Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 13-2397

UNITED STATES OF AMERICA,

Appellee,

v.

JASON CRUZ-FERNÁNDEZ, a/k/a "El Terrible,"

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

Thompson, Selya, and Kayatta,

Circuit Judges.

José Olmo-Rodríguez on brief for appellant.

Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson

Pérez-Sosa, Assistant United States Attorney, Chief, Appellate

Division, and Tiffany V. Monrose, Assistant United States Attorney,

on brief for appellee.

April 7, 2015
THOMPSON, Circuit Judge. Jason Cruz-Fernández is a

serial supervised-release violator. Back in 2002 he pled guilty to

conspiring to possess and distribute at least 5 kilograms of

cocaine, see 21 U.S.C. §§ 841(a)(1) and 846 — a class A felony, see

United States v. Eirby, 515 F.3d 31, 36 (1st Cir. 2008). The

conspiracy ran from July 1998 to September 2000, by the way. And

the judge sentenced him to 70 months in prison followed by 5 years

of supervised release.

Cruz-Fernández served his jail time but got caught in

2010 violating his supervised-release conditions in the following

ways — failing to report to his probation officer, failing to

follow the officer's instructions, and failing to notify the

officer of a change of address. The judge revoked Cruz-Fernández's

supervised release in 2011 and sentenced him to 6 months in prison

plus 3 years of supervised release, warning him that if he did not

straighten up, the next time he appeared in court he could get hit

with the maximum authorized term of imprisonment. 

Again Cruz-Fernández served his jail time. And again he

violated several supervised-release conditions, this time by having

illegal drugs, failing to make full financial disclosure to his

probation officer, and missing appointments with the officer — all

in 2013. The judge held a hearing (also in 2013) and heard

testimony from a probation officer about how Cruz-Fernández had

flunked drug tests; how the officer had seen him driving luxury

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cars (mostly Mercedes-Benzes) without providing financial documents

to explain why he had those autos; and how law-enforcement agents

sent to search his apartment had found a bag with 24.8 grams of

cocaine (they saw someone drop it from his bedroom window) as well

as 100 small plastic baggies (discovered in his bedroom). The

judge also had before him an affidavit from the probation officer

chronicling Cruz-Fernández's missed appointments with probation.

The judge, the prosecutor, and the probation officer

agreed that 54 months was the maximum statutory prison term for

Cruz-Fernández's latest supervised-release infractions — and CruzFernández's lawyer never quibbled with that number. Anyway, we

infer from the record that the 54-month figure came about this way: 

A judge can reimprison a defendant for violating supervised-release

conditions. See 18 U.S.C. § 3583(e)(3). But Congress has put caps

on any new term, with the maximum possible sentence turning on the

seriousness of the original offense of conviction. See id. CruzFernández's original drug offense is a class A felony, meaning a 5-

year maximum reimprisonment cap applied. See id. The judge

concluded that the 5 years was an aggregate cap — i.e., that all

the prison time imposed for the supervised-release violations

counted toward the cap.1 And because Cruz1 From that we infer that the judge used the version of

section 3583(e)(3) in vogue when Cruz-Fernández did his drug crime. 

See United States v. Tapia-Escalera, 356 F.3d 181, 185-88 (1st Cir.

2004) (dealing with a pre-2003 version of section 3583(e)(3) and

holding that the cap applies to the aggregate of all the jail time

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Fernández had already served 6 months for his 2010 supervisedrelease infractions, he could now be sentenced up to 54 months in

prison: 60 months (the 5-year cap in months) - 6 months = 54

months. Neither side questions the judge's treating the 5-year cap

as an aggregate cap, so we say no more about it.

Moving on, the judge found (among other things) that

Cruz-Fernández had possessed cocaine — an express basis for

revocation of supervised release. See id. § 3583(g)(1). The

cocaine and baggies pointed toward drug distribution, the judge

noted, though he added later that possession was enough to trigger

revocation and resentencing under section 3583(g). Next the judge

concluded — and defense counsel did not contest — that the

guidelines' policy statements on supervised-release violations

recommended a 4-10 month range of imprisonment. See USSG

§ 7B1.4(a) (revocation table). Defense counsel made a plea for

leniency, contending, first, that Cruz-Fernández's drug addiction

flared up after his "grandmother passed away" and he "injured his

knee"; and second, that had he been convicted of possessing 24.8

grams of cocaine, his guidelines range would be "10 to 16 months." 

Defense counsel thought a 10-month sentence would be enough. 

But the judge was unmoved. "[D]rugs," the judge said,

are causing Cruz-Fernández to violate "the law" and his drugserved for supervised-release violations — but noting that a 2003

amendment jettisoned the aggregation concept, so that the cap

applies "afresh" for each new revocation situation). 

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related supervised-release conditions. And given his other

difficulties with supervised release (including his not giving

probation financial info concerning the cars as required), the

judged handed out a 48-month sentence for purposes of retribution

and deterrence. The judge also tacked 6 months of supervised

release onto the sentence.

Targeting only the prison portion of his sentence, CruzFernández first argues here that the 48-month term constitutes

cruel and unusual punishment. See U.S. Const. amend. VIII. But he

does not adequately develop the claim. Decisional law on how the

Constitution's cruel-and-unusual-punishment clause works in

noncapital cases is quite complicated. See, e.g., Graham v.

Florida, 560 U.S. 48, 86-87 (2010) (Roberts, C.J., concurring in

the judgment). At the risk of oversimplification, the clause

covers "a narrow proportionality principle" that "forbids only

extreme sentences that are grossly disproportionate" to the

underlying "crime." Harmelin v. Michigan, 501 U.S. 957, 997, 1001

(1991) (Kennedy, J., concurring in part and concurring in the

judgment); see Graham, 560 U.S. at 59-60 (calling Justice Kennedy's

Harmelin concurrence the "controlling opinion"); see also United

States v. Raymond, 697 F.3d 32, 40-41 (1st Cir. 2012). Yet CruzFernández never cites — let alone applies — this all-important

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standard, which is hardly the way to deal with a complex issue.2

See Tayag v. Lahey Clinic Hosp., Inc., 632 F.3d 788, 792 (1st Cir.

2011); see also Rodríguez-Machado v. Shinseki, 700 F.3d 48, 49 (1st

Cir. 2012) (per curiam). Needless to say, the argument is waived. 

See, e.g., United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

1990).

A criminal sentence must be substantively reasonable, of

course. See, e.g., United States v. Vargas-Dávila, 649 F.3d 129,

130-31 (1st Cir. 2011). Read generously, Cruz-Fernández makes two

arguments in his brief that feel like substantive-reasonableness

claims. But reviewing for abuse of discretion (because he floated

similar arguments below), see id. at 130, we see no reason to

reverse.

First up is Cruz-Fernández's suggestion that if the judge

had sentenced him simply for possessing 24.8 grams of cocaine, he

would have had a "10-16 months" guidelines range — which, he hints,

would have kept the judge from handing out a 48-month term. CruzFernández could only have gotten that range, though, by using the

drug-quantity table in section 2D1.1 of the guidelines. But he

never explains how or why that table has any relevance in a

revocation-of-supervised-release case, particularly since the judge

had to (and did) consider — but need not have followed — the

2

 Cruz-Fernández cites one case, United States v. Booker, 543

U.S. 220 (2005), which is not an Eighth Amendment case.

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revocation table in section 7B1.4. See United States v. McInnis,

429 F.3d 1, 4 (1st Cir. 2005). So this argument is waived too. 

See, e.g., Zannino, 895 F.2d at 17.

As a fallback, Cruz-Fernández protests that he should

have gotten a lighter sentence because he turned back to drugs only

after "his grandmother died and he hurt his leg." But defense

counsel made that pitch at the revocation hearing. And the judge

still decided that Cruz-Fernández's record as a recidivist

supervised-release violator and drug-law offender called for a 48-

month reimprisonment sentence. See Vargas-Dávila, 649 F.3d at 131

(discussing the relevant factors a judge must consider in this

context — including not only the offender's characteristics but

also deterrence and societal-protective needs). Yes, the sentence

is tough — it is well above the 4-10 month range suggested by

section 7B1.4, though below the 5-year statutory maximum. But

tough is not a synonym for unreasonable. See, e.g., United States

v. Flores-Machicote, 706 F.3d 16, 25 (1st Cir. 2013); United States

v. Vargas, 560 F.3d 45, 51 (1st Cir. 2009). And sure, maybe a

different judge might have given him a different sentence. But

what matters is whether our judge's rationale was "plausible" and

whether the sentence falls "within the expansive universe" of

acceptable outcomes. United States v. King, 741 F.3d 305, 308 (1st

Cir. 2014). Measured against that standard, the judge's sentence

passes muster. See United States v. Del Valle-Rodríguez, 761 F.3d

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171, 177 (1st Cir.) (stressing that "there is no perfect

sentence"), cert. denied, 135 S. Ct. 293 (2014).

 Affirmed.

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