United States Court of Appeals

For the First Circuit

No. 13-1858

UNITED STATES OF AMERICA,

Appellee,

v.

ALBERTO OMAR DEL VALLE-RODRÍGUEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Howard, Selya and Lipez,

Circuit Judges.

Arza Feldman and Feldman and Feldman on brief for appellant.

Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson

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

Division, and John A. Mathews II, Assistant United States Attorney,

on brief for appellee.

August 4, 2014
SELYA, Circuit Judge. In Tapia v. United States, 131 S.

Ct. 2382 (2011), the Supreme Court made pellucid that "a court may

not impose or lengthen a prison sentence to enable an offender to

complete a treatment program or otherwise to promote

rehabilitation." Id. at 2393. Nevertheless, a sentencing "court

commits no error by discussing the opportunities for rehabilitation

within prison or the benefits of specific treatment or training

programs." Id. at 2392. This case requires us, for the first

time, to plot the fine line that separates impermissible uses of

rehabilitation from permissible uses. Concluding that the sentence

imposed was free from error in this or any other respect, we

affirm.

I. BACKGROUND

Because this sentencing appeal trails after a guilty

plea, we glean the facts from the plea agreement, the change-ofplea colloquy, the unchallenged portions of the presentence

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

disposition hearing. See United States v. Nguyen, 618 F.3d 72, 73

(1st Cir. 2010); United States v. Dietz, 950 F.2d 50, 51 (1st Cir.

1991).

Our account starts with the events of June 5, 2012. On

that date, defendant-appellant Alberto Omar Del Valle-Rodríguez 

commandeered an automobile at gunpoint. Police officers

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subsequently located the stolen car and apprehended the appellant

in Carolina, Puerto Rico.

A federal grand jury sitting in the District of Puerto

Rico returned an indictment charging the appellant with taking a

motor vehicle by force, violence, and intimidation with the intent

to cause death or serious bodily harm (count 1).1 See 18 U.S.C.

§ 2119(1). After initially maintaining his innocence, the

appellant agreed to plead guilty to this count. A magistrate judge

recommended acceptance of the changed plea and ordered the

preparation of a PSI Report.

At the disposition hearing, the district court (having

accepted the guilty plea) constructed the appellant's guideline

sentencing range (GSR). To a base offense level of 20, see USSG

§2B3.1(a), the court essayed various adjustments, up and down,

netting out a total of three additional levels. See id.

§§2B3.1(b)(2)(D), 2B3.1(b)(5), 3E1.1(b). These computations,

unchallenged on appeal, yielded a total offense level of 23. The

court paired this total offense level with an unchallenged criminal

history category of V (which resulted from the appellant's

significant record of prior convictions and the fact that he had

committed the 2012 carjacking while on probation).

1 Count 2 of the indictment charged the appellant with using

a firearm in relation to a crime of violence. See 18 U.S.C.

§ 924(c). Because the district court dismissed this count as part

of the appellant's plea bargain, we make no further mention of it.

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The court proceeded to fix the GSR at 84 to 105 months

and sentenced the appellant to an upwardly variant term of

immurement (120 months). This timely appeal ensued.

II. ANALYSIS

The appellant does not gainsay the sentencing court's

guideline calculations. He does, however, attack what he perceives

as the court's reliance on his rehabilitative needs and its

imposition of an above-the-range sentence. We address these

matters sequentially.

A. Rehabilitation.

We preface our analysis of the appellant's first claim of

error by noting that he failed to advance this claim below. Our

review is, therefore, limited to plain error. See United States v.

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

error standard is familiar. To succeed on plain error review, a

defendant 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." 

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

however, we discern no error, plain or otherwise.

The appellant argues that the district court erred by

using his drug addiction and his related need for rehabilitation as

factors warranting an increase in the length of his sentence. The

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factual support for this argument is at best tenuous; the appellant

points only to the court's allusions at sentencing to his "chronic

drug addiction" and "need for supervision."

His argument's legal foundation, loosely based on the

Supreme Court's decision in Tapia, is also shaky. It seeks to

exploit a grey area: the Tapia Court did not draw a precise line

separating the impermissible use of rehabilitation to increase the

length of a sentence from the permissible discussion of

rehabilitation programs. See Tapia, 131 S. Ct. at 2392-93. But

even though this court has not had occasion to plot that line postTapia, a broad consensus has developed among the courts of appeals. 

While the courts have used a variety of locutions, the dividing

line is whether a sentencing court's reference to rehabilitative

needs was causally related to the length of the sentence or,

conversely, was merely one of a mix of sentencing consequences and

opportunities. In the absence of a causal relationship, courts

have hesitated to find Tapia error. See United States v. Lifshitz,

714 F.3d 146, 150 (2d Cir. 2013) (per curiam) (finding no Tapia

error where court mentioned rehabilitation but did not "base[] the

length of [the defendant's] sentence on his need for treatment" and

other "primary considerations" were present); United States v.

Repolgle, 678 F.3d 940, 943 (8th Cir. 2012) (finding no Tapia error

where, despite mention of rehabilitation, there was no evidence

that the court lengthened the sentence based on rehabilitative

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concerns). Where, however, the record indicates that

rehabilitative concerns were the driving force behind, or a

dominant factor in, the length of a sentence, courts have found

Tapia error. See, e.g., United States v. Garza, 706 F.3d 655, 662

(5th Cir. 2013) (finding Tapia error where "rehabilitative needs

were the dominant factor" for the sentence); United States v.

Cordery, 656 F.3d 1103, 1105-06 (10th Cir. 2011) (finding Tapia

error where court imposed "a longer term of imprisonment in order

to make [the defendant] eligible for" a particular rehabilitation

program).

We join this consensus and hold that no Tapia error

occurs unless rehabilitative concerns are being relied upon either

in deciding whether to incarcerate or in deciding the length of the

incarcerative sentence to be imposed. Thus, the mere mention of

rehabilitative needs, without any indication that those needs

influenced the length of the sentence imposed, is not Tapia error.2

Measured against this benchmark, the appellant's argument

shrivels. First, the district court never mentioned

2 In United States v. Vandergrift, ___ F.3d ___ (11th Cir.

2014) [No. 12-13154], the Eleventh Circuit held that any

consideration of rehabilitation by a sentencing court amounts to

Tapia error. See id. at ___ [No. 12-13154, slip op. at 12]. This

rigid formulation is inconsistent not only with the consensus view

of the other circuits but also with the Tapia Court's statement

approving some discussion of rehabilitation by a sentencing court. 

See Tapia, 131 S. Ct. at 2392. We find this interpretation

unnecessarily restrictive and choose to take a more balanced view.

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rehabilitation.3 Second, the record contains no indication that

the district court's references to the appellant's chronic drug

addiction either were a proxy for rehabilitative concerns or played

any causal role in determining the length of his sentence. There

is simply nothing in the sentencing record that, fairly viewed,

indicates that the court hinged any part of its sentencing

determination on rehabilitative concerns.

We reject the appellant's far-fetched suggestion that the

district court's articulation of his perceived "need for

supervision" insinuates that his sentence was designed to

accommodate rehabilitative treatment. That rank speculation

depends on a distorted interpretation of the court's language.4

After all, "supervision" is virtually a term of art in criminal

sentencing, cf. USSG §5D1.1(a) (discussing "term of supervised

release"), and the appellant's unsavory criminal past graphically

illustrates the need for supervision. Nothing in what the district

court said supports equating "supervision" with "rehabilitation"

here.

3

 The closest that the court came to mentioning rehabilitation

was when it told the appellant: "[U]ntil you decide to do something

with [your] drug addiction you will be putting . . . people[']s

li[ves] at risk."

4 One is reminded of Humpty Dumpty, who famously said: "When

I use a word . . . it means just what I choose it to mean — neither

more nor less." Lewis Carroll, Through the Looking-Glass and What

Alice Found There, ch. 6 (1871).

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To cinch the matter, the actual basis for the district

court's sentencing determination is crystal clear. The court made

persistent and pointed references to the appellant's extensive

criminal history, serial probation violations, and elevated risk of

recidivism. These factors — not drug addiction or rehabilitative

concerns — plainly appear to have been the driving forces behind,

and the dominant factors in, the length of the appellant's

sentence. There is no hint of Tapia error.

B. Upward Variance.

The appellant's second claim of error implicates the

reasonableness of the upward variance. We review this claim for

abuse of discretion. See Gall v. United States, 552 U.S. 38, 46

(2007). The hallmark of this inquiry is reasonableness. See

United States v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011).

With respect to sentencing determinations, reasonableness

has both a procedural and a substantive dimension. See United

States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). The procedural

dimension includes errors such as failing to consider appropriate

sentencing factors, predicating a sentence on clearly erroneous

facts, or neglecting to explain the rationale for a variant

sentence adequately. See id. (citing Gall, 552 U.S. at 51). The

substantive dimension focuses on the duration of the sentence in

light of the totality of the circumstances. See id.

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The appellant casts his claim of error as procedural,

arguing that the considerations on which the district court based

its upward variance were already taken into account in fashioning

the GSR. Relatedly, he argues that the court failed to articulate

any reasons why his crime differed from the heartland of the crimes

encompassed within the GSR.

We approach these arguments mindful that deference to the

trial court is a lineament of appellate review of federal criminal

sentences. See United States v. Flores-Machicote, 706 F.3d 16, 20

(1st Cir. 2013). The advisory sentencing guidelines are only "the

starting point and initial benchmark" for shaping a sentence, Gall,

552 U.S. at 49, and sentencing courts may custom-tailor sentences

to fit the distinctive circumstances of particular cases. In

performing this task, a sentencing court ought to adopt a flexible,

case-by-case approach. See Martin, 520 F.3d at 91. Such an

approach may in a given case produce a sentence that falls outside

the GSR.

Where, as here, a court imposes a sentence above the GSR,

it must justify the upward variance. See Flores-Machicote, 706

F.3d at 21. We have held that an upward variance may be justified

by, say, a finding that the defendant's criminal history score

underrepresents the gravity of his past conduct, see id. at 21-22,

or by a finding that the GSR underestimates the likelihood of

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recidivism, see United States v. Politano, 522 F.3d 69, 74-75 (1st

Cir. 2008).

Here, the appellant was found to have a significant

criminal record, some of which (for technical reasons) did not

figure into his criminal history score. In addition, he misled

probation officials as to his whereabouts and failed on several

occasions to comply with probation conditions. The district court

concluded that this sordid history of disrespect for the law

demonstrated both an inordinately high risk of recidivism and the

unsuitability of a within-the-range sentence. This conclusion, in

turn, sparked the upward variance.

The appellant disputes the sentencing court's assessment,

relying heavily on our decision in United States v. Zapete-Garcia,

447 F.3d 57 (1st Cir. 2006). There, we held that a sentencing

court must indicate why the defendant's situation differs from the

mine-run of cases when basing an upward variance on a factor

already generally accounted for by the GSR. See id. at 60.

Zapete-Garcia cannot bear the weight of the appellant's

jeremiad. In that case, the court, faced with a GSR that topped

off at six months, imposed a 48-month sentence. See id. at 58-59. 

This sentence represented an upward variance of 800%. See id. By

contrast, the variance here — 15 months over the high end of a GSR

that topped off at 105 months — was much more modest. This is a

critical distinction because the greater a deviation from the GSR,

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

See United States v. Smith, 445 F.3d 1, 4 (1st Cir. 2006).

In all events, 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. Viewed through this prism, the court below

provided a sufficient explanation for the variant sentence that it

imposed. The court clearly articulated why it believed that the

appellant's case differed from the norm. In particular, the court

expounded upon the especially high risk of future criminal

activity, the concomitant need to protect the public, and the

appellant's unusual penchant for failing to comply with safeguards

imposed by the judicial system.

We discern no abuse of discretion. The upward variance

is anchored in a plausible, albeit not inevitable, view of the

circumstances sufficient to distinguish this case from the mine-run

of cases covered by the GSR. Moreover, this view was adequately

articulated by the sentencing court. The fact that we, from a

lofty appellate perch, might think some lesser sentence appropriate

is not, in itself, a sufficient reason to disturb the district

court's exercise of its discretion. See Gall, 552 U.S. at 51. In

the last analysis, there is no perfect sentence but, rather, a wide

universe of supportable sentencing outcomes. See Martin, 520 F.3d

at 92.

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III. CONCLUSION

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

the appellant's sentence is

Affirmed.

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