United States Court of Appeals 

For the First Circuit 

No. 16-1451 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

KEVIN JOSEPH FIELDS, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW HAMPSHIRE 

[Hon. Landya B. McCafferty, U.S. District Judge] 

Before 

Lynch, Selya and Kayatta, 

Circuit Judges. 

 Claudia Leis Bolgen and Bolgen & Bolgen on brief for 

appellant. 

 Emily Gray Rice, United States Attorney, and Seth R. Aframe, 

Assistant United States Attorney, on brief for appellee. 

May 26, 2017 
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SELYA, Circuit Judge. Defendant-appellant Kevin Joseph 

Fields stole more than $30,000 worth of postage stamps by passing 

bad checks at various post offices. This stamp-stealing scheme 

proved ill-conceived and, following his conviction, the appellant 

was sentenced to a 30-month term of immurement. He now appeals 

his upwardly variant sentence. Discerning no error, we affirm. 

I. BACKGROUND 

Because this appeal follows a guilty plea, "we glean the 

relevant facts from the change-of-plea colloquy, the unchallenged 

portions of the presentence investigation report (PSI Report), and 

the record of the disposition hearing." United States v. Vargas, 

560 F.3d 45, 47 (1st Cir. 2009). 

In June of 2014, the United States Postal Inspection 

Service began investigating reports that an individual was using 

bad checks to purchase stamps at a number of post offices in New 

Hampshire and Maine. A copy of one of the checks, written on an 

account at the Kennebunk Savings Bank, displayed the name and 

address of the appellant. The inspectors requested information 

about this account from the bank. It supplied the requested 

information and also disclosed that it had contacted the local 

sheriff's department about the account. That contact was inspired 

when — a few weeks earlier — the appellant made two deposits into 

the account using counterfeit checks (each in an amount in excess 

of $3000). 
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Warming to the chase, postal inspectors located the 

appellant in Dover, New Hampshire. They advised him of his Miranda 

rights, see Miranda v. Arizona, 384 U.S. 436, 478-79 (1966), which 

he waived. The appellant admitted to opening the checking account 

and using checks furnished by the bank to purchase stamps despite 

his knowledge that the account did not contain sufficient funds. 

He estimated that he had purchased nearly $27,000 worth of stamps 

using bad checks, explained that "[m]oney drives me," and related 

that he had taken the stamps to pawn shops and exchanged them 

either for cash or for merchandise. He added that he had created 

fake checks on his computer (though he had not purchased stamps 

with those home-made checks). 

Following a review of post office and bank records, 

inspectors concluded that, during the period from June 9 through 

June 17, 2014, the appellant had obtained more than $30,000 worth 

of stamps by passing bad checks at post offices in New Hampshire, 

Maine, and Massachusetts. In due course, a federal grand jury 

sitting in the District of New Hampshire returned an indictment 

charging the appellant with possessing stolen government property 

(the stamps) with intent to convert that property. See 18 U.S.C. 

§ 641. A summons and, later, an arrest warrant were issued but 

never served. 

We fast-forward to May of 2015, at which time the 

appellant wound up in state custody for an unrelated parole 
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violation. He was brought before a federal magistrate pursuant to 

a writ of habeas corpus ad prosequendum and subsequently entered 

a guilty plea to the charge of possession of stolen government 

property with intent to convert. The district court allowed a 

change of counsel at the appellant's request and, some months 

later, held a sentencing hearing. 

The probation department submitted the PSI Report, which 

recommended a base offense level of six, see USSG §2B1.1(a)(2); a 

four-level enhancement premised on the amount of loss, see id. 

§2B1.1(b)(1)(C); and a two-level enhancement on the basis that the 

offense of conviction involved the possession or use of devicemaking equipment, see id. §2B1.1(b)(11)(A)(i). After subtracting 

two levels for acceptance of responsibility, see id. §3E1.1(a), 

the PSI Report recommended a total offense level of ten. The 

appellant's past convictions — including convictions for identity 

fraud, forgery, larceny, and the fraudulent use of credit cards — 

produced a criminal history score of 30, which the PSI Report 

augmented by two points because the appellant had committed the 

offense of conviction while on parole for unrelated state charges. 

See id. §4A1.1(d). These computations placed the appellant 

squarely in criminal history category VI. 

At sentencing, the district court adopted most of the 

guideline calculations limned in the PSI Report. The appellant 

objected, however, to the two-level enhancement for his alleged 
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possession or use of device-making equipment. Though he had 

manufactured counterfeit checks, he had not employed them in his 

stamp-stealing scheme. The district court sustained this 

objection and reduced the appellant's total offense level 

accordingly. This adjustment in the appellant's offense level, 

coupled with his placement in criminal history category VI, yielded 

a guideline sentencing range of 18 to 24 months (as opposed to the 

24- to 30-month range suggested in the PSI Report). 

The court proceeded to impose an above-the-range 

sentence of 30 months' imprisonment. In pronouncing sentence, the 

court emphasized the appellant's extensive criminal history and 

fretted that the appellant would not be deterred from future 

criminal conduct because earlier prison terms had failed to 

ameliorate his behavior. Thus, a relatively stiff sentence was 

needed to protect the public and to promote general deterrence. 

This timely appeal ensued. 

II. ANALYSIS

As a general matter, we review the imposition of a 

sentence for abuse of discretion. See Gall v. United States, 552 

U.S. 38, 51 (2007); United States v. Martin, 520 F.3d 87, 92 (1st 

Cir. 2008). Within this rubric, though, some specific parameters 

pertain. "[S]entencing claims are addressed under a two-step 

pavane. First, we address those claims that affect the procedural 

integrity of the sentence. Second, we address any residual 
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question as to the substantive reasonableness of the sentence." 

United States v. Rodríguez-Adorno, 852 F.3d 168, 175 (1st Cir. 

2017) (citations omitted). Our review "is characterized by a frank 

recognition of the substantial discretion vested in a sentencing 

court." United States v. Flores-Machicote, 706 F.3d 16, 20 (1st 

Cir. 2013). 

Consistent with our bifurcated process, we first address 

the appellant's assignments of procedural error. Specifically, he 

claims that the sentencing court relied on clearly erroneous facts 

and, moreover, failed adequately to explain its reasons for 

imposing an upwardly variant sentence. 

We start with the appellant's claim that the sentencing 

court relied on clearly erroneous facts. In approaching this 

claim, we pause to recognize that the abuse of discretion standard 

is not monolithic. Within it, we review findings of fact for clear 

error and embedded questions of law de novo.1 See United States 

v. Carrasco-de-Jesús, 589 F.3d 22, 26-27 (1st Cir. 2009). Clear 

error review is respectful and requires that we accept findings of 

fact and inferences drawn therefrom unless, "on the whole of the 

 1 Of course, unpreserved claims of sentencing error are 

normally reviewed for plain error. See United States v. Duarte, 

246 F.3d 56, 60 (1st Cir. 2001). Here, the parties dispute whether 

any or all of the appellant's procedural claims of sentencing error 

were preserved below. We need not resolve this dispute: we assume 

instead, favorably to the appellant, that the ordinary standard of 

review for preserved claims of error applies. Even so, the 

appellant's procedural claims still fail. 
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record, we form a strong, unyielding belief that a mistake has 

been made." United States v. Demers, 842 F.3d 8, 12 (1st Cir. 

2016) (quoting Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152 

(1st Cir. 1990)). 

The appellant's complaint about the court's use of 

clearly erroneous facts is really two separate claims. We take 

these claims one by one, beginning with the appellant's contention 

that the district court clearly erred in refusing to find that the 

appellant's criminal conduct was attributable to his substance 

abuse. After setting the stage, we explain why we reject this 

claim. 

At the disposition hearing, the appellant asked for 

leniency on account of his lengthy struggle with substance abuse. 

In support, his counsel sought to attribute the appellant's stampstealing spree to the fact that he was in the thrall of drugs. 

The lawyer noted that the appellant's most recent arrest involved 

the possession of heroin. Furthermore, in his presentence 

interview, the appellant had explained that "he did whatever he 

had to do to support his habit." And on appeal, counsel called 

our attention to the PSI Report's suggestion that the appellant 

was using heroin daily at the time of the offense of conviction. 

We recognize that drug abuse is at the root of many 

crimes. To some extent, addiction may play a role in virtually 

everything that an addict does or does not do. This does not mean, 
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however, that every crime committed by a person with a drug habit 

can automatically be written off as a by-product of that habit. 

In this instance, the district court was fully aware of 

the appellant's protracted involvement with drugs. It nonetheless 

rejected the appellant's plea and found that "his crimes [did] not 

appear to be related to drug abuse." The court implied instead 

that the appellant was motivated by greed. 

In reaching this conclusion, the court mentioned the 

absence of any evidence that the appellant, when writing the bad 

checks, purchasing the stamps, or swapping the stamps at the pawn 

shop, was either under the influence of any controlled substances 

or in possession of such substances. Stressing that the 

appellant's crime was "premeditated," the court concluded that he 

appeared to "enjoy[] the process of deceiving . . . the bank, the 

United States Post Office, [and] the pawnshop." The court stated 

that, although it would recommend substance abuse treatment given 

the appellant's history, it did not believe that any such treatment 

would help to allay the appellant's larcenous inclinations. 

The circumstances surrounding the offense of conviction 

lend credence to the district court's view. The appellant's 

explanation as to why he had embarked on his stamp-stealing spree 

("[m]oney drives me"), given during his post-Miranda interview, 

was consistent with a finding that greed was the impetus for his 
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actions. The appellant did not claim, for example, that he had 

intended to sell or trade the purloined stamps to obtain drugs.2

At any rate, the standard of review is determinative 

here. The district court had the opportunity to see and hear the 

appellant, and its on-the-spot judgment is entitled to 

considerable weight. See United States v. Matos, 328 F.3d 34, 40 

(1st Cir. 2003). Though a different finding may have been 

supportable in view of the appellant's history of drug abuse, the 

district court was not required to interpret the record in the 

manner that the appellant urged. See Rivera-Rivera v. United 

States, 844 F.3d 367, 373 (1st Cir. 2016). We have said before, 

and today reaffirm, that "where there is more than one plausible 

view of the circumstances, the sentencing court's choice among 

supportable alternatives cannot be clearly erroneous." United 

States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990). We therefore 

uphold the district court's determination that the appellant's 

offensive conduct was not attributable to his drug habit.3

 2 In point of fact, the appellant exchanged at least some of 

the stolen stamps for pawn shop merchandise rather than cash. A 

number of these items were found in his home, including an iPad 

and a laptop — and nothing in the record indicates that he was 

planning to sell or swap these devices for controlled substances. 

3 At the same time, we note that, had the district court 

agreed with the appellant and found that his criminality was driven 

by his addiction, his sentence may well have been the same. How 

much weight to afford such a conclusion would have been subject to 

the court's discretion. See United States v. Bermúdez-Meléndez, 

827 F.3d 160, 165 (1st Cir. 2016). 
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The appellant's other claim about the sentencing court's 

supposed reliance on a clearly erroneous fact fails for a different 

reason. Simply put, there is less to this claim than meets the 

eye. 

The appellant asserts that the court became confused and 

found (incorrectly) that his offensive conduct involved identity 

fraud.4 This assertion has two parts. First, it presumes that 

the appellant did not engage in identity fraud as part of the 

offense of conviction. Second, it presumes that the court 

misconstrued the appellant's crime and thought that it involved 

identity fraud. Only one of these presumptions is true. 

We agree with the appellant that the record is barren of 

any evidence that his stamp-stealing scheme included identity 

fraud. For instance, there is no evidence that he opened the 

checking account using a false identity, or that the checks he 

submitted to the various post offices bore any name other than his 

own, or that he gave a pseudonym to the pawn shops when unloading 

the stamps. 

The appellant's claim runs aground, though, on the 

second part of his hypothesis: the record makes pellucid that the 

 4 Both in the colloquy in the district court and in their 

briefs, the parties refer variously to "identity fraud," "identity 

theft," "credit card fraud," and the like. Whatever the precise 

phrase, the point is the same. So for simplicity's sake, we refer 

throughout (except where direct quotations are involved) to 

"identity fraud." 
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district court made no finding that the offensive conduct involved 

identity fraud. While the court did comment about identity fraud, 

the appellant's plaint yanks the court's comments from their 

contextual moorings. We explain briefly. 

In the critical portion of its remarks at sentencing, 

the court discussed the weight to be given to the appellant's 

criminal record ─ a record that it characterized as "horrendous." 

The court expressed particular concern about the appellant's 

historical record of fraud and theft crimes, including state-court 

convictions for forgery, fraudulent use of credit cards, and 

identity fraud. The court's passing reference to the importance 

of protecting the victims of identity fraud was made in the course 

of concluding that, although the appellant's past crimes were not 

violent, they nonetheless signified a significant threat to the 

public and warranted substantial weight in the sentencing 

calculus.5 This was an entirely appropriate factor for the court 

to consider at sentencing. See 18 U.S.C. § 3553(a)(1); see also 

Flores-Machicote, 706 F.3d at 21. We discern no error, clear or 

otherwise. 

 5 In particular, the court stated that "victims of credit card 

fraud," though not subjected to violence, certainly experience "a 

violation" and face difficulty when they "try to clear their 

record[s]" and "clear their name[s]." 
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The appellant has one more shot in his procedural-error 

sling. He alleges that the district court failed adequately to 

explain its reasons for imposing an upwardly variant sentence. 

It is common ground that a sentencing court must "state 

in open court the reasons for its imposition of the particular 

sentence." 18 U.S.C. § 3553(c). Beyond that, the court is 

obligated to complete "a statement of reasons form." Id. 

§ 3553(c)(2); see 28 U.S.C. § 994(w)(1)(B). Even so, the court's 

failure to complete this form does not require vacation of the 

sentence absent a showing of prejudice. See United States v. 

Vázquez-Martínez, 812 F.3d 18, 25-26 (1st Cir. 2016). We will not 

set aside a sentence on such a ground if, after reviewing "the 

district court's oral explanation, we believe that the district 

court would have imposed the same sentence had it filed a written 

statement of reasons form." Id. at 25. 

We are mindful that the challenged sentence represents 

an upward variance, exceeding the top of the applicable guideline 

range by six months. A sentencing court's obligation to explain 

its reasons for the sentence imposed is heightened in proportion 

to the extent that the sentence varies from the guideline 

sentencing range. See United States v. Montero-Montero, 817 F.3d 

35, 37 (1st Cir. 2016). Larger variances require more cogent (or, 

at least, more detailed) explanations. See id. 
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In the case at hand, the appellant asseverates that the 

district court did not furnish an adequate explanation for his 

above-the-range sentence. The court did file a written statement 

of reasons form, but the appellant argues that the court did not 

sufficiently address that form's component parts. Specifically, 

the appellant points out that the court did not complete section 

VI(D) of the form, which directs that the court "[s]tate the basis 

for a variance." This asseveration is true as far as it goes, but 

it does not take the appellant very far. 

Despite the omission on which the appellant relies, the 

court did complete section VI(C) of the form, entitled "18 U.S.C. 

§ 3553(a) and other reason(s) for a variance." This section 

presents a checklist of the section 3553(a) factors and provides 

blank lines for the court to insert more particularized comments. 

The court checked several boxes listing pertinent statutory 

factors, and it specified (in the space allotted) that the nature 

of the offense — a "[p]lanned, premeditated fraud" — together with 

the appellant's "[e]xtensive" criminal history warranted the 

upwardly variant sentence. Given that the court did supply its 

reasons for the variance, we are not convinced that its failure to 

complete section VI(D) was error. 

Even assuming, for argument's sake, that the failure to 

fill out section VI(D) was error, any such error was harmless. 

See United States v. Fernández-Garay, 788 F.3d 1, 5 (1st Cir. 2015) 
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("[A]n error is deemed harmless if a reviewing court can say with 

fair assurance that the sentencing court 'would have imposed the 

same sentence even without the error.'" (quoting United States v. 

Tavares, 705 F.3d 4, 25 (1st Cir. 2013)). What the court wrote in 

responding to other sections of the form, combined with what it 

said at the disposition hearing, leaves no doubt that the district 

court would have imposed the same sentence had it filed a fully 

completed statement of reasons form. 

The appellant demurs. He suggests that having the 

district court complete the form in full would have made a 

difference in his sentence. In his view, the district court was 

"subconsciously" influenced by the proposed two-level enhancement 

for the possession or use of device-making equipment, see USSG 

§2B1.1(b)(11)(A)(i), even though the court sustained the 

appellant's objection to this proposed enhancement. Had the court 

written out the basis for the variance, the appellant says, it 

"may have noted the eerie similarity between the variant sentence 

handed down and the top of the Guideline Sentencing Range 

[including] the disallowed two-level enhancement." 

This argument, though creative, is woven entirely out of 

tattered threads of speculation and surmise. Nothing in the record 

so much as hints that the court confused the two guideline 

sentencing ranges and thought it was imposing a top-of-the-range 

sentence. Nor does the record indicate that once the court had 
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rejected the proposed enhancement, it nonetheless continued to 

take it into account. 

The appellant makes one last effort to pull a rabbit out 

of a hat. The sentencing court's oral reasoning makes 

transparently clear that the driving force behind the upward 

variance was the combination of the appellant's prolific criminal 

history and the gravity of the offense of conviction. The 

appellant strives to transmogrify the clarity of this explanation 

into a fatal flaw. He posits that the sentencing guidelines 

already accounted for these factors and, thus, the court needed to 

explain why the guidelines insufficiently accounted for them 

before imposing an above-the-range sentence. See United States v. 

Zapete-Garcia, 447 F.3d 57, 60 (1st Cir. 2006) (explaining that 

when a sentencing court relies on a factor already accounted for 

by the sentencing guidelines to impose a variant sentence, the 

court must indicate what makes that factor worthy of extra weight 

in the defendant's case); see also United States v. Del ValleRodríguez, 761 F.3d 171, 176 (1st Cir. 2014). 

The appellant's argument collapses because the court did 

exactly what the case law requires. The court noted that both the 

appellant's past convictions and the offense conduct were nonviolent and stated "that's why the guideline range on this 

. . . is light." It then explained that, notwithstanding their 

non-violent nature, the appellant's crimes were serious and 
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emphasized the hardship that fraud of the type perpetrated by the 

appellant in past cases imposes on its victims. Similarly, the 

court was "very concerned" about protecting the public from the 

appellant's "serial nonstop criminal conduct" and worried that the 

appellant would resume his criminal behavior "the minute he gets 

out." No more detailed explanation was exigible: "a sentencing 

court's obligation to explain a variance requires the court to 

offer a plausible and coherent rationale — but it does not require 

the court to be precise to the point of pedantry." Del ValleRodríguez, 761 F.3d at 177. 

This brings us to the appellant's challenge to the 

substantive reasonableness of his sentence. The government 

concedes that the appellant preserved this objection below and, 

thus, our review is for abuse of discretion. See United States v. 

Medina-Villegas, 700 F.3d 580, 583 (1st Cir. 2012). 

"In appraising the substantive reasonableness of a 

sentence, we first ask whether the district court has offered a 

plausible rationale for the sentence and then ask whether the 

sentence embodies a defensible result." United States v. DíazArroyo, 797 F.3d 125, 129 (1st Cir.), cert. denied, 136 S. Ct. 272 

(2015). We must affirm the sentence if it is "within the universe 

of acceptable outcomes." United States v. Vargas-Dávila, 649 F.3d 

129, 132 (1st Cir. 2011). This remains true even if reasonable 
- 17 - 

jurists could disagree on the length of the ideal sentence. See 

id. 

This standard is "highly deferential" to the district 

court's judgment, even when that court has imposed a variant 

sentence. United States v. Matos-de-Jesús, ___ F.3d ___, ___ (1st 

Cir. 2017) [No. 16-1695, slip op. at 10]. Here, moreover, the 

court below provided a surfeit of reasons in support of the 

sentence imposed. 

As we already have discussed, the appellant came before 

the court with a lengthy criminal history — one that convinced the 

court that the appellant presented a very high risk of recidivism. 

In addition, the court was troubled by the fact that the 

appellant's criminal conduct seemed to be increasing in severity, 

as his current offense was "a planned, premeditated scheme" of 

"deceit and fraud" that "lasted over many weeks" as opposed to a 

crime of opportunity. This escalation reflected a change of course 

(in the wrong direction) from the appellant's earlier convictions 

for, say, stealing wallets. 

To be sure, the court recognized that there were two 

sides to the story. For example, it found the appellant's personal 

circumstances mitigating. He had been raised by a supportive 

foster family from the age of four, but his upbringing was marred 

by behavioral and mental health issues. The court considered the 

appellant's psychological infirmities — anxiety, depression, post-
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traumatic stress disorder, and polysubstance dependence — to weigh 

in mitigation. The court told the appellant that it had "taken 

into consideration everything I've heard" and "come down from where 

I really thought you should be based on my reading of your criminal 

record." 

The sentencing court's comments, read as a whole, paint 

a clear picture of the court's thought process. We consider its 

carefully balanced rationale to be thoroughly plausible. 

So, too, we take no issue with the resulting sentence. 

The duration of the sentence is readily defensible: the appellant's 

criminal history is substantial, the offense of conviction is 

serious, and the appellant's past encounters with the legal system 

have not altered his behavior. Seen in this light, the 30-month 

sentence falls well within the universe of reasonable sentences. 

See Vargas-Dávila, 649 F.3d at 132. Accordingly, the appellant's 

claim of substantive unreasonableness fails. 

III. CONCLUSION

We need go no further. For the reasons elucidated above, 

the sentence is 

Affirmed.