United States Court of Appeals
For the First Circuit
UNITED STATES OF AMERICA,
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Lynch, Chief Judge,
Merritt* and Howard, Circuit Judges.
Alan Jay Black for appellant.
Lisa M. Asiaf, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
April 1, 2009
Of the Sixth Circuit, sitting by designation.
HOWARD, Circuit Judge. Matthew Marsh ("Marsh") pled
guilty to three counts of distributing and conspiring to distribute
crack cocaine. He was sentenced to a total of eleven years'
imprisonment. The sentence was comprised of a statutory mandatory
minimum of ten years and an additional year resulting from an
upward departure from the applicable Sentencing Guidelines range.
The departure was based on conduct underlying certain state-court
convictions that had been vacated less than two weeks prior to
Marsh's federal sentencing. This appeal is limited to Marsh's
claim that the one-year upward departure was improper, and thus
that his sentence was unreasonable. We affirm, and in so doing, we
reject the dissent's view that the district court impermissibly
considered the conduct underlying the vacated convictions.
As this appeal focuses exclusively on Marsh's sentencing,
we will often refer to, and liberally borrow from, the district
court's published sentencing memorandum. United States v. Marsh,
486 F. Supp. 2d 150
(D. Mass. 2007). In April 2005, a federal
investigation into crack cocaine sales in the Fitchburg,
Massachusetts area led to Marsh's indictment on charges of
conspiracy to distribute cocaine base (Count 1), distribution of
cocaine base, and aiding and abetting distribution (Counts 2 and
See 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
[End Page 2]
In November 2005, the government filed an information
pursuant to 21 U.S.C. § 851, announcing its intention to rely on
Marsh's 1996 federal drug conviction to increase his mandatory
minimum sentence from five years to ten. See 21 U.S.C. § 841
(b)(1)(B). Approximately a year later, Marsh signed a plea
agreement acknowledging both the 1996 conviction and the applicable
ten-year mandatory minimum sentence. The plea document also noted
-- for purposes of Sentencing Guidelines calculations -- the
parties' agreement on the drug weight attributable to Marsh and his
acceptance of responsibility. The government agreed to recommend
a sentence at the low end of the Guideline range determined by the
court, subject to the mandatory minimum sentence. Marsh pled
guilty on October 23, 2006, in accordance with the plea agreement.
In January 2007, the probation office issued a
presentence report ("PSR"). At first blush, the PSR followed the
contours of the plea agreement, and its Guidelines calculation
yielded a sentencing range of 70-87 months' imprisonment, a figure
which was supplanted by the 120-month mandatory minimum. See
U.S.S.G. § 5G1.1(b). But the PSR went further, advising that Marsh
was a career offender, pursuant to U.S.S.G. § 4B1.1, and increasing
the Guideline sentence from the 120 months contemplated by the plea
agreement to a range of 262-327 months. In reaching its
conclusion, the PSR relied upon two separate Massachusetts
[End Page 3]
convictions for resisting arrest in 2000 and 2004 as predicates to
invoke the career offender guideline.2
Although Marsh filed a substantive objection to the PSR,
he also filed motions in state court to vacate the two resisting
arrest convictions, asserting that he was suffering from various
psychological disorders at the time he pled guilty in those cases.
The motions were supported by an affidavit from a forensic
psychologist. The motions were successful, and the state court
convictions were vacated nine days before the rescheduled federal
In the wake of the vacated state court convictions, the
district court identified two specific areas of concern upon which
he invited further briefing: whether Marsh's psychological health
rendered his federal guilty plea in the instant matter
constitutionally deficient; and whether the court could take into
consideration the conduct underlying Marsh's now-vacated
convictions -- as opposed to the convictions themselves -- in
making its sentencing determination. Prior to the hearing, Marsh
As relevant here, a defendant is a career offender if the
current conviction is a felony crime of violence or controlled substance offense, and he has at least two prior felony convictions
that are either a crime of violence or a controlled substance
offense. See U.S.S.G. § 4B1.1(a). Whether the resisting arrest
convictions would have properly qualified as "crimes of violence"
is not before us on appeal.
The district court previously granted Marsh's request to
continue his sentencing hearing while he sought redress in the state court.
[End Page 4]
essentially abandoned any claim that his guilty plea was invalid.
The court acknowledged this during the hearing and explicitly found
that there was no reason to vacate Marsh's plea. Whether Marsh's
mental health invalidated his plea is not before us on appeal.
The court next concluded that it could consider the
conduct underlying the vacated state-court resisting arrest
convictions.4 According to the PSR, Marsh's first resisting arrest
conviction came in October 1999, when he kicked a police officer
who was trying to arrest him for disturbing the peace at a
Leominster, Massachusetts restaurant. His second came in April
2004, when he refused to comply with Fitchburg police officers'
orders to leave a disturbance at a local pub. The court proceeded
to address the impact of these incidents on its sentencing
guidelines calculation. As the court first noted, Application Note
6 to U.S.S.G. § 4A1.2 allows the sentencing court to depart upward
if a defendant's criminal history category does not adequately take
into account the underlying conduct in vacated convictions. In so
doing, the Guidelines envision the court employing the "criminal
history category applicable to defendants whose criminal history or
likelihood to recidivate most resembles the defendant's." See
U.S.S.G. § 4A1.3(a)(4)(A). In this case, however, even a departure
to the highest criminal history category, VI, combined with Marsh's
While Marsh opposed such consideration at sentencing, he has not
briefed it on appeal, and thus we deem the issue waived. NegrÃ³n-
Almeda v. Santiago, 528 F.3d 15
, 25 (1st Cir. 2008).
[End Page 5]
offense level of 23, yielded a sentencing range below the 120-month
mandatory minimum, rendering the court's consideration of any such
The court then considered moving "vertically" along the
offense level axis of criminal history category VI to find an
appropriate guideline range, as suggested by U.S.S.G. §
4A1.3(a)(4)(B), but the court ultimately concluded that Marsh's
case was not sufficiently "extreme" nor his conduct sufficiently
"egregious" to support such a mode of departure. Marsh, 486 F.
Supp. 2d at 157 (citing United States v. Hardy, 99 F.3d 1242
(1st Cir. 1996)).
The court next turned to U.S.S.G. § 5K2.0(a)(1)(A), which
allows for upward departures if the court finds "an aggravating .
. . circumstance of a kind, or to a degree, not adequately taken
into consideration" by the Guidelines. Marsh, 486 F. Supp. 2d at
157. The district court noted that such departures usually involve
the offense of conviction, rather than past criminal conduct, id.
(citing Hardy, 99 F.3d at 1248), but decided nonetheless that the
case was "exceptional" within the meaning of § 5K2.0
because the guidelines do not contemplate the
peculiar constellation of events presented by
this case. Although the guidelines
contemplate that convictions might be vacated,
they do so only in the context of considering
whether a criminal history category adjustment
is appropriate. The Sentencing Commission
does not appear to have considered a situation
such as the present one, where convictions
have been vacated that might otherwise affect
[End Page 6]
the sentencing range under the career offender
guidelines (but not the range based on the
ordinary offense level and the criminal
history category), and where there is reliable
evidence concerning the conduct underlying the
convictions. The Court therefore concludes
that there exists here an aggravating
circumstance of a kind, or to a degree, not
adequately taken into consideration by the
Sentencing Commission in formulating the
guidelines within the meaning of §[End Page 5K2.0(a)(1)(A).]
Id. at 158.
In arriving at its ultimate conclusions, the court first
noted that it had considered a sentence closer to the career
offender guideline, "to avoid rewarding defendant's inconsistent
and arguably manipulative positions regarding his mental health,
and to treat him in substance as a career offender." Id. The
court eschewed this avenue, however, and decided that a more modest
upward departure was appropriate, resulting in a sentence closer to
the ten-year minimum. Id. The court reasoned that the mandatory
minimum sentence did not take into account the conduct underlying
the vacated convictions, which the judge described as "violent and
anti-social." Id. The court also expressed concern that the
minimum sentence would result in "the defendant receiving the exact
same sentence that he would have received had he not engaged in
that behavior." Id.
The court also noted certain mitigating factors,
including the fact that the government -- pursuant to the plea
agreement -- was not seeking a departure, that Marsh did have
[End Page 7]
mental health issues, and that the two vacated convictions were not
deemed serious by Massachusetts authorities, as they were punished
with a small fine and seven-months' probation, respectively. Id.
158-59. Taking all these factors into account, the court settled
on a twelve-month departure, and thus a sentence totaling 132
months. Id. at 159.
Two other pieces of the district court's sentencing
mosaic are relevant to this appeal. First, after announcing the
sentence, the court added the following footnote:
The Court notes that it would impose the same
sentence as a non-guideline sentence under 18
U.S.C. § 3553(a). In particular, the sentence
imposed protects the public from further
crimes by defendant; provides him with
necessary mental health treatment; promotes
respect for the law; provides just punishment
for the offense; and affords adequate
deterrence to criminal conduct.
Id. at 159 n.11.
Finally, the court concluded its memorandum with the
Vacating state court convictions for strategic
purposes, particularly to avoid federal
sentencing consequences, has lately become
commonplace, if not routine. Under the
hydraulic pressures of lengthy prospective
sentences in the federal system, the impulse
by defendants to vacate prior convictions is
entirely understandable. Yet the process is
nonetheless deeply troubling. A felony
conviction is, and ought to be, a profoundly
significant event. Its importance goes well
beyond its immediate consequences, such as
punishment; sentencing decisions in every
jurisdiction in the United States are driven
[End Page 8]
in great measure by the criminal history of
the defendant. Felony convictions should
neither be imposed nor overturned lightly, and
under no circumstances should they be treated
like a Las Vegas marriage, to be annulled when
they become burdensome or inconvenient.
Vacating long-standing convictions for
strategic purposes also serves to erode public
confidence in the criminal justice system. If
the process is perceived to be readily
manipulable, or even dishonest, the damage to
that confidence is likely to be substantial
Id. (citation omitted).
Marsh makes two sentencing arguments on appeal. We
quickly dispose of one. Marsh contends that it was necessary to
prove to a jury beyond a reasonable doubt the predicate drug
conviction that increased his mandatory minimum sentence under 21
U.S.C. § 841(b)(1)(B). We continue, however, to be bound by
Almendarez-Torres v. United States, 523 U.S. 224
(1998), in which
the Court found that such proof was unnecessary to support a
sentence enhancement, id. at 226-27, and we have applied the same
reasoning to mandatory minimum sentences. United States v. Coplin,
463 F.3d 96
, 104-05 (1st Cir. 2006).
We next examine Marsh's ultimate sentence. We review the
sentence imposed by the district court for reasonableness. This
involves an examination of both the procedural aspects of
sentencing and the substance of the sentence. United States v.
Politano, 522 F.3d 69
, 72 (1st Cir. 2008) (citing Gall v. United
[End Page 9]
States, U.S. , , 128 S. Ct. 586
, 597 (2007)). Our first
task is to determine whether the district court made any procedural
errors "'such as failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory, failing
to consider the [18 U.S.C.] § 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.'" Id. (alteration in original) (quoting
Gall, 128 S. Ct. at 597) .
If the district court has committed no such procedural
error, we then review the "substantive reasonableness of the
sentence imposed and review the sentence for abuse of discretion."
Id. (citing United States v. Martin, 520 F.3d 87
Consonant with Gall, we afford the district court wide discretion
in sentencing. "[A]fter the court has calculated the GSR,
'sentencing becomes a judgment call, and a variant sentence may be
constructed based on a complex of factors whose interplay and
precise weight cannot even be precisely described.'" Id. at 73
(quoting Martin, 520 F.3d at 92). Ultimately, "'[T]he lynchpin of
a reasonable sentence is a plausible sentencing rationale and a
defensible overall result.'" Id. (quoting Martin, 520 F.3d at 96).
Here, Marsh challenges only the twelve-month upward
departure from his mandatory minimum sentence. He argues that the
court incorrectly applied U.S.S.G. § 5K2.0. At bottom, Marsh
[End Page 10]
disputes the district court's conclusion that the combination of
his vacated state court convictions and the limitation placed on
§ 4A1.3 by the mandatory minimum "constitutes an aggravating
circumstance not taken into account by the Guidelines." Marsh
argues that, as the district court acknowledged, § 5K2.0 departures
ordinarily address unusual aspects of the offense of conviction,
rather than under-representation of past criminal conduct, which
was the overriding consideration in this case. Marsh, 486 F. Supp.
2d at 157 (citing Hardy, 99 F.3d at 1248).
This Guideline issue is not one we need to resolve. As
previously noted, the district court stated that it would have
imposed the same sentence as a non-Guideline sentence under 18
U.S.C. § 3553(a). Marsh, 486 F. Supp. 2d at 159 n.11. If we find
an alleged Guideline error would not have affected the district
court's sentence, we may affirm. See United States v. Teague, 469 F.3d 205
, 209-10 (1st Cir. 2006) (citing Williams v. United States,
503 U.S. 193
, 203 (1992)). That is precisely the situation with
which we are presented -- the district court stated that it would
have reached the same result in a non-Guideline setting.
While the district court's explicit acknowledgment of §
3553(a) was brief, we do not require the court to "address those
factors, one by one, in some sort of rote incantation when
explicating its sentencing decision." United States v. Dixon, 449 F.3d 194
, 205 (1st Cir. 2006). Moreover, our review of the
[End Page 11]
district court's sentencing decision convinces us that the various
factors listed in the court's footnoted reference to section
3553(a) were suitably addressed at other points in the decision.
For example, the lengthy discussion of Marsh's past criminal
conduct clearly supports the court's conclusion that the sentence
"protects the public from further crimes by defendant." Marsh, 486
F. Supp. 2d at 159 n.11; see 18 U.S.C. § 3553(a)(2)(C).
The dissent contends that the district court, by
considering the conduct underlying Marsh's vacated resisting arrest
convictions, ran afoul of both Shepard v. United States, 544 U.S. 12
(2005) and Cunningham v. California, 549 U.S. 270
reject that contention, as neither case applies to these
circumstances. Cunningham held that California's sentencing regime
violated defendants' Sixth and Fourteenth Amendment right to a jury
trial by allowing a judge to find facts that could lead to a
sentence in excess of a statutory minimum. 549 U.S. at 274. Marsh
was facing a statutory maximum life sentence, 21 U.S.C. §
841(b)(1)(B), and thus Cunningham is not implicated.
In Shepard, the Court limited the range of information
upon which a sentencing judge may rely in determining whether a
defendant's prior convictions were "violent felonies" within the
meaning of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. §
924(e). 544 U.S. at 16. We have never extended Shepard's holding
beyond the realm of the ACCA or the Career Offender Guideline,
[End Page 12]
U.S.S.G. § 4B1.2, and that case is not implicated here, either.
Indeed, in Hardy we explicitly approved a district court's
consideration of charged conduct underlying vacated convictions in
connection with U.S.S.G. § 4A1.3, as the district court did here.
And where, as here, the defendant did not contest the reliability
of the information, the district court was free to credit the
descriptions contained in the PSR. Hardy, 99 F.3d at 1251.
The district court also noted that the sentence would
provide treatment for Marsh's mental health, an issue brought to
the fore by Marsh and which played a significant role in the
sentencing process, 18 U.S.C. § 3553(a)(2)(D). Finally, the court
explicitly stated that the nearly twenty-year total term of
imprisonment and supervised release was "not greater than necessary
to achieve the purposes of sentencing." Marsh, 486 F. Supp. 2d at
159; 18 U.S.C. § 3553(a).
We have previously stated the unremarkable proposition
that "[s]ections 3553(a)(1) and 3553(a)(2)(c) invite the district
court to consider, broadly, the nature and circumstances of the
offense and the history and characteristics of the defendant and
the need for the sentence imposed to protect the public from
further crimes of the defendant." Politano, 522 F.3d at 74
(internal quotations omitted). In our view, the district court did
what the law calls for, it employed a "plausible sentencing
[End Page 13]
rationale" and achieved a "defensible overall result." Martin, 520
F.3d at 96.
The sentence imposed by the district court is affirmed.
[End Page Dissenting Opinion Follows]
[End Page 14]
MERRITT, Circuit Judge, dissenting. The sentence in this
case is about 4 years above the Guidelines sentence and 1 year
above the mandatory, minimum, 10-year sentence. I find the upward
departure unreasonable. The district court seemed strongly
influenced by and imposed the departure after objecting to the
state court's action in setting aside the two previous minor state
convictions "" likening the process to "a Las Vegas marriage to be
annulled when they become burdensome." The district court then
improperly found facts based on the state police investigative
reports leading to the state convictions. This reliance appears to
be directly in violation of both Shepard v. United States, 544 U.S. 13
, 22 (2005) (which imposed a "bar on review of documents like
police reports and complaint applications [which] would often make
ACCA sentencing enhancement hinge on . . . the vagaries of state
prosecutors' charging practices"), and Cunningham v. California,
549 U.S. 270
, 274 (2007) (barring judicial fact finding outside the
jury verdict or guilty plea). I would, therefore, set aside the
[End Page 15]