyes next challenges the procedural reasonableness of
his sentence. He contends that the district court erred by failing
to adequately explain its 400% upwardly variant sentence. See
United States v. Del Valle-Rodríguez, 761 F.3d 171, 176 (1st Cir.
2014) (explaining that "[t]he procedural dimension includes errors
such as . . . neglecting to explain the rationale for a variant
sentence adequately"). As an initial matter, we must resolve the
standard of review.
For a defendant "[t]o preserve a claim of procedural
sentencing error for appellate review, [their] objection need not
be framed with exquisite precision." United States v.
Rivera-Berríos, 968 F.3d 130, 134 (1st Cir. 2020). It must,
however, "be sufficiently specific to call the district court's
attention to the asserted error." United States v. Soto-Soto, 855
F.3d 445, 448 n.1 (1st Cir. 2017).
Here, Reyes's objections were sufficiently specific to
call the district court's attention to a perceived failure to
explain the sentence length. The government maintains that Reyes's
- 16 - counsel failed to raise an objection that preserved Reyes's claim
on appeal regarding inadequate explanation. We disagree. In
addition to objecting to the court's consideration of the videos
as "a matter of procedure," counsel also objected to the court's
perceived failure to consider the fact that Reyes's violations
were Grade C -- and thus not "equal to someone that has . . .
committed a crime." And counsel ended the hearing by objecting to
the court's failure to consider Reyes's contributing mental health
issues and his progress in treatment. We find that "[s]ubsumed
within those objections is the clearly implicit charge that the
district court's explanation rested on improper considerations."
United States v. Serrano-Berríos, 38 F.4th 246, 250 n.1 (1st Cir.
2022). Thus, we will "review the district court's justification
for varying upward under the familiar abuse-of-discretion
standard." Id. Having determined the standard of review, we now
set out what a court must do to adequately explain a sentence.
During sentencing, a court must "state in open court the
reasons for its imposition of the particular sentence." 18 U.S.C.
§ 3553(c); see also Gall v. United States, 552 U.S. 38, 46 (2007).
When a court, as here, imposes a sentence above the guidelines
sentencing range, "it must justify the upward variance." Del
Valle-Rodríguez, 761 F.3d at 176. To successfully justify a
variance, the court needs to "articulate[] why it believe[s] that
the [defendant's] case differ[s] from the norm." Id. at 177. And
- 17 - "the greater a deviation from the [guidelines sentencing range],
the more compelling the sentencing court's justification must be."
Id.
Here, the court failed to justify its sentence. The
court handed down a sentence that exceeded the top of the
applicable guidelines range by a multiple of four, but it did not
state its reasons for doing so. The stated rationale was:
To reflect the seriousness of the offense, promote respect for the law, provide just punishment for the offense, afford adequate deterrence, and to protect the public from additional crimes by . . . Reyes, the [c]ourt concludes that a sentence outside the guideline range is a sentence sufficient but not greater than necessary to comply with the purposes set forth in Title 18 United States Code, Section 3553(a).
In so stating, the judge offered the same boilerplate language
that we have ruled inadequate in at least three separate sentencing
cases. See Serrano-Berríos, 38 F.4th at 250 (finding revocation
sentencing rationale inadequate where the same language was used);
United States v. Flores-Nater, 62 F.4th 652, 656-57 (1st Cir. 2023)
(vacating and remanding a sentence for failure to explain where
this language was employed); United States v. Muñoz-Fontanez, 61
F.4th 212, 214-15 (1st Cir. 2023) (holding that this
non-case-specific language was an inadequate explanation for an
upward variance). As we have held before, the given justification
is generic and "scarcely constitutes a plausible rationale
- 18 - sufficient to justify a steep upward variance." Flores-Nater, 62
F.4th at 656.6 In fact, "it simply rehearses -- but does not apply
-- certain of the factors that Congress has instructed courts to
consider in imposing sentences." Id. (citing 18 U.S.C.
§ 3553(a)(2)). So, we reiterate that this language is not enough.
Yet it is true that a sentence may also be justified
through "fair inference from the sentencing record." United States
v. Montero-Montero, 817 F.3d 35, 38 (1st Cir. 2016). For example,
we found an upwardly variant sentence justified through "fair
inference" where "an offender . . . committed a gun-related felony
less than a year after completing a substantial incarcerative term
for unlawful possession of a machine gun." United States v.
Márquez-García, 862 F.3d 143, 147 (1st Cir. 2017).
But there is no such fair inference to be drawn here.
The court, before handing down Reyes's sentence, remarked that:
Reyes has shown that he is unable to comply with the law or the conditions of supervision imposed on him by this [c]ourt by continuing
6 We acknowledge that Flores-Nater analyzes this issue under substantive reasonableness. 64 F.4th at 655. But as we stated in Flores-Nater, "a district court's procedural duty to adequately explain an upwardly variant sentence bears a strong family resemblance to its duty to spell out a plausible sentencing rationale in order to undergird the substantive reasonableness of a sentence." Id. at 655 n.2 (citing United States v. Vargas- Martinez, 15 F.4th 91, 102 n.7 (1st Cir. 2021)). So, "an adequate explanation for an upwardly variant sentence and the plausible rationale element of the test for substantive reasonableness are almost always two sides of the same coin." Id. (internal quotation marks omitted) (quoting United States v. Ortiz-Pérez, 30 F.4th 107, 113 (1st Cir. 2022)).
- 19 - to use . . . controlled substances illegally, by not notifying [about] contact with a law enforcement officer within 72 hours, and by not abiding by the rules of [outpatient] treatment to which he has been referred.
The court then recited the facts of Reyes's case before it
concluded that "[t]he probation office has extinguished every
resource, including [outpatient] and inpatient treatment in
previous revocations; drug testing, medicated assistance, drug
treatment and cognitive behavioral interventions."
None of these statements are sufficient. When a court
supplies a "mere listing of the facts . . ., without emphasis on
any particular circumstance," it becomes "impossible to tell" why
the court landed on a sentence that quadrupled the guidelines
sentencing range. Muñoz-Fontanez, 61 F.4th at 214. Here, the
court merely recounted Reyes's technical Grade C violations that
led to the revocation hearing.7 So, while the court's statement
that Reyes had "shown that he [was] unable to comply with the law
or the conditions of supervision" explains why Reyes's supervised
release was being revoked, it does not explain the sentencing
rationale or justify the upward variance. A summary of the events
that preceded the revocation hearing -- without more -- is an
impermissible basis for a large upward variance.
7A technical violation is a "violation[] of the terms of release that did not involve committing new crimes." Serrano-Berríos, 38 F.4th at 250 n.2.
- 20 - Still, the court did state that "[t]he probation office
ha[d] extinguished every resource," which could serve as an
implicit justification for the sentence. One possible
interpretation could be that the court believed Reyes was beyond
help and that incarceration was the only option. To resolve this
issue, we look to our precedent in Serrano-Berríos, a substantially
similar case. On revocation, Serrano-Berríos's guidelines
sentencing range was eight to fourteen months, but he was given a
two-year sentence. Serrano-Berríos, 38 F.4th at 248-49. During
sentencing, the court made a nearly identical statement to the one
here: "[t]he probation officer has extinguished a release source,
including outpatient and inpatient treatment, drug testing, and
cognitive behavioral interventions." Id. at 249.
There, we examined the two potential justifications that
could be inferred from the court's statement: (1) that "probation
had eliminated treatment as an option for [defendant] to use if
released" or (2) that "due to [defendant's] admitted relapses, the
district court itself had lost faith in his ability to succeed at
staying clean." Id. at 250. Because neither of these explanations
had solid foundation in the record, we expressed skepticism as to
whether either would be sufficient justification. Id. But we
ultimately did not decide the issue. Id. Instead, we declined to
engage with any implied rationale because we were "unwilling to
rely on such a strained reading of the court's comments to justify
- 21 - an upward variance." Id. The same holds here. So, while the
government may contend that the court's comment provides a "fair
inference," we have already analyzed this statement and found it
lacking. See id.
In any event, the justification, whether inferred or
explicit, must demonstrate that this case differs from the norm,
or, in other words, "the mine-run of Grade C revocation cases."
Id. (cleaned up) (citing Rivera-Berríos, 968 F.3d at 136). As
illustrated by the guidelines sentencing range of three to nine
months, there is nothing obvious in the record that demonstrates
how Reyes's case differs from "the mine-run of Grade C revocation
cases." Id. To the extent there is some distinctive quality to
Reyes's case, it is unclear why the government and Reyes's
agreement on an above-guidelines sentence of twelve months --
rejected by the court with no explanation or elaboration -- was
insufficient to address it. See Flores-Nater, 62 F.4th at 657
("Although the court was not required to explain why it rejected
the . . . upwardly variant sentence recommended by the parties, it
should have given at least some indication as to why it believed
that [its] upward variance was the option of choice." (internal
citation omitted)); United States v. Franquiz-Ortiz, 607 F.3d 280,
282 (1st Cir. 2010) (expressing concern where "it is not clear why
the court regarded the above-guideline joint recommendation of the
parties as insufficient punishment"). Notably, "by imposing the
- 22 - statutory maximum sentence, the court left no room for harsher
sentences for those with higher criminal history categories and
more serious violations." Franquiz-Ortiz, 607 F.3d at 282. Based
on the record before us, we have no way of discerning why the court
levied the harshest possible sentence for Reyes's Grade C
violations.
In sum, even if we adopted a strained reading of the
court's comments, none of the rationales explain why Reyes's case
was so distinct from the mine-run of Grade C revocation cases that
he deserved a 400% increase over the guidelines sentencing range.
This case is not one where "the offense of conviction is obviously
more horrific than the heartland offense falling within the
applicable guideline," and "we can perhaps infer . . . what sparked
the perceived need for an upward variance." Flores-Nater, 62 F.4th
at 657. Rather, this case is about a person who is living with a
substance use disorder, which is hardly an unusual circumstance
and certainly not one inherently deserving of additional
punishment.
We note, though, that we are not definitively stating
that an upward variance is unwarranted in this case. Rather, it
is that we cannot infer a reason for the upwardly variant sentence
from the "nature and circumstances of the offense." United States
v. Martin, 520 F.3d 87, 91 (1st Cir. 2008). If the court deemed
the number of revocations, Reyes's behavior, or some other aspect
- 23 - of the record uniquely unacceptable, it should have so stated.
See Muñoz-Fontanez, 61 F.4th at 215 ("When imposing a significant
variance, a sentencing court must make clear which specific facts
of the case motivated its decision and why those facts led to its
decision."). Given that the strength of the justification must
increase proportionally with the length of an upwardly variant
sentence, we will not contort ourselves to cobble together a
speculative justification for a massive upward variance. Thus,
the district court's failure to justify its sentence was an abuse
of discretion.8 See, e.g., Rivera-Berríos, 968 F.3d at 137
(vacating sentence for failure to explain a one-year increase over
the top of the guidelines range); Franquiz-Ortiz, 607 F.3d at 282
(vacating sentence for failure to explain a fourteen-month
increase over top of guidelines range); Serrano-Berríos, 38 F.4th
at 250 (vacating sentence in part due to a failure to explain a
ten-month increase over top of guidelines range).
III. Conclusion
For the foregoing reasons, we vacate Reyes's
thirty-six-month sentence and remand for resentencing consistent
with this opinion. The court may base its sentence on the existing
8Because we have resolved this appeal on the procedural reasonableness ground, we do not address Reyes's substantive reasonableness challenge.
- 24 - record and any facts, to the extent they are offered and
admissible, that occurred after the prior date of sentencing.
- 25 -