United States Court of Appeals 

For the First Circuit 

Nos. 16-1251; 16-1252 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

AKYLLE MURCHISON, 

Defendant, Appellant. 

APPEALS FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE 

[Hon. George Z. Singal, U.S. District Judge] 

Before 

Thompson, Stahl, and Barron, 

Circuit Judges. 

Peter J. Cyr and Law Offices of Peter J. Cyr on brief for 

appellant. 

Thomas E. Delahanty II, United States Attorney, and Margaret 

D. McGaughey, Assistant United States Attorney, on brief for 

appellee. 

July 26, 2017 
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THOMPSON, Circuit Judge. 

Background 

Back in 2014, Akylle Murchison was picked up and charged 

in connection with a lengthy investigation into a cocaineproducing and -selling conspiratorial enterprise. Murchison pled 

guilty to a one-count indictment for violating 21 U.S.C. 

§§ 841(a)(1) and 846 (he conspired with others to distribute, and 

possessed with intent to distribute, twenty-eight grams or more of 

mixtures containing cocaine and cocaine base) and to a one-count 

information under 21 U.S.C. § 841(a)(1) (he possessed with intent 

to distribute a substance containing bk-MDEA, or ethylone, usually 

called a "bath salt"). 

At sentencing and in his sentencing memorandum, 

Murchison objected to the Pre-Sentence Investigation Report's 

(PSR) inclusion of paragraphs 10 and 83, which reference 

information (false information, says Murchison) given by a 

cooperating source who claims Murchison also was involved in 

purchasing firearms.1 Murchison asked the court to strike those 

 1 Paragraph 10 states: 

Notably, SOI-4 [(Source of Information)] also alleged 

that Akylle Murchison arranged for third parties 

(usually females) to buy firearms on his behalf at local 

stores in Lewiston. According to SOI-4, the serial 

numbers would be scratched off those weapons, and Akylle 

Murchison then arranged for the guns to be delivered to 

a "gang" in Boston, known as the Norwood Bulls. It's 

noted that SOI-4 did not allege these firearms were 

connected to Akylle Murchison’s drug activity. Instead, 
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paragraphs, or at least to initial the paragraphs and indicate 

that there were insufficient facts to support the information. In 

ruling, the district-court judge explained, "All right, I'm going 

to leave [the paragraphs] in the report. I'm going to indicate 

for the record that it won't make any difference with regard to 

whatever sentence I give, but I think it's proper to be in the 

report." After another effort by Murchison, in which he argued 

that the information contained in paragraphs 10 and 83 would 

negatively impact the Bureau of Prison's (BOP) classification 

determination and the availability of a 500-hour drug treatment 

program, the judge reiterated: "I'm not going to strike it. I 

think I was more than lenient in not using it as part of my 

sentencing determination. It's an accurate statement, and to the 

extent the Bureau of Prisons considers it so be it, though I'm 

advised by probation it probably won't happen, though that doesn't 

 

according to SOI-4, Akylle Murchison told SOI-4 "I have 

to supply the hood with guns, you know how I do." 

And paragraph 83 states: 

To the contrary, there also appears to be a basis for a 

non-guideline sentence above the guideline range. 

Namely, there is evidence that the defendant utilized 

straw purchasers for firearms, which were later sold to 

members of a gang in Boston, MA, known as the Norwood 

Bulls. Because this conduct appears to be unrelated to 

the instant offense, it can’t be accounted for in the 

guideline calculations.
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enter into my judgment on that."2 In due course, Murchison was 

sentenced to concurrent prison terms of 108 months.

On appeal, Murchison presents us with two complaints: 

(1) the court erred when it refused to strike paragraphs 10 and 83 

from the PSR, and therefore the matter should be remanded so the 

PSR can be amended,3 and (2) the sentence imposed is unreasonable. 

We take each in turn. 

Rule 32 and the Bureau of Prisons 

Murchison claims the court's refusal to strike these 

paragraphs was a violation of Fed. R. Crim. P. 32(i)(3)(B). He 

also says the paragraphs' inclusion is prejudicial to the way in 

 2 The court determined that the PSR statement accurately 

reflected what the cooperating source reported, sidestepping the 

issue of the truthfulness of the accusation. 

3 In passing, Murchison observes that, "[w]ithout a hearing 

and the introduction of evidence" regarding the contents of the 

challenged paragraphs, the district court "should have deleted" 

those paragraphs. To the extent that Murchison intended to argue 

that he wants us to remand for an evidentiary hearing, we decline 

to address that angle -- Murchison has not developed this argument 

on appeal. United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 

1990) ("[I]ssues adverted to in a perfunctory manner, 

unaccompanied by some effort at developed argumentation, are 

deemed waived."). But at any rate, while it is true that "[w]hen 

a defendant objects to factual statements contained in such a 

report, 'the sentencing court may not rely on those facts unless 

the government proves them by a preponderance of the evidence,'" 

United States v. Hopkins, 824 F.3d 726, 734–35 (8th Cir.), cert. 

denied, 137 S. Ct. 522 (2016) (quoting United States v. Bowers, 

743 F.3d 1182, 1184 (8th Cir. 2014)), that is not a problem here. 

As will be discussed, the district court did not rely on the 

contested information in sentencing, so any hearing-related 

argument has no pull. 
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which the BOP will classify and house him, and will negatively 

affect the availability of rehabilitation programs. We review a 

district court's compliance with Rule 32 de novo. United States 

v. Acevedo, 824 F.3d 179, 184 (1st Cir. 2016) (quoting United 

States v. González-Vélez, 587 F.3d 494, 508 (1st Cir. 2009)). 

Before we get into these issues, we provide the following 

primer to explain generally how the pieces of this Rule 32-andthe-BOP puzzle come together. 

Rule 32(i)(3)(B) -- the subsection specifically raised 

by Murchison -- instructs that a court "must -- for any disputed 

portion of the presentence report or other controverted matter -- 

rule on the dispute or determine that a ruling is unnecessary 

either because the matter will not affect sentencing, or because 

the court will not consider the matter in sentencing." Fed. R. 

Crim. P. 32(i)(3)(B). And Rule 32(i)(3)(C) suggests a clear 

connection between the PSR and the BOP: it requires a court to 

"append a copy of the court's determinations under this rule to 

any copy of the presentence report made available to the Bureau of 

Prisons." Fed. R. Crim. P. 32(i)(3)(C). So Rule 32(i)(3)(C) tells 

us that the PSR, accompanied by other Rule 32 "determinations," 

gets sent to the BOP. 

For its part, the BOP's Inmate Security and Custody 

Classification Manual (the BOP Manual) explains that, prior to 

classification, the Designation and Sentence Computation Center 
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(DSCC) must receive all sentencing material, including the PSR, 

judgment, statement of reasons (SOR),4 and an "Individual Custody 

and Detention Report"5 from the sentencing court, U.S. Probation 

Office (USPO), and the U.S. Marshals Service (USMS).6 Custody & 

Care: Designations, Fed. Bureau of Prisons, 

https://www.bop.gov/inmates/custody_and_care/designations.jsp 

(last visited July 17, 2017); see also Fed. Bureau of Prisons, 

Program Statement: Inmate Security Designation and Custody 

Classification No. P5100.08, Ch. 3, at 1 (2006), 

https://www.bop.gov/policy/progstat/5100_008.pdf [hereinafter BOP 

Manual]. 

 4 The statement of reasons is a form completed after 

sentencing -- it reports the court's findings and comments as to 

the PSR, mandatory minimum sentence, guideline range for 

sentencing, the sentencing determination, any departures or 

variances from the guidelines, and the determinations of 

restitution. 

5 The Individual Custody and Detention Report is a USMS form 

that reports information such as any aliases and gang affiliations. 

6 The breakdown of events, roles, and responsibilities, 

according to the BOP Manual, is: (1) "[t]he inmate is sentenced"; 

(2) "[t]he Clerk of the Court transmits the Judgment and Commitment 

Order (old law cases) or Judgment in a Criminal Case (new law 

cases) to the USMS;" (3) "[t]he USMS makes a request to the DSCC 

advising that the inmate is now ready for designation to a 

facility;" (4) "[i]f it has not already been provided, DSCC staff 

must contact the necessary officials (USPO or USMS) for the 

following: two copies of the PSR, a copy of the Judgment, to 

include the SOR, and the Individual Custody and Detention Report." 

BOP Manual, Ch.3, at 1. 
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So, together, Rule 32 and the BOP's system work to ensure 

that the BOP classifies and processes sentenced offenders with the 

benefit of all relevant and informative sentencing material. 

Back to Murchison's Rule 32 argument. To be sure, 

Murchison's concerns are not frivolous -- they are valid and 

important contentions based on the interplay of Rule 32 and the 

information that gets sent to the BOP, which in turn is used by 

the BOP to make fundamental decisions about classification, 

housing, and eligibility for rehabilitation and employment 

programs, all of which will, of course, impact Murchison's dayto-day life as an inmate. So getting it right is important. But 

on these facts, we do not see the Rule 32(i)(3)(B) violation 

Murchison complains of. Simply put, the judge complied with Rule 

32(i)(3)(B) when he "rule[d] on the dispute" ("I'm going to leave 

[the paragraphs] in the report" and "I'm not going to strike it"), 

and, after that, he was required to do nothing more. United States 

v. Melendez, 279 F.3d 16, 19 (1st Cir. 2002) (quoting United States 

v. Turner, 898 F.2d 705, 710 (9th Cir. 1990)). Nevertheless, the 

judge also made it plain that he would not rely on the contested 

information in sentencing, and the record bears out that he stuck 

to that plan. On this record, we fail to understand how this is 

anything other than a measured ruling that constitutes compliance 

with Rule 32(i)(3)(B). 
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Murchison's BOP angle also fails. That the BOP may see 

in the PSR certain information Murchison believes is prejudicial 

does not compel the district court to strike it from the PSR. See, 

e.g., Hopkins, 824 F.3d at 735 (rejecting argument that court was 

required to strike contested information in the PSR because the 

BOP would rely on it); United States v. Beatty, 9 F.3d 686, 689 

(8th Cir. 1993) ("[Rule 32] does not require that the objected-to 

material be stricken."). And remember: The BOP does not receive 

only the PSR for its classification determination, but rather it 

receives "all sentencing material," including the PSR, judgment, 

and SOR. BOP Custody & Care: Designations; see also Fed. R. Crim. 

P. 32(i)(3)(C); BOP Manual, Ch. 3, at 1. This is important 

because, in Murchison's case, the SOR indicated for the BOP's 

consideration that "[t]he Court will not consider the reference to 

firearms in paragraphs 10 and 83 when imposing sentence."7 Taken 

together, that means the BOP was equipped with the full complement 

 7 This comment from the district court falls under "Additional 

Comments or Findings" on the SOR. That section's instructions 

echo Rule 32, asking the court to "include comments or factual 

findings concerning any information in the [PSR], 

including information that the [BOP] may rely on when it makes 

inmate classification, designation, or programming decisions; any 

other rulings on disputed portions of the [PSR]; identification of 

those portions of the report in dispute but for which a court 

determination is unnecessary because the matter will not affect 

sentencing or the court will not consider it." (Emphasis added.) 

That the SOR says the BOP "may rely on" certain information 

contained in the SOR tells us, of course, that the SOR is intended 

to be reviewed by the BOP. 
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of sentencing information, so it was aware that, although there is 

information about firearms in the PSR, the district court did not 

consider that information in sentencing. This undercuts 

Murchison's argument about the prejudicial impact of the firearms 

information, which "will follow [him] to the [BOP]," since more 

than just the PSR follows Murchison to the BOP. 

We note too that, in the judgment, the district-court 

judge recommended to the BOP that Murchison be allowed to 

participate in the 500 Hour Comprehensive Drug Treatment Program, 

which Murchison specifically wanted. If the BOP does otherwise, 

as the district-court judge noted, "so be it," for classification 

determinations are the BOP's call, not ours.8

Reasonableness of the Sentence 

Next up: Murchison's similarly unavailing argument that 

the sentence is "greater than necessary and unreasonable given the 

totality of the circumstances." It is unclear whether Murchison 

challenges the sentence on procedural or substantive grounds (he 

takes issue with both the court's assessment of the 18 U.S.C. 

§ 3553(a) factors and the weight given to them), but since either 

 8 Determinations as to classification of prisoners and 

eligibility to participate in certain programs are left to the 

BOP, not the courts. See Melendez, 279 F.3d at 18 (quoting Thye 

v. United States, 109 F.3d 127, 130 (2d Cir. 1997) ("Decisions to 

place a convicted defendant within a particular treatment program 

or a particular facility are decisions within the sole discretion 

of the Bureau of Prisons.")); see also Hopkins, 824 F.3d at 735. 
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route leads to a dead end -- even using the more defendant-friendly 

abuse of discretion standard for each9 -- we quickly dispose of 

each.10

Murchison's sentence challenge rehashes what he argued 

at the hearing: he highlights mitigating factors that, in his 

view, justify a lesser sentence (his young age, no prior 

convictions, past abuse, loss of his mother at a young age, mental 

health issues, and more), and he also argues that he "is a good 

prospect for rehabilitation." 

The district-court judge calculated the applicable 

Guideline range of imprisonment of 151 to 188 months (neither party 

 9 Reviewing a challenged sentence requires a two-step process. 

United States v. King, 741 F.3d 305, 307 (1st Cir. 2014) (citing 

Gall v. United States, 552 U.S. 38, 51 (2007)). First, we resolve 

claims of procedural error before inquiring into whether the 

sentence is substantively reasonable. Id. at 308. We review the 

procedural reasonableness of the sentence for abuse of discretion. 

United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013). 

For a preserved challenge to the substantive reasonableness of a 

sentence, "we proceed under the abuse of discretion rubric, taking 

account of the totality of the circumstances." United States v. 

Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015). Where, as here, 

a defendant does not preserve an objection to the substantive 

reasonableness of their sentence, "[t]he applicable standard of 

review is somewhat blurred" as to whether the ordinary abuse of 

discretion standard or the plain error standard applies. Id. at 

228. But Murchison's challenge fails even under the abuse of 

discretion standard. 

10 This sentencing appeal follows a guilty plea, and we 

therefore look to "the unchallenged portions of the presentence 

investigation report (PSI Report), and the record of the 

disposition hearing" for the relevant facts. United States v. 

Vargas, 560 F.3d 45, 47 (1st Cir. 2009). 
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objected to that calculation), and stated that he had considered 

all of the § 3553(a) factors, which "is entitled to significant 

weight." United States v. Santiago-Rivera, 744 F.3d 229, 233 (1st 

Cir. 2014) (citing United States v. Dávila–González, 595 F.3d 42, 

49 (1st Cir. 2010)). The judge acknowledged the defense's 

mitigation arguments, and thanked those who spoke on Murchison's 

behalf for providing insight into Murchison's character and story 

before ordering the sentence of 108 months, a forty-three-month 

downward variance. The judge told Murchison the sentence was 

imposed in an effort to impress upon Murchison "not only the 

seriousness of his actions but also indicate to him that the Court 

has taken into account some of the ameliorating factors present in 

this case." 

So this comes down to yet another case where the true 

complaint seems to be that "the court did not assign the weight to 

certain factors that the [appellant] thought appropriate," which 

is meritless. Ruiz-Huertas, 792 F.3d at 227; see also United 

States v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011) (explaining 

that "the weighting of [sentencing] factors is largely within the 

court's informed discretion"). The judge correctly looked at 

everything presented, considered all appropriate sentencing 

factors, and, frankly, seemed particularly mindful of the 

"ameliorating factors" in play. In the end and in his substantial 
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discretion, the judge pronounced a procedurally reasonable 

sentence. 

Mindful that "[t]here is rarely, if ever, a single 

correct sentence in any specific case," Santiago-Rivera, 744 F.3d 

at 234, we turn to the substantive reasonableness of the sentence, 

concluding that it easily passes muster. The district-court 

judge's "ultimate responsibility [wa]s to articulate a plausible 

rationale and arrive at a sensible result," United States v. 

Carrasco–De–Jesús, 589 F.3d 22, 30 (1st Cir. 2009), and he did so 

by plausibly reasoning that Murchison's extensive involvement as 

a leader and organizer in this conspiracy, the duration and 

regularity of his involvement, the seriousness of the crime, and 

the quantity of drugs involved warranted the sentence imposed. 

"[T]he district court sufficiently weighed the history and 

characteristics of both the offense and the offender," and the 

judge's plausible rationale and careful consideration of the 

relevant factors places this sentence squarely "within the 

universe of acceptable outcomes." United States v. Anonymous 

Defendant, 629 F.3d 68, 78 (1st Cir. 2010). 

Affirmed.