United States Court of Appeals 

For the First Circuit 

No. 17-1234 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

ROBERT DAOUST, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE 

[Hon. Jon D. Levy, U.S. District Judge] 

Before 

Howard, Chief Judge, 

Selya and Barron, Circuit Judges. 

 Inga L. Parsons and Law Offices of Inga L. Parsons on brief 

for appellant. 

 Halsey B. Frank, United States Attorney, and Benjamin M. 

Block, Assistant United States Attorney, on brief for appellee. 

May 1, 2018 
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SELYA, Circuit Judge. Defendant-appellant Robert Daoust 

mounts a multi-pronged challenge to the sentence imposed following 

the revocation of his supervised release term. Concluding, as we 

do, that his claims of sentencing error are futile, we affirm the 

sentence. 

I. BACKGROUND 

We briefly rehearse the facts and travel of the case. 

In 2010, the appellant pleaded guilty to possession of heroin with 

intent to distribute. See 21 U.S.C. § 841(a)(1). The district 

court sentenced him to a seven-year term of immurement, to be 

followed by a three-year term of supervised release. The 

appellant's prison sentence was later reduced to seventy months, 

see 18 U.S.C. § 3582(c)(2), and he served that sentence. His 

supervised release commenced on September 29, 2016. 

The appellant moved into a motel room, obtained fulltime employment, and began participating in various treatment 

modalities. Soon thereafter, the appellant relocated to a 

different motel room, sharing his new accommodations with a female 

companion (herself a convicted felon). This new relationship did 

not last long: approximately two months after regaining his 

freedom, the appellant became intoxicated at a party, returned to 

his motel, and wound up in an altercation with his companion. The 

appellant punched the woman in the head, covered her face with a 

pillow, and repeatedly threatened that he was going to kill her. 
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When another motel resident tried to intervene, the appellant 

struck him and pushed him to the ground. 

The police were notified and charged the appellant with 

misdemeanor domestic violence assault. See Me. Rev. Stat. Ann. 

tit. 17-A, § 207-A. Not surprisingly, the United States Probation 

Office moved expeditiously to revoke the appellant's supervised 

release. The probation officer's filing identified four putative 

violations of the appellant's supervised release conditions, 

namely, that he had possessed or consumed alcohol or other 

intoxicants, that he had associated with a convicted felon, that 

he had committed a state crime, and that he had failed to give 

timely notice to the probation office prior to changing residences. 

At a revocation hearing held on March 3, 2017, the 

government dismissed the charge of untimely notification. In 

return, the appellant admitted to the remaining three violations. 

The appellant did not object to anything in the revised revocation 

report, and the district court adopted the report in its entirety. 

The court proceeded to note that the admitted violations 

constituted Grade C violations, see USSG §7B1.1(a)(3); that the 

advisory guideline sentencing range was eight to fourteen months, 

see id. §7B1.4(a); and that the maximum penalty provided by statute 

was two years' imprisonment, see 18 U.S.C. § 3583(e)(3). 

The probation officer recommended a sentence of one year 

and one day. The government suggested that the court either adopt 
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the probation officer's recommendation or impose a top-of-therange sentence (fourteen months). For his part, the appellant 

argued for a sentence in the three-to-six-month range. After 

mulling the relevant guideline provisions and sentencing factors, 

the district court imposed a two-year incarcerative term, to be 

followed by an additional thirty-four months of supervised 

release. This timely appeal ensued. 

II. ANALYSIS 

The appellant advances several claims of sentencing 

error. We address them one by one. 

A. Rule 32(h).

To begin, the appellant argues for the first time on 

appeal that the notification requirement of Federal Rule of 

Criminal Procedure 32(h) obligated the district court to provide 

him advance notice of its intention to impose a sentence above the 

peak of the guideline range.1 This argument is doubly flawed. 

 1 The rule provides that: 

Before the court may depart from the 

applicable sentencing range on a ground not 

identified for departure either in the 

presentence report or in a party's prehearing 

submission, the court must give the parties 

reasonable notice that it is contemplating 

such a departure. The notice must specify any 

ground on which the court is contemplating a 

departure. 

Fed. R. Crim. P. 32(h). 
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Preserved claims of sentencing error ordinarily are 

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

U.S. 38, 41 (2007). But where, as here, an appellant has failed 

to preserve his claim, appellate review is for plain error.2 See 

United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). To 

prevail under plain error review, the appellant must demonstrate 

"(1) that an error occurred (2) which was clear or obvious and 

which not only (3) affected the defendant's substantial rights, 

but also (4) seriously impaired the fairness, integrity, or public 

reputation of judicial proceedings." Id. For two reasons, we 

discern no error (plain or otherwise). 

The short reason is that Rule 32 and its various subparts 

(including Rule 32(h)) simply do not apply to sentences imposed 

for supervised release violations. See United States v. Redcap, 

505 F.3d 1321, 1323 (10th Cir. 2007); United States v. Leonard, 

483 F.3d 635, 638-39 (9th Cir. 2007); see also United States v. 

Smith, 639 F. App'x 348, 352 (6th Cir. 2016) (collecting cases). 

Procedures for supervised release revocation sentences are 

delineated in a separate rule: Federal Rule of Criminal Procedure 

 2 The appellant suggests that the facts of this case warrant 

a more relaxed standard of review. See, e.g., United States v. 

Cortes-Claudio, 312 F.3d 17, 24 (1st Cir. 2002) (noting that, in 

some limited circumstances, a contemporaneous objection may not 

necessarily be required). This suggestion finds no firm footing 

in the circumstances of this case and, in all events, the 

appellant's claim of error lacks merit under any conceivable 

standard of review. 
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32.1. Unlike Rule 32(h), Rule 32.1 contains no advance 

notification requirement in the event that the sentencing court 

elects to impose a sentence above the advisory guideline sentencing 

range. 

There is a slightly longer — but equally conclusive — 

reason why the appellant's Rule 32(h) argument fails. Although 

Rule 32(h) generally requires reasonable notice if the sentencing 

court is contemplating a departure from the applicable guideline 

range on a ground not identified either in the presentence 

investigation report or in the parties' prehearing submissions, 

the supervised release revocation sentence imposed in this case 

was a variant sentence, not a departure. See United States v. 

Santini-Santiago, 846 F.3d 487, 490 (1st Cir. 2017) 

(distinguishing variances from departures). This is a critically 

important distinction, as Rule 32(h) does not apply at all to 

variances. See Irizarry v. United States, 553 U.S. 708, 714 

(2008); United States v. Román-Díaz, 853 F.3d 591, 596 & n.5 (1st 

Cir. 2017); Santini-Santiago, 846 F.3d at 490. 

To be sure, we have indicated, albeit in dictum, that in 

a rare case advance notice may be required when a sentencing court 

proposes "to adopt a variant sentence relying on some ground or 

factor that would unfairly surprise competent and reasonably 

prepared counsel." United States v. Vega-Santiago, 519 F.3d 1, 5 

(1st Cir. 2008) (en banc) (emphasis in original). It is readily 
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evident, though, that this is not such a rare case. Upwardly 

variant sentences are well-known to be within the universe of 

possible sentences and, in this case, the district court's 

sentencing rationale did not depend on any ground or factor that 

could plausibly be characterized as a surprise. 

B. Sentencing Factors. 

When imposing a supervised release revocation sentence, 

a district court is obliged to consider the various factors 

specified in 18 U.S.C. § 3583(e). See United States v. MárquezGarcía, 862 F.3d 143, 145 (1st Cir. 2017). This list of factors 

borrows heavily from the factors enumerated in 18 U.S.C. § 3553(a), 

and includes the nature and circumstances of the offending conduct, 

see id. § 3553(a)(1); the need to deter further criminal 

misbehavior, see id. § 3553(a)(2)(B); the need to protect the 

community from "further crimes of the defendant," id. 

§ 3553(a)(2)(C); and the need to consider the policy statements 

promulgated by the Sentencing Commission, see id. § 3553(a)(5). 

While the sentencing court must consider all of the enumerated 

factors, it is not required to analyze each factor separately or 

at length. See United States v. Turbides-Leonardo, 468 F.3d 34, 

40 (1st Cir. 2006). Rather, the court's explication of its 

sentencing calculus need only "identify the main factors driving 

its determination." United States v. Sepúlveda-Hernández, 817 

F.3d 30, 33 (1st Cir. 2016). 
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Here, the appellant claims that the district court 

failed adequately to assess the relevant sentencing factors. This 

claim, raised for the first time on appeal, is mistaken: the court 

below plainly recognized its responsibility to consider the 

sentencing guidelines and the full range of applicable sentencing 

factors. Indeed, the court stated explicitly that it had given 

consideration to each of the relevant factors. This statement is 

"entitled to significant weight," United States v. SantiagoRivera, 744 F.3d 229, 233 (1st Cir. 2014), and there is nothing in 

the sentencing record that calls the statement into question.3 

What is more, the district court identified the main 

factors that drove its ultimate sentencing determination. It 

discussed the appellant's personal history, his continuing 

struggles to comply with the law, the serious nature of the 

domestic violence offense and the circumstances surrounding it, 

and the obvious need for both deterrence and protection of the 

public. Nor did the court take a one-sided view: it commented 

specifically on the few mitigating factors that were made manifest 

by the record. 

 3 The appellant contends that the district court "did not 

appear to appreciate that [it] was going above the guidelines" 

when it imposed the two-year sentence. This contention blinks 

reality: the transcript of the final revocation hearing makes 

pellucid that the district court considered the guideline 

sentencing range, rejected it, and chose instead to impose a 

statutory maximum sentence. 
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Even so, the appellant argues that the court gave too 

much weight to the seriousness of the domestic violence offense. 

That conduct, however, was properly weighed in the sentencing 

calculus, see 18 U.S.C. §§ 3583(e), 3553(a)(1)(A), and district 

courts are afforded wide discretion to determine how much weight 

to assign to a particular sentencing factor, see United States v. 

Clogston, 662 F.3d 588, 593 (1st Cir. 2011). A district court has 

an obligation to consider the totality of relevant sentencing 

factors, but it has no obligation to assign to those factors the 

weight that the defendant would prefer. See United States v. 

Leahy, 668 F.3d 18, 25 (1st Cir. 2012). 

The short of it is that we see no sign that the district 

court erred — let alone plainly erred — either in its treatment of 

the relevant sentencing factors or in its choice to give heavy 

weight to the gravity of the violations committed by the appellant. 

After all, those violations — especially the domestic violence 

assault — were egregious, and only a brief period of time had 

elapsed between the commencement of the appellant's supervised 

release and the offending conduct. 

C. Substantive Reasonableness. 

The appellant's final claim of error challenges the 

substantive reasonableness of his sentence. Although this claim 

was not raised below, the standard of review is "somewhat blurred." 

United States v. Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir. 2015). 
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To skirt this unsettled question, we assume — favorably to the 

appellant — that our review is for abuse of discretion. See, e.g., 

id. at 228 & n.4. 

A sentence is substantively reasonable as long as it is 

supported by a "plausible sentencing rationale" and achieves a 

"defensible result." United States v. Martin, 520 F.3d 87, 96 

(1st Cir. 2008). Since there can be a wide universe of reasonable 

sentences in any single case, a sentence fails the test of 

substantive reasonableness only if it "falls outside the expansive 

boundaries of that universe." Id. at 92. 

In the case at hand, the district court lucidly 

articulated its sentencing rationale. Specifically, the court 

focused on the appellant's perceived dangerousness: it noted that 

his alcohol use made him "quite dangerous," pointed out that the 

domestic violence offense could have "easily ended with a death," 

and remarked the threats that he repeatedly had voiced. Building 

on this sturdy foundation, the court emphasized the need for 

deterrence and the importance of public safety. Threaded through 

the court's comments was an apparent judgment that the appellant 

should be sentenced to significant prison time for a flagrant 

breach of the court's trust. 

With this backdrop in place, we have scant difficulty in 

concluding that the district court articulated a plausible 

sentencing rationale. The appellant, released from custody on 
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specific conditions, lost little time in committing serial 

violations of those conditions — and the court was certainly 

entitled to take that chronology into account. 

The appellant has another shot in his sling. He asserts 

that the length of his sentence is not defensible. To this end, 

he says that because the maximum sentence in Maine for misdemeanor 

domestic violence assault is 364 days, see Me. Rev. Stat. Ann. 

tit. 17-A, §§ 207-A(1)(A), 1252(2)(D), his supervised release 

revocation sentence should not exceed that maximum. 

The appellant's premise is correct: Maine limits a jail 

sentence for misdemeanor domestic violence assault to 364 days. 

See id. But the conclusion that he draws from this premise does 

not follow: a supervised release violation is an independent 

offense4 and, thus, when conduct comprises both a state crime and 

a violation of a federal supervised release condition, the maximum 

sentence for the former does not control the maximum sentence for 

the latter. Cf. United States v. Work, 409 F.3d 484, 490 (1st 

Cir. 2005) (noting that "the permissible term of incarceration 

authorized for a supervised release violation is not circumscribed 

 4 The appellant argues that the district court punished him 

for the domestic violence offense per se, in violation of USSG Ch. 

7 Pt. A(3)(b). This argument lacks force. The court's comments 

make it pellucid that it was punishing the appellant for the breach 

of trust that his supervised release violations entailed, not for 

the domestic violence offense per se. 
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by the substantive sentence" under the guidelines). This case 

illustrates the point. 

As said, the appellant's original conviction was for 

possession of heroin with intent to distribute — a class D felony. 

See 18 U.S.C. § 3559(a)(4). Congress set the maximum supervised 

release revocation sentence for a defendant (like the appellant) 

whose original offense of conviction was a class D felony at two 

years. See id. § 3583(e)(3). That statutory maximum pertains 

even when the conduct underlying the defendant's supervised 

release violation is itself a misdemeanor. See id. In 

establishing this paradigm, Congress plainly contemplated that 

some defendants might be sentenced to a longer term of imprisonment 

for supervised release violations than for the state offense 

underlying that violation. 

We add that the sentencing outcome — a two-year sentence 

for the appellant's supervised release violations — is easily 

defensible. Although the revocation sentence exceeds the top of 

the advisory guideline range by ten months, we have found more 

dramatic upward variances to result in substantively reasonable 

sentences. See, e.g., United States v. Alejandro-Rosado, 878 F.3d 

435, 440-41 (1st Cir. 2017) (finding two-year sentence 

substantively reasonable despite guideline sentencing range of 

four-to-ten months); Márquez-García, 862 F.3d at 147-48 (same). 

At the end of the day, the guideline ranges for supervised release 
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violations are "merely advisory" United States v. Soto-Soto, 855 

F.3d 445, 451 (1st Cir. 2017), and the two-year sentence imposed 

in this case is roughly proportionate to the appellant's breach of 

trust. So viewed, the sentence falls comfortably within the 

"expansive boundaries" of the universe of reasonable sentences. 

United States v. Matos-de-Jesús, 856 F.3d 174, 180 (1st Cir. 2017) 

(quoting Martin, 520 F.3d at 92). 

No more is exigible. We conclude, without serious 

question, that the appellant's sentence was substantively 

reasonable and, therefore, not an abuse of discretion. 

III. CONCLUSION 

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

the sentence is 

Affirmed.