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United States v. Tosi

United States Court of Appeals, First Circuit

July 24, 2018

UNITED STATES OF AMERICA, Appellee,
v.
PRIMO TOSI, Defendant, Appellant.

          APPEAL 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.

          Halsey B. Frank, United States Attorney, and Julia M. Lipez, Assistant United States Attorney, on brief for appellee.

          Before Thompson, Boudin, and Barron, Circuit Judges.

          BOUDIN, Circuit Judge.

          Primo 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 sentence.

         On May 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, bang."

         During 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.

         The 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.

         In its 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' imprisonment.

          Tosi, 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.

         The 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.

         On 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).

         It 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 ...


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