US v. Eusti

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Rogeriee Thompson, Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Unpublished. [15-1850]

Case: 15-1850

Document: 00117123197

Page: 1

Date Filed: 02/28/2017

Entry ID: 6072645

Not For Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit
No. 15-1850
UNITED STATES OF AMERICA,
Appellee,
v.
COREY EUSTIS,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, U.S. District Judge]

Before
Torruella, Thompson, and Kayatta,
Circuit Judges.

Kim P. Bonstrom and Bonstrom & Murphy, on brief for appellant.
Renée M. Bunker, Assistant United States Attorney, and
Thomas E. Delahanty II, United States Attorney, on brief for
appellee.

February 28, 2017

Case: 15-1850

Document: 00117123197

TORRUELLA,

Page: 2

Circuit

Date Filed: 02/28/2017

Judge.

Defendant

Entry ID: 6072645

Corey

Eustis

appeals his sentence for possession of a firearm by a person
previously convicted of a misdemeanor crime of domestic violence.
We affirm.
BACKGROUND
On August 26, 2012, Eustis accidentally shot himself
with a .22 caliber pistol while sitting near a campfire with his
girlfriend.

Based on information provided by the girlfriend,

officers searched a wooded area near Eustis's residence and found
the pistol and two other firearms.

After a bench trial, Eustis

was convicted of one count of possession of a firearm by a person
previously convicted of a misdemeanor crime of domestic violence,
in violation of 18 U.S.C. §§ 922(g)(9) and 924(a)(2).
The district court held a sentencing hearing, at which
it ruled that Eustis had an adjusted offense level of eighteen
under the United States Sentencing Guidelines (the "Guidelines").
It also determined that Eustis had a criminal history category
("CHC") of III, leading to a recommended Guidelines sentence of
thirty-three to forty-one months.
The district court then found facts related to the
Government's request for an upward departure.

First, it found

that Eustis had brought the pistol to the campfire "to intimidate"
his girlfriend "during an argument," making his possession offense

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Case: 15-1850

more

Document: 00117123197

serious

than

a

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normal

Date Filed: 02/28/2017

possession

Entry ID: 6072645

conviction.

It

also

determined that, during Eustis's pretrial detention, he called his
girlfriend and convinced her to write a letter to the district
court recanting her prior truthful statements.

The district court

also looked at the facts surrounding three of Eustis's prior
assault convictions against domestic partners, including one in
which he threatened a girlfriend with a loaded pistol, and found
that they "portray[ed] a person who is very dangerous to intimate
partners."

Finally, the district court discussed two incidents

in which Eustis threatened a girlfriend, including one in which he
used "a firearm in a threatening manner," but for which he was not
convicted.
Examining these facts, the district court determined
that "the need to impose a sentence that reflects the seriousness
of this crime and . . . protects the public and, in particular,
[Eustis's]

intimate

partners"

required

an

above-Guidelines

sentence "on the grounds that . . . [Eustis's] criminal history
[was] understated."

After applying the departure, the district

court sentenced Eustis to fifty-one months' imprisonment.
Eustis timely appealed his sentence.
ANALYSIS
Eustis's primary argument is that the district court
committed procedural error by relying on prior convictions, and

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the "nature" of those convictions, that were already factored into
his CHC.
A sentence is procedurally sound so long as the
district court did not commit a procedural error in
arriving at the sentence.
Examples of procedural
errors include: failing to calculate (or improperly
calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the
section 3553(a) factors, selecting a sentence based
on clearly erroneous facts, or failing to adequately
explain
the
chosen
sentence
-including
an
explanation for any deviation from the Guidelines
range. When assessing procedural reasonableness, our
abuse of discretion standard is multifaceted.
We
review factual findings for clear error, arguments
that the sentencing court erred in interpreting or
applying the guidelines de novo, and judgment calls
for abuse of discretion simpliciter.
United States v. Nelson, 793 F.3d 202, 205-06 (1st Cir. 2015)
(alteration omitted) (quoting United States v. Trinidad-Acosta,
773 F.3d 298, 308-09 (1st Cir. 2014)).
The Guidelines allow an upward departure "[i]f reliable
information

indicates

that

the

defendant's

criminal

history

category substantially under-represents the seriousness of the
defendant's criminal history or the likelihood that the defendant
will commit other crimes." U.S.S.G. § 4A1.3(a)(1).

The Guidelines

list five nonexclusive circumstances that may warrant an upward
departure, primarily prior conduct that would not be captured when
calculating the defendant's CHC.

See id. § 4A1.3(a)(2).

Eustis contends that the district court did not base its
upward departure on circumstances that fit within or were analogous
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to those listed in the Guidelines.
relied

"exclusively"

on

the

Entry ID: 6072645

Rather, Eustis asserts, it

facts

underlying

his

criminal

convictions, but those convictions were already considered in
calculating
because,

his

CHC.

although

This

the

was

error,

Guidelines'

according

five

to

Eustis,

circumstances

are

nonexclusive, they are "all of a particular type: . . . crimes or
conduct that the criminal history calculation instructions . . .
fail specifically to consider."

United States v. Morrison, 946

F.2d 484, 496 (7th Cir. 1991).

Eustis's prior convictions were

used to calculate his CHC, and Eustis argues that this type of
"double-counting"

is

impermissible,

citing

to

cases

from

the

Seventh and Tenth Circuits.
Even assuming that it would have been error for the
district court to base its departure solely on the facts that
formed the basis for Eustis's prior convictions,1 that is not what
happened here.

Rather, the district court also considered two

uncharged incidents of domestic assault, Eustis's "intimidating"
calls to his girlfriend from jail in which he convinced her to
recant her prior statements, and the fact that Eustis brought the
pistol to the campfire "to intimidate" his girlfriend before

1

We note that in other contexts, we have stated that "doublecounting is less sinister than the name implies" because different
Guidelines "account for different sentencing concerns."
United
States v. Wallace, 573 F.3d 82, 92 (1st Cir. 2009).
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accidentally

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himself. 2

shooting

Date Filed: 02/28/2017

The

Guidelines

Entry ID: 6072645

specifically

provide that the district court may rely on "information concerning
. . . [p]rior similar adult criminal conduct not resulting in a
criminal

conviction"

§ 4A1.3(a)(2)(E).

to

make

an

upward

departure.

U.S.S.G.

The district court did that here, and so it did

not abuse its discretion in applying an upward departure.
Separately, Eustis maintains that the district court did
not adequately explain why it chose a sentence of fifty-one months.
The district court increased Eustis's CHC from level III to level
IV, resulting in a recommended sentencing range of forty-one to
fifty-one months.

See id. § 5A.

It explained, in great detail,

why it considered Eustis's actions more egregious than a standard
conviction for possession of a firearm and Eustis himself a danger
to

society

and

likely

to

recidivate.

That

explanation

was

sufficient to justify a sentence at the maximum of the recommended
Guidelines range.3

2

Eustis retrieved the pistol from the house, loaded it, and
brought it out to the fire during the argument. Eustis was also
drinking and had a prior history of using weapons to intimidate
his significant others. Based on those facts, it was not clear
error for the district court to find that Eustis "intended to use
it to intimidate" his girlfriend, as Eustis argues.
3

Because we do not find that the district court abused its
discretion in sentencing Eustis, we need not reach his argument
that it sentenced him in an improper sequence. Eustis admits that
this argument applies only "if this Court agrees with one or more
of" Eustis's other arguments.
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CONCLUSION
For the reasons stated, we affirm Eustis's sentence.
Affirmed.

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