United States Court of Appeals For the First Circuit
Nos. 23-1848 23-1849 UNITED STATES OF AMERICA,
Appellee,
v.
DONALD TURNER,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. Lance E. Walker, U.S. District Judge]
Before
Rikelman, Lynch, and Aframe, Circuit Judges.
Vivian Shevitz for appellant. Lindsay B. Feinberg, Assistant United States Attorney, with whom Darcie N. McElwee, United States Attorney, and Benjamin M. Block, Assistant United States Attorney, were on brief, for appellee.
December 27, 2024 AFRAME, Circuit Judge. Defendant-appellant Donald
Turner pleaded guilty to bank robbery, 18 U.S.C. § 2113(a), and
unlawful possession of a firearm by a convicted felon, 18 U.S.C.
§ 922(g)(1). Turner, who was on supervised release when he
committed those crimes, also admitted to related supervised-
release violations.
Turner previously had been convicted of numerous violent
felonies and was consequently designated an armed career criminal.
See 18 U.S.C. § 924(e). That designation resulted in an advisory
sentencing guideline range of 180 to 210 months of imprisonment.
In a combined sentencing and revocation hearing, the district court
imposed 210-month concurrent sentences on the counts of
conviction, revoked Turner's supervised release, and imposed a
24-month consecutive sentence for the supervised-release
violations.
On appeal, Turner argues that his felon-in-possession
conviction should be reversed because prosecuting him on this count
violated his Second Amendment right "to keep and bear Arms." U.S.
Const. amend. II. He also contends that the district court
committed procedural and substantive errors in imposing his
sentence. Finally, Turner claims that the court imposed a
consecutive supervised-release sentence based on its
misapprehension that a policy statement to the sentencing
guidelines required a consecutive sentence.
- 2 - We reject these arguments. Turner waived his as-applied
Second Amendment claim by failing to move timely for dismissal of
the felon-in-possession count as required by Federal Rule of
Criminal Procedure 12. The district court imposed a procedurally
sound sentence, which was substantively reasonable. And, finally,
the record does not support Turner's claim that the district court
believed it was required to impose a consecutive revocation
sentence.
I. BACKGROUND
We draw the facts underlying Turner's convictions from
the government's recitation of the offense conduct filed in
connection with the change-of-plea hearing and the undisputed
portions of the presentence investigative report. See United
States v. Kitts, 27 F.4th 777, 781 (1st Cir. 2022). We recite
them in brief here, providing further elaboration as necessary for
our discussion of Turner's claims.
Turner is a serial bank robber. On March 18, 2006,
Turner entered a Gorham Savings Bank in Portland, Maine, and showed
the teller a note stating that he was armed and demanding $8,000
in cash. The teller gave Turner approximately $1,800, and he left
without being apprehended. Two days later, Turner entered a TD
Bank North in South Portland, Maine. He handed the teller a note
stating that he had a bomb and told her to give him money. The
teller gave Turner $4,000. Turner was later arrested and convicted
- 3 - of two counts of bank robbery, 18 U.S.C. § 2113(a), for which he
was sentenced to sixty months' imprisonment.
On June 24, 2011, while on supervised release for his
2006 bank robbery convictions, Turner entered a Bangor Savings
Bank in Bangor, Maine. He handed the teller a note claiming that
he had a bomb and demanding money. Turner was arrested and again
convicted of bank robbery. This time, he was sentenced to
seventy-two months' imprisonment for the robbery, followed by
twenty-four months' imprisonment for violating the terms of his
supervised release.
During the afternoon of September 10, 2020, while on
supervised release for his 2011 robbery conviction, Turner entered
a Bangor Savings Bank in Bangor, Maine. Turner approached the
teller and showed her a note that was not recovered but which
essentially stated that he was conducting a robbery and possessed
a gun. Turner did not display a firearm. The teller initially
provided Turner with money from her cash drawer, much of it in
one-dollar denominations. After Turner demanded larger
denominations, the teller provided him with just over $1,300 in
cash. Turner then placed the robbery note and money in his
backpack and left though the bank's back door.
After publishing bank video surveillance footage, the
police received several reports identifying Turner as the robber.
The police eventually found Turner at an apartment in Bangor and
- 4 - arrested him. When the police arrested Turner, they found, among
other items, $200 in United States currency and, in his waistband,
a .25-caliber Titan-brand firearm.
Following Turner's arrest, he made a statement to the
police. He said that he had robbed the bank to obtain money so
that he could leave Maine before the United States Marshals
arrested him for supervised-release violations. He also admitted
to possessing the seized firearm on the day of the robbery but
denied bringing it into the bank, stating that it was missing a
firing pin (a fact later confirmed through forensic examination).
On March 10, 2021, a grand jury indicted Turner for bank
robbery and possessing a firearm as a convicted felon. On November
2, 2022, Turner pleaded guilty to both counts. Following his
guilty plea, the probation office brought an additional supervised
release violation for committing criminal offenses while on
release. On October 6, 2023, the district court held a hearing at
which it sentenced Turner to 210-month concurrent sentences on the
counts of conviction, revoked his supervised release, and imposed
a 24-month consecutive sentence for the supervised release
violations. Turner timely appealed from the judgments entered in
the criminal case and the revocation proceeding.
- 5 - II. DISCUSSION
A. Second Amendment Claim
We begin with Turner's as-applied Second Amendment
claim. Although the argument on appeal is terse, Turner appears
to contend that the district court should have dismissed the
felon-in-possession count because § 922(g)(1), as applied to him,
violates his rights under the Second Amendment. He asserts that
he "never used the weapon" during the robbery; "[i]t is not clear
that he owned [the firearm]"; and "the weapon found when he was
arrested lacked a firing pin and was inoperable." In support of
his argument, Turner cites a single out-of-circuit district court
decision that he "adopts . . . by reference" without elaboration.1
We conclude that Turner waived his Second Amendment
argument because he did not timely move to dismiss the
felon-in-possession count as required by Federal Rule of Criminal
Procedure Rule 12 and has not demonstrated good cause for failing
to do so.2 To place this conclusion in context, we first describe
1 The decision, United States v. Bullock, 679 F. Supp. 3d 501 (S.D. Miss. 2023), has since been reversed. See United States v. Bullock, No. 23-60408, 2024 WL 4879467 (5th Cir. Nov. 25, 2024). 2 The government submits that we may find Turner's Second Amendment claim waived for other reasons, including the waiver of appellate rights in his plea agreement. Because the district court did not specifically inquire about that waiver at Turner's change-of-plea hearing -- one of the considerations for determining whether such a waiver should be enforced, see United States v. Edelen, 539 F.3d 83, 85 (1st Cir. 2008) (citing United
- 6 - how Turner put his Second Amendment claim before the district
court. We then explain why that presentation did not comply with
Rule 12.
The district court established October 11, 2021, as the
deadline for filing pretrial motions. Turner did not file any
motions aside from a motion to suppress his post-arrest statements.
In June 2022, the United States Supreme Court decided New York
State Rifle & Pistol Ass'n v. Bruen, in which the Court explained
that, to overcome a properly preserved Second Amendment challenge
to a restriction on firearm possession, the government bears the
burden of demonstrating that the restriction at issue is
"consistent with the Nation's historical tradition of firearm
regulation." 597 U.S. 1, 24 (2022).
Turner pleaded guilty on November 2, 2022. Turner did
not mention the Second Amendment until May 19, 2023, when he filed
his sentencing memorandum. In a section entitled, "The nature and
circumstances of the offense, 18 U.S.C. § 3553(a)(1): [Turner] did
not possess a weapon inside the bank and the weapon he did possess
was inoperable," Turner argued that his conduct was mitigated by
the fact that he did not bring a gun into the bank; he then observed
that "[t]he constitutionality of 18 U.S.C. § 922(g)(1) has come
under increasing scrutiny after" Bruen. In a single sentence, he
States v. Teeter, 257 F.3d 14, 25 (1st Cir. 2001)) -- we choose to resolve Turner's Second Amendment claim on Rule 12 grounds.
- 7 - suggested that "th[e] Court may and should declare 18 U.S.C.
§ 922(g)(1) unconstitutional." Thereafter, he concluded by
asserting that "[t]he salient point, and the one that matters for
purposes of § 3553(a), is that although [Turner] did possess a
weapon and weapons possession by a prohibited person is concerning,
the gun that [Turner] had lacked a firing pin and was therefore
incapable of firing a bullet." The government, which had already
filed its sentencing memorandum, did not respond to Turner's
memorandum.
At the sentencing hearing, the district court resolved
Turner's sentencing objections. The final objection was Turner's
Second Amendment claim as just described. The court noted that,
although the objection was "not insubstantial," the parties "ha[d]
not briefed" it. The court then invited the government to address
the issue.
The government argued that Turner's previous violent
felonies were sufficiently dangerous that he lawfully could be
prohibited from possessing firearms. Turner responded that the
government had not "carried [its] burden," citing an
out-of-circuit district court decision. The government then added
that it "could be wrong" but thought that Turner's Second Amendment
claim "may be waived" because the time for filing motions under
Rule 12 had passed "by quite a significant time." Turner did not
claim to have filed a Rule 12 motion to dismiss the indictment but
- 8 - responded that Class v. United States, 583 U.S. 174 (2018),
permitted him to raise a Second Amendment claim at any time.
Having heard the parties' arguments, the district court
stated that the objection did not "fail[] for being untimely."
Rather, the court explained that, because of Turner's record of
violent felonies, the case was not "anywhere near the . . . line"
where sentencing him under § 922(g) might pose a "close call" or
a constitutional concern. The court then overruled the objection.
Several pertinent facts are apparent. Turner never
moved to dismiss the felon-in-possession count of the indictment.
He raised the Second Amendment issue as part of an argument for
sentencing leniency only after he had pleaded guilty to the
felon-in-possession offense. The district court called the Second
Amendment argument a sentencing "objection," a label consistent
with Turner's first presentation of the issue in his sentencing
memorandum and one to which Turner did not object. The court
further recognized that Turner's argument was a sentencing
objection when it declined to find the argument untimely. And,
when it ultimately rejected Turner's argument, it did so by
overruling his "objection."
Because Turner did not seek dismissal of the
felon-in-possession count in the district court as required by
Rule 12 and has not demonstrated good cause for failing to do so,
- 9 - we do not consider his Second Amendment argument on the merits.3
Rule 12 serves an important purpose: it eliminates "needless
inefficiency in the trial process" by requiring parties to timely
raise certain defenses, objections, and requests that rest on a
reasonably available basis and can be resolved without a trial on
the merits. United States v. Crooker, 688 F.3d 1, 10 (1st Cir.
2012); see also Fed. R. Crim. P. 12(b)(3). As pertinent here,
Rule 12(b)(3) requires that a party raise by pretrial motion "a
defect in the indictment . . . including . . . [a] failure to state
an offense." Fed. R. Crim. P. 12(b)(3).4
3 On appeal, Turner does not assert his Second Amendment argument as part of a challenge to his sentence. Rather, Turner has turned that argument into an attack on his conviction: namely, that the district court should have dismissed the felon-in-possession count on Second Amendment grounds. Such sleight of hand does not avoid his Rule 12 problem. 4 Although Rule 12(b)(3) does not cover motions asserting "that the court lacks jurisdiction," which "may be made at any time while the case is pending," Fed. R. Crim. P. 12(b)(2), that is of no help to Turner because a challenge to a statute of conviction on constitutional grounds is not jurisdictional, see United States v. Carrasquillo-Peñaloza, 826 F.3d 590, 592–93 (1st Cir. 2016); United States v. Nueci-Peña, 711 F.3d 191, 196–97 (1st Cir. 2013); United States v. Cardales–Luna, 632 F.3d 731, 737-38 (1st Cir. 2011); see also United States v. Curry, No. 23-1047, 2024 WL 3219693, at *4 n.6 (10th Cir. June 28, 2024) (observing that facial challenges to a statute's constitutionality constitute defective-indictment claims that defendants generally must raise "before trial or show good cause for their failure" to do so); United States v. Herrera, 51 F.4th 1226, 1282–85 (10th Cir. 2022) (applying Rule 12(b)(3) to facial and as-applied challenges alleging that 18 U.S.C. § 1959's "position clause" exceeded Congress's lawmaking authority under the Commerce Clause).
- 10 - The start of trial is the default deadline for filing
Rule 12(b)(3) motions, but the district court may set an earlier
deadline or reset an existing deadline. See Fed. R. Crim. P.
12(c)(1)–(2). Here, the court, after several resets, established
October 11, 2021, as the deadline for filing pretrial motions.
That deadline was over a year and a half before Turner first
mentioned the Second Amendment in his sentencing memorandum.
A late-filed Rule 12(b)(3) motion may not be considered
unless "the party shows good cause" for the belated filing. Fed.
R. Crim. P. 12(c)(3). When a party misses a Rule 12 deadline and
does not demonstrate good cause for doing so, the consequence is
that the matter is waived on appeal. See United States v. Reyes,
24 F.4th 1, 16 n.8 (1st Cir. 2022) (explaining that unpreserved
Rule 12(b)(3) and (c)(3) arguments are not subject to review on
appeal, even for plain error, absent good cause); United States v.
Lindsey, 3 F.4th 32, 40–42, 41 n.6 (1st Cir. 2021) (declining to
apply plain error review and finding waived a claim covered by
Rule 12 that was not raised below, and as to which good cause did
not exist to excuse the failure). Turner does not attempt to
demonstrate good cause for having failed to file a Rule 12 motion
- 11 - to dismiss the indictment.5 See United States v. Bailey, 121 F.4th
954, 959–60 (1st Cir. 2024)
Turner also does not claim that an as-applied Second
Amendment argument for dismissal of a count of an indictment falls
outside of Rule 12(b)(3)'s scope. See United States v. Cardona,
88 F.4th 69, 77–78 (1st Cir. 2023) (assuming that constitutional
vagueness challenge to an indictment fell within the scope of Rule
12 where the defendant did not dispute Rule 12(b)(3)'s
application). Nor does he argue that his Second Amendment claim
required "a trial on the merits" to resolve. See Bailey, 121 F.4th
at 959 (quoting Fed. R. Crim. P. 12(b)(3)).
Rather, Turner's only response is that the district
court must have implicitly excused his noncompliance with Rule
12(b)(3) because it chose to address the Second Amendment claim on
the merits during the sentencing hearing. We disagree with
Turner's characterization of the court's action.
The district court's statement that Turner's Second
Amendment argument did not "fail[] for being untimely" does not
mean that the court determined that Turner complied with Rule 12
5 That Bruen was decided after Turner was indicted does not establish good cause. Turner pleaded guilty several months after Bruen, and our pre-Bruen caselaw did not foreclose as-applied Second Amendment challenges. See United States v. Torres-Rosario, 658 F.3d 110, 113 (1st Cir. 2011) (contemplating the possibility of a successful as-applied challenge to § 922(g)(1) in light of District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 561 U.S. 742 (2010)).
- 12 - or demonstrated good cause for failing to do so. As explained
already, the court did not rule that Turner could proceed with a
belated motion covered by Rule 12(b)(3); rather, Turner raised the
Second Amendment issue in a sentencing objection, and the court
rejected the argument on those terms.
Turner's citation to Class, made at the sentencing
hearing and again here, is also unavailing. Class holds that "a
guilty plea by itself does not bar" a defendant from arguing on
appeal that "the statute of conviction violates the Constitution."
583 U.S. at 176. Class does not, however, hold as a general matter
that defendants are entitled to appellate review of constitutional
claims, no matter their procedural missteps. See id.; cf. United
States v. Ríos-Rivera, 913 F.3d 38, 41–43 (1st Cir. 2019) (holding
that Class does not preclude application of plain-error review to
forfeited constitutional claim). Nor does Class address Rule 12;
indeed, post-Class, we found waiver under Rule 12(b)(3) where a
defendant argued on appeal that the statute of conviction was
unconstitutionally vague but had failed to move for dismissal of
the indictment on that ground in the district court. See Cardona,
88 F.4th at 77–78. Turner's mention of Class does not afford him
a free pass from Rule 12(b)(3)'s requirement.
In sum, because Turner did not move in the district court
for dismissal of the felon-in-possession count and has not
- 13 - demonstrated good cause for failing to do so, we do not consider
the argument on appeal. See Cardona, 88 F.4th at 77–78.
We add a concluding observation. This case demonstrates
the importance of compliance with Rule 12 to the orderly
consideration of covered claims, including motions to dismiss
based on the Second Amendment. By raising a Second Amendment claim
as part of a post-plea sentencing argument, Turner caused a
situation in which the district court faced what it viewed as a
"not insubstantial" question without briefing from the parties.
Mandating compliance with Rule 12 spares district courts from
having to resolve claims on inadequate records and argument caused
by belated and haphazard party presentation. See Cardona, 88 F.4th
at 77 (observing that compliance with Rule 12 requires "timely
presentation of . . . claims to the district court" to "allow[]
full development of the factual record" (quoting Crooker, 688 F.3d
at 10)).
B. Sentencing Claims
Following the district court's resolution of Turner's
sentencing objections -- including an objection to the presentence
report's application of a threat-of-death adjustment under
U.S.S.G. § 2B1.3(b)(2)(f) that we discuss at greater length
below -- the government argued for a 180–month sentence, the low
end of the guideline range and the mandatory minimum sentence under
18 U.S.C. § 924(e). The government emphasized Turner's pattern of
- 14 - committing bank robberies and the fact that his actions "placed
the tellers in fear for their lives." The government also
recognized that Turner's criminal actions were influenced by
"childhood trauma, mental health issues, and significant substance
abuse struggles."
Turner joined the government's request for a 180–month
sentence. Turner's counsel emphasized that, when Turner committed
the bank robbery, he "was in the middle of a mental health crisis
. . . was ostensibly homeless, and . . . was suicidal." Turner's
counsel noted also that Turner had "asked for help from his
probation officer, and, unfortunately, . . . didn't get it."
Finally, Turner's counsel highlighted that Turner had demonstrated
contrition to the district court by, among other actions,
withdrawing his motion to suppress and pleading guilty.
Turner then provided a lengthy allocution. He stated
that he was high on drugs when he robbed the bank and that his
relapse was a response to stress from having to work during the
COVID-19 pandemic in a job that exposed him to the virus. He
further explained that, in his view, he unsuccessfully sought help
from his probation officer in the period before the robbery. As
he explained it, the probation officer "could have set [him] up so
simply," by calling Turner's girlfriend and asking her to give
Turner money that he "so desperate[ly]" needed, "yet [the officer]
chose not to do it." In the same vein, Turner stated that he was
- 15 - "dumbfounded[] that the people that were supposed to be advocating
for [him] would allow [him] to hang" himself.
Turner acknowledged that he felt "terrible" for scaring
the teller and that he "own[ed] what [he] did." He also stated
that he needed drug and mental-health treatment but that the Bureau
of Prisons offered inadequate treatment options. After describing
himself as "not a violent person," "the hardest worker," and "the
smartest guy nine times out of ten," Turner concluded by admitting
that he had "done horrible things while on drugs," which he had to
"live with . . . every day."
Following the argument, the district court determined,
without objection, that Turner faced an advisory guideline range
of 180 to 210 months. The court then explained its rationale for
imposing a sentence at the top of that range. It noted the
aggravated nature of the offense, stating that bank robbery was a
serious "societal violation" that terrorizes the teller and
instills fear in the community. It also observed that Turner was
"a thrice-convicted bank robber [who had] threatened people with
violence."
The district court then accounted for various mitigating
factors, including that Turner had experienced trauma from a young
age and suffered from mental-health issues and substance abuse
disorder. The court did not, however, accept Turner's suggestion
- 16 - that the alleged failings by the probation department "resulted in
[him] committing another bank robbery."
Ultimately, the district court explained that:
[T]he criteria [it] find[s] most important to account for is the seriousness of the offense, which can hardly be overstated, particularly in light of remarkably similar criminal history, to provide just punishment and to afford adequate deterrence. And . . . in this case, to protect the public from further crimes of the defendant.
Given these considerations, the court concluded that a 210-month
sentence was "sufficient but not greater than necessary to
correspond to the need for the sentence."
Here, Turner contests the district court's sentencing
determination on procedural and substantive grounds.
Procedurally, he contends that the court erred by (1) declining to
rule on the applicability of the threat-of-death adjustment;
(2) failing to consider certain mitigating factors; (3) not
adequately explaining the chosen sentence; and (4) mistaking his
statements about his probation officer's conduct as indicating a
lack of remorse. Substantively, Turner contends that the court
overvalued his criticisms of the probation officer and criminal
justice system in determining the sentence.
1. Procedural Reasonableness
We begin with Turner's procedural claims. Ordinarily,
we review such claims for abuse of discretion. See United States
- 17 - v. Bruno-Campos, 978 F.3d 801, 805 (1st Cir. 2020). When, however,
a defendant pursues on appeal a procedural claim that was not
raised in the district court, we review for plain error. See id.
That standard requires the defendant to show a clear or obvious
error that affected his substantial rights and seriously impaired
the fairness, integrity, or public reputation of the judicial
process. See id. Here, Turner preserved only an argument about
the threat-of-death adjustment. We therefore review that claim
for abuse of discretion and the other claims for plain error.
a. Threat-of-Death Adjustment
Turner argues that, in determining the guideline offense
level for his bank robbery conviction, the district court should
have rejected the presentence report's application of the
threat-of-death adjustment under § 2B1.3(b)(2)(F) of the
sentencing guidelines. He contends that merely informing the
teller he had a gun while committing the robbery does not qualify
for the adjustment.
Turner pays little regard, however, to the district
court's actual ruling: that it would bypass the threat-of-death
issue because doing so would not affect the sentencing. Turner's
only response is that the court had to resolve the point because
a favorable ruling would have reduced his guideline offense level
for the bank robbery count.
- 18 - That argument fails. Federal Rule of Criminal Procedure
Rule 32(i)(3)(B) provides that, at sentencing, a court must rule
on "any disputed portion of the presentence report or other
controverted matter" unless the court determines that a ruling is
unnecessary "because the matter will not affect sentencing, or
because the court will not consider the matter in sentencing."
Here, the district court expressly concluded that it "was not going
to rule on the [threat-of-death] objection[] as the matter will
not affect sentencing."
The district court appropriately invoked Rule
32(i)(3)(B). Turner's sentencing guideline range was determined
by his armed-career-criminal designation under chapter four of the
guidelines. See U.S. Sent'g Guidelines Manual § 4B1.4(b)(3)(B)
(U.S. Sent'g Comm'n 2021). Application of the threat-of-death
adjustment, however, would have affected only the offense level
for the robbery count under chapters two and three of the
sentencing guidelines. See id. § 2B1.3(b)(2)(F). Thus, if the
district court had rejected the threat-of-death adjustment -- the
outcome Turner is seeking -- it would have made no difference in
the applicable guideline range. See United States v. Meredith,
712 F. App'x 298, 299 (4th Cir. 2018) (explaining that district
court properly declined to resolve a chapter three guideline issue
where the sentencing range was established by the chapter four
- 19 - career-offender guideline); United States v. Casamayor, 643 F.
App'x 905, 909–10 (11th Cir. 2016) (similar).
b. Mitigating Factors
Turner argues next that the district court ignored
certain mitigating factors in selecting the sentence. In
particular, Turner alleges that the court overlooked his desire
for drug treatment, his view that the Bureau of Prisons provides
inadequate treatment opportunities, his "hard life," and the fact
that his latest crimes were caused by COVID-related stress.
When imposing a sentence, a district court must consider
all the relevant sentencing factors under 18 U.S.C. § 3553(a).
United States v. MacVicar, 96 F.4th 51, 56 (1st Cir. 2024). It is
not required, however, to "specifically rebut every argument that
a defendant makes, so long as the record makes reasonably clear
that the court considered the pertinent sentencing factors."
United States v. Burgos-Balbuena, 113 F.4th 112, 121 (1st Cir.
2024). Here, the parties' presentations and the court's sentencing
explanation make clear that the court did not ignore pertinent
sentencing factors or fail to consider proposed mitigating
considerations.
The district court imposed a sentence within the
advisory guideline range after a lengthy hearing which focused
primarily on Turner's view of the mitigating factors. Turner and
his lawyer argued about Turner's desire for treatment, his
- 20 - displeasure with criminal justice system (including the lack of
treatment options at the Bureau of Prisons), and the challenges he
faced during COVID-19. The presentence report also described
Turner's upbringing and substance abuse disorder. The court stated
that it had considered all this material. It expressly mentioned
that Turner "struggled mightily" with a substance abuse disorder
and mental health issues, factors that it considered to be
mitigating. And it also stated that it understood the
"vulnerability" Turner experienced because of his relapse during
the COVID-19 pandemic, although this vulnerability did not, in the
court's view, justify robbing a bank.
On this record, there is no basis for concluding that
the district court overlooked Turner's presentation of mitigating
facts, which it heard just before sentencing him. See
Burgos-Balbuena, 113 F.4th at 121. It is apparent that the court
considered Turner's substance abuse problems and the circumstances
of his relapse; it simply did not assign those considerations the
weight that Turner wanted. See United States v.
Rodriguez-Monserrate, 22 F.4th 35, 41 (1st Cir. 2021). That does
not constitute a procedural error.
c. Explanation of Sentence
Turner next argues that the court did not provide a
sufficient explanation for choosing a sentence above the bottom of
the advisory guideline range. We disagree.
- 21 - We have described the "fail[ure] to adequately explain
the chosen sentence" as a type of procedural error.6 United States
v. Dávila-González, 595 F.3d 42, 47 (1st Cir. 2010). But an
adequate explanation does not require a court to articulate "why
it eschewed other suggested sentences." United States v.
Vega-Salgado, 769 F.3d 100, 104 (1st Cir. 2014). Indeed, even
where, as here, the district court chose a sentence different from
the parties' joint recommendation, it is required only to explain
"the sentence it ultimately selects." Burgos-Balbuena, 113 F.3d
at 121 (citing United States v. Bermúdez-Meléndez, 827 F.3d 160,
165 (1st Cir. 2016)).
The district court provided a detailed explanation of
the selected sentence. It focused on the seriousness of the
offense, emphasizing that bank robberies are a "great . . .
violation to the sense of community security." It also mentioned
Turner's "remarkably similar criminal history," which included
three previous bank-robbery convictions. These considerations led
the court to conclude that a high-end guideline sentence was
necessary to protect the public, afford adequate deterrence, and
impose just punishment, even accounting for Turner's difficult
6 We have not, however, always described it that way. See, e.g., United States v. Colón–Cordero, 91 F.4th 41, 50 n.4 (1st Cir. 2024). But even if we were to construe Turner's challenge as a substantive attack on his sentence, for the same reasons discussed here, it still would not provide a basis for relief.
- 22 - upbringing, mental-health conditions, and substance abuse
disorder. This was a sufficient explanation for a within-guideline
d. Allocution
Turner's last procedural claim is that the district
court mistook statements he made during his allocution about his
probation officer's failure to help him before the robbery as an
effort to deflect responsibility for his crime. Turner insists
that he mentioned the probation officer's actions merely to place
his decision to rob the bank in context.
We disagree with Turner's contention that the district
court misunderstood his allocution. It is of course true that
"[a] defendant's acceptance of responsibility and his assertion of
mitigating circumstances are not necessarily inconsistent or
incompatible." United States v. Singh, 877 F.3d 107, 119 (2d Cir.
2017). And it is also true that a defendant may show remorse while
explaining his reason for breaking the law, since "motivation for
engaging in criminal conduct is unquestionably a proper
consideration at sentencing." Id. at 120. Nevertheless, a court
is not required to accept a defendant's explanation for why he
committed a crime or why certain factors mitigated his criminal
behavior. See, e.g., United States v. Lozada-Aponte, 689 F.3d
791, 793 (1st Cir. 2012).
- 23 - The district court's statement that it did not accept
that "probation's failings . . . led ineluctably to yet another
bank robbery" does not suggest that the court did not understand
Turner's point. Rather, the record shows the court simply
disagreed with Turner. The court recognized that Turner may have
felt "a sense of desperation" based on his perception that his
probation officer did not sufficiently help him. And the court
did not reject Turner's statements that he felt remorse for
committing the robbery. But, based on Turner's prior record of
almost identical offenses, the court
concluded -- reasonably -- that Turner's response to his probation
officer's actions did not justify his conduct, especially where
there were "lower risk . . . ways" for Turner to obtain money. As
the court viewed it, robbing a bank "represents something quite
apart from . . . an addict trying to fund his habit."
In sum, in rejecting Turner's view about the relevance
of the probation officer's actions to his crime, the district court
understood Turner's point, it simply disagreed with certain
aspects of it. That is not procedural error, and we thus reject
Turner's allocution-based claims.7
7 Turner notes in his brief that the district court, at one point, did "not allow" him to answer a question that the court posed to counsel about the content of his allocution. Turner does not, however, make any argument that the court violated his right to allocute. We deem any such argument undeveloped and therefore
- 24 - 2. Substantive Reasonableness
Turner also argues that the district court imposed a
substantively unreasonable sentence. "Challenging a sentence as
substantively unreasonable is a burdensome task in any case, and
one that is even more burdensome where, as here, the challenged
sentence" is within the undisputed advisory guideline range.
United States v. Clogston, 662 F.3d 588, 592-93 (1st Cir. 2011).
"A sentence is substantively reasonable so long as the sentencing
court has provided a 'plausible sentencing rationale' and reached
a 'defensible result.'" United States v. Sayer, 916 F.3d 32, 39
(1st Cir. 2019) (quoting United States v. Martin, 520 F.3d 87, 96
(1st Cir. 2008)).
Turner claims that his sentence was substantively
unreasonable because the district court assigned excessive weight
to his criticisms of the probation officer and the criminal justice
system. We disagree. These considerations were not even mentioned
by the court when it explained its sentencing rationale. To be
sure, the court commented on Turner's attempt to connect the
probation officer's actions to his decision to rob a bank. But,
after explaining why it did not accept the proposed connection,
the court proceeded to sentence Turner based on the nature of his
waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
- 25 - offense, his prior record, and the pertinent § 3553(a) sentencing
factors of just punishment, deterrence, and public protection.
Turner was before the district court for sentencing on
his fourth bank robbery. Given a record replete with violent
felonies, the district court's decision to sentence Turner at the
top of the advisory guideline range was a reasonable outcome.
C. Supervised Release Claim
Lastly, Turner claims that the district court committed
a procedural error in failing to recognize its discretion to impose
a revocation sentence concurrent with the sentences on the counts
of conviction. See United States v. Reyes-Torres, 979 F.3d 1, 7
(1st Cir. 2020) (explaining that "treating the [sentencing
guidelines] as mandatory" is a procedural error (quoting United
States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013))).
Turner did not raise this argument in the district court. We
therefore review it for plain error.
"[W]hen a supervised releasee 'transgresses the criminal
law as well as the conditions of supervision, there is no legal
impediment in sentencing [him] both as a criminal and as a
supervised release violator.'" United States v. Tanco-Pizarro,
892 F.3d 472, 483 (1st Cir. 2018) (quoting United States v. Coombs,
857 F.3d 439, 451 (1st Cir. 2017)). And, in those circumstances,
a chapter seven policy statement of the sentencing guidelines
contemplates a consecutive sentence. U.S. Sent'g Guidelines
- 26 - Manual § 7B1.3(f) (U.S. Sent'g Comm'n 2021) (stating that a "term
of imprisonment imposed upon revocation of . . . supervised
release shall be ordered to be served consecutively to any sentence
of imprisonment that the defendant is serving, whether or not the
sentence of imprisonment being served resulted from the conduct
that is the basis of the revocation of . . . supervised release").
Nevertheless, we have recognized that chapter seven policy
statements, including § 7B1.3(f), are "advisory rather than
mandatory." United States v. O'Neil, 11 F.3d 292, 301 n.11 (1st
Cir. 1993). Thus, a court may impose a concurrent supervised
release sentence. See Coombs, 857 F.3d at 450–51; United States
v. Hurtado-Araujo, No. 98–1975, 1999 WL 529445, at *1 (1st Cir.
June 8, 1999).
The record does not demonstrate that the district court
believed that it was required to impose a consecutive revocation
sentence. Before imposing sentence, the court recognized the
advisory nature of the guidelines. In addition, Turner
specifically requested that his revocation sentence run
concurrently, and the government noted that "the Court is well
within its discretion to sentence [] Turner to a consecutive term
of two years or run it concurrently." Further, when imposing the
consecutive revocation sentence, the court stated that it was doing
so to impose additional punishment in recognition that "Turner
committed [the robbery] while on federal supervised release,"
- 27 - which it recognized as a factor that it "ha[d] to consider." The
court's explanation that it was relying on sentencing
considerations to impose the consecutive sentence demonstrates
that the court appreciated its discretion to do otherwise.8
III. CONCLUSION
For the reasons stated, we affirm the judgments.
8 Turner also suggests that the revocation sentence was too harsh because the district court "gave insufficient weight to the fact that [he] lapsed . . . because of the burden of the pandemic." But, as already discussed, the court recognized Turner's drug addiction and vulnerability during the period just before his crime. It just did not consider the relapse and Turner's associated need to buy drugs as justifying his decision to rob a bank.
- 28 -