FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. D. Brock Hornby, U.S. District Judge]
Clifford B. Strike and Strike, Gonzales & Butler Bailey
on brief for appellant.
B. Frank, United States Attorney, and Julia M. Lipez,
Assistant United States Attorney, on brief for appellee.
Thompson, Boudin, and Barron, Circuit Judges.
BOUDIN, Circuit Judge.
Tosi was convicted of possessing a firearm while subject to a
qualifying court order. 18 U.S.C. § 922(g)(8). After
pleading guilty, the only issue on appeal is Tosi's
16, 2016, officers of the Scarborough, Maine Police
Department received a call from a woman who said that, the
night before, Tosi put a pillow over her face, pressed a
firearm up against the pillow, and said "bang,
a search of Tosi's residence, police found a Remington
12-gauge shotgun. At the time of the incident, Tosi was
subject to a state court order aimed at protecting his child
and his child's mother. Tosi pled guilty to a one-count
information, charging him with violating 18 U.S.C. §
922(g)(8) based on his possession of the shotgun.
Probation Office's pre-sentence report ("PSR")
proposed a total offense level of twelve--which included a
two-level decrease for the defendant's acceptance of
responsibility--and a criminal history category
("CHC") of III, resulting in an initial guideline
range of fifteen to twenty-one months. U.S.S.G. §§
2K2.1(a)(6)(A), 3E1.1(a); id. ch. 5, pt. A.
sentencing memorandum, the government argued for an upward
departure as to Tosi's CHC--urging the court to adopt a
CHC of V. The government also sought an upward variance,
ultimately requesting a term of sixty months'
by contrast, sought a sentence below the PSR's
recommended guideline range of fifteen to twenty-one
months' imprisonment, downplaying his criminal past and
citing his difficult family background, personal medical
problems, and history of substance abuse. At the sentencing
hearing, defense counsel repeated these arguments before
suggesting that a sentence "within the [guideline
range], or slightly below" would be appropriate.
district court at sentencing adopted one of the
government's proposals when it departed and assigned Tosi
a CHC of V. The court refused, however, to vary upwards and
instead sentenced Tosi to thirty-three months'
imprisonment--a term at the top of, but still within, the
range set by a final total offense level of twelve and CHC of
V. Id. at ch. 5, pt. A.
appeal, Tosi challenges his sentence on both substantive and
procedural grounds, categories themselves somewhat elastic
and defined in terms that can depart from common usage.
See, e.g., United States v.
Crespo-Ríos, 787 F.3d 34, 37 n.3 (1st Cir. 2015).
simplifies the discussion without changing the outcome to
assume that the alleged errors were all preserved and all
subject to review under a deferential standard, see
United States v. Flores-Machicote, 706 F.3d 16, 20 (1st
Cir. 2013)--save for certain specific issues raised for the
first time in Tosi's reply brief, which are barred,
United States v. Carbajal-Váldez, 874 F.3d
778, 785 n.2 (1st Cir. 2017). Such ...