United States Court of Appeals

For the First Circuit

No. 21-1913

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERTO REYES-CORREA, a/k/a Robertito,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Gelpí, Thompson, and Montecalvo

Circuit Judges.

Samuel P. Carrion, Assistant Federal Public Defender, with 

whom Eric Alexander Vos, Federal Public Defender, Franco L. 

Pérez-Redondo, Assistant Federal Public Defender, Supervisor, 

Appeals Division, and Kevin E. Lerman, Research & Writing Attorney,

were on brief, for appellant.

David C. Bornstein, Assistant United States Attorney, with 

whom W. Stephen Muldrow, United States Attorney, and Mariana E. 

Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate 

Division, were on brief, for appellee.

August 31, 2023
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MONTECALVO, Circuit Judge. In this appeal, Roberto 

Reyes-Correa ("Reyes") challenges a statutory maximum 

thirty-six-month sentence that the district court imposed 

following a revocation of supervised release. Reyes argues that 

the district court, in arriving at the sentence, improperly relied 

on ex parte communications with a probation officer, which Reyes 

claims constitutes reversible error. Reyes also contends that the 

district court's upwardly variant sentence was procedurally and 

substantively unreasonable. Because we agree that the district 

court's failure to adequately justify the sentence was procedural 

error, we vacate the sentence and remand to the district court for 

resentencing.

I. Background

To begin, we recount the facts leading up to the 

revocation sentence at issue here. In 2014, Reyes pled guilty to 

conspiring to possess cocaine with intent to distribute near a 

protected location.1 Reyes had been charged with being a 

"facilitator" and a lookout for a drug trafficking organization, 

which entailed acting as a messenger and an intermediary "when 

clients did not want to go into the housing project." At the time 

of his guilty plea, Reyes was a first-time offender with no prior 

arrests or convictions. Following Reyes's plea, the court 

1 Reyes was convicted pursuant to 21 U.S.C. §§ 841(a)(1),

(b)(1)(C), 846, and 860.
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sentenced him to thirty-seven months' imprisonment followed by a 

six-year supervised-release term. Shortly thereafter, Reyes filed 

an assented-to motion to reduce his sentence. The district court 

granted the motion, and Reyes's sentence was reduced to thirty 

months, with no change to the supervised release term. 

A. First Supervised Release Term

In July 2016, Reyes was released from prison and entered 

supervised release. Before his arrest, Reyes had struggled with 

a substance use disorder, informing the Probation Office 

("Probation") that "he ha[d] a history of Percocet use, 

approximately four pills a day" and "that he used cocaine daily, 

spending about $100 a day."2 Upon release, as required by the 

conditions of his probation, Reyes began attending an outpatient 

substance abuse treatment program. In December 2017, Reyes's 

probation officer notified the district court that Reyes had tested 

positive for marijuana four times over the previous eight months. 

The probation officer requested that no action be taken because

Reyes had been referred to an inpatient residential substance abuse 

treatment program. In February 2018, however, Reyes tested 

2 Percocet is a brand name for Oxycodone, which is a 

prescription opioid. Commonly Used Drugs Charts, National 

Institute on Drug Abuse, https://nida.nih.gov/researchtopics/commonly-used-drugs-charts#prescription-opioids (last 

visited Aug. 30, 2023). 
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positive for buprenorphine.3 Shortly after, Reyes left the 

program, and the court issued a warrant for his arrest. When Reyes 

was arrested and brought before the district court, he admitted to 

violating conditions of his supervised release by consuming drugs 

and abandoning his treatment without authorization. The court 

revoked his term of supervision and sentenced him to nine months 

in prison followed by five years of supervised release. 

B. Second Supervised Release Term

In March 2019, Reyes completed his reimprisonment term 

and began his second term of supervised release, now with a 

different probation officer. Three months into his term of 

supervision, Reyes's probation officer claimed Reyes had violated 

the conditions of release and requested that a warrant issue to 

arrest Reyes. The probation officer alleged that Reyes had failed 

to show up for two scheduled urine testing appointments and three 

drug treatment program sessions. He also stated that Reyes had 

been "prescribed psychotropic medications to stabilize [his] 

mental health disorders" and though instructed to pick up the 

medication, Reyes had failed to provide evidence that he had done 

3 Buprenorphine is a "medication to treat opioid use 

disorder." Buprenorphine, Substance Abuse and Mental Health 

Services Administration, https://www.samhsa.gov/medicationssubstance-use-disorders/medications-counseling-relatedconditions/buprenorphine (last visited Aug. 30, 2023). Due to 

"buprenorphine's opioid effects, it can be misused, particularly 

by people who do not have an opioid dependency." Id. 
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so. The probation officer cited this failure as another violation 

of Reyes's supervised release conditions. The district court then 

issued a warrant for Reyes's arrest.

When Reyes was arrested and brought before the court, he 

admitted to the alleged violations. The court once again revoked 

his supervised release and sentenced him to one year in prison 

followed by four years of supervised release. In addition to the 

standard conditions, the court added that Reyes must "reside at 

the [r]esidential [r]eentry [c]enter" for the first six months of 

his supervised release. 

C. Third Supervised Release Term

In July 2020, Reyes was released for his third term of 

supervised release -- the term at issue in this appeal. Due to 

the COVID-19 pandemic, the residential reentry center where Reyes 

resided had to "lockdown every participant," which meant that 

Reyes's access to "substance abuse and mental health treatment 

[was] very limited." In an informative motion to the court, the 

probation officer explained that Reyes had a "substance abuse 

history" and that one year prior, Reyes had undergone a psychiatric 

evaluation that diagnosed him with "Bipolar disorder, Type 1, mixed 

episodes." As a result of the limited treatment at the residential 

reentry center, the probation officer stated that Reyes had "been 

struggling with his substance abuse problem and [e]specially with 

his mental health condition." So, in November 2020, the court 
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suspended the residential reentry center condition, allowed Reyes 

to move into his mother's home, and referred Reyes to outpatient 

treatment for his "dual disorder."

Over the next seven months, the probation officer filed 

two informative motions detailing Reyes's progress. Reyes had 

continued with treatment but also "demonstrated [a] hostile, 

defiant and disrespectful attitude towards treatment personnel 

while [being] resistant to treatment regulations." But he would, 

at points, also apologize and "recognize[] his attitude problem, 

explosive behavior and mental health condition while admitting his 

need of treatment." As the COVID-19 pandemic raged on, Reyes's 

treatment reports were delayed, and Reyes's progress appeared to 

slow. 

In May 2021, Reyes informed his probation officer that 

he had been pulled over several days prior for speeding and driving 

without a license. The probation officer told Reyes that he had

violated a release condition by failing to notify the probation 

officer within three days of any contact with a law enforcement 

officer. Reyes also began missing treatment appointments, and in 

June 2021, Reyes's mother contacted the probation officer to report 

that Reyes had been hospitalized for four days for expressing 

suicidal ideations. 

Given the above, the probation officer asked the court 

to take no action with regard to the earlier alleged violation in 
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order to give Probation and the treatment center the time to 

"emotionally stabilize [Reyes] and continue with the 

implementation of the dual treatment." 

Two weeks later, however, on July 6, 2021, the probation 

officer requested that the court issue an arrest warrant for Reyes. 

First, the probation officer explained that a confidential source 

informed Probation that Reyes had been "acting erratically and 

under the effects of what appear[ed] to be synthetic cannabinoids." 

The officer also received "videos and a picture depicting [Reyes] 

under the strong effect of a controlled substance." Second, the

treatment center had informed the probation officer that Reyes had 

not been "ingesting his medication properly and [that] last week 

he did not pick up his prescribed medication." On July 23, 2021, 

Reyes was arrested. 

D. The Revocation Proceeding at Issue in This Appeal

On August 6, 2021, following his arrest, Reyes appeared 

before a magistrate judge and waived the preliminary hearing. On 

October 18, 2021, the court held Reyes's revocation hearing. Reyes 

did not contest any of the allegations in Probation's motion. He 

instead explained his struggles with bipolar disorder and severe 

depression. He stated that his "defiant" behavior was not due to 

his substance use disorder but instead was linked to his mental 

health conditions and that "the medication [was] what [was] 

crucial." Taking that into account, Reyes requested a sentence of 
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twelve months' imprisonment with no supervised release to follow. 

The government also recommended a twelve-month sentence. The 

government took no position on the supervised release term and 

deferred to the court's judgment. 

The court revoked Reyes's supervised release term based 

on Reyes's use of illegal substances, his failure to notify 

Probation regarding his contact with law enforcement, and his 

failure to follow the instructions of the outpatient treatment 

program. The court explained that because the violations were 

Grade C, the applicable guidelines sentencing range was three to 

nine months' imprisonment.4 The court then sentenced Reyes to 

thirty-six months' imprisonment, the statutory maximum for Reyes's

violation. See 18 U.S.C. § 3583(e)(3). Upon doing so, the court 

recounted the facts of Reyes's case and noted that it had "viewed 

the video" of Reyes under the effect of synthetic cannabinoids. 

Reyes's defense counsel specifically objected to (1) the 

probation officer's ex parte submission of videos as "a matter of 

procedure" and (2) the excessive length of the sentence as 

substantively unreasonable. While objecting to the sentence 

length, Reyes's counsel also pointed to the fact that Reyes's 

4 Supervised release violations are categorized into three 

grades. U.S.S.G. § 7B1.1(a). Grade C is the least severe and 

covers conduct that constitutes "(A) a federal, state, or local 

offense punishable by a term of imprisonment of one year or less; 

or (B) a violation of any other condition of supervision." Id.

§ 7B1.1(a)(3).
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violations were "Type C violations" and not "equal to someone that 

has . . . committed a crime." Reyes's counsel concluded by 

highlighting Reyes's contributing mental health issues, noting 

that Reyes was making "progress," and arguing that it was 

"excess[ive] to have a 36-month [] sentence" for Reyes. The court 

denied the objections. 

Following sentencing, Reyes spoke with the probation 

officer and learned that the probation officer had recommended a 

nine-month sentence and not a thirty-six-month sentence. When 

announcing Reyes's sentence, the court mistakenly stated that it 

"agree[d] with the probation officer" on the sentence length. 

After Reyes alerted the court of this error, the court struck the 

phrase "[t]he [c]ourt agrees with the probation officer" from the 

hearing transcript. 

Reyes then brought this appeal. 

II. Discussion

Reyes first argues that the district court violated his 

due process rights in relying on ex parte communications at his 

revocation hearing. Second, Reyes argues that his 

thirty-six-month sentence was both procedurally and substantively 

unreasonable. "We review preserved challenges for abuse of 

discretion." United States v. Cruz-Ramos, 987 F.3d 27, 44 (1st 

Cir. 2021).

We take each argument in turn. 
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A. The District Court's Ex Parte Communications with the 

Probation Officer

Reyes contends that, at the revocation hearing, when the 

district court stated that it had received and viewed videos from 

the probation officer, it demonstrated that it had engaged in 

improper ex parte communications with the probation officer. Reyes 

also points to a post-hearing order where the district court 

revealed that the probation officer had prepared "wording" for the 

court ahead of the revocation hearing. As a result, Reyes argues 

that he had no opportunity to meaningfully respond to the videos 

or the "wording" because he had no notice that the court would 

rely on them. In Reyes's view, the ex parte communications 

violated his due process rights, and so, at minimum, he should 

have his sentence remanded for reconsideration. Because Reyes 

objected to the ex parte communications at his revocation hearing, 

we review this claim for abuse of discretion. See id.

A sentencing court may "conduct an inquiry broad in 

scope, largely unlimited either as to the kind of information [it] 

may consider, or the source from which it may come." Pepper v. 

United States, 562 U.S. 476, 489 (2011) (quoting United States v. 

Tucker, 404 U.S. 443, 446 (1972)). Nonetheless, this inquiry does 

have limits and "is bounded by both Federal Rule of Criminal 

Procedure 32 and the demands of due process." United States v. 

Bramley, 847 F.3d 1, 5 (1st Cir. 2017). Federal Rule of Criminal 
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Procedure 32.1 sets out requirements and dictates that, at a 

revocation hearing, a defendant is entitled to: 

(A) written notice of the alleged violation; 

(B) disclosure of the evidence against the 

person; (C) an opportunity to appear, present 

evidence, and question any adverse witness 

unless the court determines that the interest 

of justice does not require the witness to 

appear; (D) notice of the person's right to 

retain counsel or to request that counsel be 

appointed if the person cannot obtain counsel; 

and (E) an opportunity to make a statement and 

present any information in mitigation.

Fed. R. Crim. P. 32.1(b)(2). And we have held that Rule 32.1 and 

"the Due Process Clause of the United States Constitution require 

that a defendant be apprised of the information to be relied on in 

sentencing and an opportunity to challenge and rebut such 

information." United States v. Berzon, 941 F.2d 8, 16 (1st Cir. 

1991).

So, as the sentencing court prepares for the revocation 

and sentencing hearing, "[e]x parte communication between the 

probation officer and the court is usually permissible where the 

court is merely seeking advice or analysis, . . . and the probation 

officer and the court may consult privately about certain issues 

incident to criminal sentencing." United States v. Marrero-Pérez, 

914 F.3d 20, 25 (1st Cir. 2019) (internal citations omitted). But 

if "the probation officer reveals new facts relevant to the 

sentencing calculus, those facts cannot be relied upon by the 

sentencing court unless and until they are disclosed to the parties 
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and subjected to whatever adversarial testing may be appropriate." 

Bramley, 847 F.3d at 7. As a result, "[a] district court's use of 

new information (meaning information not already found in the 

district court's record) that is significant (meaning 'materially 

relied on' by the district court in determining a sentence) can be 

reversible error." United States v. Ramos-Carreras, 59 F.4th 1, 

5 (1st Cir. 2023) (quoting United States v. Rivera-Rodríguez, 489 

F.3d 48, 54 (1st Cir. 2007)).

1. The District Court's Receipt of Videos

Reyes first contends that the district court improperly 

received videos of him using synthetic cannabinoids. Because 

defense counsel was not included on any communication sending the 

videos to the court, Reyes's defense counsel concluded that the 

videos were likely sent through "ex parte communications between 

the probation officer and the [c]ourt." 

There is no doubt that defense counsel is correct. The 

videos do not qualify as permissible ex parte communications

seeking "advice or analysis," so if the videos were not disclosed 

to Reyes, the court should not have received them ex parte. See

Marrero-Pérez, 914 F.3d at 25. The operative question here then 

is whether the videos were new information. 

They were not. To begin, Reyes did not contest any of 

the allegations of the arrest warrant motion, which included the 

allegations that he had been using synthetic cannabinoids and that 
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he had been captured on video doing so. Indeed, the videos were 

one of the reasons that the probation officer requested the arrest 

warrant. Furthermore, the government not only mentioned the videos 

at the preliminary hearing but also stated that they had provided 

Reyes with the videos. As a result, Reyes's argument that he was 

unprepared for the videos to play a role in his ultimate sentencing 

is unpersuasive. 

Reyes accurately points out, however, that the 

preliminary hearing was before a magistrate judge and a transcript 

of the preliminary hearing had not been filed at the time of the 

final revocation hearing. As such, anything said at the 

preliminary hearing should not be considered part of the record. 

United States v. Colón-Maldonado, 953 F.3d 1, 13 n.10 (1st Cir. 

2020) (declining to consider testimony from the preliminary 

hearing where "no transcript of that testimony was filed before 

(or at) the final revocation hearing, and the district judge gave 

no indication he'd listened to an audio recording or reviewed some 

other record of the testimony"). But we can still use the 

preliminary hearing transcript to confirm that Reyes had notice 

and access to the videos. Even if we credit Reyes's point, it is 

difficult to characterize the videos as "new information" or 

extra-record evidence, especially given the probation officer's 

explicit mention of the videos in the arrest warrant motion. As 
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a result, the district court's ex parte receipt of the videos was 

not reversible error or an abuse of discretion.5 

2. The Probation Officer's "Wording"

Reyes next argues that the district court erred by 

adopting the probation officer's "wording" during Reyes's 

revocation hearing. To confirm that the probation officer had 

recommended a nine-month sentence, the court had requested the 

probation officer's "wording" that the officer provided to the 

court before the hearing. In Reyes's view, this reveal meant that 

the probation officer "wr[o]te out the court's wording to pronounce 

punishment for [the] violations." In other words, Reyes argues 

that, through this "wording," the probation officer essentially 

instructed the court how to rule. 

As we stated above, a judge may have ex parte 

communications with a probation officer "where the court is merely 

seeking advice or analysis." Marrero-Pérez, 914 F.3d at 25; see 

also Bramley, 847 F.3d at 6 (noting that a court's "communications 

5 Reyes also argues that the court materially relied on the 

videos and that the videos "apparently had a major impact on the 

court," which was improper. But the necessary inquiry is whether 

the information at issue was both new and materially relied upon. 

See Ramos-Carreras, 59 F.4th at 5; see also United States v. 

Millán-Isaac, 749 F.3d 57, 70 (1st Cir. 2014) (evaluating "the 

record closely to determine whether the court considered new 

information at sentencing" before considering "whether [the court] 

materially relied on that information in crafting [defendant's] 

sentence"). Because we establish that Reyes had notice of the 

videos, the information was not new, and we need not address this 

argument.
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with [a] probation officer are fundamentally different from its 

communications with third parties" because the probation officer 

"is simply an extension of the court itself"). And as even Reyes 

appears to concede, the "wording" contained the probation 

officer's recommendations. There is nothing in the record to 

indicate that there was anything beyond advice and analysis in the

non-binding recommendation provided to the district court. 

Assuming without deciding, however, that there was 

something more than advice and analysis in the "wording," any error 

was harmless. See United States v. Tavares, 705 F.3d 4, 26 (1st 

Cir. 2013) (confirming the "validity of harmless-error analysis in 

procedural error cases" (citing United States v. Booker, 543 U.S. 

220 (2005))). An error is harmless if "the error did not affect 

the district court's selection of the sentence imposed." Williams

v. United States, 503 U.S. 193, 203 (1992). 

The court confirmed that the probation officer 

recommended a nine-month sentence in their "wording." The court, 

presumably having read the recommendation before sentencing, 

nonetheless sentenced Reyes to thirty-six months' imprisonment. 

Whatever may have been revealed in the recommendation, it was 

employed to support a nine-month sentence -- a sentence roundly 

rejected by the district court. Even when confronted with the 

chance to take another look at the probation officer's 

recommendation, the court adhered to its sentence and instead chose 
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to amend the transcript. Given the stark difference between the 

probation officer's recommendation and the court's ultimate 

sentence, it is unlikely there was anything in the recommendation 

that influenced the sentence. Thus, to the extent there was an 

error, it did not affect the court's sentence.

B. Procedural Reasonableness of the Sentence

Reyes next challenges the procedural reasonableness of 

his sentence. He contends that the district court erred by failing 

to adequately explain its 400% upwardly variant sentence. See

United States v. Del Valle-Rodríguez, 761 F.3d 171, 176 (1st Cir. 

2014) (explaining that "[t]he procedural dimension includes errors 

such as . . . neglecting to explain the rationale for a variant 

sentence adequately"). As an initial matter, we must resolve the 

standard of review. 

For a defendant "[t]o preserve a claim of procedural 

sentencing error for appellate review, [their] objection need not 

be framed with exquisite precision." United States v. 

Rivera-Berríos, 968 F.3d 130, 134 (1st Cir. 2020). It must, 

however, "be sufficiently specific to call the district court's

attention to the asserted error." United States v. Soto-Soto, 855 

F.3d 445, 448 n.1 (1st Cir. 2017). 

Here, Reyes's objections were sufficiently specific to 

call the district court's attention to a perceived failure to 

explain the sentence length. The government maintains that Reyes's 
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counsel failed to raise an objection that preserved Reyes's claim 

on appeal regarding inadequate explanation. We disagree. In 

addition to objecting to the court's consideration of the videos 

as "a matter of procedure," counsel also objected to the court's 

perceived failure to consider the fact that Reyes's violations 

were Grade C -- and thus not "equal to someone that has . . . 

committed a crime." And counsel ended the hearing by objecting to 

the court's failure to consider Reyes's contributing mental health 

issues and his progress in treatment. We find that "[s]ubsumed 

within those objections is the clearly implicit charge that the 

district court's explanation rested on improper considerations."

United States v. Serrano-Berríos, 38 F.4th 246, 250 n.1 (1st Cir. 

2022). Thus, we will "review the district court's justification 

for varying upward under the familiar abuse-of-discretion 

standard." Id. Having determined the standard of review, we now 

set out what a court must do to adequately explain a sentence. 

During sentencing, a court must "state in open court the 

reasons for its imposition of the particular sentence." 18 U.S.C. 

§ 3553(c); see also Gall v. United States, 552 U.S. 38, 46 (2007). 

When a court, as here, imposes a sentence above the guidelines 

sentencing range, "it must justify the upward variance." Del 

Valle-Rodríguez, 761 F.3d at 176. To successfully justify a

variance, the court needs to "articulate[] why it believe[s] that 

the [defendant's] case differ[s] from the norm." Id. at 177. And 
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"the greater a deviation from the [guidelines sentencing range], 

the more compelling the sentencing court's justification must be." 

Id.

Here, the court failed to justify its sentence. The 

court handed down a sentence that exceeded the top of the 

applicable guidelines range by a multiple of four, but it did not 

state its reasons for doing so. The stated rationale was:

To reflect the seriousness of the offense, 

promote respect for the law, provide just 

punishment for the offense, afford adequate 

deterrence, and to protect the public from 

additional crimes by . . . Reyes, the [c]ourt 

concludes that a sentence outside the 

guideline range is a sentence sufficient but 

not greater than necessary to comply with the 

purposes set forth in Title 18 United States 

Code, Section 3553(a).

In so stating, the judge offered the same boilerplate language 

that we have ruled inadequate in at least three separate sentencing 

cases. See Serrano-Berríos, 38 F.4th at 250 (finding revocation 

sentencing rationale inadequate where the same language was used); 

United States v. Flores-Nater, 62 F.4th 652, 656-57 (1st Cir. 2023)

(vacating and remanding a sentence for failure to explain where 

this language was employed); United States v. Muñoz-Fontanez, 61 

F.4th 212, 214-15 (1st Cir. 2023) (holding that this 

non-case-specific language was an inadequate explanation for an 

upward variance). As we have held before, the given justification 

is generic and "scarcely constitutes a plausible rationale 
- 19 -

sufficient to justify a steep upward variance." Flores-Nater, 62 

F.4th at 656.6 In fact, "it simply rehearses -- but does not apply 

-- certain of the factors that Congress has instructed courts to 

consider in imposing sentences." Id. (citing 18 U.S.C. 

§ 3553(a)(2)). So, we reiterate that this language is not enough.

Yet it is true that a sentence may also be justified 

through "fair inference from the sentencing record." United States

v. Montero-Montero, 817 F.3d 35, 38 (1st Cir. 2016). For example, 

we found an upwardly variant sentence justified through "fair 

inference" where "an offender . . . committed a gun-related felony 

less than a year after completing a substantial incarcerative term 

for unlawful possession of a machine gun." United States v. 

Márquez-García, 862 F.3d 143, 147 (1st Cir. 2017). 

But there is no such fair inference to be drawn here. 

The court, before handing down Reyes's sentence, remarked that:

Reyes has shown that he is unable to comply 

with the law or the conditions of supervision 

imposed on him by this [c]ourt by continuing 

6 We acknowledge that Flores-Nater analyzes this issue under 

substantive reasonableness. 64 F.4th at 655. But as we stated in 

Flores-Nater, "a district court's procedural duty to adequately 

explain an upwardly variant sentence bears a strong family 

resemblance to its duty to spell out a plausible sentencing 

rationale in order to undergird the substantive reasonableness of 

a sentence." Id. at 655 n.2 (citing United States v. VargasMartinez, 15 F.4th 91, 102 n.7 (1st Cir. 2021)). So, "an adequate 

explanation for an upwardly variant sentence and the plausible 

rationale element of the test for substantive reasonableness are 

almost always two sides of the same coin." Id. (internal quotation 

marks omitted) (quoting United States v. Ortiz-Pérez, 30 F.4th 

107, 113 (1st Cir. 2022)). 
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to use . . . controlled substances illegally, 

by not notifying [about] contact with a law 

enforcement officer within 72 hours, and by 

not abiding by the rules of [outpatient]

treatment to which he has been referred.

The court then recited the facts of Reyes's case before it 

concluded that "[t]he probation office has extinguished every 

resource, including [outpatient] and inpatient treatment in 

previous revocations; drug testing, medicated assistance, drug 

treatment and cognitive behavioral interventions." 

None of these statements are sufficient. When a court 

supplies a "mere listing of the facts . . ., without emphasis on 

any particular circumstance," it becomes "impossible to tell" why 

the court landed on a sentence that quadrupled the guidelines 

sentencing range. Muñoz-Fontanez, 61 F.4th at 214. Here, the 

court merely recounted Reyes's technical Grade C violations that 

led to the revocation hearing.7 So, while the court's statement 

that Reyes had "shown that he [was] unable to comply with the law 

or the conditions of supervision" explains why Reyes's supervised 

release was being revoked, it does not explain the sentencing 

rationale or justify the upward variance. A summary of the events 

that preceded the revocation hearing -- without more -- is an 

impermissible basis for a large upward variance. 

7 A technical violation is a "violation[] of the terms of 

release that did not involve committing new crimes." 

Serrano-Berríos, 38 F.4th at 250 n.2.
- 21 -

Still, the court did state that "[t]he probation office 

ha[d] extinguished every resource," which could serve as an 

implicit justification for the sentence. One possible 

interpretation could be that the court believed Reyes was beyond 

help and that incarceration was the only option. To resolve this 

issue, we look to our precedent in Serrano-Berríos, a substantially 

similar case. On revocation, Serrano-Berríos's guidelines 

sentencing range was eight to fourteen months, but he was given a 

two-year sentence. Serrano-Berríos, 38 F.4th at 248-49. During 

sentencing, the court made a nearly identical statement to the one 

here: "[t]he probation officer has extinguished a release source, 

including outpatient and inpatient treatment, drug testing, and 

cognitive behavioral interventions." Id. at 249. 

There, we examined the two potential justifications that 

could be inferred from the court's statement: (1) that "probation 

had eliminated treatment as an option for [defendant] to use if 

released" or (2) that "due to [defendant's] admitted relapses, the 

district court itself had lost faith in his ability to succeed at 

staying clean." Id. at 250. Because neither of these explanations 

had solid foundation in the record, we expressed skepticism as to 

whether either would be sufficient justification. Id. But we 

ultimately did not decide the issue. Id. Instead, we declined to 

engage with any implied rationale because we were "unwilling to 

rely on such a strained reading of the court's comments to justify 
- 22 -

an upward variance." Id. The same holds here. So, while the 

government may contend that the court's comment provides a "fair 

inference," we have already analyzed this statement and found it 

lacking. See id.

In any event, the justification, whether inferred or 

explicit, must demonstrate that this case differs from the norm, 

or, in other words, "the mine-run of Grade C revocation cases." 

Id. (cleaned up) (citing Rivera-Berríos, 968 F.3d at 136). As 

illustrated by the guidelines sentencing range of three to nine 

months, there is nothing obvious in the record that demonstrates 

how Reyes's case differs from "the mine-run of Grade C revocation 

cases." Id. To the extent there is some distinctive quality to 

Reyes's case, it is unclear why the government and Reyes's 

agreement on an above-guidelines sentence of twelve months --

rejected by the court with no explanation or elaboration -- was 

insufficient to address it. See Flores-Nater, 62 F.4th at 657 

("Although the court was not required to explain why it rejected 

the . . . upwardly variant sentence recommended by the parties, it 

should have given at least some indication as to why it believed 

that [its] upward variance was the option of choice." (internal 

citation omitted)); United States v. Franquiz-Ortiz, 607 F.3d 280, 

282 (1st Cir. 2010) (expressing concern where "it is not clear why 

the court regarded the above-guideline joint recommendation of the 

parties as insufficient punishment"). Notably, "by imposing the 
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statutory maximum sentence, the court left no room for harsher 

sentences for those with higher criminal history categories and 

more serious violations." Franquiz-Ortiz, 607 F.3d at 282. Based 

on the record before us, we have no way of discerning why the court 

levied the harshest possible sentence for Reyes's Grade C 

violations. 

In sum, even if we adopted a strained reading of the 

court's comments, none of the rationales explain why Reyes's case 

was so distinct from the mine-run of Grade C revocation cases that 

he deserved a 400% increase over the guidelines sentencing range. 

This case is not one where "the offense of conviction is obviously 

more horrific than the heartland offense falling within the 

applicable guideline," and "we can perhaps infer . . . what sparked 

the perceived need for an upward variance." Flores-Nater, 62 F.4th 

at 657. Rather, this case is about a person who is living with a 

substance use disorder, which is hardly an unusual circumstance 

and certainly not one inherently deserving of additional 

punishment. 

We note, though, that we are not definitively stating 

that an upward variance is unwarranted in this case. Rather, it 

is that we cannot infer a reason for the upwardly variant sentence 

from the "nature and circumstances of the offense." United States

v. Martin, 520 F.3d 87, 91 (1st Cir. 2008). If the court deemed 

the number of revocations, Reyes's behavior, or some other aspect 
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of the record uniquely unacceptable, it should have so stated. 

See Muñoz-Fontanez, 61 F.4th at 215 ("When imposing a significant 

variance, a sentencing court must make clear which specific facts 

of the case motivated its decision and why those facts led to its 

decision."). Given that the strength of the justification must 

increase proportionally with the length of an upwardly variant 

sentence, we will not contort ourselves to cobble together a 

speculative justification for a massive upward variance. Thus, 

the district court's failure to justify its sentence was an abuse 

of discretion.8 See, e.g., Rivera-Berríos, 968 F.3d at 137 

(vacating sentence for failure to explain a one-year increase over 

the top of the guidelines range); Franquiz-Ortiz, 607 F.3d at 282 

(vacating sentence for failure to explain a fourteen-month 

increase over top of guidelines range); Serrano-Berríos, 38 F.4th 

at 250 (vacating sentence in part due to a failure to explain a 

ten-month increase over top of guidelines range).

III. Conclusion

For the foregoing reasons, we vacate Reyes's 

thirty-six-month sentence and remand for resentencing consistent 

with this opinion. The court may base its sentence on the existing 

8 Because we have resolved this appeal on the procedural 

reasonableness ground, we do not address Reyes's substantive 

reasonableness challenge.
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record and any facts, to the extent they are offered and 

admissible, that occurred after the prior date of sentencing.