United States Court of Appeals
For the First Circuit
No. 21-1704
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID DAOUD WRIGHT,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Barron, Chief Judge,
Selya and Howard, Circuit Judges.
Michael Tumposky, with whom Jessica Hedges and Hedges &
Tumposky, LLP were on brief, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Rachael S. Rollins, United States Attorney, was on brief, for
appellee.
May 10, 2024
HOWARD, Circuit Judge. David Wright challenges his
360-month aggregate sentence as procedurally and substantively
unreasonable. He asserts that the sentencing court made a
"grouping" error that affected the sentence that he received, and
that the court also failed to adequately explain its upwardly
variant sentence. Concluding that any grouping error had no impact
on his sentence and that the court provided an adequate explanation
for its variant sentence, we affirm.
I. Background
This is Wright's second direct appeal. The factual
background underlying his convictions is set forth in our opinion
from his first appeal. United States v. Wright, 937 F.3d 8, 13-14
(1st Cir. 2019). Here, we focus only on those facts relevant to
his sentence.
In June 2015, Wright was indicted for conspiracy to
provide material support to a designated foreign terrorist
organization, in violation of 18 U.S.C. §§ 2339B(a)(1)-(2) ("Count
1"); conspiracy to obstruct justice, in violation of 18 U.S.C. §
371 ("Count 2"); and obstruction of justice, in violation of 18
U.S.C. § 1519, and aiding and abetting, in violation of
18 U.S.C.
§ 2 ("Count 3"). Superseding indictments added a count for
conspiracy to commit acts of terrorism transcending national
boundaries, in violation of 18 U.S.C. §§ 2332b(a)(2) and (c)
("Count 4") and an additional count for obstruction of justice, in
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violation of § 1519 ("Count 5").
A jury convicted Wright on all counts, and the district
court sentenced him to 28 years' imprisonment and lifetime
supervised release.
On appeal, we affirmed Wright's convictions on Counts
2-5 but overturned his conviction on the material-support count
based upon an error in the jury instructions. Wright, 937 F.3d at
28, 37. We therefore vacated his conviction on Count 1 and
remanded to the district court for further proceedings. Id. at
37. The government later dismissed Count 1, and an amended
judgment issued. After a resentencing hearing before of a
different judge, Wright was sentenced to imprisonment for 30 years
-- two years more than before -- and lifetime supervised release.
A. First Sentencing
We recount the relevant details of Wright's first
sentencing, which shed light on certain issues addressed in his
resentencing. In the pre-sentence investigation report ("PSR")
prepared in advance of the first sentencing, the probation officer
recommended that all five counts of conviction be grouped together
pursuant to U.S. Sentencing Guidelines ("USSG") §3D1.2, which
instructs courts to group all counts involving "substantially the
same harm." The government did not object to this recommendation
to group the counts, but it did object to the PSR's conclusion
that Count 1, rather than Count 4, should be used to establish the
- 3 -
base offense level for sentencing.
The PSR determined that Count 1 -- providing material
support to a designated foreign terrorist organization -- had the
highest offense level of the counts in the group and thus produced
the offense level applicable to the group pursuant to USSG §3D1.3,
which provides that a group's offense level is the "highest offense
level of the counts in the [g]roup." The PSR noted that the base
offense level for that count was 26, pursuant to USSG §2M5.3(a).
Because the offense involved the provision of material support
with the "intent, knowledge, or reason to believe [that support
would] be used to commit or assist in the commission of a violent
act" the PSR added two levels pursuant to USSG §2M5.3(b). And
because the offense was a felony involving a federal crime of
terrorism, the PSR added 12 more levels pursuant to USSG §3A1.4.
Finally, because of the obstruction of justice counts, two more
levels were added pursuant to USSG §3C1.1. Thus, the Guidelines
calculation resulted in a total offense level of 42 for Count 1.
And because Wright's criminal history category was VI, The PSR
calculated that the applicable Guideline Sentencing Range ("GSR")
to be 360 months to life.
The government disputed that Count 1 had the highest
offense level of the counts in the group. It instead identified
Count 4 -- conspiracy to commit acts of terrorism transcending
national boundaries. In pressing that view, the government took
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the position that the base offense level for Count 4 should be
derived from the conspiracy to commit murder guideline, USSG
§2A1.5, which provides for a base offense level of 33, and not, as
the PSR recommended, from the guideline for threatening or
harassing communications, hoaxes, and false liens, USSG §2A6.1,
which provides for a base offense level of 12. In the government's
view, after adding the 12-level terrorism enhancement, the total
offense level for Count 4 was 45 (higher than Count 1's total
offense level of 42), and thus the applicable GSR for the group
was life, based upon Wright's criminal history category of VI.
The original sentencing judge adopted the PSR in full,
thereby agreeing with the probation officer that the correct GSR
was 360 months to life. The court then imposed a below-guidelines
sentence of 28 years' imprisonment and lifetime supervised
release, consisting of 20 years' imprisonment on Counts 1, 3, and
5, to be served concurrently with a sentence of five years'
imprisonment on Count 2, and an incarcerative term of eight years
on Count 4, to be served consecutively to the 20-year sentence.
After imposing that sentence, the district court issued
an opinion in which it explained that, on reflection, it should
have adopted the government's calculation of the base offense level
for Count 4. Thus, in the court's view, Count 4 should have
produced the offense level for the group, and the GSR should have
been immurement for life. Nevertheless, the court left the
- 5 -
sentence intact, observing that it was too late to change the
judgment and that it would have imposed the same sentence in any
event. See Fed. R. Crim. P. 35(a).
Wright appealed his convictions, but neither he nor the
government appealed his sentence. As stated, we affirmed all of
his convictions except for the conviction on Count 1, and we
remanded for resentencing on the remaining counts. Wright, 937
F.3d at 37.
B. Resentencing
At resentencing, whether USSG §§2A1.5 (murder
conspiracy) or 2A6.1 (threatening communications) produced the
base offense level for Count 4 was again in dispute.
The resentencing court concluded that the "law of the
case" doctrine bound it to find that §2A6.1 -- threatening or
harassing communications, hoaxes, and false liens -- produced the
base offense level for Count 4. It reasoned that the court had
reached that conclusion at the first sentencing, and the government
had not appealed. Withal, the court noted that it agreed with the
government's interpretation and that the court's agreement with
that position would "affect [its] judgment in th[e] case about the
section 3553 factors."
The government also raised an issue that had not been
contested at the first sentencing. It contended that Count 4 --
the remaining terrorism count -- should not be grouped with Counts
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2, 3, and 5 -- the obstruction counts. In support, the government
argued that Count 4 met the conditions of USSG §3D1.1(b)(1), which
excludes from grouping "[a]ny count for which the statute (A)
specifies a term of imprisonment to be imposed; and (B) requires
that such term of imprisonment be imposed to run consecutively to
any other term of imprisonment," because 18 U.S.C. § 2332b -- the
statute prohibiting the conduct underlying Count 4 -- requires
that "the term of imprisonment imposed under this section [not]
run concurrently with any other term of imprisonment" and
authorizes a punishment for "any term of years" up to life. 18
U.S.C. §§ 2332b(c)(1)(A) and (F), (c)(2) (emphasis added). Wright
and the probation officer disputed that Count 4 met the conditions
for exclusion from grouping, reasoning that § 2332b(c) does not
"specify a term of imprisonment to be imposed," and that,
therefore, Count 4 should be grouped with the other counts under
a straightforward application of the grouping rules. Wright
further contended that the government had waived any argument
against grouping, because, at the first sentencing, the parties
had not disputed that the counts should be grouped.
The government claimed that no waiver occurred because
it did not need to argue against grouping at the first sentencing
proceeding. According to the government, even grouping all the
counts together would still result in a GSR of life; thus,
declining to group the counts would have put the total offense
- 7 -
level "beyond . . . the sentencing table."1 The court agreed with
the government and decided to forgo grouping.
With this foundation established, the court then
calculated the GSR. It noted that, under the law of the case, the
base offense level for Count 4 was derived from §2A6.1, which
provided for a base offense level of 12. The terrorism enhancement
provided in §3A1.4 established a minimum offense level of 32; thus,
the adjusted offense level was increased to 32. Because the court
declined to group the obstruction counts with Count 4, it
determined that the 2-level enhancement for obstruction of justice
under §3C1.1 should not apply to the offense level for Count 4.
However, it also found that, because there were now two groups
(Count 4 constituting one, and Counts 2, 3, and 5 constituting
another) with the same offense level (Counts 2, 3, and 5 combined
for an offense level of 32), two levels should be added under USSG
§3D1.4(a).2 Thus, the total offense level was 34, and because the
1 The sentencing table incrementally increases the GSR with
the offense level and criminal history category at issue. USSG
Sentencing Table, ch. 5, pt. A. The highest offense level
contained in the sentencing table is 43, and produces a GSR of
life; thus, where the applicable offense level is equal to or
greater than 43, the GSR will be life. Id.
2 When a defendant has been convicted of more than one count,
and those counts constitute more than one group, the court must
first determine the offense level applicable to each group by
applying §3D1.3, and then apply §3D1.4 to determine the combined
offense level applicable to all groups. USSG §3D1.1(a).
Pursuant to §3D1.4, to determine the combined offense level
applicable to the groups, a court must count the group with the
highest offense level as one unit and then increase the offense
- 8 -
criminal history category was VI, the GSR was 262 to 327 months.
USSG ch. 5, pt. A (sentencing table).
The court then discussed the 18 U.S.C. § 3553(a) factors
and sentenced Wright to an above-GSR total sentence of 30 years'
imprisonment (360 months) and lifetime supervised release. The
sentence consisted of 25 years' imprisonment on Count 4 and five
years' imprisonment on the remaining counts, to be served
consecutively with the 25-year sentence for Count 4.
This appeal followed.
II. Discussion
Our review of Wright's sentence is twofold. First, "we
. . . determine whether the sentence imposed is procedurally
reasonable." United States v. Flores-Quiñones, 985 F.3d 128, 133
(1st Cir. 2021) (quotations omitted). If we conclude that it is,
we next determine "whether it is substantively reasonable."
Id.
Generally speaking, a sentence is procedurally reasonable unless
the district court commits a procedural error, such as "failing to
calculate (or improperly calculating) the [GSR], treating the
level of that group depending on the seriousness of the offense
levels of the other groups. The resulting offense level is the
"combined offense level." USSG §3D1.4. As relevant here,
§3D1.4(a) provides that one additional unit is counted for each
group that is equally serious, and that if there are two units,
two levels are added to the offense level. Lastly, USSG §3D1.5
instructs courts to use the "combined offense level" to determine
the "total punishment" under Chapter Five of the USSG. Commentary
to §3D1.5; Commentary to §5G1.2.
- 9 -
[g]uidelines 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 [GSR]." United States v.
Díaz-Rivera, 957 F.3d 20, 25 (1st Cir. 2020) (quoting United States
v. Bermúdez-Meléndez,
827 F.3d 160, 163 (1st Cir. 2016)). And a
sentence is substantively reasonable as long as the "sentencing
court has provided a 'plausible sentencing rationale' and reached
a 'defensible result.'" Flores-Quiñones, 985 F.3d at 133
(quotations omitted).
We review preserved claims of procedural and substantive
unreasonableness under the deferential abuse-of-discretion
standard, reviewing findings of fact for clear error and issues of
law de novo. United States v. Dávila-Bonilla, 968 F.3d 1, 9 (1st
Cir. 2020). We review unpreserved claims of error under the
plain-error standard. United States v. Vélez-Andino,
12 F.4th
105, 112-13 (1st Cir. 2021).
A. Grouping Errors
Wright first argues that the resentencing court's
grouping of his offenses of conviction constituted a procedural
error that affected his sentence. Moreover, he contends that the
government waived any argument to the contrary when it agreed
during the first sentencing proceeding that all four counts should
be grouped together. The government does not defend the court's
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grouping ruling. Nevertheless, it contends that any error was
harmless under the circumstances because the GSR was not affected
by the error.3
Wright does not dispute that the GSR would have been the
same regardless of the alleged error. Specifically, it is
undisputed that, even if all of the counts had been grouped
together, the two-level adjustment under §3D1.4 would not have
applied, but the two-level obstruction enhancement under §3C1.1
would have enhanced the offense level for Count 4. Thus, the total
offense level would have been 34, and the GSR still would have
been 262 to 327 months.
Because the government does not dispute that there was
an error, and that the GSR was the same regardless of that error,
the only issue is whether the error affected the sentence imposed.
Where "the [GSR] would have been the same regardless of whether
the district court's [g]uidelines calculations were correct, we
have generally found any potential error harmless." United States
v. Graham, 976 F.3d 59, 62 (1st Cir. 2020) (collecting cases).
But we must nevertheless be "sure that the error did not affect
the sentence imposed." United States v. Alphas,
785 F.3d 775, 780
3The government also contends that Wright waived any
challenge to the grouping ruling on appeal because he
mischaracterized the nature of that ruling in his opening brief.
For present purposes, it suffices to assume that Wright's challenge
is preserved -- nevertheless, we note that we doubt that he waived
it.
- 11 -
(1st Cir. 2015). "In other words, resentencing is required if the
error either affected or arguably affected the sentence." Id.
Wright contends that the grouping error was not harmless
because, even though the GSR would have been the same, "the court
calculated the total punishment separately for each 'group,' and
then ran those sentences consecutively." The record supports
Wright's assertion that the court made separate calculations. In
explaining the sentence that it imposed, the court stated that it
was treating Count 4 and Counts 2, 3, and 5 as "two crimes" and
that "[o]ne part is the . . . terrorist conspiracy" and the "other
part is the obstruction." And he is correct that the court
determined the sentence for Count 4 first, before determining the
sentences for Counts 2, 3, and 5, and then imposing those sentences
consecutively.
Nevertheless, reading the record as a whole, it is clear
that the court's grouping ruling did not affect the overall
sentence imposed. Instead, the record shows that, independent of
the grouping ruling, the court imposed the sentence in two parts
because (1) it was focused on the fact that Count 4 had to be
imposed consecutively, and thus logically should be considered
separately; and (2) it was responding to the government's repeated
requests throughout the resentencing proceeding that the court
impose a serious sentence for Count 4, with a focus on what a
reasonable sentence for that count would be, separate and apart
- 12 -
from determining a reasonable overall sentence and a reasonable
sentence for the obstruction counts.
The government trained its arguments on ensuring that
the sentence imposed for Count 4 reflected what it viewed as a
sufficiently serious sentence because of another issue that had
arisen during the first sentencing. In that proceeding, the court
had initially stated that the sentence for Count 4 would be 28
years, and that all counts would run concurrently. However, when
the government reminded the court that the sentence for Count 4
had to be imposed consecutively to those of the other counts, the
first sentencing court responded that it would instead "make [Count
4] an 8-year count, so that the total sentence is 28 years," and
the resulting judgment reflected that approach. At the
resentencing proceeding, the government explained that it didn't
"want to have the same issue arise in this sentencing as the last
one" -- that is, it did not want Count 4 to result in a sentence
that was, in the government's view, of insufficient length. Thus,
it requested a specific sentence for Count 4 -- a sentence of at
least 30 years.
Although the sentencing court did not at that point in
the hearing indicate what its sentence for Count 4 would be, it
told the government to "[a]ssume [it] w[ouldn]'t do it quite that
way" -- referring to the first sentencing court's alleged failure
to adequately consider the sentence for Count 4. Additionally, in
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its assessment of the § 3553(a) factors, the court specifically
stated that the terrorist conspiracy count was a "very serious
offense," that Congress ha[d] "annunciate[d] heavy sentences" for
it, and that "the guidelines [for it] are quite strong." Those
statements are best read to refer to the fact that, pursuant to 18
U.S.C. § 2332b, Count 4 carries a maximum sentence of life, and to
the fact that, in the court's view, the correct GSR for Count 4
was in fact life imprisonment (despite the court's acknowledgement
that it was bound by the law of the case to find that it was 262
to 327 months). The court further stated that it had to be
"respectful of those kinds of choices," indicating its agreement
with the government that Count 4 required a serious sentence and
should be considered separately.
The court also stated that it must consider the
obstruction counts and the terrorist counts separately because
that's "where we start in thinking about consecutive [sentences],"
referring to the requirement that the sentence for the terrorism
count be consecutive and that, in the court's view, it therefore
should be considered separately.
Finally, the court stated that, "as [the government]
pointed out," it had to consider first the appropriate sentence
for the terrorism crime and only then the appropriate sentence for
the obstruction crimes "not merely as a matter of properly
constructing the guideline calculation" (emphasis added). Thus,
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it indicated that there was a reason for imposing Wright's sentence
in two parts that was independent of the Sentencing Guidelines:
Wright's conviction on Count 4 independently required a serious
sentence.
In summary, Wright is correct that the court calculated
the punishment for the terrorism count and for the obstruction
counts separately and then imposed those sentences consecutively.
The record, however, makes clear that there was a reason
independent of the grouping ruling that caused the court to do
this. The court performed two separate calculations because, in
its view, Congress required the court to impose a sentence on the
terrorism count consecutively and because the court agreed with
the government's argument that Count 4 deserved a serious sentence.
Accordingly, any grouping error was harmless under the
circumstances.
B. Vindictiveness Claim
Wright next contends both that the resentencing court
failed to adequately explain why its imposition of a more severe
sentence than the one vacated on appeal was not vindictive, and
also that there was no adequate reason for a higher sentence. The
sentence, according to Wright, was thus generally unreasonable for
lack of proper explanation and because it violated his right to
due process.
Generally speaking, under the so-called Pearce rule, a
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presumption of vindictiveness may arise when a judge imposes a
more severe sentence after a new trial, unless "the reasons for
. . . doing so must affirmatively appear [and] . . . . [are] based
upon objective information concerning identifiable conduct on the
part of the defendant occurring after the time of the original
sentencing proceeding." North Carolina v. Pearce, 395 U.S. 711
726 (1969). The rule ensures that defendants do not face higher
sentences simply because they choose to exercise their right to
appeal or to collaterally attack their conviction. See
id. at
725-26.
We have held, though, that "[t]he Pearce presumption
does not arise where 'different sentencers assessed the varying
sentences that [a] defendant received.'" United States v. Clark,
84 F.3d 506, 508 (1st Cir. 1996) (emphasis in original) (quoting
Texas v. McCullough,
475 U.S. 134, 140 (1986)), superseded on other
grounds United States v. Nagell,
911 F.3d 23 (1st Cir. 2018).
Here, there is no indication that the resentencing court imposed
a more severe sentence because Wright appealed. Indeed, the court
expressly acknowledged its obligation when it stated that,
although it had reviewed the first sentencing court's decisions,
it had to make an "independent judgment." Accordingly, we reject
Wright's due-process-based procedural-reasonableness challenges.
C. Claims of Inadequate Explanation
Wright next contends that his sentence must be vacated
- 16 -
because the facts that the court found supported a below-guidelines
sentence -- not the upwardly variant sentence that the court
imposed -- and although the court noted certain facts that could
have supported the upward variance, it never tied them to the
sentence imposed or to the GSR.
As an initial matter, in his brief Wright framed this
argument as one of substantive unreasonableness, but during
argument before us he asked that we consider whether it amounted
to either a substantive or procedural error. Although arguments
raised for the first time at oral argument are normally deemed
waived, see United States v. García-Ortiz, 528 F.3d 74, 84 (1st
Cir. 2008), we will nevertheless consider his argument from both
angles.
The government contends that our review is for plain
error because Wright never made any objection that the court had
not, or had not adequately, explained the upward variance. But,
if construed as a substantive challenge, Wright's argument is
preserved regardless of whether he objected. In Holguin-Hernandez
v. United States, 140 S. Ct. 762 (2020), the Supreme Court
explained that "where a criminal defendant advocates for a sentence
shorter than the one ultimately imposed" -- as Wright did here --
the defendant "has thereby informed the court of the legal error
at issue in an appellate challenge to the substantive
reasonableness of the sentence."
Id. at 766-67. A concurring
- 17 -
opinion in Holguin-Hernandez explained that the majority opinion
should not be read to suggest that "a generalized argument in favor
of less imprisonment will insulate all arguments regarding the
length of a sentence from plain-error review." Id. at 767 (Alito,
J., concurring) (emphasis in original). But we have indicated
that where, as here, a defendant asserts on appeal that his
sentence is substantively unreasonable because the court did not
give an adequate explanation for an upward variance, we will treat
that issue as preserved so long as the defendant had requested in
district court a shorter sentence than the one imposed. See, e.g.,
United States v. García-Mojica,
955 F.3d 187, 192, 194 (1st Cir.
2020). Thus, insofar as his challenge is substantive, our review
is for abuse of discretion.
i. Procedural Reasonableness
To the extent that Wright alleges a procedural error
based on the insufficiency of the court's explanation, our cases
require that a contemporaneous objection be made to preserve the
claim. United States v. Merced-García, 24 F.4th 76, 80-81 (1st
Cir. 2022). Therefore, because no such objection was made, Wright
must show plain error -- that is, "(1) that an error occurred (2)
which was clear or obvious and which not only (3) affected [his]
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings."
Id. at
79-80 (alterations in original) (quotations omitted).
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We begin by reviewing whether the court's explanation (or
lack thereof) constituted a procedural error. A claim of such an
error is based on 18 U.S.C. § 3553(c), which provides that "[t]he
court, at the time of sentencing, shall state in open court the
reasons for its imposition of the particular sentence[.]" To
satisfy that requirement, the court must identify the "main factors
behind its decision." United States v. Vargas-García,
794 F.3d
162, 166 (1st Cir. 2015).
Here, the district court's explanation did not fall short
of that requirement, and it certainly did not clearly or obviously
do so. When it considered the § 3553(a) factors, the court began
by noting "the seriousness of the offense." In doing so, it
hearkened back to its earlier statement in the proceeding that,
although the PSR's view of the GSR for Count 4 was the law of the
case, the court in fact agreed with the government that the GSR
should have been life, and the court's view of that question would
"affect [the court's] judgment . . . about the section 3553
factors." The court further noted that Congress has "annunciate[d]
heavy sentences, [and] the guidelines are quite strong" -- again
referring to its view of the correct GSR and to Count 4's maximum
sentence of life -- and stated that it had to be "respectful of
those kinds of choices."
The court next found that Wright's role in his crimes
was not just "game-playing" or "role-playing," as he had testified
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at trial, and noted that it would "take . . . into consideration"
Wright's deceptive testimony in imposing a sentence. More
specifically, the court found that Wright had "lied [and] . . .
misrepresent[ed] . . . what his [true] role was" and that although
such conduct had not been charged as perjury, the court had to
consider what "that mean[t] in terms of culpability."
Third, the court noted that it viewed the terrorism and
the obstruction charges as "working hand in hand and accelerating
each other" in a way that is "about as significant [a crime] as
society faces in the absence of actual homicide."
Finally, the court discussed general deterrence and
observed that, because of the need for that deterrence, "this is
an area in which a serious sentence is imposed."
The court did not expressly link these reasons to the
upward variance. Nevertheless, "that linkage may fairly be
inferred from a review of the sentencing transcript." United
States v. Davis, 2022 WL 4377174, at *2 (1st Cir. 2022). And the
reasons that the court gave could certainly be considered "as
falling outside the factors explicitly considered by the
Guidelines." García-Mojica, 955 F.3d at 193. At the very least,
Wright has not shown how the court's failure to expressly link the
reasons to the upward variance was an error that was plain.
By extension, Wright also has not demonstrated that the
district court plainly erred when it opted not to impose a sentence
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below the GSR. Wright does point to several instances in which
the court suggested that the GSR was, in its view, too high. The
court observed that Wright appeared to recognize why his crime was
wrong, which it noted "suggests some modification . . . of the
guidelines." The court also acknowledged that Wright was "thirsty
for knowledge [and] opportunities," and therefore the lack of
programming in prisons due to the COVID-19 pandemic "counsel[ed]
against a more severe sentence than in the range of the low end of
the guidelines." But such statements do not necessarily connote
that the court believed that a downward variance was warranted
(and surely do not clearly or obviously suggest that); rather, a
reasonable interpretation of them is that, without such factors,
the court might have imposed a higher sentence than the one it
imposed. Accordingly, under the circumstances, "no clear or
obvious 'lack of explanation' error" under § 3553(c) occurred.
Vargas-García, 794 F.3d at 166.
ii. Substantive Reasonableness
We next turn to whether that same alleged lack of or
insufficient explanation made Wright's sentence substantively
unreasonable. As stated, our review is for abuse of discretion.
And in the context of an upwardly variant sentence, as with any
other sentence, "the distinguishing characteristics of a
substantively reasonable sentence are 'a plausible rationale' and
'a defensible result.'" United States v. Valle-Colón, 21 F.4th
- 21 -
44, 50 (1st Cir. 2021) (quoting United States v. Rivera-Morales,
961 F.3d 1, 21 (1st Cir. 2020)).
Our reasons for concluding that there was no clear or
obvious procedural error also lead us to conclude that there was
no such substantive error under an abuse-of-discretion standard.
See id. (discussing the "overlap" between procedural and
substantive challenges of that nature). Specifically, the
sentencing court discussed three factors that we can infer the
court believed were not adequately accounted for in the GSR and
justified an upward variance, and which together constitute a
plausible rationale: (1) the seriousness of the offense, which the
court viewed as greater than the GSR suggested -- both because of
the Congressionally determined maximum sentence attached to Count
4 and because of the court's view that what it deemed the law of
the case was not correct; (2) that Wright's deceptive testimony at
trial was problematic and made him more culpable; and (3) that the
combination of the obstruction and the terrorism involved in
Wright's case made the crime extremely serious. Furthermore,
although the court acknowledged and discussed certain factors that
it viewed as mitigating, a fair inference from the court's
discussion (though it did not say so explicitly) is that the court
gave such mitigating factors less weight than it gave the
aggravating factors. See United States v. Clogston,
662 F.3d 588,
593 (1st Cir. 2011) ("That the sentencing court chose not to attach
- 22 -
to certain of the mitigating factors the significance that the
appellant thinks they deserved does not make the sentence
unreasonable."); United States v. Montero-Montero, 817 F.3d 35, 38
(1st Cir. 2016) (noting that, in context of procedural
reasonableness, that the explanation of the sentence must be either
"explicit" or a "fair inference from the sentencing record").
Nor can we say that the result was not defensible. The
upward variance was 33 months above the top of the GSR, or an
approximately ten-percent increase over that upper limit. Given
the serious nature of the offenses of conviction and the conduct
involved, the court could have reasonably viewed the sentence as
"sufficient, but not greater than necessary," to achieve the
"legitimate goals of sentencing." Vargas-García, 794 F.3d at 168
(quoting
18 U.S.C. § 3553(a)).4
We also reject Wright's assertion that the court "claim[ed]
4
that [it] was imposing a below-Guideline sentence." The court
stated that the 300-month sentence it was imposing for Count 4 was
"below various of the guidelines that [the court] had talked
about." But, read in context, it is clear that the court was
referring to the GSR that the government had contended attached to
Count 4 due to §2A1.5, a position with which the court stated it
agreed and which was discussed at length during the proceeding.
Moreover, and in any event, any notion that the court did not
realize that it was imposing a sentence above the GSR is refuted
by its written statement of reasons, in which the court checked a
box indicating that the sentence it imposed was "above the
guideline range." See United States v. Martin, 520 F.3d 87, 93
(1st Cir. 2008) (explaining that, in evaluating the reasonableness
of a sentence, we review "the district court's . . . nearcontemporaneous written statement of reasons" among other things).
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III. Conclusion
For the foregoing reasons, we affirm Wright's sentence.
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