United States v. Pupo (2021)

"A sentence is procedurally unreasonable when the district court commits a procedural error such as 'failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence -- including an explanation for any deviation from the Guidelines range.'" United States v. Pupo, 995 F.3d 23, 28 (1st…

United States v. Pupo, 995 F.3d 23, 28 (1st Cir. 2021) (stating that a sentencing court commits a procedural error by, inter alia, "failing to adequately explain the chosen sentence -- including an - 6 - explanation for any deviation from the [GSR]" (quoting United States v. Díaz-Rivera, 957 F.3d 20, 25 (1st Cir. 2020))).

A court commits procedural error where it "fail[s] to adequately explain" its sentence, "including an explanation for any deviation from the Guidelines range." United States v. Pupo, 995 F.3d 23, 28 (1st Cir. 2021) (quoting United States v. Díaz-Rivera, 957 F.3d 20, 25 (1st Cir. 2020)).

See Pupo, 995 F.3d at 32 ("[W]e cannot assign error to a well-reasoned decision simply because the district judge chose not to attach more weight to certain mitigating factors."); Dávila-Bonilla, 968 F.3d at 12 (explaining that the district judge's failure to attach more weight to mitigating factors does not render challenged sentence implausible or indefensible); United States v. Montijo-Maysonet, 974 F.3d 34 , 54-55 (1st Cir. 2020) (concluding that a 37-month downward vari…

"Claims challenging the procedural and substantive reasonableness of a sentence are subject to a bifurcated inquiry: 'we first determine whether the sentence imposed is procedurally reasonable' and if we conclude that it is, we 'then determine whether it is substantively reasonable.'" United States v. Pupo, 995 F.3d 23, 28 (1st Cir. 2021) (quoting United States v. Flores-Quiñones, 985 F.3d 128, 133 (1st Cir. 2021)).

The Sentence's Procedural and Substantive Reasonableness In assessing Burgos's arguments that the district court's sentence was unreasonable, we employ a "bifurcated inquiry." United States v. Pupo, 995 F.3d 23, 28 (1st Cir. 2021).

"Further, '[i]n the sentencing context, we evaluate claims of unreasonableness in light of the totality of the circumstances.'" United States v. Pupo, 995 F.3d 23, 29 (1st Cir. 2021) (quoting United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013)).

See, e.g., United States v. Pupo, 995 F.3d 23, 29 (1st Cir. 2021).3 Now sit back as we explain why none of Abbas's arguments stick.

See id. at 103 . - 6 - A. Procedural Reasonableness A court "commits a procedural error" where it "fail[s] to adequately explain" a "deviation from the [g]uidelines range." United States v. Pupo, 995 F.3d 23, 28 (1st Cir. 2021) (quoting United States v. Díaz-Rivera, 957 F.3d 20, 25 (1st Cir. 2020)).

See United States v. Baptiste, 8 F.4th 30, 37 (1st Cir. 2021) (emphasis added); accord United States v. Pupo, 995 F.3d 23, 30 (1st Cir. 2021); Morosco, 822 F.3d at 24 . 3 Gianatasio next argues that the judge plainly erred by relying on his photo-of-daughter confessions, a repackaged version of his just-rejected procedural-reasonableness claim that isn't a difference-maker here either.

But our case law plainly instructs that, "[w]hen a defendant fails to contemporaneously object to the procedural reasonableness of a court's sentencing determination, we review for plain error." United States v. Sayer, 916 F.3d 32, 37 (1st Cir. 2019); see also United States v. Pupo, 995 F.3d 23 , 29 n.5 (1st Cir. 2021) (explaining that "a claim of - 28 - is particularly appropriate where, as here, "a defendant's claim would fail even if reviewed for plain error." United Stat…

See United States v. Pupo, 995 F.3d 23 , 28 (1st Cir. 2021) ("A sentence is procedurally - 6 - unreasonable when the district court commits a procedural error such as 'failing to calculate (or improperly calculating) the Guidelines range . . . .'" (quoting United States v. Díaz-Rivera, 957 F.3d 20 , 25 (1st Cir. 2020))).

See United States v. Pupo, 995 F.3d 23, 29 (1st Cir. 2021).

Moreover, "[m]erely raising potentially mitigating factors does not guarantee a lesser sentence." Id. at 49 . "[T]he district court must consider all § 3553(a) factors," but "it need not do so in 'some sort of rote incantation when explicating its sentencing decision.'" Alejandro-Rosado, 878 F.3d at 439 (quoting United States v. Dixon, 449 F.3d 194, 205 (1st Cir. 2006)); see also United States v. Pupo, 995 F.3d 23, 30 (1st Cir. 2021) ("A district judge need not 'verbalize it…

In explicating its sentencing determination, though, the court "is not required to address those factors, one by one, in some sort of rote incantation." United States v. Dixon, 449 F.3d 194, 205 (1st Cir. 2006); see United States v. Pupo, 995 F.3d 23, 30 (1st Cir. 2021). "[I]t is sufficient for the sentencing court simply to identify the main factors driving its determination." United States v. Sepúlveda-Hernández, 817 F.3d 30, 33 (1st Cir. 2016).

See United States v. Pupo, 995 F.3d 23, 30-31 (1st Cir. 2021) (district court satisfied § 3553(a)(2)(D) by “weigh[ing] [defendant’s medical] needs with the need to protect society from further criminal activity and arriv[ing] at a plausible result”).

Where, as here, "conduct surrounding a dismissed charge is 'set forth in undisputed portions of the [PSI Report],' the district court is 'entitled to rely on that conduct when sentencing' the defendant." Miranda-Díaz, 942 F.3d at 40 (quoting United States v. Mercer, 834 F.3d 39, 50 (1st Cir. 2016)); accord United States v. Pupo, 995 F.3d 23, 31 (1st Cir. 2021). - 10 - far.