FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO Hon. Juan M. Pérez-Giménez, U.S.
M. Latouf for appellant.
A. Mathews II, with whom Rosa Emilia
Rodríguez-Vélez, United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, and Tiffany V. Monrose,
Assistant United States Attorney, were on brief, for
Lynch, Stahl, and Thompson, Circuit Judges.
THOMPSON, CIRCUIT JUDGE.
Tanco-Pizarro mounts a multi-dimensional challenge - on both
procedural and substantive grounds - to the 60-month sentence
he received following the revocation of his supervised
release. After giving his arguments full and fair
consideration, we affirm.
the reader better understand what happened below, we begin
with some general observations about revocation sentencing.
statute, a court may revoke a person's supervised release
if it finds the government proved a release-condition
violation by a preponderance of the evidence, see 18
U.S.C. § 3583(e)(3), which is a more-likely-than-not
standard, see United States v.
Edwards, 857 F.3d 420, 421 (1st Cir. 2017). Shifting
to sentencing, the court starts its analysis by calculating
the suggested prison range under the federal sentencing
guidelines - a range that is based on the offender's
criminal history at the time of his original sentence and the
grade of his violation. U.S.S.G. § 7B1.4(a). There are
three violation grades, running from grade A (the most
serious) to grade C (the least serious). See id.
§§ 7B1.1, 7B1.3. The violation's grade is
determined by the "conduct constituting" any
"federal, state, or local offense punishable by"
various "term[s] of imprisonment." See id.
§ 7B1.1(a). Armed with the relevant info, the court
turns to the guidelines' "Revocation Table."
And by plotting the offender's violation grade along the
table's vertical axis and his criminal history along the
table's horizontal axis, the court ends up with the
advisory-prison range. See id. § 7B1.4.
word "advisory" is a dead giveaway that the
table's ranges are nonbinding. See United States
v. Márquez-García, 862 F.3d
143, 147 n.2 (1st Cir. 2017). A court has discretion, but not
carte blanche. A statute caps the stiffest possible
sentences. And the statutory cap depends "on the
severity of 'the offense that resulted in the term of
supervised release.'" United States
v. Fontanez, 845 F.3d 439, 445 (1st Cir.
2017) (quoting 18 U.S.C. § 3583(e)(3)). "For that
purpose, " § 3583(e) groups offenses "in
various categories." Id. And these
"groupings have real-world consequences, " as we
recently wrote: "upon revocation of supervised
[c]lass C or D felony bears a maximum sentence . . . of two
years; a [c]lass B felony bears a maximum sentence . . of
three years; a [c]lass A felony bears a maximum sentence . .
. of five years; and all other offenses bear a maximum
sentence . . . of one year.
Id. at 445-46 (citing § 3583(e)(3)). A court
can sentence the offender to a prison stint within the
applicable statutory maximum, after considering the relevant
sentencing factors that help guide the court's
discretion, see, e.g., United States
v. Vargas-Dávila, 649 F.3d 129,
131-32 (1st Cir. 2011) - and we will say more about that
this short primer in place, we turn to Tanco-Pizarro's
facts are simple and undisputed. Almost eight years ago, in
December 2010, Tanco-Pizarro finished a prison sentence for
possessing a gun and ammo in furtherance of a
drug-trafficking crime and began a five-year term of
supervised release. And things went swimmingly, apparently -
at least for a while.
December 2014 and again in September 2015, probation notified
the district court that Tanco-Pizarro had broken several
conditions of supervised release. Only three are relevant
here. The first one arose from probation's claim that it
had tried without success to contact him "numerous
times" (by phone and in person), that he had not updated
his contact info as required, and that he had failed to
report to the probation office as requested -all of which,
probation alleged, violated a supervised-release term
requiring him to "answer truthfully all inquiries by the
probation officer and follow the instructions of the
probation officer." The next two stem from
probation's claim that while police officers in San Juan
were helping Tanco-Pizarro get out of a BMW overturned on a
road, they found an "AK rifle, " a "Glock
pistol, " and a collection of magazines and ammunition
in the auto - all of which, according to probation, violated
supervised-release terms forbidding him from committing
another "federal, state[, ] or local crime" and
banning him from possessing "a firearm" or
"ammunition" (excess capitalization omitted).
went from bad to worse for Tanco-Pizarro, when in October
2015 a federal grand jury - relying on what the police had
recovered from the flipped-over Beemer - indicted him for
being a felon in possession of a firearm. Skipping over
details not relevant to this appeal, we see that hard on the
heels of this indictment, Tanco-Pizarro moved for a
continuance of the final-revocation hearing and moved for
discovery: filed 7 days before the hearing, the continuance
motion argued that "the outcome" of the
felon-in-possession case "may have an effect in the
disposition of the instant case"; filed 2 days before
the hearing, the discovery motion asked that the court order
the government to turn over certain documents related to the
felon-in-possession matter. The court denied his motions. And
following a hearing, the court revoked his supervised
release. To avoid consuming too many pages of the Federal
Reporter, we cover only the highlights from that proceeding.
with the felon-in-possession charge first, Tanco-Pizarro
(through his lawyer) disputed whether the seized firearm was
an automatic - in this instance (the parties agreed) an
automatic firearm would support a grade A violation, while a
non-automatic firearm would support a grade B violation. And
he moved orally for the court to hear the testimony of the
probation officer on this point. But the court denied the
motion. He then conceded that the court could rely on the
indictment to determine whether he had violated his
supervised release by possessing a firearm. Tackling the
failure-to-report violation, he "accept[ed]" that
infraction, conceding (in the words of his lawyer) that
"after November of 2014, " his "whereabouts .
. . were unknown until the time that he was arrested"
following the overturned-BMW incident - a "grade C
violation." No surprise, then, that the court found that
he violated his supervised release by "not reporting to
the probation officer." But the court found, too, that
his "new criminal behavior" also infracted his
supervised release - a "grade B violation, " not a
grade A violation.
the higher-found grade and a criminal history category of II,
the court calculated Tanco-Pizarro's advisory-prison
range to be 6 to 12 months. See U.S.S.G.
§§ 7B1.1(a)(2), 7B1.4(a). And because his original
crime was a "class A felony, " the court said that
it could put him back behind bars for up to 60 months, the
maximum penalty provided by statute.
government pushed for a 60-month sentence. For his part,
Tanco-Pizarro's counsel did not request a specific
sentence. But he did ask the court to keep in mind that his
client faced a sentencing range of 37 to 46 months for the
felon-in-possession charge and that any sentence on that
charge would probably "run consecutively to" any
Tanco-Pizarro had shown he would not comply with the law or
with the conditions of supervision, the court sentenced him
to 60 months in prison - with no further supervised release.
That sentence, the court added, "reflect[s] the
seriousness of the offense, promote[s] respect for the law, .
. . provide[s] just punishment for the offense, . . .
afford[s] adequate deterrence, and protect[s] the public from
further crimes" - and thus was "sufficient but not
greater than necessary in this case." Significantly,
neither Tanco-Pizarro nor his lawyer objected to the
days later, however, Tanco-Pizarro moved for reconsideration,
arguing as relevant here that the district court did not
adequately explain its sentencing rationale and wrongly
factored "the seriousness" of the
felon-in-possession crime, "the promotion of respect for
the law, and punishment for" the felon-in-possession
"offense" into its sentencing
analysis. The government opposed the motion. And the
court denied it, ruling - in an electronic order - that
Tanco-Pizarro's "lack of compliance with the
reporting requirement of his supervised release and the fact
that he was arrested while heavily armed . . . are strong
reasons for the [c]ourt to impose" a 60-month
brings us to today's appeal, which, as we said, centers
around Tanco-Pizarro's claim that the 60-month sentence
is both ...