United States Court of Appeals For the First Circuit
No. 22-1464
UNITED STATES OF AMERICA,
Appellee,
v.
DANIEL PAUL SANSONE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. Lance E. Walker, U.S. District Judge]
Before
Barron, Chief Judge, Selya and Gelpí, Circuit Judges.
Stephen P. Super on brief for appellant. Darcie N. McElwee, United States Attorney, and Benjamin M. Block, Assistant United States Attorney, on brief for appellee.
January 4, 2024 SELYA, Circuit Judge. Defendant-appellant Daniel Paul
Sansone challenges both the procedural integrity and substantive
reasonableness of his top-of-the-range sentence. His procedural
challenges, though, are unpreserved and fail plain-error review.
That leaves his substantive challenge, which we review for abuse
of discretion. Discerning none, we affirm the defendant's
sentence.
I
We briefly rehearse the relevant facts and travel of the
case. "Where, as here, a sentencing appeal follows a guilty plea,
we glean the relevant facts from the change-of-plea colloquy, the
unchallenged portions of the presentence investigation report (PSI
Report), and the record of the disposition hearing." United States
v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009).
On October 15, 2020, law enforcement officers in
Waterville, Maine, responded to a report of a gunshot near Poolers
Parkway. The report noted that "a suspicious male on a red
motorcycle was observed in the area." Upon arriving at the scene,
the officers found the defendant standing next to a red motorcycle.
When the officers asked the defendant to show them his hands, the
defendant fled. A foot-chase ensued. The chase ended in the
defendant's capture.
Once the defendant was in custody, a search of his person
revealed a loaded ammunition magazine and a large amount of cash.
- 2 - A backpack that the defendant discarded while running contained,
among other things, 28.1 grams of marijuana. Following an
inspection of the area covered by the foot-chase, the officers
also found a loaded firearm with the safety selector switch in the
"fire" position.
In an interview with law enforcement, the defendant said
that he had traveled to Waterville to locate Zoe Hendricks, who
shares a child with him. He added that Hendricks was subject to
bail conditions, which prohibited her from having any contact with
him. With respect to the firearm, the defendant insisted that he
carried it with him — despite being a prohibited person1 — because
he believed that a drug dealer had a "hit on him." He also asserted
that the firearm had discharged accidentally.
Further inquiry revealed that both the defendant and
Hendricks were on bail following an arrest on April 30, 2020. That
arrest resulted in charges of aggravated trafficking of scheduled
drugs, carrying a concealed weapon, and violating a condition of
release.
A review of the defendant's text messages and social
media accounts disclosed that he had sent several messages to
Hendricks on the night of October 15. A representative sampling
of these messages follows:
On October 6, 2020, the defendant was convicted in a Maine 1
state court of unlawful trafficking in scheduled drugs.
- 3 - • "I'm going to suicide by cop tonight."
• "Just do this the easy way so I don't have to go
shooting up your families houses." "I'm taking
someone close to you out with me."
• "Zoe, if you down [sic] answer, I'm going to shoot
myself in the head." This message included a photo
of the defendant with a gun to his head and his
finger on the trigger.
• "I'm ready to die to night and I'll happily take
you with me . . . ."
At the time of the incident, Hendricks lived close to where the
gunshot was fired. Following the gunshot, the defendant messaged
Hendricks, "I know you could hear that."
In due course, a federal grand jury sitting in the
District of Maine returned an indictment that charged the defendant
with being a felon in possession of a firearm. See 18 U.S.C.
§ 922(g)(1). Although the defendant initially maintained his
innocence, he later pleaded guilty to this charge. After accepting
the defendant's guilty plea, the district court ordered the
preparation of a PSI Report. That report was submitted, and the
probation office later substituted a revised PSI Report.2
The revised PSI Report included an addendum, which confirmed 2
that no objections to it had been received either from the defendant or from the government.
- 4 - In the revised PSI Report, the probation office
recommended a total offense level of seventeen, a criminal history
score of eight, and a criminal history category (CHC) of IV. Of
particular pertinence for present purposes, the criminal history
score included four points stemming from two discrete
adjudications in a Massachusetts juvenile court. The first two
points related to a February 2015 charge of receiving stolen
property; the second two points related to March 2015 charges of
receiving stolen property and twice uttering counterfeit notes.
The disposition for both sets of charges was identical: "Continued
Without a Finding with Supervised Probation."
The defendant's release on probation for these two
juvenile state-court adjudications was short-lived. After his
second probation violation, he was "Committed" to the
Massachusetts Department of Youth Services (DYS) on December 23,
2015. He was thereafter "Released to Community" on June 23, 2016.
From that time forward, he was "In and Out of DYS Custody" and
"Discharged from DYS" on October 26, 2017.
The revised PSI Report recommended a guideline
sentencing range (GSR) of thirty-seven to forty-six months'
imprisonment. Neither party challenged this calculation.
The district court convened the disposition hearing on
June 1, 2022. The prosecutor described the defendant as "a master
manipulator" and noted that, although "[t]he defendant is somebody
- 5 - that unquestionably has had an extremely troubled and difficult
childhood," that reality should not "explain away" the defendant's
misconduct. The prosecutor further observed that the defendant
had subjected Hendricks to "despair and terror" on October 15.
Given this predicate, the prosecutor argued for "a sentence at the
high end of the guideline range."
For his part, defense counsel introduced seven exhibits,
including a psychological report, a letter from Hendricks, and a
sheaf of other letters. He did not object to the inclusion of
four points in the defendant's criminal history score based upon
the defendant's juvenile adjudications. Wrapping up, defense
counsel argued for a downwardly variant sentence, suggesting that
the defendant's circumstances, particularly "the difficulty in his
childhood," warranted "leniency." The court then heard testimony
from the defendant's mother, Barbara Sansone, who discussed the
defendant's entry into foster care, his childhood, and the "total
attitude change" that she witnessed in the months following his
most recent incarceration.
During his allocution, the defendant accepted
responsibility for his actions, admitting that his "choices were
foolish, lacked foresight, and created a recurring pattern that
lasted for years." He concluded by requesting a downwardly variant
- 6 - The court proceeded to adopt the revised PSI Report in
its entirety (including the guideline calculations). It stated
that — in fashioning an appropriate sentence — it had considered
the parties' recommendations, the defendant's exhibits, his
mother's testimony, and his allocution, as well as the sentencing
factors limned in 18 U.S.C. § 3553(a). The court made clear its
view that "the conduct underlying [the] offense is alarming in the
extreme." It emphasized that the need to provide specific
deterrence and protect the public from the defendant "scream out
to me for me to be at least a stopgap" and to impose "a period of
incarceration that's meaningful." And the court stated:
I take no exception with the characterization that [defense counsel] presented in terms of your personal history and characteristics. You have had, to put it mildly, a challenging go in the few years that you've been on the planet. I get that. You're not the first person to appear before me who has struggled in a similar fashion. And I understand how hopelessly complex that can make life, and it can lead to resentment, bitterness, confusion, and extremely poor decisions. I get all of that.
In the end, the court determined that a forty-six-month term of
immurement was "a just and fair sentence." This timely appeal
followed.
II
"Appellate review of claims of sentencing error entails
a two-step pavane." United States v. Matos-de-Jesús, 856 F.3d
- 7 - 174, 177 (1st Cir. 2017). During this pavane, "we first determine
whether the sentence imposed is procedurally reasonable and then
determine whether it is substantively reasonable." United States
v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011). Throughout, "our
review of preserved claims of error is for abuse of discretion."
United States v. Díaz-Lugo, 963 F.3d 145, 151 (1st Cir. 2020).
Unpreserved claims of error, if not deemed waived, are reviewed
only for plain error. See United States v. Duarte, 246 F.3d 56,
60 (1st Cir. 2001).
In this venue, the defendant challenges both procedural
and substantive aspects of his sentence. We address these
challenges separately.
A
The defendant advances two related claims of procedural
error. First, he argues that a juvenile adjudication of DYS
commitment is not a sentence of confinement and, thus, not a lawful
predicate for the assignment of criminal history points under USSG
§4A1.2(d)(2)(A). Second, he argues that "there was no evidence on
the record" to support the sentencing court's conclusion that both
juvenile adjudications resulted in confinement of at least sixty
days. Either way — he says — the sentencing court committed
procedural error when it used the juvenile adjudications to boost
his criminal history score (and, thus, increase his CHC).
- 8 - 1
We start with the argument that the defendant's criminal
history score was erroneously inflated because a juvenile
adjudication of DYS commitment is not a sentence of confinement.
Because the defendant did not advance this argument below, our
review is for plain error. See United States v. Serrano-Mercado,
784 F.3d 838, 844-45 (1st Cir. 2015); United States v. Vasco, 564
F.3d 12, 22 (1st Cir. 2009).
"The plain error hurdle is high." United States v.
Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989). To prevail under
plain-error review, a defendant must make "four showings: (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." Duarte, 246 F.3d at 60.
Moreover, "[a] party who claims plain error 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). The defendant
cannot make this uphill climb.
Our analysis begins with the text of the relevant
guideline. See United States v. DiPina, 178 F.3d 68, 71 (1st Cir.
1999). USSG §4A1.2(d)(2)(A) directs that two criminal history
points are to be added to a defendant's criminal history score for
"each . . . juvenile sentence to confinement of at least sixty
- 9 - days if the defendant was released from such confinement within
five years of his commencement of the instant offense." For any
other juvenile sentence imposed within that period, only one
criminal history point is added to the defendant's criminal history
score. See USSG §4A1.2(d)(2)(B). Neither the guideline nor its
commentary expands on the meaning of the phrase "juvenile sentence
to confinement."
The question of what constitutes a sentence of
confinement under section 4A1.2(d)(2)(A) is a question of federal
law. See United States v. Carrasco-Mateo, 389 F.3d 239, 246 (1st
Cir. 2004). In this case, the defendant cites no pertinent federal
authority expounding on the meaning of the phrase "juvenile
sentence to confinement."
The only authority cited by the defendant for the
proposition that — under section 4A1.2(d)(2)(A) — a juvenile
adjudication of DYS commitment is not a sentence of confinement is
Commonwealth v. Samuel S., 69 N.E.3d 573 (Mass. 2017). There, the
Massachusetts Supreme Judicial Court (SJC) purposed to answer
whether Mass. Gen. Laws ch. 6, § 178E(f) gave Massachusetts judges
"discretion to relieve [a] juvenile of the requirement to register
as a sex offender." Id. at 576. The exercise of discretion was
determined to be contingent upon whether the juvenile had been
sentenced to immediate confinement. See id. at 577. The SJC held
that — for purposes of that statute — commitment to DYS did not
- 10 - "constitute a sentence of immediate confinement." See id. at 581
& n.13.
Samuel S. has only tangential bearing on the issue we
must decide. It tells us that a juvenile adjudication of DYS
commitment does not constitute a sentence of immediate confinement
for the purpose of a particular state statute. But it tells us
nothing about whether a juvenile adjudication of DYS commitment
constitutes a sentence of confinement for the purpose of section
4A1.2(d)(2)(A).
We add, moreover, that the sentencing court in this case
was not writing on a pristine page. In the past, we have upheld
sentencing courts' determinations that Massachusetts juvenile
adjudications of commitment constitute sentences of confinement.
See, e.g., United States v. Gibbons, 553 F.3d 40, 45-46 (1st Cir.
2009).
To be sure, the defendant's argument has a patina of
plausibility. A juvenile's commitment to DYS may result in any
one of five distinct outcomes, two of which include confinement.
See Mass. Gen. Laws ch. 120, § 6 (listing outcomes); see also
Gibbons, 553 F.3d at 45. The record in this case is inscrutable
on this point: it simply does not permit us to discern which of
these outcomes attached to the defendant's commitments.
Under plain-error review, this ambiguity cuts in favor
of the government. See United States v. Gonzalez, 981 F.3d 11, 22
- 11 - (1st Cir. 2020) (explaining that — under plain-error review —
ambiguity cuts against appellant); United States v. Sweeney, 226
F.3d 43, 46 (1st Cir. 2000) (stating that "'plain error' must be
just that — clear-cut, patent, and obvious"). After all, to
prevail on plain-error review, an appellant must do more than show
that his claim of error is plausible. He must show, among other
things, that the error claimed is "clear or obvious." Duarte, 246
F.3d at 60.
To constitute clear or obvious error, an error must be
"contrary to existing law." United States v. Rabb, 5 F.4th 95,
101 (1st Cir. 2021); see United States v. Ackerly, 981 F.3d 70, 76
(1st Cir. 2020) (stating that such "error must offend established
law"). "In other words, the error must be 'indisputable' in light
of controlling law." Rabb, 5 F.4th at 101 (quoting United States
v. Jones, 748 F.3d 64, 70 (1st Cir. 2014)). In the absence of
some authoritative signposts — and we see none here — a district
court's choice between two equally plausible but conflicting
outcomes cannot constitute plain error. This is a steep climb,
and the defendant has not succeeded in reaching the summit. See
Rabb, 5 F.4th at 101 (noting that when "defendant has not
identified any authority, whether in a statute or in the case law,"
for proposition advanced, claimed error cannot be clear or
obvious); see also United States v. Ilarraza, 963 F.3d 1, 15 (1st
Cir. 2020) (noting that appellant who, among other things, did not
- 12 - "identify any authority defining" the phrase "confinement," as
used in USSG §4A1.2(d)(2)(A), could not prevail under plain-error
review). It follows that the defendant's first claim of procedural
error succumbs under plain-error review.
We turn next to the defendant's argument that there is
insufficient evidence in the record to support the district court's
conclusion that both juvenile adjudications resulted in sentences
of confinement of at least sixty days. This argument — which
questions the temporal aspect of the juvenile adjudications — was
not raised below and, thus, our review is for plain error. See
Duarte, 246 F.3d at 60.
On plain-error review, the "bar for challenging a
district court's factual findings is especially high." United
States v. González-Andino, 58 F.4th 563, 568 (1st Cir. 2023).
"[I]f an error pressed by the appellant turns on 'a factual finding
[he] neglected to ask the district court to make, the error cannot
be clear or obvious unless' he shows that 'the desired factual
finding is the only one rationally supported by the record below.'"
Id. (alterations in original) (quoting United States v. Takesian,
945 F.3d 553, 563 (1st Cir. 2019)).
The defendant cannot make this showing. In point of
fact, he does not even attempt to do so. Instead, he relies on a
purported ambiguity in the record to claim that the "period of
- 13 - actual confinement could have begun sixty-one days before June
23rd" (the "Released to Community" date), "fifty-nine days before
the release date," or "even . . . the day the commitment was
imposed." Because the factual finding that the defendant proposes
— that the two DYS-commitment adjudications did not result in
sentences of at least sixty days — is not the only plausible
interpretation of the factual record, the defendant cannot prevail
under plain-error review. See id. It follows that the defendant's
second claim of procedural error must fail.3
B
This brings us to the defendant's challenge to the
substantive reasonableness of his top-of-the-range sentence. At
the disposition hearing, defense counsel argued for a shorter
sentence, suggesting that such a sentence would be sufficient, but
not greater than necessary, to achieve the purposes of sentencing.
That was enough to preserve the claim of substantive
unreasonableness. See Holguin-Hernandez v. United States, 140 S.
For the sake of completeness, we add that the defendant's 3
argument would also fail because he cannot meet the heightened prejudice standard under plain-error review. See United States v. Olano, 507 U.S. 725, 734 (1993) (requiring showing that alleged error was prejudicial in order to satisfy third element of plain-error review). Although the government bore the burden of proof before the trial court, see Gibbons, 553 F.3d at 43, the defendant — on appellate review — has "failed to point to any reason to conclude that an examination of the [juvenile records] would indicate" that he was not actually confined, Serrano- Mercado, 784 F.3d at 847. Nor does the defendant argue that he was not confined.
- 14 - Ct. 762, 766 (2020). Our review, therefore, is for abuse of
discretion. See United States v. Flores-Nater, 62 F.4th 652, 655
(1st Cir. 2023); United States v. Bruno-Campos, 978 F.3d 801, 808
(1st Cir. 2020).
The case law makes manifest that, "[i]n the sentencing
context, 'reasonableness is a protean concept.'" Clogston, 662
F.3d at 592 (quoting United States v. Martin, 520 F.3d 87, 92 (1st
Cir. 2008)). As such, "[t]here is no one reasonable sentence in
any given case but, rather, a universe of reasonable sentencing
outcomes." Id. To determine whether a particular sentence is
substantively reasonable, we ask whether it "falls within this
broad universe." United States v. Rivera-Morales, 961 F.3d 1, 21
Contesting the substantive reasonableness of a sentence
is particularly daunting where — as here — "the challenged sentence
is within a properly calculated GSR." Clogston, 662 F.3d at 593;
see United States v. Madera-Ortiz, 637 F.3d 26, 30 (1st Cir. 2011).
"To undermine the substantive reasonableness of a within-the-range
sentence, a defendant must 'adduce fairly powerful mitigating
reasons and persuade us that the district judge was unreasonable
in balancing pros and cons despite the latitude implicit in saying
that a sentence must be "reasonable."'" Madera-Ortiz, 637 F.3d at
30 (quoting United States v. Navedo-Concepción, 450 F.3d 54, 59
(1st Cir. 2006)). This is no less true when the sentence imposed
- 15 - is at the upper end of the applicable guideline range. See, e.g.,
id. at 32.
We need not tarry. "In the last analysis, a sentence
will withstand a challenge to its substantive reasonableness as
long as it rests on 'a plausible sentencing rationale' and reflects
'a defensible result.'" United States v. de Jesús, 831 F.3d 39,
43 (1st Cir. 2016) (quoting Martin, 520 F.3d at 96). The sentence
challenged here passes this test with flying colors.
To begin, the sentencing court convincingly articulated
why it believed that the defendant's conduct warranted a sentence
at the upper end of the applicable GSR. The court determined that
the offense conduct was "alarming in the extreme." Although the
court acknowledged the defendant's "challenging" life, it
emphasized the need to provide specific deterrence and to protect
the public. This sentencing rationale was plausible.
So, too, the challenged sentence reflects a defensible
result. For one thing, the record makes clear that the defendant
violated his bail conditions when he contacted Hendricks on October
15 and sought to force her to violate her bail conditions as well.
For another thing, the defendant subjected Hendricks to an evening
of terror: he threatened to kill himself, kill her, and kill her
relatives. To make a bad situation worse, he texted her pictures
of himself with a gun to his head and went so far as to fire a
shot within 100 yards of her home. Given this forbidding record,
- 16 - we cannot say that a sentence at the upper end of the guideline
range was indefensible.
The defendant rejoins that the sentencing court
"overstated" the seriousness of his past criminal record and failed
adequately to consider his personal history and characteristics.
This complaint does not move the needle. We repeatedly have
observed that "the weighting of [the section 3553(a)] factors is
largely within the [district] court's informed discretion."
Clogston, 662 F.3d at 593; see Madera-Ortiz, 637 F.3d at 32
(explaining that it is "[t]he sentencing court's task [] to sift
the available information and balance the pertinent factors (both
mitigating and aggravating)"). We are bound to "accord significant
deference" to the district court's "informed determination that
the section 3553(a) factors justify the sentence imposed." Rivera-
Morales, 961 F.3d at 21. Consequently, "we cannot substitute our
judgment of the appropriate sentence for that of the [district]
court." Id.
Here, moreover, the court specifically stated that it
had considered, among other things, all the section 3553(a)
factors. Such a statement "is entitled to some weight." United
States v. Dávila-González, 595 F.3d 42, 49 (1st Cir. 2010).
Let us be perfectly clear. Cutting through the thicket
of words, the defendant's real complaint is not that the district
court failed to consider certain relevant factors but, rather,
- 17 - that the district court failed to attach to certain factors the
weight that he thinks they deserved. Yet, as we repeatedly have
stated, "[t]hat [a] sentencing court chose not to attach to certain
of the mitigating factors the significance that the [defendant]
thinks they deserved does not make the sentence unreasonable."
Clogston, 662 F.3d at 593; see United States v. De Jesús-Torres,
64 F.4th 33, 42 (1st Cir. 2023); United States v. Ortiz-Pérez, 30
F.4th 107, 112-13 (1st Cir. 2022); United States v. Suárez-
González, 760 F.3d 96, 102 (1st Cir. 2014).
To sum up, we hold that the defendant's top-of-the-range
sentence both rests on a plausible sentencing rationale and
reflects a defensible result. Having failed to "adduce fairly
powerful mitigating reasons and persuade us that the district judge
was unreasonable in balancing" the sentencing factors, Navedo-
Concepción, 450 F.3d at 59, the defendant's challenge to the
substantive reasonableness of his sentence founders.
III
We need go no further. For the reasons elucidated above,
the challenged sentence is
Affirmed.
- 18 -