United States Court of Appeals For the First Circuit
No. 15-1720
UNITED STATES OF AMERICA,
Appellee,
v.
JAMES STILE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Howard, Chief Judge, Selya and Kayatta, Circuit Judges.
Alexandra H. Deal for appellant. Renée M. Bunker, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.
January 3, 2017 KAYATTA, Circuit Judge. The defendant, James Stile,
pled guilty to robbery of a controlled substance from a pharmacy
by use of a dangerous weapon, in violation of 18 U.S.C. § 2118(a)
and (c)(1). The district court sentenced him to 120 months in
prison. He now appeals that sentence on both substantive and
procedural grounds. For the following reasons, we affirm.
I. Background
We summarize the facts briefly, drawing on the
presentence report (PSR) and the transcript of the sentencing
hearing. See United States v. Jiminez, 498 F.3d 82, 84 (1st Cir.
2007). We reserve further discussion of the facts for where they
become relevant to each issue raised by Stile's appeal.
In the early evening of September 12, 2011, Stile entered
the E.W. Moore & Son Pharmacy in Bingham, Maine. He wore a baseball
cap, sunglasses, a dust mask, and purple rubber gloves. As he
entered the store, he pulled a sawed-off shotgun from his pants.
He walked to the pharmacy counter at the back of the store and
ordered three employees to lie on their stomachs. When a customer
walked in, Stile forced him behind the pharmacy counter with the
employees. Stile handed the owner of the pharmacy a black duffel
bag and ordered him to fill it with drugs. Stile tied the hands
and feet of the owner, the customer, and the employees with zip
ties. He then departed the store, taking $12,890 worth of drugs
and $417 in cash.
- 2 - After initially pleading not guilty and going through
several preliminary proceedings including a suppression hearing,
Stile pled guilty to robbery of a controlled substance from a
pharmacy by use of a dangerous weapon, in violation of 18 U.S.C.
§ 2118(a) and (c)(1). After conducting a sentencing hearing, the
district court calculated Stile's advisory sentencing range under
the United States Sentencing Guidelines, U.S.S.G. §§ 2B3.1 and
3C1.1, to be 108 to 135 months' imprisonment based on a total
offense level of 31 and a criminal history category of I. The
district court sentenced Stile to 120 months of imprisonment.
At sentencing, the district court did three things that
Stile now claims were procedural error. First, the district court
applied a two-level enhancement to what would have otherwise been
a total offense level of 29. The basis for the enhancement was a
finding of obstruction of justice under U.S.S.G. § 3C1.1. Second,
the district court denied Stile's requested two-level reduction
for acceptance of responsibility under U.S.S.G. § 3E1.1(a). Third,
the district court did not give the evidence of Stile's drug
addiction the weight and effect that Stile claims it warrants. We
discuss in turn each of these asserted errors, plus Stile's catch-
all argument that his sentence was substantively unreasonable.
- 3 - II. Discussion
A. Obstruction of Justice
The district court may apply a two-level enhancement to
a defendant's offense level
[i]f (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to . . . the defendant's offense of conviction and any relevant conduct.
U.S.S.G. § 3C1.1. Covered conduct includes "threatening,
intimidating, or otherwise unlawfully influencing a . . .
witness . . . or attempting to do so." Id. cmt. n.4(A).
In calculating Stile's guidelines sentencing range, the
district court applied this enhancement for two independent
reasons. First, the court found that Stile had assaulted another
inmate in an attempt to intimidate that inmate from testifying
against Stile. Second, the court found that Stile had committed
perjury during a suppression hearing in December 2012. Stile
challenges both findings, either of which is independently
sufficient to sustain the enhancement. We begin--and end--by
explaining why we see no cause to reverse the witness intimidation
finding.
That finding arose out of Stile's incarceration prior to
sentencing. A fellow inmate informed authorities that Stile had
- 4 - confessed to having committed the robbery, relating many specific
details that the inmate could not have made up. The government
thereafter gave to Stile's then-counsel a report of the informant's
allegations, excluding the informant's name. Just over a month
later, a prison video camera captured Stile assaulting the
informant. Authorities found in Stile's cell a copy of the report
given to his counsel chronicling the information received from the
inmate. For obvious reasons, the PSR flagged this incident as
warranting an obstruction of justice enhancement.
In Stile's sentencing memorandum, Stile's counsel
previewed the prospect of an alternative motive for Stile's attack
on the informant: the inmate had supposedly made sexual advances
toward Stile. The memorandum acknowledged that there was an
informant and that Stile had learned as much. It also made no
claim that anyone other than the inmate Stile assaulted was the
informant or that Stile had related facts of the robbery to anyone
other than the inmate he assaulted. Rather, it challenged the
adequacy of the government's proof that Stile knew that the inmate
he assaulted was the informant (because the report did not contain
the informant's name), and that the fight occurred because the
inmate was a potential witness.
The district court commenced the sentencing hearing by
explaining to Stile that the court would hear from counsel and
"from you if you wish to speak to me." After receiving into
- 5 - evidence the PSR and assorted exhibits (including a video of the
assault), the district court asked Stile's counsel, "Is there
anything that you wish to present?" Replied counsel: "No, sir.
No evidence, only argument." Defense counsel, consulting in the
process with Stile, then argued that the government's evidence was
insufficient to show obstruction. Immediately after hearing this
argument, the district court issued its findings, ruling that Stile
had assaulted the inmate to punish him for informing and to deter
him from testifying and noting the absence of any actual evidence
of a contrary motive.1
After the court announced its ruling, Stile's lawyer
stated that Stile wished to "reopen the evidence" on the assault
and give his own testimony. The court explained that Stile's
request was "a little late in the day," and that, typically,
"people put their evidence in front of the judge before he makes
the decision, not after the judge makes the decision." Stile's
attorney nevertheless asked that the court consider the request to
be a motion to reconsider and to reopen the evidence. Such a
motion is directed to the court's discretion. Cf. United States
1 The district court noted, specifically, that there was no evidence that the assault was a response to sexual advances. That contention appeared only in the text of the sentencing memorandum. The district court also noted that although the sentencing memorandum stated that Stile was planning to provide the affidavit of another inmate who had witnessed the informant's sexual advances, he never did so.
- 6 - v. Peterson, 233 F.3d 101, 106 (1st Cir. 2000) ("Generally, if
[the defendant] wishes to testify [at trial], he must do so before
he rests his case; otherwise, he can move the trial court to reopen
the evidence, but the choice whether to reopen is left to the
court's sound discretion.").
Before ruling on that motion, the district court warned
Stile that if the court reopened the evidence to allow Stile to
testify belatedly and found that Stile was not telling the truth,
then Stile "[would] receive a harsher sentence." The court
explained that it had already gone through the evidence, given
Stile's counsel an opportunity to argue in his favor, and found
the evidence against Stile so strong that it would have made that
same finding "beyond a reasonable doubt" had it needed to do so.
The court indicated that Stile would "have a very, very difficult
time" convincing the court that he had not assaulted the inmate
because the inmate had informed on him. After hearing of this
potential downside to testifying, Stile ultimately declined to
testify. The court, in turn, relied on the finding of witness
intimidation to support the two-level enhancement for obstruction
of justice.
Stile does not argue that the foregoing record lacks
sufficient support for the district court's finding of witness
intimidation. He argues, though, that the finding must be vacated
because the district court "prevented" him from offering
- 7 - exculpatory evidence that would have cast his behavior in a
different light and led an open-minded factfinder to a different
conclusion. In this respect, Stile says, the district court
violated his due process rights and Federal Rule of Criminal
Procedure 32 by "threatening" him with a harsher sentence if he
testified untruthfully during the sentencing hearing. Stile did
not raise this argument below,2 so we review the court's actions
for plain error. United States v. Rodríguez-Reyes, 714 F.3d 1, 10
(1st Cir. 2013). To establish plain error, Stile must show
(1) that the court below committed an error; (2) that the error
was plain; (3) that the error affected the substantial rights of
the defendant; and (4) that "the error 'seriously affects the
fairness, integrity or public reputation of judicial
proceedings.'" United States v. Colon-Nales, 464 F.3d 21, 25 (1st
Cir. 2006) (quoting United States v. Olano, 507 U.S. 725, 735–36
(1993)).
To advance his argument, Stile relies by analogy on Webb
v. Texas, 409 U.S. 95 (1972) (per curiam). There, a defendant in
a criminal jury trial called only one witness to testify on his
2 Stile objected to the characterization of the assault as an obstruction of justice and requested that the district court reconsider its ruling at the sentencing hearing, but did not object to the court's "threat[]" about the consequences of providing false testimony. The defendant's statement in court that the judge appeared "predetermined on this" was not an objection to the fact that the judge gave a perjury warning.
- 8 - behalf. Id. at 95. Before the witness testified, and out of the
presence of the jury, the trial judge singled out the witness for
a direct admonition to the effect that the witness need not
testify, and if he did and lied, the trial judge would personally
see to it that he was indicted for perjury, followed by a likely
conviction and sentence. Id. at 95–96. The Supreme Court held
that this admonition, delivered in strong terms by the judge to
the defendant's only witness, "effectively drove that witness off
the stand." Id. at 98. Here, Stile reasons, the district court's
admonition to Stile drove him to surrender his right to testify at
his sentencing hearing.
On plain error review, this argument stumbles at the
outset because it is unclear to what extent the principles of Webb
apply to sentencing proceedings. Certainly a defendant has a right
to due process at sentencing. See Betterman v. Montana, 136 S.
Ct. 1609, 1617 (2016) ("After conviction . . . [a defendant]
retains an interest in a sentencing proceeding that is
fundamentally fair."); United States v. Abreu, 202 F.3d 386, 391
(1st Cir. 2000). This right is protected both by the Fifth
Amendment and by Federal Rule of Criminal Procedure 32. See United
States v. Kenney, 756 F.3d 36, 49 (1st Cir. 2014); United States
v. Curran, 926 F.2d 59, 61 (1st Cir. 1991). As most relevant here,
"a criminal defendant enjoys a due process right not to be
sentenced on false information, and due process therefore requires
- 9 - that the defendant be given an adequate opportunity to refute
information relied on at sentencing." United States v. Wilfred
Am. Educ. Corp., 953 F.2d 717, 722 (1st Cir. 1992) (citation
omitted); see also United States v. Rivera-Rodríguez, 489 F.3d 48,
53–54 (1st Cir. 2007). Similarly, Rule 32 gives a defendant the
right "to speak or present any information to mitigate the
sentence." Fed. R. Crim. P. 32(i)(4)(A)(ii); see also Irizarry v.
United States, 553 U.S. 708, 715 (2008) ("Rule 32(i)(1)(C) requires
the district court to allow the parties to comment on 'matters
relating to an appropriate sentence' . . . .").
Nevertheless, the due process right at sentencing is not
as robust as the due process right at trial. See Betterman, 136
S. Ct. at 1617 ("After conviction, a defendant's due process right
to liberty, while diminished, is still present."); see also United
States v. Jackson, 453 F.3d 302, 305 (5th Cir. 2006) ("It is well-
established . . . that a defendant's rights at sentencing differ
considerably from his pre-conviction rights.").3 For example, a
defendant has no right to insist on calling other witnesses on his
3 Jackson, which considered a perjury warning at a sentencing hearing concerning a witness other than the defendant, suggests that Webb may not apply in that context. 453 F.3d at 305–06. There is a stronger argument that Webb applies here because the potential witness who received the warning was the defendant himself. See Fed. R. Crim. P. 32(i)(4)(A)(ii); United States v. Cruzado-Laureano, 527 F.3d 231, 238 (1st Cir. 2008). We need not decide this issue, though, as we hold that Webb was not violated even if it does apply.
- 10 - behalf, see United States v. Cruzado-Laureano, 527 F.3d 231, 238
(1st Cir. 2008), and no due process right to disclosure of all
information relied upon by the sentencing court if such disclosure
is not mandated by Rule 32,4 see Curran, 926 F.2d at 61–62.
Even putting to one side these caveats qualifying the
scope of due process rights at sentencing, and assuming (without
deciding) that Webb fully applies to sentencing proceedings, for
at least two reasons it would require quite a stretch to conclude
that any error, much less plain error, occurred in this case.
First, the intimidation of the witness in Webb occurred
during the defendant's presentation of his defense. The witness,
who was prepared to testify on the defendant's behalf, constituted
the criminal defendant's entire offered defense. Webb, 409 U.S.
at 97–98. Calling the witness to testify represented a
"fundamental element of due process of law." Id. at 98 (quoting
Washington v. Texas, 388 U.S. 14, 19 (1967)). Explicitly refusing
to allow the witness to testify would have been a plain and
fundamental error. It therefore made sense to police the trial
court's admonition to the extent that it served as a de facto
refusal to allow the testimony.
4 In Curran, this court used its supervisory powers to compel disclosure of this information, but did not hold that due process required it. 926 F.2d at 63.
- 11 - Here, by contrast, at the time the court issued its
warning to Stile, the court in normal course had already allowed
him--indeed, invited him--to present whatever evidence he wished
to present without any form of dissuasion. He declined to do so
until after the record was closed and the court had decided the
matter. At that point, Stile had no right to reopen the proceeding
to provide evidence he had possessed during the proceeding. Cf.
Peterson, 233 F.3d at 106 (holding that, at trial, the decision
whether to reopen the evidence is generally left to the court's
sound discretion). Rather, reopening the proceeding for more
evidence was within the court's wide discretion, the exercise of
which can easily result in a refusal to reopen when no adequate
excuse is offered. Cf. id. at 107 ("Without such a requirement of
excuse, the rule generally limiting testimony to the evidence-
taking stage of a trial would hardly be a rule at all, and it would
be too easy for a defendant to postpone testifying for strategic
reasons until after the close of evidence.") On appeal, Stile
still offers no excuse for having failed to testify when given the
opportunity. Nevertheless, when Stile moved to reopen, the court
discouraged but allowed the testimony, giving Stile more, not less,
than that to which he was entitled.
Second, in Webb the admonitions were the product of an
opinion preemptively formed before the defendant even began his
defense. Here, the district court had already properly made up
- 12 - its mind on a properly closed record. Its pronouncements therefore
posed no appearance of preemptive fact-finding on a partial record,
and made a perjury finding more likely. See United States v.
Vavages, 151 F.3d 1185, 1190 (9th Cir. 1998) ("Among the factors
courts consider in determining the coercive impact of perjury
warnings are the manner in which the . . . judge raises the
issue . . . [and the] judge's basis in the record for believing
the witness might lie . . . .").
In this context, we read the court's admonition as a
disclosure that educated Stile concerning the risks of his gambit,
rather than as a threat designed to scare off a proposed witness
in his defense. We therefore easily find no plain error.
B. Acceptance of Responsibility
The district court may decrease the offense level by two
levels "[i]f the defendant clearly demonstrates acceptance of
responsibility for his offense." U.S.S.G. § 3E1.1(a). Pleading
guilty does not automatically entitle a defendant to a reduced
offense level for acceptance of responsibility. United States v.
D'Angelo, 802 F.3d 205, 210 (1st Cir. 2015). This is particularly
true where the defendant has received the enhancement for
obstruction of justice under § 3C1.1. It is only an "extraordinary
case[] in which adjustments under both §§ 3C1.1 and 3E1.1 may
apply." U.S.S.G. § 3E1.1 cmt. n.4; see also United States v.
Maguire, 752 F.3d 1, 6 (1st Cir. 2014) (stating that downward
- 13 - adjustment under § 3E1.1 when a sentence is enhanced for
obstruction of justice is "hen's-teeth rare"). "The sentencing
judge is in a unique position to evaluate a defendant's acceptance
of responsibility. For this reason, the determination of the
sentencing judge is entitled to great deference on review."
U.S.S.G. § 3E1.1 cmt. n.5.
Stile argues that: (1) because the court erred in
applying the obstruction of justice enhancement, it also erred in
not applying the reduction for acceptance of responsibility; and,
(2) even if the court did not err in applying the obstruction of
justice enhancement, this was an "extraordinary case" in which he
should still receive the reduction. Because we have already
rejected Stile's challenge to the obstruction of justice
enhancement, we consider only the latter argument.
The district court did not clearly err in concluding
that Stile had "failed to show that his case [was] an extraordinary
one." The district court rested its determination on the fact
that Stile both obstructed justice by assaulting the informant and
then refused to accept relevant responsibility for the misconduct
when caught. However one might label such behavior, we have no
trouble concluding that it provided ample support for finding that
Stile failed to establish that this is one of those rare cases in
which an acceptance of responsibility reduction should be granted
to a defendant who has obstructed the government's efforts to
- 14 - prosecute him. See U.S.S.G. § 3E1.1 cmt. n.3 (although pleading
guilty before trial is "significant evidence of acceptance of
responsibility," that evidence "may be outweighed by conduct of
the defendant that is inconsistent with such acceptance"); United
States v. Meada, 408 F.3d 14, 25 (1st Cir. 2005) (upholding refusal
to grant a reduction for acceptance of responsibility where the
district court found that defendant was "continuing the misconduct
that caused" the court to previously find that he had committed
perjury).
C. Section 3553(a) Factors
Stile argues that the district court erred by failing to
consider adequately the effect of his drug addiction on his
conduct, as required by 18 U.S.C. § 3553(a)(1). In his view, the
court should have treated drug addiction as a disease that
"diminishes the addict's capacity to evaluate and control his or
her behaviors." United States v. Hendrickson, 25 F. Supp. 3d 1166,
1174 (N.D. Iowa 2014). In so arguing, Stile must acknowledge that
the court considered and rejected requests for downward departures
on the basis of his drug addiction pursuant to various specific
sections of the guidelines, and he does not challenge those
decisions. He also must concede that the district court allowed
him to present extensive evidence on his addiction and history.
Nevertheless, he argues that the court abused its discretion by
choosing not to vary downward from the sentencing guidelines range
- 15 - under § 3553(a)(1). See Maguire, 752 F.3d at 7 ("Under the
advisory guidelines, discretionary refusals to vary or depart are
open to reasonableness review in accordance with an abuse of
discretion standard.").
Under § 3553(a)(1), a court determining a sentence is
required to consider "the nature and circumstances of the offense
and the history and characteristics of the defendant." Drug
addiction may be one relevant characteristic. See United States
v. Innarelli, 524 F.3d 286, 292 (1st Cir. 2008). The district
court explicitly considered it. The court acknowledged the nearly
thirty-year gap since Stile's last criminal conduct, his pain
management issues, and his recent relapse. It then weighed those
facts against the nature and circumstances of the crime, which
appeared to be preplanned and involved threatening the victims
with a firearm and tying them up with zip ties. The district court
also considered the impact on the victims and the need to deter
future crime, which was particularly important given the recent
"rash of pharmacy robberies" in central Maine. When considering
Stile's request for a departure under U.S.S.G. § 5H1.3, the court
specifically noted that if it departed downward because of Stile's
addiction, then "there would be few [defendants] who would not be
entitled to a similar downward departure who commit similar
crimes." It observed that in pharmacy robberies, in particular,
- 16 - defendants frequently suffer from mental conditions and
addictions.
We conclude that the sentencing court did not abuse its
discretion in considering Stile's drug addiction. The record
reflects an attentive and deliberative sentencing judge who
permitted the defendant to offer relevant evidence and explained
quite carefully and clearly how he weighed the factors involved in
the exercise of his judgment. We require no more. See United
States v. Denson, 689 F.3d 21, 27–28 (1st Cir. 2012).
To the extent that Stile complains not about process,
but rather about the substance of the court's weighing of the
various § 3553(a) factors, his argument does not take into account
the degree of deference we afford the district court. Although "a
sentencing court may commit procedural error by failing to consider
the § 3553(a) factors, . . . the weighing of relevant factors is
largely within the court's informed discretion." United States v.
Santiago-Rivera, 744 F.3d 229, 232 (1st Cir. 2014) (citations
omitted); see also United States v. Rivera-González, 776 F.3d 45,
50 (1st Cir. 2015) ("The defendant's real complaint is not that
the court overlooked [the defendant's personal history and
characteristics] but that it weighed those factors less heavily
than he would have liked. But that type of balancing is, within
wide limits, a matter for the sentencing court.").
- 17 - The court chose to focus on the features of the crime
that made it particularly terrifying to the victims and that
demonstrated Stile's degree of forethought and preparation. On
this record, the court did not abuse its discretion in giving less
weight to Stile's drug addiction and more weight to the possibility
of general deterrence. See United States v. Vélez-Soto, 804 F.3d
75, 79–80 (1st Cir. 2015) ("A sentencing court need not
'specifically address all of the § 3553(a) factors in its
explanation, nor . . . give each of the factors equal prominence
in its determination.'" (quoting United States v. Zapata, 589 F.3d
475, 487 (1st Cir. 2009))); United States v. Gibbons, 553 F.3d 40,
47 (1st Cir. 2009) ("We will not disturb a well-reasoned decision
to give greater weight to particular sentencing factors over
others . . . .").
D. Substantive Reasonableness
Stile's argument that his sentence is substantively
unreasonable essentially duplicates his argument that the district
court improperly weighed the § 3553(a) factors. "Ultimately, 'the
linchpin of a reasonable sentence is a plausible sentencing
rationale and a defensible result.'" United States v. Rivera-
Gonzalez, 626 F.3d 639, 647 (1st Cir. 2010) (citation omitted).
For the reasons given above, the duration of Stile's sentence was
not substantively unreasonable.
- 18 - III. Conclusion
For the foregoing reasons, we affirm Stile's sentence.
- 19 -