United States v. Rand

93 F.4th 571

UNITED STATES of America, Appellee, v. Michael RAND, Defendant, Appellant.

No. 22-1979

United States Court of Appeals, First Circuit

February 23, 2024

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Landya B. McCafferty, U.S. District Judge]

Noreen McCarthy, with whom The McCarthy Law Firm was on brief, for appellant.

Aaron G. Gingrande, Assistant United States Attorney, with whom Jane E. Young, United States Attorney, was on brief, for appellee.

Before Barron, Chief Judge, Thompson and Gelpí, Circuit Judges.

GELPÍ, Circuit Judge.

Defendant-Appellant Michael Rand ("Rand") was indicted with, and pleaded guilty to, one count of distributing a controlled substance in violation of 21 U.S.C §§ 841(a)(1) and (b)(1)(C). Rand was sentenced to time served followed by 36 months of supervised release. Shortly thereafter, Rand was cited for four violations of his supervised release, resulting in a revocation hearing. At the revocation hearing, Rand was sentenced to 24 months of imprisonment followed by 24 months of supervised release. Rand timely appealed his sentence on the grounds that it was procedurally and substantively unreasonable. We affirm.

I. Background

A. Original Offense

On August 31, 2020, a grand jury indicted Rand with one count of distributing a controlled substance in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). While incarcerated and awaiting trial, Rand completed the Therapeutic Community substance use treatment program at the Strafford County Department of Corrections. On December 13, 2021, Rand pleaded guilty to the indictment. On March 23, 2022, while awaiting sentencing, the district court released Rand to participate in Turning Point, a residential substance use treatment program. Rand successfully completed the program. These were the first substance use treatment programs that Rand had ever completed.

On August 4, 2022, Rand's sentencing hearing took place. The presentence report ("PSR") determined that Rand's offense level was 13, reduced down from 16 due to his acceptance of responsibility. See U.S.S.G. § 3E1.1(a) and (b). His criminal history category was IV and the advisory sentencing guideline range for the offense was 33-41 months. The PSR detailed Rand's lifelong history of drug use which began when he was a teenager. On March 15, 2022, Rand filed a motion for variance from the sentencing guideline range noting his success in the substance use treatment programs and requesting time served. The Government filed a sentencing memorandum requesting a sentence at the low end of the sentencing guideline range, requesting the district court depart downwards as to the criminal history category. The district court sentenced Rand to time served followed by 36 months of supervised release.

B. Supervised Release Violations

On September 9, 2022, Rand's probation officer petitioned for a warrant alleging four violations of Rand's supervision conditions. Rand later admitted to each of the violations. First, on August 11, 2022, Rand lied to his probation officer, violating the standard condition of supervised release that he answer questions posed by his probation officer truthfully. Rand claimed he contracted COVID to excuse the fact that he had not reported to his assigned probation officer nor reported where he was living and working since he had been granted supervised release. This was a Grade C violation with a sentencing guideline range of 6-12 months.

Second, on September 1, 2022, Rand violated his supervision conditions by committing a federal, state, or local crime: Rand illegally possessed and used cocaine, methamphetamine, and fentanyl. This was a Grade B violation with a sentencing guideline range of 12-18 months. Third, that same day, Rand left his reported residence and failed to notify his probation officer, resulting in another violation of supervised release. This was a Grade C violation with a sentencing guideline range of 6-12 months.

Fourth, Rand relapsed and failed to enter an inpatient substance use treatment program despite being instructed to do so by his probation officer, resulting in his final violation of a special probation condition. This was a Grade C violation with a sentencing guideline range of 6-12 months. Rand was arrested and taken into custody. While in custody, Rand was unable to participate in the jail's substance use treatment program due to an administrative error.

C. Revocation Hearing

On December 7, 2022, the district court held Rand's revocation hearing. As noted, Rand admitted to each of the violations. The sentencing guideline ranges for someone with Rand's criminal history are 6-12 months of imprisonment for a Grade C violation and 12-18 months of imprisonment for a Grade B violation. The Government proposed twelve months of imprisonment for the purpose of ensuring a sufficient deterrent effect on Rand. The Government further noted that twelve months would provide Rand time to avail himself of the prison's rehabilitative programming to help ensure that he would be "better equipped this time around to meet the challenges of sobriety." Rand, in turn, requested a 6-month sentence of imprisonment followed by additional supervised release so that he could participate in additional residential substance use treatment programs. At the revocation hearing, Rand spoke on his own behalf stating that 12 months of imprisonment was too long for his first violation and that he wanted the chance to participate in a substance use treatment program since he was unable to do so while awaiting the revocation hearing.

The district court rejected both the Government's and Rand's proposed sentences, instead sentencing Rand to 24 months of imprisonment, the statutory maximum, followed by 24 months of supervised release. The district court explained its rationale by noting that "the fact that this [was Rand's] first violation d[id] not in any way outweigh the nature of the violation." The district court then mentioned Rand's initial sentencing stating that it was impressed with Rand's success in the substance use treatment programs. The district court was originally persuaded by Rand's allocution and the mitigating circumstances of his inauspicious past, determining that time served was the appropriate sentence once Rand completed the Turning Point program.

The district court gave an account of the four violations and noted that even though the possession of controlled substances was the higher grade violation, "the lying indicate[d] the danger to the community." The district court explained that 12 months of imprisonment was not enough to deter Rand and would not protect the public. Thus, the district court concluded that a maximum sentence was necessary after Rand lied and absconded immediately after appearing before the district court, which had credited Rand's recovery efforts in its original sentencing. The district court stated that it "considered each factor in [§] 3583(e)" and decided that a 24-month sentence of imprisonment was sufficient but not greater than necessary.

II. Discussion

On appeal, Rand argues that his sentence was both procedurally and substantively unreasonable. Procedurally, Rand argues that the sentence imposed was unreasonable because: (1) the district court plainly erred when it failed to adequately explain on the record, and in writing, the reasons for imposing a sentence above the recommended sentencing guideline range, (2) the district court plainly erred when it considered impermissible factors under 18 U.S.C. § 3583(e) because it focused on factors that fall under 18 U.S.C. § 3553(a)(1)(A), and (3) the district court plainly erred when it followed the prosecutor's urging to impose a lengthy sentence for rehabilitative purposes. Substantively, Rand argues that the sentence was unreasonable because: (1) there was no plausible sentencing rationale for exceeding the applicable sentencing guideline range, (2) Rand's most serious offense was based on a single positive drug test and his own admission of having relapsed, (3) the sentence goes against the statutory presumption against incarcerating a defendant for a single positive drug test, and (4) neither the prosecutor sought nor the PSR recommended a sentence above the sentencing guideline range. We take each of these arguments in turn and, for the reasons stated below, affirm the district court's revocation sentence.

"With respect to sentencing determinations, reasonableness has both a procedural and a substantive dimension." United States v. Del Valle-Rodríguez, 761 F.3d 171, 176 (1st Cir. 2014) (citing United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008)). Procedurally, we consider errors omitting an adequate explanation of the rationale for a variant sentence, failure to consider pertinent sentencing factors, and the determination of a sentence based on clearly erroneous facts. Del Valle-Rodríguez, 761 F.3d at 176. Substantively, we consider the length of the sentence "in light of the totality of the circumstances." Id.

A. Procedural Reasonableness

1. Standard of Review

Typically, we "review a sentence following revocation of supervised release for abuse of discretion." United States v. Alejandro-Rosado, 878 F.3d 435, 438-39 (1st Cir. 2017). However, when a defendant does not object to the procedural reasonableness of his sentence below, as is the case here, the challenge is unpreserved, and therefore reviewed for plain error. Id. at 439. Plain error review is "a steep climb for defendants on appeal." Id. To prevail, a defendant must prove "(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." United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).

2. The Sentence Was Procedurally Reasonable

We conclude that Rand has failed to demonstrate that the district court's...