United States Court of Appeals 

For the First Circuit 

No. 18-1774 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

ORLANDO DÁVILA-BONILLA, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

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

Before 

Torruella, Dyk,* and Thompson, 

Circuit Judges. 

Jessica E. Earl, Assistant Federal Public Defender, with whom 

Eric Alexander Vos, Federal Public Defender, and Vivianne M. 

Marrero, Assistant Public Defender, Supervisor, Appeals Section, 

were on brief, for appellant. 

Jonathan L. Gottfried, Assistant United States Attorney, with 

whom Rosa Emilia Rodríguez-Vélez, United States Attorney, 

Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, 

Appellate Division, and Thomas F. Klumper, Assistant United States 

Attorney, Senior Appellate Counsel, were on brief, for appellee. 

* Of the Federal Circuit, sitting by designation. 
July 29, 2020 
- 3 - 

THOMPSON, Circuit Judge. 

Preface 

Orlando Dávila-Bonilla ("Dávila") is no stranger to the 

criminal justice system, as his record of drug-law and supervisedrelease violations shows. During his most recent supervisedrelease stint, Dávila got federally indicted on two crimes — Count 

One essentially accused him of intimidating or interfering with 

U.S. probation officers, see 18 U.S.C. § 111(a)(1), and Count Two 

basically accused him of influencing U.S. probation officers by 

threat, see id. § 115(a)(1)(B). He pled guilty to both charges 

without a plea agreement. And, as relevant here, Judge Besosa 

sentenced him to concurrent prison terms of 12 months on Count One 

and 48 months on Count Two. 

Before us, Dávila complains that his 48-month sentence 

is both procedurally and substantively unreasonable. Convinced 

that it is neither, we affirm. 

How the Case Came to Us

We draw the background information from the materials on 

appeal, particularly the uncontested parts of the probation 

office's presentence report and the transcripts of the important 

court hearings. See, e.g., United States v. Barrios-Miranda, 919 

F.3d 76, 77 n.1 (1st Cir. 2019). 
- 4 - 

After doing time in prison for violating federal drug 

laws, Dávila began an eight year term of supervised release.1 But 

he later violated a condition of his release by (among other 

things) using controlled substances. So Judge Fusté (who had 

imposed the original sentence) revoked Dávila's release and 

sentenced him to 4 months in prison followed by 48 months of 

supervised release. 

Eventually back on supervised release, Dávila had two 

different probation officers in charge of his case — first Gabriel 

Feliciano and then Mariela Fernández. After replacing Feliciano, 

Fernández one day got a text from Dávila saying that he had 

received an automated message telling him to report to probation 

for mandatory testing — but he thought that was a mistake. Within 

minutes, Fernández called him up to say that he had in fact been 

randomly selected to provide a urine sample. An upset Dávila 

1 As a side note, Congress years ago replaced parole in federal 

sentencing with supervised release. See United States v. O'Neil, 

11 F.3d 292, 298 (1st Cir. 1993); see also Pub. L. No. 98-473, 98 

Stat. 2177 (1984). Both parole and supervised release involve 

restrictions on persons once they get out of prison. But parole 

restrictions 

end when the term of imprisonment to which the defendant 

was sentenced ends; so if he was sentenced to five years 

in prison and released on parole after three years, the 

restrictions that parole imposes on him expire after two 

years. A term of supervised release is specified 

separately in the sentence; it is not a function of the 

prison term imposed by the sentence. 

United States v. Williams, 739 F.3d 1064, 1065 (7th Cir. 2014) 

(Posner, J.).
- 5 - 

responded that he had given a sample the day before and now had no 

way to get back to probation. Fernández asked to speak with 

Dávila's mother, whom he lived with at the time. Dávila put his 

mother on the phone. But he quickly took the phone back and 

"threaten[ed] and insult[ed]" Fernández, calling her a "fucking 

bitch," accusing her of "trying to fuck" with him and of wanting 

him to "fail," and saying he would "make a scene" if he had to 

return to probation so soon (spoiler warning: he kept his promise, 

as we shall shortly see). He continued slinging insults at her 

until she finally hung up. 

Dávila then called Orlando Rullán, a supervisory 

probation officer, to complain about Fernández. After this call, 

Dávila phoned Fernández to apologize. But he started complaining 

about her again, telling her that he would rather go to prison 

than have her as a supervisor. And he said that if he had to go 

to probation today, he would simply "surrender" to federal 

marshals. 

Later that day, Dávila did go to probation. Once there, 

he began acting "erratic[ally]" and "aggressive[ly]." Hoping to 

diffuse the situation, Alejandro Martínez, a probation officer 

assigned as the duty officer, took Dávila from the office's waiting 

room to the laboratory area. Dávila told Martínez that if he saw 

Fernández he would "beat [her] up." Continuing to call her a 

"fucking bitch," Dávila also "bragg[ed] about his prior domestic 
- 6 - 

violence offenses and about beating a woman with a fire 

extinguisher." 

While Martínez was trying to calm Dávila down, Rullán 

got a call from the office's receptionist saying Dávila was 

"agitated and aggressively arguing" with probation personnel. 

Arriving at the scene, Rullán heard Dávila claim that he would 

"beat" Fernández if he saw her. And he then heard Dávila "brag[]" 

about "his multiple domestic violence convictions," how "he loved 

beating women," and that "he enjoyed being in jail where he could 

sexual[ly] assault other inmates." An unnamed probation employee 

also heard Dávila blame Fernández "for his trip to the office," 

say he would "take her down" if he saw her, and "brag[] about his 

history of domestic violence" and how "he enjoyed hitting women 

and was not afraid to do it again." 

Rullán took Dávila to his office. Concerned that Dávila 

might become violent, Martínez made sure the office door stayed 

open and hung around while Rullán and Dávila talked. Still 

"agitated," Dávila said he had "had it" with Fernández and "was 

going to harm someone." Pointing at Rullán, Dávila also said that 

"[i]f you mess with me I will mess with you more."2 Convinced that 

2 At a hearing in this case, the government stated that the 

literal translation of what Dávila said was "[i]f you fuck with 

me, I will fuck with you more." 
- 7 - 

"an assault was imminent," Martínez had the receptionist call the 

marshals — who arrived and arrested Dávila. 

A 14-year veteran of the probation department, Rullán 

called his interaction with Dávila "the most aggressive and 

threatening confrontation" he had ever experienced. And Martínez 

said he had "never seen behavior this bad" in his 12 years with 

the department. 

A federal grand jury later indicted Dávila on two 

charges. Count One alleged that he "knowingly did forcibly resist, 

oppose, impede, intimidate or interfere with officers of the United 

States Probation Office . . . while they were engaged in, or on 

account of the performance of, their official duties." See 18 

U.S.C. § 111(a)(1). And Count Two alleged that he "knowingly did 

threaten to assault officers of the United States Probation Office 

. . . with the intent to impede, intimidate and interfere with, 

and to retaliate against, those officers while they were engaged 

in their official duties." See 18 U.S.C. § 115(a)(1)(B). 

Represented by counsel, Dávila ultimately pled guilty to 

both counts without a plea deal. At the change-of-plea hearing, 

Judge Besosa read the indictment and got Dávila's acknowledgment 

(among others) that he had committed both crimes. By the hearing's 

end, the judge accepted his plea. 

Acting on Dávila's motion, Judge Besosa ordered that "an 

experienced probation officer from [another] probation office in 
- 8 - 

one of the districts in First Circuit" draft a presentence report 

(the purpose of which was to aid the judge in sentencing).3 And a 

probation officer in the District of Massachusetts did just that. 

Here is an overview of her sentencing math.4 

 After setting out the facts as just described (and using the 

2016 version of the guidelines), she estimated Dávila's total 

3 Dávila's motion argued that the victims of the crimes are 

probation officers in the district, leading to "an apparent 

conflict of interest" and "the appearance of impropriety" if a 

local probation officer prepared the report. He filed a separate 

motion for a change of venue, raising similar concerns. Judge 

Besosa denied the venue-change request, however. Dávila 

challenged the venue-change denial in his appellate papers but 

waived that issue at oral argument — so no more need be said on 

that subject. 

4 For those new to this area, Congress enacted sentencing 

guidelines that set up formulas for creating sentencing ranges — 

which, while not mandatory, are highly influential: 

Sentencing under the . . . guidelines starts with the 

base offense level — i.e., a point score for a specified 

offense or group of offenses. The guidelines then make 

adjustments for any aggravating or mitigating factors in 

the defendant's case, thus arriving at a total offense 

level. The guidelines also assign points based on the 

defendant's criminal history — points that get converted 

into various criminal history categories, designated by 

Roman numerals I through VI. Armed with this info, the 

judge turns to the guidelines's sentencing table. And 

by plotting the defendant's total offense level along 

the table's vertical axis and his criminal history 

category along the table's horizontal axis, the judge 

ends up with an advisory prison range. From there, the 

judge sees if any departures are called for, considers 

various sentencing factors, and determines what sentence 

(whether within, above, or below the suggested range) 

seems appropriate. 

United States v. Martínez-Benítez, 914 F.3d 1, 2 n.2 (1st Cir. 

2019) (citations omitted). 
- 9 - 

offense level at 17. This accounted for a base offense level 

of 12, see USSG § 2A6.1(a)(1); a couple of enhancements worth 

8 levels — including a 6-level increase because the offense 

was motived by the victim's being "a government officer," see 

id. § 3A1.2(a) and (b);5 and a 3-level mark down for timely 

acceptance of responsibility, see id. § 3E1.1(a), (b). 

 She pegged Dávila's criminal history category at III — 

although she listed four dismissed local charges from about 

ten years earlier, including three for domestic abuse, she 

did not factor them into the calculation (the significance of 

these charges will become clear later). 

 And with a total offense level of 17 and a criminal history 

category of III, Dávila faced an advisory imprisonment range 

of 30 to 37 months — or so she wrote. 

Dávila filed objections to the presentence report (the 

government did not). Relevantly, he contested the 6-level 

enhancement on the ground that application note 2 of the commentary 

to § 2A6.1(a)(1) says § 3A1.2(b) applies when a defendant is 

convicted under 18 U.S.C. § 1521, which basically criminalizes the 

filing or attempted filing of a false lien or encumbrance to 

5 The government bears the burden of proving sentencing 

enhancements by a preponderance of the evidence, see United States 

v. Ilarraza, 963 F.3d 1, 8 (1st Cir. 2020) — which is a "more 

likely true than not" rule, see United States v. Marino, 833 F.3d 

1, 8 (1st Cir. 2016).
- 10 - 

retaliate against a federal officer or employee — a statute 

different from the one he pled guilty to: 18 U.S.C. § 115. And 

he challenged the enhancement on the further ground that he has 

"problems involving lack of respect towards others, not limited to 

only government employees" — so (his argument continued) his 

"threatening words" were not "motivated by th[e] person's status 

as a probation officer." 

Both Dávila and the government submitted sentencing 

memos. It is enough for current purposes to say that Dávila's 

document spotlighted his mental-health challenges, history of drug 

abuse, and lack of family support (among other difficulties). He 

requested a bottom-of-the-range prison sentence, while the 

government requested a top-of-the-range one. 

In the midst of all this, Dávila faced (in a different 

courtroom) revocation of the supervised release he received in his 

drug case. He did not challenge the new allegations against him. 

And Judge Cerezo (who took over that case after Judge Fusté 

retired) revoked his release as punishment for the violation and 

sentenced him to 18 months in prison, to run consecutively to any 

time imposed in the case before Judge Besosa. 

Two days before the sentencing hearing here, Judge 

Besosa (apparently on his own initiative) continued the matter 

"[b]ecause the translations of the documents pertaining to 

[Dávila's] prior criminal offenses [were] not ready." The 
- 11 - 

government later submitted certified translations of various 

charging documents from several criminal cases filed against 

Dávila in a Puerto Rico local court. And of those cases, three 

are noteworthy here (again, for reasons that will soon become 

apparent). 

The first involved a criminal complaint — "based on 

[p]robable [c]ause" and signed by a prosecutor — that accused 

Dávila of punching the mother of one of his sons and then 

tightening a chain around her neck, all while screaming "[s]kank, 

you are worthless." The second involved a criminal complaint — 

also "based on [p]robable [c]ause" and signed by a prosecutor — 

that accused Dávila of hitting the same woman in the face, grabbing 

her hair, spitting on her, and calling her a "whore." And the 

third involved a criminal complaint — likewise "based on [p]robable 

[c]ause" and signed by a prosecutor — that accused Dávila of 

assaulting another woman with a pipe.6 The presentence report 

mentioned the first two incidents. Anyway, the Puerto Rico local 

court dismissed each case for violations of Dávila's right to a 

speedy trial. See P.R. Laws Ann. tit. 34, Ap. II, § 64(n). 

6 The first two complaints say they were "based on Probable 

Cause pursuant to Rule 23 of Criminal Procedure" — a rule that 

discusses probable-cause determinations by "magistrate[s]." See 

P.R. Laws Ann. tit. 34, Ap. II, § 23 (providing that a person 

charged with a felony has a right to a preliminary hearing where 

a magistrate decides whether probable cause exists to believe the 

person committed the charged crime). The third complaint says it 

was "based on Probable Cause determined by a magistrate." 
- 12 - 

A lot happened at the sentencing hearing. But again, we 

emphasize only those events most relevant to this appeal. 

Judge Besosa made clear that he had reviewed the parties' 

sentencing memos. And he gave both sides a final chance to make 

their sentencing pitch. Arguing first, Dávila's lawyer again 

challenged application of the official-victim enhancement, USSG 

§ 3A1.2(b). As defense counsel saw it, Dávila's actions were not 

"motivated by the status of the probation officer['s] being a 

[g]overnment officer." But that argument went nowhere. "[I]t's 

obvious that he threatened Ms. Fernández and Mr. Rullán because 

they are probation officers," Judge Besosa said in rejecting the 

challenge — to which defense counsel responded: "Understood, Your 

Honor." 

Dávila's attorney then asked Judge Besosa to sentence 

his client "to the lower end of the guidelines." To justify the 

request, counsel talked about Dávila's "difficult" childhood, how 

his "common-law wife" would "spit in his face" when "she was upset 

with him," his "bipolar" diagnosis, and his long struggle with 

drug addiction. And counsel acknowledged that Dávila's 

"interactions" with his "girlfriend" show he still "has to learn 

things that he never learned before as to how to ad[a]pt to basic 

social norms." And counsel suggested that this was why Dávila had 

"an outburst over the phone with Probation Officer Fernández" and 

"again had an outburst" at the probation office. But counsel also 
- 13 - 

blamed Dávila's "aggressive" behavior on "the effects of synthetic 

marijuana." 

Judge Besosa asked defense counsel why, if synthetic 

marijuana was to blame, did Dávila not have an outburst the day 

before when he went to probation for the first urine test. To the 

judge, it seemed that Dávila threatened the probation officers 

because "he was upset . . . he was called in the second day." 

Answering, Dávila's attorney said "[o]ne of the issues with 

synthetic marijuana is the lack of predictability" when it comes 

to "outburst[s]." The judge did not buy that response. Nor did 

he buy the bipolar argument that Dávila "was low the day before 

and high the next day." 

The government argued against the defense's lower-endof-the-guidelines request, stressing how Dávila had called 

Fernández a "fucking bitch," conceded "he enjoyed beating up 

women," and boasted about his "multiple domestic violence cases." 

Adamant that the guidelines here failed to "take into account the 

gender motivated nature of this offense," the government insisted 

that Dávila could not "control himself" despite probation's and 

the court's best efforts to address his drug and mental-health 

concerns (the prosecutor noted that the government had referred 

him to programs to help him with those issues). All of which, 

according to the government, underscored the need for Dávila to 

get "an upper guideline[s] sentence." 
- 14 - 

Judge Besosa turned back to Dávila's lawyer for a 

response. Counsel said that perhaps this was "not the best time" 

for Dávila to have a woman probation officer given his possible 

"prejudice." But the judge pointed out that Dávila "admitted that 

he enjoyed beating up women, and I have here three examples." The 

judge then referenced the docket numbers for the three dismissed 

domestic-violence cases. Defense counsel wanted "the record to 

reflect that [Dávila] was not convicted for any of those cases." 

"I know he wasn't," the judge said, "but he admitted that he 

enjoyed beating up on women, and these are three examples." Adding 

that the cases were all "based on probable cause," the judge said 

that he could take this "conduct . . . into consideration." 

Unconvinced, defense counsel argued that Judge Besosa 

could "only use" the documents as proof that Dávila "was charged 

with those [crimes] and that the [crimes] were dismissed." But 

the judge said, "[R]emember what probable cause is. That a crime 

was committed, and that he committed it." 

Dávila then spoke directly to Judge Besosa (in legalese, 

Dávila "allocuted"). See Fed. R. Crim. P. 32(i)(4)(A)(ii). 

Apologizing for his actions and begging the probation officers' 

forgiveness, he claimed that he was "undergoing a bad moment" at 

the time and "was failing again with the use of synthetic 

marijuana." He also said that just because he said something while 
- 15 - 

"mad" did not mean that he "would go through with it." And he 

asked the judge to assign him a "friendlier" probation officer. 

Judge Besosa indicated that he agreed with the 

presentence report's guidelines calculations, which (recall) 

resulted in an advisory prison range of 30 to 37 months. He then 

said that he had considered the statutory sentencing factors in 18 

U.S.C. § 3553(a) (factors that guide a sentencer's sentencing 

discretion), the lawyers' sentencing memos and in-court arguments, 

and Dávila's in-court statement. He also noted aspects of Dávila's 

background, including his history of drug use. And he discussed 

the nature of the crimes to which Dávila pled guilty, focusing on 

how he (Dávila) had called Fernández a "fucking bitch" and had 

showed "erratic and aggressive behavior" at the probation office 

by (among other things) threatening to "beat [Fernández] up" if 

"he saw her," boasting "about his prior domestic violence 

offenses," and trying "to intimidate" Fernández and Rullán, "and 

perhaps the entire probation office." After detailing some of the 

facts of the dismissed domestic-violence cases, the judge 

commented how in this case Dávila had said that he would "take 

[Fernández] down," that he had a "history of domestic violence," 

and that he liked "hitting women and was not afraid to do so 

again." Convinced that only an above-guidelines sentence would 

account for the seriousness of Dávila's offense, deter him and 

others from similar criminal conduct, and protect the community, 
- 16 - 

the judge gave him a 60-month prison sentence — consisting of 12 

months on Count One and 48 months on Count Two, to run concurrent 

with each other and consecutive to the 18-month revocation-prison 

sentence Judge Cerezo imposed. See generally USSG § 5G1.3(d) cmt. 

4(c) ("recommend[ing] that the sentence for the instant offense be 

imposed consecutively to the sentence imposed for the 

revocation"). 

Objecting, Dávila's lawyer called the sentence 

"substanti[ve]ly and procedurally unreasonable . . . and . . . 

based on non-reliable information" — namely, the dismissed localcourt complaints. This timely appeal followed. 

Arguments and Analysis 

Parties' Positions on Appeal 

We briefly summarize each side's arguments. 

Dávila thinks Judge Besosa procedurally erred first by 

relying on the dismissed local charges, because (he writes) "the 

allegations contained in the complaint[s] are just that: 

allegations"; and second by applying the official-victim 

enhancement, because (he insists) the judge did not "adequately 

consider the arguments" against the enhancement's "applicability." 

He also thinks the judge substantively erred by giving him 48 

months on Count Two, because (he claims) that sentence is overly 

harsh under a proper view of the "mitigating factors." 
- 17 - 

The government takes a diametrically opposite view of 

things. Among other arguments, the government contends that Judge 

Besosa rightly considered the dismissed local charges, because (it 

writes) "Dávila's confession to the probation officers that he had 

committed domestic violence offenses and loved to beat or hit 

women" infused the charges with sufficient "reliability." The 

government also sees no problem with the judge's application of 

the official-victim enhancement, because (in its words) the record 

amply demonstrates "that Dávila's offense was motivated by the 

victims' status as probation officers." And the government last 

claims that the 48-month term on Count Two is substantively 

reasonable, because (in its telling) the judge "offered a plausible 

and defensible [sentencing] rationale." 

After setting out the standard of review, we address 

Dávila's arguments — bringing additional specificity to the 

factual background as needed to resolve each claim. 

Standard of Review 

We analyze preserved objections to a sentence's 

procedural and substantive reasonableness under the deferential 

abuse-of-discretion standard. See, e.g., United States v. RiveraMorales, 961 F.3d 1, 15 (1st Cir. 2020). Within this standard, we 

review issues of law de novo and findings of fact for clear error. 

See United States v. Bater, 594 F.3d 51, 54 n.1 (1st Cir. 2010); 

see also Rivera-Morales, 961 F.3d at 15. We organize our thoughts 
- 18 - 

as follows: first we see if "the sentence is procedurally 

reasonable (that is, free from non-harmless procedural error)" and 

then we see if "it is substantively reasonable." See United States 

v. Nuñez, 840 F.3d 1, 4 (1st Cir. 2016). 

Procedural-Unreasonableness Claims 

Dávila's first procedural-reasonableness challenge is 

his most serious one. Citing United States v. Marrero-Pérez, 914 

F.3d 20 (1st Cir. 2019), he insists that Judge Besosa 

"inappropriately considered [the] dismissed local charges" in 

fashioning his prison sentence. See generally United States v. 

Díaz-Rivera, 957 F.3d 20, 26 (1st Cir. 2020) (calling a similar 

challenge a procedural-reasonableness attack). Clarifying his 

position, Dávila writes that he "does not suggest that a district 

court can never consider sworn criminal complaints in making 

sentencing decisions." He just thinks (emphasis ours) that "even 

under the preponderant proof standard," a district judge's 

"reliance on dismissed state court conduct, based on a one-sided 

criminal complaint, without more, is impermissible to justify the 

upward variance imposed here." And he believes the transcript 

shows (to quote his reply brief) that Judge Besosa thought the 

local magistrate's probable-cause findings concerning the 

complaints "meant . . . Dávila must have committed the conduct 

alleged therein." 
- 19 - 

Marrero-Pérez forcefully and emphatically held that "no 

weight should be given in sentencing to arrests not buttressed by 

convictions or independent proof of conduct," see 914 F.3d at 22 

— so, for example, a district judge errs by "rel[ying] on an arrest 

report, without some greater indicia of reliability that the 

conduct underlying the arrest took place," id. at 24 (emphasis 

added). We implore the bench and bar in this circuit to be ever 

mindful of those words — and not for the first time, for "we've 

repeatedly cautioned" judges and lawyers alike "against relying on 

mere charges to 'infer unlawful behavior unless there is proof by 

a preponderance of the evidence of the conduct initiating [those] 

arrests and charges.'" See United States v. Colón-Maldonado, 953 

F.3d 1, 9 (1st Cir. 2020) (quoting United States v. Rondón-García, 

886 F.3d 14, 25-26 (1st Cir. 2018)).7 

7 The government spends some energy making an argument that 

runs like this: (a) Marrero-Pérez involved an upward departure 

under USSG § 4A1.3, not an upward variance under 18 U.S.C. 

§ 3553(a) — and § 4A1.3(a)(3) says that "[a] prior arrest record 

itself shall not be considered for purposes of an upward departure 

under this policy statement." See generally United States v. 

Miranda-Díaz, 942 F.3d 33, 40 (1st Cir. 2019) (explaining the 

difference between a departure and a variance). (b) Judge Besosa 

imposed an upward variance. (c) Ergo (to quote the government's 

brief) "Marrero-Pérez does not apply." 

Without "squarely deciding" the point, a few cases have 

intimated "that Marrero-Pérez does not make it plain error to rely 

on bare arrest reports to impose an upward variance," though other 

cases have "questioned whether the 'departure-variance 

distinction' would hold up '[i]f some future case turned on it'" 

— the thought being "that Marrero-Pérez 'rest[s] on [the] basic 

principle' that 'a bare arrest or charge does not prove the 

defendant committed the crime.'" See Díaz-Rivera, 957 F.3d at 26 
- 20 - 

The words in Marrero-Pérez that we italicized for 

emphasis — "some greater indicia of reliability" — are the key to 

our evaluation of Dávila's case, as we now explain. 

Dávila criticizes Judge Besosa for telling defense 

counsel, "[R]emember what probable cause is. That a crime was 

committed, and that he committed it." Defending the judge's 

remarks to the hilt, the government argues that unlike arrests 

reports, which police generate for investigatory purposes, a 

magistrate's probable-cause finding — that the defendant committed 

the charged crime — in and of itself provides the requisite 

reliability. But we fail to see how that view can prevail, given 

our recent statement (in a related context) that "a district court 

may not rely on another (federal or state) judge's probable cause 

determination to find that the government's proof met the higher 

'preponderance' standard." Colón-Maldonado, 953 F.3d at 13 

(emphasis added); see also id. n.11. 

Still, however, we find that Judge Besosa's probablecause comments were at worst harmless error. And that is because, 

as the government also argues, Dávila's own admissions about his 

history of domestic abuse provide the required reliability 

indicators. As reflected in the undisputed parts of the 

(discussing and quoting Colón-Maldonado, 953 at 9 n.8). But 

following Díaz-Rivera's lead, we assume — favorably to Dávila — 

"that Marrero-Pérez applies both in the upward variance and 

departure contexts." See 957 F.3d at 26. 
- 21 - 

presentence report, Dávila copped to having committed "prior 

domestic violence offenses" and to beating "a woman with a fire 

extinguisher"; to having "enjoyed hitting women"; and to his "not 

[being] afraid to do it again" — something the judge mentioned in 

his sentencing analysis. Sentencers have "'wide discretion to 

decide whether particular evidence is sufficiently reliable to be 

used at sentencing'" — evidence that "includes information 

contained in a presentence report." Rodríguez-Reyes, 925 F.3d at 

563-64 (quoting United States v. Cintrón-Echautegui, 604 F.3d 1, 

6 (1st Cir. 2010)). And under controlling precedent, Dávila's 

unobjected-to admissions to the preparer's report "provide[] 'some 

greater indicia of reliability'" that the actions triggering the 

arrests occurred. See id. at 565 (quoting Marrero-Pérez, 914 F.3d 

at 24). Which takes all the wind out of his first proceduralreasonableness challenge. 

Dávila's second procedural-reasonableness challenge 

attacks Judge Besosa's use of the official-victim enhancement 

under USSG § 3A1.2(b). That enhancement (recall) applies if the 

victim was "a government officer or employee" and the offense "was 

motivated by such status." See USSG § 3A1.2(a)-(b). 

Dávila concedes that a probation officer "qualifies as 

a government employee" — he just thinks "the facts of the case do 

not indicate that [his] threatening words against a [probation 

officer] were motivated by that person's status as a probation 
- 22 - 

officer." What he overlooks is that the official-victim 

enhancement "is designed to protect government officers in the 

performance of their official duties." United States v. Watts, 

798 F.3d 650, 655 (7th Cir. 2015) (Posner, J.). And the record 

shows that Dávila threatened the probation officers because of the 

actions they took in their official role — e.g., because they 

insisted that he take the random drug test. He also expressly 

agreed during the change-of-plea hearing that he had "knowingly 

threatened to assault [probation] officers . . . with the intent 

to impede, intimidate, interfere with, and to retaliate against 

those officers while they were engaged in their official duties." 

In other words, he himself admitted that the threats were motivated 

by the officers' being government employees. So we cannot say 

Judge Besosa clearly erred in finding Dávila's offense was 

motivated by their status as "government officers or employees." 

See generally Toye v. O'Donnell (In re O'Donnell), 728 F.3d 41, 46 

(1st Cir. 2013) (explaining that clear error means the judge's 

finding was "wrong with the force of a 5 week old, unrefrigerated, 

dead fish" (quoting S Indus., Inc. v. Centra 2000, Inc., 249 F.3d 

625, 627 (7th Cir. 2001))). 

Dávila next notes that the commentary to § 2A6.1 — the 

section that sets the base offense level for crimes involving 

threatening or harassing communications — says that judges should 

add the official-victim enhancement "if the defendant is convicted 
- 23 - 

under 18 U.S.C. § 1521," a provision (remember) that he did not 

violate. See USSG § 2A6.1, cmt. 2. Using this as a springboard, 

he argues that if the "intent" of the guidelines' drafters "was to 

contemplate additional 'official victim adjustments' for other 

charges," they would have "included" those statutes "in the 

application note." 

The guidelines, however, are pretty clear when they want 

to exclude application of a particular enhancement. See United 

States v. McCarty, 475 F.3d 39, 46 (1st Cir. 2007). The 

commentaries to USSG § 2A2.4 (pertaining to instructing or impeding 

an officer) and § 2H3.1 (relating to eavesdropping or interception 

of communications) specifically exclude application of § 3A1.2. 

See USSG § 2A2.4, cmt. 2; USSG § 2H3.1, cmt. 3. Not so the with 

commentaries to § 2A6.1. 

Also, the sentencing commission (the agency that issues 

and updates the guidelines) amended § 2A6.1's commentary to make 

clear that the § 3A1.2 enhancement applies if the defendant 

violates 18 U.S.C. § 1512. See United States v. Nickerson, 782 F. 

App'x 377, 382 (6th Cir. 2019) (discussing USSG suppl. to app. C 

at 288-89, amend. 718, reason for amend. (2008)). But the 

amendment does not suggest that the enhancement applies only when 

the defendant violates § 1512. See id. And a quick Westlaw search 

turns up circuit-level cases issued after the amendment that 

applied the enhancement to threat offenses other than § 1512, see, 
- 24 - 

e.g., id. at 378, 382; United States v. Manns, 690 F. App'x 347, 

350, 354 (6th Cir. 2017); United States v. Conway, 713 F.3d 897, 

899, 903 (7th Cir. 2013) — a point the government made in its brief 

and Dávila left uncontradicted in his reply brief.8 

Substantive-Unreasonableness Claim 

Having found no reversible procedural defect, we turn to 

Dávila's substantive-unreasonableness challenge — i.e., that in 

giving him a 48-month term on Count Two, consecutive to the 18-

month revocation sentence, Judge Besosa did not "adequately 

consider the arguments" the defense made in support of a lower 

sentence. We note that the 48-month term fell significantly below 

the 72-month statutory maximum for that offense. See 18 U.S.C. 

§ 115(b)(4). Ultimately what Dávila has is an "uphill" fight, for 

"there is no single 'reasonable' sentence in any one case but 

rather a range of sensible outcomes," see United States v. Vixamar, 

679 F.3d 22, 29 (1st Cir. 2012) (quoting United States v. Clogston, 

662 F.3d 588, 592 (1st Cir. 2011)) — and if the judge "gave a 

8 One final matter before we leave procedural reasonableness. 

Dávila writes (comma omitted) that "the relevant guideline for the 

base-offense level for a charge under 18 U.S.C. § 115 already 

contemplates the relevant enhancements to be included for said 

charge if the victim is an official employee." His suggestion is 

essentially a double-counting claim. See generally United States 

v. Zapata, 1 F.3d 46, 47 (1st Cir. 1993) (observing that in the 

criminal "sentencing context, double counting is a phenomenon that 

is less sinister than the name implies" and "is often perfectly 

proper"). But by raising the issue only in passing without 

developing it in any meaningful way, Dávila has waived it. See, 

e.g., United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). 
- 25 - 

plausible explanation" for the selected sentence and "reached a 

defensible result," a substantive-unreasonableness challenge 

cannot succeed, see United States v. Chisholm, 940 F.3d 119, 132 

(1st Cir. 2019). 

Despite what Dávila argues, Judge Besosa did consider 

the mitigating factors he highlights in his brief — involving his 

drug addictions, mental health, and upbringing. After all, the 

judge had read the defense's sentencing memo and had heard the 

defense's leniency plea (through counsel's in-court arguments and 

Dávila's in-court statement) — all of which put his mitigation 

theory front and center. See United States v. Garay-Sierra, 832 

F.3d 64, 68 (1st Cir. 2016) (explaining that we can infer that the 

district judge considered a defendant's sentencing claims by 

comparing what the parties argued and what was in the presentence 

report with what the judge did). That Judge Besosa decided "not 

to attach to certain of the mitigating factors the significance 

that [Dávila] thinks they deserved does not make the sentence 

unreasonable." See Clogston, 662 F.3d at 593. The bottom line is 

that nothing Dávila says persuades us that the challenged sentence 

is implausible or indefensible. 

Final Words 

All that is left to say is: affirmed.