06-1292-cr United States v. Villafuerte
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
4 August Term 2006
5 (Argued: May 23, 2007 Decided: September 21, 2007)
6 Docket No. 06-1292-cr
7 -------------------------------------------------------x
8 UNITED STATES OF AMERICA,
9 Appellee,
10 -- v. --
11 JORGE VILLAFUERTE, also known as George,
12 Defendant-Appellant.
13 -------------------------------------------------------x
14 B e f o r e : WALKER and CABRANES, Circuit Judges, and GOLDBERG, 15 Judge.* 16
17 Appeal from a judgment of the United States District Court
18 for the Northern District of New York (Gary L. Sharpe, Judge),
19 sentencing the defendant-appellant to a 70-month term of
20 imprisonment.
21 AFFIRMED.
22 MOLLY CORBETT, Assistant Federal 23 Public Defender (Alexander Bunin,
* The Honorable Richard W. Goldberg, United States Court of International Trade, sitting by designation. -1- 1 Federal Public Defender for the 2 Northern District of New York, 3 George E. Baird, Assistant Federal 4 Public Defender, on the brief), 5 Albany, New York, for Defendant- 6 Appellant.
7 BRENDA K. SANNES, Assistant United 8 States Attorney (Glenn T. Suddaby, 9 United States Attorney for the 10 Northern District of New York, 11 Richard S. Hartunian, Assistant 12 United States Attorney, on the 13 brief), Syracuse, New York, for 14 Appellee.
15 JOHN M. WALKER, JR., Circuit Judge:
16 This case requires us to determine the consequences of a
17 criminal defendant’s failure to object to a district court’s
18 method of discharging some of its duties under 18 U.S.C. § 3553.
19 Defendant-appellant Jorge Villafuerte appeals from a March 8,
20 2006 judgment of the district court for the Northern District of
21 New York (Gary L. Sharpe, Judge), arguing that the district court
22 erred by (1) concluding that the sentence recommended by the
23 United States Sentencing Guidelines (“Guidelines”) accounted for
24 the factors under § 3553(a) and (2) failing to state adequately
25 its reasons for imposing the chosen sentence, as required by §
26 3553(c). We need not decide whether there was any error; because
27 Villafuerte failed to object below, both challenges are subject
28 to plain error analysis, and neither alleged error is plain.
29 BACKGROUND
30 Villafuerte was indicted with five co-defendants for
31 conspiring to possess with intent to distribute and conspiring to -2- 1 distribute over five hundred grams of cocaine in violation of 21
2 U.S.C. §§ 841(a)(1) and 846. Villafuerte pled guilty without a
3 plea agreement and, five months later, was sentenced.
4 The revised Presentence Report (“PSR”) calculated a
5 sentencing range under the Guidelines of 70 to 87 months, which
6 the parties did not contest. Villafuerte argued for a below-
7 Guidelines sentence based upon several circumstances: His strong
8 family ties, his drug usage since an early age, his remorse for
9 his crime and its effect on his family, the fact that he had been
10 gainfully employed for most of his adult life, and his lack of
11 prior convictions. Villafuerte also contended that the PSR’s
12 recommended sentence was greater than necessary and did not
13 further the purposes of sentencing.
14 Unpersuaded, the district court adopted the PSR’s
15 calculations and proposed sentence range and sentenced
16 Villafuerte to a 70-month term of imprisonment, the bottom of the
17 Guidelines range. It rejected his argument with respect to drug
18 usage, finding that although Villafuerte was a drug abuser, his
19 crime was not “drug-use induced” but rather “money-induced,” as
20 shown by his purchase of a house in Texas with some of the
21 profits. The district court sympathized with Villafuerte’s
22 family situation but found that the effect of conviction on them
23 was “irrelevant” because it was the natural consequence of
24 Villafuerte’s decision to commit the crime. Finally, the court
25 said: -3- 1 In this case, I find that the advisory guidelines take 2 into account all of the 3553(a) factors and the other 3 factors, in terms of determining what’s an appropriate 4 sentence, and I believe that the bottom of the advisory 5 guideline range is the minimum, that is a fair 6 sentence, in terms of the conduct that’s involved here. 7 8 Villafuerte did not object to this statement or his sentence
9 during the hearing. He now appeals his sentence.
10 DISCUSSION
11 We review a district court’s sentencing decisions for both
12 substantive and procedural reasonableness. United States v.
13 Rattoballi, 452 F.3d 127, 131-32 (2d Cir. 2006). Reasonableness
14 review is similar to review for abuse of discretion and may
15 require reversal when the district court’s decision “cannot be
16 located within the range of permissible decisions” or is based on
17 a legal error or clearly erroneous factual finding. United
18 States v. Sindima, 488 F.3d 81, 85 (2d Cir. 2007) (internal
19 quotation marks omitted). Substantive reasonableness involves
20 the length of the sentence imposed in light of the factors
21 enumerated under 18 U.S.C. § 3553(a). Rattoballi, 452 F.3d at
22 132. Procedural reasonableness concerns the procedures a
23 district court employs in arriving at a sentence. United States
24 v. Canova, 485 F.3d 674, 679 (2d Cir. 2007). To impose a
25 procedurally reasonable sentence, see United States v.
26 Giovanelli, 464 F.3d 346, 355 (2d Cir. 2006) (per curiam);
27 Rattoballi, 452 F.3d at 131, a district court must (1) normally
28 determine the applicable Guidelines range, (2) consider the
-4- 1 Guidelines along with the other factors under § 3553(a), and (3)
2 determine whether to impose a Guidelines sentence or a non-
3 Guidelines sentence, see United States v. Crosby, 397 F.3d 103,
4 111-13 (2d Cir. 2005); see also United States v. Fernandez, 443
5 F.3d 19, 26 (2d Cir. 2006).
6 We review the district court’s interpretation of the
7 Guidelines de novo and its findings of fact for clear error.
8 Rattoballi, 452 F.3d at 131.
9 I. Consideration of the 18 U.S.C. § 3553(a) Factors
10 Villafuerte argues, for the first time on appeal, that his
11 sentence is unreasonable because the district court, in
12 concluding that a sentence under the Guidelines accounted for all
13 the § 3553(a) factors in his case, failed to consider the §
14 3553(a) factors. 18 U.S.C. § 3553(a) requires the district court
15 to consider:
16 (1) the nature and circumstances of the offense and the 17 history and characteristics of the defendant; 18 (2) the need for the sentence imposed-- 19 (A) to reflect the seriousness of the offense, to 20 promote respect for the law, and to provide just 21 punishment for the offense; 22 (B) to afford adequate deterrence to criminal conduct; 23 (C) to protect the public from further crimes of the 24 defendant; and 25 (D) to provide the defendant with needed educational or 26 vocational training, medical care, or other 27 correctional treatment in the most effective manner; 28 (3) the kinds of sentences available; 29 (4) the kinds of sentence and the sentencing range 30 established [and recommended by the Guidelines] . . . ; 31 (5) any pertinent policy statement . . . issued by the 32 Sentencing Commission . . . ;
-5- 1 (6) the need to avoid unwarranted sentence disparities 2 among defendants with similar records who have been 3 found guilty of similar conduct; and 4 (7) the need to provide restitution to any victims of 5 the offense.
6 We conclude that Villafuerte’s failure to object below is fatal
7 to this claim of error.
8 When a party properly objects to a sentencing error in the
9 district court, we review for harmless error. See United States
10 v. Haynes, 412 F.3d 37, 39 (2d Cir. 2005) (per curiam); see also
11 Fed. R. Crim. P. 52(a). By contrast, issues not raised in the
12 trial court because of oversight, including sentencing issues,
13 are normally deemed forfeited on appeal unless they meet our
14 standard for plain error. United States v. Keppler, 2 F.3d 21,
15 23 (2d Cir. 1993); see also Fed. R. Crim. P. 52(b); United States
16 v. Yu-Leung, 51 F.3d 1116, 1121-22 (2d Cir. 1995) (distinguishing
17 forfeiture from waiver). We have long stated, however, that we
18 may sometimes review sentencing issues without full plain error
19 analysis “despite lack of objection at trial . . . [although]
20 such consideration is not assured.” United States v. Baez, 944
21 F.2d 88, 90 (2d Cir. 1991); see also United States v. Keigue, 318
22 F.3d 437, 441 (2d Cir. 2003) (noting the two types of review for
23 unraised sentencing errors); United States v. Sofsky, 287 F.3d
24 122, 125 (2d Cir. 2002).
25 When a defendant does not object to a district court’s
26 alleged failure to properly consider all of the § 3553(a)
27 factors, it is unclear under our prior case law whether we review -6- 1 for plain error or under a less rigorous standard.1 See United
2 States v. Pereira, 465 F.3d 515, 520 (2d Cir. 2006). Recently,
3 we applied plain error analysis to this sort of error without
4 providing any rationale for the choice. See United States v.
5 Carter, 489 F.3d 528, 537 (2d Cir. 2007). In that case, however,
6 we ultimately held that there was no error at all and applied
7 none of the other requirements of plain error, see id. at 540-41,
8 arguably rendering its decision to review for plain error obiter
9 dictum. Regardless of whether Carter prevents us from applying a
10 less rigorous standard, we now expressly hold that rigorous plain
11 error analysis is appropriate for such unpreserved errors.
12 Vacatur for sentencing error does not always come at the
13 same cost as vacatur for trial error, in part because “noticing
14 unobjected to errors that occur at trial precipitates an entire
15 new trial that could have been avoided by a timely objection,
16 whereas correcting a sentencing error results in, at most, only a
17 remand for resentencing.” Sofsky, 287 F.3d at 125; see also
18 United States v. Williams, 399 F.3d 450, 455-57 (2d Cir. 2005)
19 (comparing the costs and effects of correcting unpreserved trial
20 errors with correcting unpreserved sentencing errors). This cost
1 Our case law indicates that a less rigorous standard may not require strict compliance with all the requirements of plain error, see, e.g., United States v. Simmons, 343 F.3d 72, 80 (2d Cir. 2003), or may even allow relief due solely to prejudicial error, see, e.g., United States v. Goffi 446 F.3d 319, 321 (2d Cir. 2006) (dictum). Because we hold that full plain error analysis applies to the types of claims at issue, we need not define the precise content of a less rigorous standard. -7- 1 differential motivated us in Crosby to mandate limited remands to
2 dispose of unpreserved Booker procedural errors in direct appeals
3 of pre-Booker sentences. See 397 F.3d at 116-17. For similar
4 reasons with respect to sentencing issues in general, we have
5 been more likely to avoid the full rigors of plain error analysis
6 when the sentence was imposed without giving the appellant -
7 whether the government or the defendant - prior notice of the
8 aspect of the sentence challenged on appeal. See Sofsky, 287
9 F.3d at 125-26; see also United States v. Gilmore, 471 F.3d 64,
10 66 (2d Cir. 2006) (stating, without deciding, that these
11 circumstances might be met for the error at issue); Simmons, 343
12 F.3d at 80. On the other hand, we have declined to overlook a
13 lack of objection where the sentencing issue was “not
14 particularly novel or complex,” see Keppler, 2 F.3d at 24, or
15 where the case had already been remanded for careful
16 reconsideration of the sentence, see Baez, 944 F.2d at 90.
17 With this in mind, we hold that plain error analysis should
18 apply to the sort of error at issue here. Because we have
19 unambiguously required consideration of the § 3553(a) factors, in
20 addition to the now-advisory Guidelines, in every criminal
21 sentencing proceeding since we issued Crosby shortly after the
22 Supreme Court decided Booker, see Crosby, 397 F.3d at 115, we
23 cannot view this class of issues as novel. Because Villafuerte
24 was sentenced more than a year after our landmark decision in
25 Crosby, his counsel was plainly aware of the district court’s -8- 1 obligation to consider the § 3553(a) factors. Although we have
2 noted that proper consideration of those factors “is not a
3 cut-and-dried process of factfinding and calculation,” Fernandez,
4 443 F.3d at 29, raising an objection to the failure to do so in
5 order to alert the district court to the problem is neither
6 difficult nor onerous. This requirement alerts the district
7 court to a potential problem at the trial level and facilitates
8 its remediation at little cost to the parties, avoiding the
9 unnecessary expenditure of judicial time and energy in appeal and
10 remand. This conclusion, moreover, is consistent with several of
11 our sister circuits. See, e.g., United States v. Eversole, 487
12 F.3d 1024, 1029, 1034-35 (6th Cir. 2007); United States v.
13 Traxler, 477 F.3d 1243, 1250 (10th Cir. 2007); United States v.
14 Dragon, 471 F.3d 501, 505 (3d Cir. 2006) (dealing specifically
15 with the parsimony clause of § 3553(a)); United States v. Knows
16 His Gun, III, 438 F.3d 913, 918 (9th Cir. 2006).
17 To establish plain error, the defendant must establish (1)
18 error (2) that is plain and (3) affects substantial rights.
19 United States v. Banks, 464 F.3d 184, 189 (2d Cir. 2006); United
20 States v. Doe, 297 F.3d 76, 82 (2d Cir. 2002); see also United
21 States v. Olano, 507 U.S. 725, 732 (1993). If the error meets
22 these initial requirements, we then must consider whether to
23 exercise our discretion to correct it, which is appropriate only
24 if the error seriously affected the “fairness, integrity, or
25 public reputation of the judicial proceedings.” Doe, 297 F.3d at -9- 1 82. We must also keep in mind the Supreme Court’s guidance that
2 reversal for plain error should “be used sparingly, solely in
3 those circumstances in which a miscarriage of justice would
4 otherwise result.” United States v. Frady, 456 U.S. 152, 163
5 n.14 (1982).
6 To begin with, there is a question here of whether the
7 district court committed any error at all. In recently holding
8 that courts of appeals may presume that a properly calculated,
9 within-Guidelines sentence is reasonable, the Supreme Court
10 stated that the Guidelines “seek to embody the § 3553(a)
11 considerations, both in principle and in practice . . . [and] it
12 is fair to assume that the Guidelines, insofar as practicable,
13 reflect a rough approximation of sentences that might achieve §
14 3553(a)’s objectives.” Rita v. United States, 127 S. Ct. 2456,
15 2464-65 (2007); see also Rattoballi, 452 F.3d at 133 (“[T]he
16 Sentencing Commission is an expert agency whose statutory charge
17 mirrors the § 3553(a) factors that the district courts are
18 required to consider.”). Similarly, we have held that a
19 “sentencing judge’s decision to place special weight on the
20 recommended guideline[s] range will often be appropriate, because
21 the Sentencing Guidelines reflect the considered judgment of the
22 Sentencing Commission, are the only integration of the multiple
23 [§ 3553(a)] factors and, with important exceptions, . . . were
24 based upon the actual sentences of many judges.” United States
25 v. Capanelli, 479 F.3d 163, 165 (2d Cir. 2007) (per curiam) -10- 1 (citations and internal quotation marks omitted) (alteration in
2 original). Consequently, a district court’s imposition of a
3 within-Guidelines sentence based upon its conclusion that the
4 Guidelines account for the § 3553(a) factors in that particular
5 case does not necessarily constitute error. In any event, we
6 need not decide whether the district court erred here because any
7 possible error is not plain.
8 To be plain, the error must be clear or obvious, Olano, 507
9 U.S. at 734, at the time of appellate review, United States v.
10 Stewart, 433 F.3d 273, 290 (2d Cir. 2006). In fact, the
11 threshold is high enough that the Supreme Court has stated that
12 the error must be so plain that “the trial judge and prosecutor
13 were derelict in countenancing it, even absent the defendant’s
14 timely assistance in detecting it.” Frady, 456 U.S. at 163; see
15 also United States v. Thomas, 274 F.3d 655, 667 (2d Cir. 2001)
16 (en banc).
17 Even if the district court erred in concluding that the
18 Guidelines accounted for the § 3553(a) factors in this case, we
19 cannot say that the error is plain. Before Villafuerte’s
20 sentencing, we said that the Guidelines may serve as a sentencing
21 court’s “benchmark or a point of reference or departure.” United
22 States v. Rubenstein, 403 F.3d 93, 98-99 (2d Cir. 2005). And it
23 is not obvious that the district court used the Guidelines range
24 as anything other than a benchmark here. Its statements at the
25 sentencing hearing clearly show that it knew that the Guidelines -11- 1 were only advisory and that it had to consider, among other
2 things, the § 3553(a) factors. It also made clear the advisory
3 Guidelines “[i]n this case . . . take into account all of the
4 3553(a) factors and other factors” and that “the advisory
5 guideline range is the minimum, that is a fair sentence, in terms
6 of the conduct that’s involved here.” In considering the
7 Guidelines as a starting point and finding that Villafuerte’s
8 several § 3553(a) arguments did not merit deviation,2 any error,
9 assuming there was one, was not obvious.
10 II. Statement of Reasons Under 18 U.S.C. § 3553(c)
11 Villafuerte next argues that the district court failed to
12 satisfy its obligation under 18 U.S.C. § 3553(c) to give the
13 reasons for imposing its chosen sentence. Section 3553(c)
14 provides in relevant part:
15 The court, at the time of sentencing, shall state in 16 open court the reasons for its imposition of the 17 particular sentence, and, if the sentence-- 18 (1) is of the kind, and within the range, described in 19 subsection (a)(4) and that range exceeds 24 months, the 20 reason for imposing a sentence at a particular point 21 within the range; or 22 (2) is not of the kind, or is outside the range, 23 described in subsection (a)(4), the specific reason for 24 the imposition of a sentence different from that 25 described, which reasons must also be stated with 26 specificity in the written order of judgment and 27 commitment . . . . 28
2 The record further shows that the district court considered the gravity of Villafuerte’s § 3553(a) arguments: It recommended that he participate in a drug treatment program in prison and that he be placed in a facility as close to his family as possible, both of which Villafuerte requested. -12- 1 18 U.S.C. § 3553(c). This requirement serves the important goals
2 of (1) informing the defendant of the reasons for his sentence,
3 (2) permitting meaningful appellate review, (3) enabling the
4 public to learn why the defendant received a particular sentence,
5 and (4) guiding probation officers and prison officials in
6 developing a program to meet the defendant’s needs. United
7 States v. Molina, 356 F.3d 269, 277 (2d Cir. 2003) (citing S.
8 Rep. No. 98-225, at 79-80 (1983), as reprinted in 1984
9 U.S.C.C.A.N. 3182, 3262-63). The district court must meet this
10 obligation post-Booker. Crosby, 397 F.3d at 116.
11 While this requirement does not require the district court
12 to issue a “full opinion in every case,” the length and level of
13 detail required varies depending upon the circumstances. Rita,
14 127 S. Ct. at 2468. When the district court imposes a Guidelines
15 sentence, it may not need to offer a lengthy explanation,
16 particularly where the parties have not argued meaningfully
17 against a Guidelines sentence under § 3553(a) or for a departure.
18 Id. Non-frivolous arguments for a non-Guidelines sentence, on
19 the other hand, may require more discussion. Id. Nonetheless,
20 we do not insist that the district court address every argument
21 the defendant has made or discuss every § 3553(a) factor
22 individually. Fernandez, 443 F.3d at 30. We do not “prescribe
23 any formulation a sentencing judge will be obliged to follow in
24 order to demonstrate discharge of the duty to ‘consider’ the
25 Guidelines. In other words, we will no more require ‘robotic -13- 1 incantations’ by district judges than we did when the Guidelines
2 were mandatory.” Crosby, 397 F.3d 103, 113 (2d Cir. 2005). And
3 we remain disinclined to require a “more compelling accounting
4 the farther a sentence deviates from the advisory Guidelines
5 range.”3 Sindima, 488 F.3d at 85-86 (quoting Rattoballi, 452
6 F.3d at 134).
7 As with his previous claim of error, Villafuerte failed to
8 object below to the district court’s allegedly insufficient
9 statement of reasons. And as with the previous claim of error,
10 it is unclear whether we should review this unpreserved claim for
11 plain error. Several decisions have noted this uncertainty and
12 then decided not to address the issue because it was irrelevant
13 to their outcomes. See, e.g., Pereira, 465 F.3d at 520; Goffi,
14 446 F.3d at 321; United States v. Lewis, 424 F.3d 239, 243 (2d
15 Cir. 2005). Another decision applied plain error analysis but
16 without discussing why a sentencing error based on § 3553(c) is
17 not afforded an exception. See Molina, 356 F.3d at 277. And
18 another decision held that failure to comply with § 3553(c), at
3 As a matter of practicality, however, “our own ability to uphold a sentence as reasonable will be informed by the district court’s statement of reasons (or lack thereof) for the sentence that it elects to impose.” Rattoballi, 452 F.3d at 134. Accordingly, in the absence of a compelling accounting, we may be forced to vacate a sentence that deviates significantly from the advisory Guidelines range “where the record is insufficient, on its own, to support the sentence as reasonable.” Id. at 135; see also Pereira, 465 F.3d at 524. In its 2007 term, the Supreme Court will address this issue in Gall v. United States. Rita, 127 S. Ct. at 2467. -14- 1 least where there cannot be adequate appellate review, can render
2 a sentence “imposed in violation of law,” requiring vacatur. See
3 United States v. Zackson, 6 F.3d 911, 923-24 (2d Cir. 1993).
4 We now hold that plain error analysis in full rigor applies
5 to unpreserved claims that a district court failed to comply with
6 § 3553(c). Section 3553(c)’s long-standing requirements present
7 no novel or complex issues meriting greater consideration for its
8 violation: A defense counsel can quickly decide whether he is
9 dissatisfied with the district court’s explanation and promptly
10 object. See Keppler, 2 F.3d at 24; see also United States v.
11 Romero, - F.3d -, 2007 WL 1874231, at *4 (10th Cir. June 29,
12 2007) (noting that requiring objection for failure to follow a
13 well-known requirement such as § 3553(c) is not burdensome).
14 Further, the public interest underlying § 3553(c) is better
15 advanced when the district court is informed of its error
16 promptly at sentencing so that it can promptly correct it rather
17 than after a lengthy period of appellate review; to the extent
18 inadequately stated reasons for the sentence erode public trust
19 and understanding, correction earlier rather than later promotes
20 respect for the process. See Lewis, 424 F.3d at 247. The
21 district court is also better positioned to articulate its
22 reasons during the first sentencing hearing rather than long
23 after the fact. Requiring the error to be preserved by an
24 objection creates incentives for the parties to help the district
25 court meet its obligations to the public and the parties. Cf. -15- 1 United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004)
2 (stating that one of the policy goals of Rule 52(b) is “to
3 encourage timely objections and reduce wasteful reversals by
4 demanding strenuous exertion to get relief for unpreserved
5 error”). This holding is consistent with several of our sister
6 circuits. See, e.g., Romero, 2007 WL 1874231, at *4; Eversole,
7 487 F.3d at 1035 (“[C]ompliance with section 3553(c) . . .
8 generally will not amount to plain error because proof that it
9 affects the defendant’s substantial rights is difficult.”);
10 United States v. Gilman, 478 F.3d 440, 447 (1st Cir. 2007);
11 United States v. Parker, 462 F.3d 273, 278 (3d Cir. 2006).
12 Putting aside our doubts as to whether the district court
13 failed to comply with § 3553(c), any such error is certainly not
14 plain. The district court imposed a sentence at the bottom of
15 the Guidelines range, and such sentences often will not require
16 lengthy explanation. See Rita, 127 S. Ct. at 2468. And the
17 district court did not blindly rest on the existence of the
18 Guidelines: It stated that the Guidelines already accounted for
19 the § 3553(a) factors in this case. Moreover, it found that the
20 bottom of the Guidelines range was “a fair sentence” given
21 Villafuerte’s conduct, which can be a proper basis for imposing a
22 particular sentence. See United States v. Jones, 460 F.3d 191,
23 195 (2d Cir. 2006) (“[T]he judge is not prohibited from including
24 in [his] consideration [of the § 3553(a) factors] the judge’s own
25 sense of what is a fair and just sentence under all the -16- 1 circumstances.”). While the district court did not recite its
2 thoughts on each of the § 3553(a) factors, it is clear that we
3 impose no such general requirement. See Goffi, 446 F.3d at 321.
4 “[W]e will not conclude that a district judge shirked [his]
5 obligation to consider the § 3553(a) factors simply because []he
6 did not discuss each one individually or did not expressly parse
7 or address every argument relating to those factors that the
8 defendant advanced.” Fernadez, 443 F.3d at 30.
9 The district court was not mute at sentencing; it offered
10 reasons for rejecting Villafuerte’s arguments for a non-
11 Guidelines sentence. It stated that it rejected Villafuerte’s
12 argument with respect to his drug abuse because the crime was
13 motivated by money rather than drug use. It also explained that
14 it found his argument with respect to his family situation
15 irrelevant under the circumstances. Finally, the district court
16 stated that it would not consider an earlier drug bust involving
17 Villafuerte in which marijuana was found because no conviction
18 resulted. Given this level of detail, it is not obvious that the
19 district court was derelict in discharging its § 3553(c) duty.
20 CONCLUSION
21 The judgment of the district court is AFFIRMED.
-17-