United States of America v. Tracy Angiolillo

United States Court of Appeals
For the First Circuit
No. 16-2045
UNITED STATES OF AMERICA,
Appellee,
v.
TRACY ANGIOLILLO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Lynch, Selya and Thompson,
Circuit Judges.
Julia Pamela Heit on brief for appellant.
Stephen G. Dambruch, Acting United States Attorney, and
Donald C. Lockhart, Assistant United States Attorney, on brief for
appellee.
July 20, 2017

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SELYA, Circuit Judge. Lurking in the penumbra of this
case is an unsettled question about the scope of a waiver-of-
appeal provision. Although we identify that question, we assume,
without deciding, that the waiver is inapplicable in this instance.
With that assumption in place, we reach the merits of the appeal
and affirm the judgment below.
I. BACKGROUND
We draw the relevant facts from the unchallenged
portions of the presentence investigation reports and the record
of the resentencing hearing. See United States v. Vargas, 560
F.3d 45, 47 (1st Cir. 2009); United States v. Dietz, 950 F.2d 50,
51 (1st Cir. 1991).
On February 22, 2007, defendant-appellant Tracy
Angiolillo met a man (who turned out to be an undercover agent) in
a hotel parking lot in Pawtucket, Rhode Island. During the
encounter, the appellant gave the undercover agent $100, 1.15 grams
of cocaine base (crack cocaine), and .46 grams of heroin in
exchange for two semi-automatic firearms. After the swap was
completed, the authorities arrested the appellant and read him his
Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 444-45
(1966). He admitted trading cash and controlled substances for
the guns.
In due course, the government filed an information
charging the appellant with being a felon in possession of two

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firearms (count 1), see 18 U.S.C. § 922(g)(1), distribution of
cocaine base (count 2), see 21 U.S.C. § 841(a)(1), and distribution
of heroin (count 3), see id. At around the same time, the
government filed a supplemental information alleging that the
appellant fell within the ambit of the Armed Career Criminal Act
(ACCA), see 18 U.S.C. § 924(e), because he had three prior
convictions for violent felonies or serious drug offenses. The
ACCA, where applicable, requires a mandatory minimum sentence of
15 years for violations of section 922(g).
The appellant pleaded guilty to all three counts
pursuant to a written plea agreement (the Agreement). The
Agreement included a provision waiving his right to appeal as long
as the court sentenced him within the applicable guideline
sentencing range (GSR).
The probation office prepared a presentence
investigation report (PSI Report), which confirmed that the ACCA
applied to the appellant's case. Taking that as a given and making
a number of other adjustments (including a career offender
enhancement, see USSG §4B1.1), the PSI Report calculated the
appellant's GSR to be 188-235 months. The district court accepted
this calculation and sentenced the appellant to three concurrent
bottom-of-the-range 188-month terms of immurement. No appeal was
taken.

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While the appellant was serving his prison sentence, he
twice moved for a reduction of his sentence (once in 2013 and again
in 2014). 1 Both motions were denied. The appellant then took
another tack: on August 4, 2015, he moved to vacate his sentence
under 28 U.S.C. § 2255. This effort was premised on Johnson II,
in which the Supreme Court held that the definition of a violent
felony in the residual clause of the ACCA was so vague as to work
an unconstitutional denial of due process. See Johnson v. United
States (Johnson II), 135 S. Ct. 2552, 2557 (2015). 2 While the
appellant's section 2255 motion was pending, the Supreme Court
made pellucid that its decision in Johnson II was substantive and,
thus, retroactive. See Welch v. United States, 136 S. Ct. 1257,
1265 (2016). At that juncture, the government conceded that the
appellant could no longer be viewed as subject to the ACCA, and
1 The appellant filed these motions under 18 U.S.C. § 3582(c),
which provides that a district court may reduce a previously
imposed sentence if certain conditions are satisfied.
2 The residual clause of the ACCA defines a "violent felony"
as "any crime punishable by imprisonment for a term exceeding one
year . . . that . . . involves conduct that presents a serious
potential risk of physical injury to another." Johnson II, 135 S.
Ct. at 2555-56 (emphasis omitted) (quoting 18 U.S.C.
§ 924(e)(2)(B)). The Court found this language problematic because
it left uncertain both the way to measure risk of physical injury
and the amount of risk that qualified a crime as a violent felony.
See id. at 2557-58. These indeterminacies "produce more
unpredictability and arbitrariness than the Due Process Clause
tolerates." Id. at 2558.

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the district court, without objection, vacated the appellant's
sentence and ordered resentencing.
In anticipation of resentencing, the probation office
prepared a new version of the PSI Report. This version concluded
that the appellant's GSR, calculated without reference to the ACCA
but still including the career offender enhancement, was 151-188
months. The district court thereupon convened a resentencing
hearing, and both the court and the parties accepted the accuracy
of the reconstituted GSR.
At the hearing, the appellant argued for a time-served
sentence on all counts. The government argued for a 120-month
sentence on count 1 and concurrent 151-month sentences on counts
2 and 3, with full credit for time served. The district court
sided with the government and sentenced the appellant to 120
months' imprisonment on count 1 and 151 months' imprisonment on
counts 2 and 3, giving full credit for time served and specifying
that all terms of imprisonment would run concurrently. 3 This timely
appeal followed.
3 The lower sentence on count 1 reflects the fact that,
stripped of an ACCA enhancement, any period of imprisonment under
count 1 was capped at 120 months. See 18 U.S.C. § 924(a)(2).
Since the appellant has fully served his prison sentence on count
1, we treat his appeal, consistent with the briefing, as targeting
the amended sentences imposed on counts 2 and 3.

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II. ANALYSIS
As a threshold matter, the government argues that this
appeal is barred by the waiver-of-appeal provision contained in
the Agreement. By its terms, this provision precludes the
appellant from appealing any within-the-range sentence. Although
the government acknowledges that the Agreement makes no reference
to resentencing, it nonetheless asserts that "there is nothing in
the text of the appeal waiver or in the language of the [Agreement]
that would render the waiver inapplicable in this context."
Construing this silence favorably to its position, the government
contends that the within-the-range sentence imposed at
resentencing falls within the compass of the waiver.
The appellant demurs. He points out that the government
has not identified a single case in which a court has applied a
waiver-of-appeal provision to pretermit an appeal from a
resentencing. Waivers of appeal are to be construed narrowly, see
United States v. Fernández-Cabrera, 625 F.3d 48, 51 (1st Cir.
2010); United States v. Teeter, 257 F.3d 14, 23-24 (1st Cir. 2001),
and in the appellant's view, the plain terms of the Agreement
extend only to his "sentence" — not to any subsequently imposed
resentencing. If the government wanted to limit his right to
appeal from a resentencing, the appellant insists, the Agreement
could have — and should have — included a specific term to that
effect.

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To be sure, this concatenation of events poses a novel
question, and the correct answer to that question is not readily
apparent. As we recently have admonished, though, "courts should
not rush to decide unsettled issues when the exigencies of a
particular case do not require such definitive measures."
Privitera v. Curran (In re Curran), 855 F.3d 19, 22 (1st Cir.
2017). This is such a case. Even if we assume two preliminary
points in the appellant's favor — that the appeal waiver does not
extend to resentencings and that the appellant has not forfeited
his right to contest the waiver by failing to include an argument
to that effect in his opening brief — the record discloses no
grounds upon which to vacate the appellant's new sentence. We
explain briefly.
In a sentencing appeal, the customary praxis is first to
review any challenges to the procedural integrity of the sentence
and then to review any challenge to its substance. See Gall v.
United States, 552 U.S. 38, 51 (2007); United States v. Martin,
520 F.3d 87, 92 (1st Cir. 2008). Here, however, the appellant
makes only a bottom-line challenge to his newly imposed sentence:
he strives to persuade us that the sentence is substantively
unreasonable, given considerations such as his troubled childhood,
his poor health, the mistreatment he endured while incarcerated,
and the Sentencing Commission's recent recommendations to Congress

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regarding modifications to the career offender guideline. We are
not convinced.
We review the appellant's preserved claim of substantive
unreasonableness for abuse of discretion. See United States v.
Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir.), cert. denied, 136 S.
Ct. 258 (2015). We start with first principles: the district court
must evaluate an amalgam of factors in fashioning a condign
sentence, see 18 U.S.C. § 3553(a), but the "weighting of those
factors is largely within the court's informed discretion," United
States v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011). In any
given case, there is more than one reasonable sentence; there is
a range of reasonable sentences. See Martin, 520 F.3d at 92
(noting that there is likely to be an "expansive" universe of
reasonable sentences in any particular case). This makes perfect
sense: reasonableness is the touchstone of the inquiry and, in the
last analysis, "reasonableness is a protean concept." Id.
Of course, the discretion vested in a sentencing court,
though broad, is not unbounded. With respect to any sentence
imposed, the court must supply "a plausible sentencing rationale"
and reach "a defensible result." Id. at 96. It is against this
backdrop that we examine the challenged 151-month sentence.
We turn first to the sentencing court's rationale.
Before imposing the sentence, the court considered the appellant's
checkered criminal history, which featured an array of convictions

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beginning at age 18 and continuing virtually unabated until the
commission of the crimes at issue here. These convictions added
up to 21 criminal history points — more than enough to ensure the
appellant's placement for sentencing purposes in the highest
criminal history category (CHC) — VI. In its discussion, the court
took pains to observe that the appellant's 21 criminal history
points were appreciably more than the 13 points necessary to place
a defendant in CHC VI. Thus, CHC VI was, in effect, an
"underrepresentation" that failed to "capture the many, many
convictions and . . . violations of bail and probation" that formed
the appellant's extensive criminal record.
In addition, the court commented specifically on the
appellant's conduct while in custody. The court noted that the
records of the Bureau of Prisons memorialized over a dozen
disciplinary incidents, some as recent as 2015. Taken in the
ensemble, these infractions were, the court concluded, "indicative
of a lack of impulse control, a lack of maturity, [and] a lack of
respect for authority." The court explained that the appellant's
criminal history, coupled with his unruly behavior while in
custody, counseled against accepting the appellant's invitation to
impose a time-served sentence. In the court's view, a sentence at
the low end of the GSR was necessary in order to protect the
public.

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To pass the test of plausibility, a district court's
sentencing rationale need not be ironclad. See United States v.
Dixon, 449 F.3d 194, 205 (1st Cir. 2006). The court's sentencing
rationale in this case, though not unarguable, is certainly
reasonable. No more is exigible to pass the test of plausibility.
Cf. Ruiz-Huertas, 792 F.3d at 226-27 (explaining that "judgment
calls" normally fall within the scope of a sentencing court's
discretion).
This brings us to the defensibility of the sentencing
outcome, that is, whether "the punishment fit[s] the crime."
United States v. Narváez-Soto, 773 F.3d 282, 289 (1st Cir. 2014).
We need not find a perfect fit; rather, we must only determine
whether the sentence falls within the wide universe of reasonable
sentences for the crimes of conviction. With respect to such an
inquiry, the fact that the sentence is within a properly calculated
guideline sentencing range is entitled to significant weight. See
Rita v. United States, 551 U.S. 338, 347 (2007); United States v.
Coombs, 857 F.3d 439, 452 (1st Cir. 2017). Seen in this light,
challenging a bottom-of-the-range sentence is a heavy lift. The
appellant's arguments are not strong enough to accomplish such a
lift.
In support of his claim that his sentence is overly
harsh, the appellant cites his troubled childhood, his physical
and mental health, and the mistreatment that he allegedly received

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while incarcerated. He says that, as a child, he suffered repeated
sexual abuse and was exposed to lead poisoning. Moreover, he has
an injured leg, suffers from diabetes, and has a portfolio of
psychiatric problems, including an anxiety disorder, a bipolar
condition, and schizophrenia. He adds that, while in custody, he
was physically assaulted on multiple occasions, thereby
exacerbating his health issues. And prior to his incarceration,
he struggled with drug and alcohol dependency.
These are mitigating factors, and the appellant argues
that they should have led the sentencing court to vary downward
from the GSR. Relatedly, he argues that, given his age (48 at the
time of resentencing), his life of crime is behind him — a
circumstance that also supports a downwardly variant sentence.
But the appellant's compendium of potentially mitigating factors
is counterbalanced by a compendium of aggravating factors, not the
least of which are his prolific criminal record and his long string
of disciplinary infractions while incarcerated. Given this mixed
picture, the district court's decision to impose a sentence within
but at the low end of the GSR is an easily defensible outcome. 4
4 The appellant also invokes the Sentencing Commission's 2016
Report to Congress (the Report), in which the Commission recommends
that career offender enhancements be reserved for those career
offenders who have committed felony crimes of violence rather than
those (like the appellant) who are career offenders by reason of
other kinds of offenses. See U.S. Sentencing Comm'n, 2016 Report
to the Congress: Career Offender Sentencing Enhancements 44
(2016). The district court considered and rejected this argument,

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We need go no further. For the reasons elucidated above,
we hold that the appellant's 151-month sentence is substantively
reasonable.
III. CONCLUSION
The judgment of the district court is
Affirmed.
reasoning that the appellant's lengthy criminal history weighed
against leniency on account of the Report's hypothesis. This sort
of weighing of factors is emblematic of the type of function that
a sentencing court must perform, see Clogston, 662 F.3d at 593,
and the record reveals no sound basis for second-guessing the
district court's thoughtful evaluation. That is especially true
where, as here, the Report is merely a set of recommendations,
without any binding effect. Cf. United States v. Demers, 842 F.3d
8, 15 n.6 (1st Cir. 2016) (observing that "[w]e must decide [an]
appeal on the basis of the law as it stands, not on the basis of
the law as it might someday be").

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