US v. Marino

Filing

OPINION issued by Rogeriee Thompson, Appellate Judge; Bruce M. Selya, Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Published. [15-1998]

Case: 15-1998

Document: 00117040049

Page: 1

Date Filed: 08/09/2016

Entry ID: 6023769

United States Court of Appeals
For the First Circuit
No. 15-1998
UNITED STATES OF AMERICA,
Appellee,
v.
PAUL MARINO,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]

Before
Thompson, Selya, and Kayatta,
Circuit Judges.

James L. Sultan, with whom Audrey M. Grace and Rankin & Sultan
were on brief, for appellant.
Francesco Valentini, Attorney, Criminal Division, United
States Department of Justice, with whom Leslie R. Caldwell,
Assistant Attorney General, Sung-Hee Suh, Deputy Assistant
Attorney General, and Carmen M. Ortiz, United States Attorney,
were on brief, for appellee.

August 9, 2016

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THOMPSON, Circuit Judge.
Stage Setting
Paul Marino is a fraudster extraordinaire.

Back in the

early 2000s, for example, he ran a fairly elaborate scheme designed
to swindle New Yorkers out of their property.

In one instance

Marino forged the rightful owners' signatures on documents so he
could transfer their property (without their consent, obviously)
to himself (under an alias).

He then transferred the property to

an entity called "RYDPHO Holdings" — with "RYDPHO" standing for
"Rip You Da Phuck Off," apparently.
property for $185,000.

Later he helped sell the

And he eventually wired some of the

proceeds through bank accounts of companies he controlled.

Fresh

off the apparent success of this deception, he tried to do the
same thing to other property owners.

But they discovered what he

was up to before he could complete the transfers.
Nabbed by law enforcement, Marino pled guilty in New
York federal court to a single count of wire fraud.
§

1343.

Probation

filed

a

See 18 U.S.C.

presentence-investigation

report

detailing his lengthy criminal record, which included convictions
for things like fraud, larceny (e.g., he had stolen a generator
while awaiting sentencing on the scheme described in the preceding
paragraph),

forgery,

and

conspiracy

to

use

—

and

use

of

—

unauthorized access devices, as well as revocation of supervised
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release

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and

re-imprisonment

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based

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on

a

fraud

Entry ID: 6023769

offense.

And

ultimately, a judge sentenced him to 14 months in prison, 36 months
of supervised release, and restitution of $185,000.

Among the

conditions of supervised release were that he "notify" probation
"at least ten days prior to any" employment change and "within
seventy-two

hours

of

being

arrested

or

questioned

by

a

law

enforcement officer," pay restitution "at a rate of 10% of [his]
gross monthly income," and "not commit another federal, state, or
local crime."
Marino served his jail time but soon found himself in
trouble again, with probation asking the Massachusetts federal
court to revoke his supervised release (that court had taken
jurisdiction over his supervised release).
probation

alleged

that

he

(1)

ran

a

As relevant here,

construction

and

home-

inspection business from his house without telling probation;
(2) failed to notify probation within 72 hours of police contact
— like after he got stopped for speeding, for example; (3) did not
make the required restitution payments; (4) committed two new
crimes — defrauding Dell, Inc. (an electronics company) and the
Massachusetts Department of Transitional Assistance ("DTA," from
now on, a state agency that runs public-assistance programs like
food stamps and job training); and (5) tampered with electronicmonitoring equipment probation installed in his house (a judge had
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imposed the no-tampering condition after police arrested him for
violating other supervised-release conditions).1
Responding to probation's charges, Marino filed a memo
admitting to violating the first three violations, acknowledging
the judge should revoke his supervised release, and declaring no
need to "conven[e] protracted mini-trials" to address the other
infractions (the state courts should handle the fraud issues, he
wrote).

The judge held a revocation hearing.

And hoping to prove

the nonconceded-to charges as well, the government called four
witnesses:

Cheryl Fontaine, who had hired Marino as a contractor;

Officer Jeremy DeMello, who logged a fraud complaint received from
Scott Hudson of Dell's fraud unit — Hudson was based in Texas;
Detective

Raul

Espinal,

who

helped

search

Marino's

home

for

equipment stolen from Dell; and Probation Officer Fredrick Lawton,
who

testified

construction

about

work,

a

his

number
fraud

of

things,

against

Dell

including
and

tampering with his electronic-monitoring device.

DTA,

Marino's
and

his

The government

also introduced documentary evidence, including photos of two
"return" boxes shipped back to Dell from Marino's home address
(boxes filled with construction materials or rocks, not Dell

1

The government alleged other violations.
But a district
judge concluded that the government failed to prove those charges.
So we say nothing further about them.
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products, we add); a list of items — with identifying serial
numbers

—

that

Dell

reported

stolen,

items

that

the

police

recovered from Marino's house; contracts and bank checks involving
Marino's

construction

work;

and

Marino's

benefits, plus his correspondence with DTA.

application

for

DTA

Marino, for his part,

did not testify or present evidence.
At

the

end

of

the

hearing

the

judge

found

facts

confirming that Marino had committed new crimes by defrauding Dell
and DTA and that he had tampered with his electronic-monitoring
gadget.

So the judge revoked Marino's supervised release and

sentenced him to 12 months in prison (the top of the uncontested
sentencing

range

of

6-12

months)

followed

by

24

months

of

supervised release, with the judge imposing as a special condition
that he spend the first 12 months of his supervised release at
Coolidge House — a residential reentry center in Boston. The judge
also "reimpose[d]" "[a]ll previously imposed conditions."
Marino now appeals, raising three broad arguments.

His

lead claim is that the judge erred by admitting hearsay evidence
concerning Dell's fraud investigation of him.

Next he insists

that insufficient evidence supported the judge's finding that he
had cheated Dell and DTA and that he had monkeyed around with the
electronic-monitoring equipment.

And last he contends that the

judge's sentence requiring him to spend a year at Coolidge House
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unreasonable.

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We

analyze

sequentially, noting additional facts as needed.

these

Entry ID: 6023769

arguments

And when all is

said and done, we affirm.
Hearsay
Marino thinks the judge slipped up by admitting two
groups of hearsay statements:

the first involves a list of items

— together with their serial numbers — that Dell reported stolen;
the

second

summarizing

involves
a

report

Probation
he

received

Officer
from

Lawton's
Hudson,

testimony

Dell's

fraud

investigator. As Marino sees things, the judge's actions infracted
the

"limited

proceedings.

confrontation

right"

in

federal

revocation

See United States v. Rondeau, 430 F.3d 44, 48 (1st

Cir. 2005); see also Morrissey v. Brewer, 408 U.S. 471, 489 (1972);
Fed. R. Crim. P. 32.1(b)(2)(C). Reviewing for abuse of discretion,
Rondeau, 430 F.3d at 48, we spy no error.
Guiding Principles
A supervised releasee facing a revocation proceeding has
a qualified right "to . . . question any adverse witness unless
the [judge] determines that the interest of justice does not
require the witness to appear." See Fed. R. Crim. P. 32.1(b)(2)(C)
(emphasis added).
get in.

What this means is that hearsay testimony can

See, e.g., Rondeau, 430 F.3d at 48.

But the judge should

balance "the releasee's right to confront witnesses with the
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government's good cause for denying confrontation."
that,

the

judge

should

consider

the

Entry ID: 6023769

Id.

hearsay

In doing

testimony's

reliability and the government's rationale for not producing the
declarant (with "declarant" being legalese for the person who made
the statement).

See id.; see also United States v. Mulero-Díaz,

812 F.3d 92, 96 (1st Cir. 2016).
On the reliability front, caselaw holds (so far as
relevant here) that "conventional substitutes for live testimony,"
like

"affidavits,

depositions,

and

documentary

evidence,"

ordinarily possess sufficient indicia of reliability, Gagnon v.
Scarpelli, 411 U.S. 778, 782 n.5 (1973) — as does hearsay testimony
about statements that are corroborated by other evidence, are
detailed, or were repeated by the declarant without any material
changes, see Rondeau, 430 F.3d at 48-49; United States v. Portalla,
985 F.2d 621, 624 (1st Cir. 1993).
catalog, as particular cases vary.

This is a nonexhaustive

See Rondeau, 430 F.3d at 48.

Anyway, on the explanation front, caselaw recognizes that "concern
. . . with the difficulty and expense of procuring witnesses from
perhaps thousands of miles away" is a paradigmatic example of the
type of situation that might call for the admission of hearsay
evidence at a revocation proceeding.
n.5.

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See Gagnon, 411 U.S. at 782

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Reliability
Over a hearsay objection by Marino's counsel, the judge
admitted a list of items, with serial numbers, that Dell reported
stolen to the police.

Officer DeMello, who had talked by phone

with Dell's Hudson about Marino's fraudulent orders, testified
that someone had given that list to "the detectives" — the fair
inference being that the "someone" was a Dell employee.

Marino

calls the list unreliable, pouncing on the fact that Officer
DeMello did not know key particulars, like who had compiled it.
But Detective Espinal's separate testimony helped confirm the
list's reliability:

As the police searched Marino's home with a

warrant in hand, Detective Espinal's colleague, Detective Scott
Brown, "had a list of all the items" the police were looking for,
along with the items' "serial numbers."

And, as Detective Brown

wrote in a section of his report (which the judge admitted into
evidence on Marino's lawyer's motion), the police found "[e]ach
and every" sought-after "item" at that locale.

This constellation

of corroborating evidence lends ample indicia of reliability to
the list.

See Rondeau, 430 F.3d at 48 (noting how corroboration

helps with reliability).

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On to Marino's attack on the reliability of Probation
Officer Lawton's summary of Dell's fraud investigation.

And this

is what you need to know:
Over another hearsay objection by Marino's attorney, the
judge let Probation Officer Lawton testify about how after he
caught wind of Dell's fraud report to the police, he called Dell's
Hudson.

Hudson told him, Probation Officer Lawton added, that

"Marino had been having" Dell ship expensive electronic equipment
"to his house" — though after getting the merchandise, Marino would
call Dell, say that he wanted to return the items, and then send
back instead boxes filled with "construction" materials (like
"sheetrock") or "rocks," without the equipment.

More, again

according to Probation Officer Lawton's testimony of what Hudson
said, Marino once told Dell that he did not get a computer monitor
that he had ordered, that it might have been stolen off his porch,
and that Dell should send him a new one.

Dell obliged.

But a

little later he told Dell that "he didn't want" the new "monitor,"
though the one he eventually "returned was the first monitor" —
i.e., the monitor he claimed had been stolen.
Contesting

the

evidence's

trustworthiness,

Marino

stresses that "Hudson's putative statements regarding . . . the
alleged fraud were neither written nor sworn under oath."

True.

But we think this evidence nonetheless passes the reliability
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threshold.
Portalla,

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For one, the statements are packed with details.
985

F.2d

at

reliability indicator).

624

(explaining

that

"detail"

See
is

a

For another, they are corroborated by

evidence developed by the police — not only did law enforcement
find the items Dell had reported stolen at Marino's residence, but
Detective Brown's report (the part admitted at Marino's counsel's
behest) noted that Marino's wife had said during the search that
Marino "had ordered that stuff" from Dell.

See Rondeau, 430 F.3d

at 48 (emphasizing that corroboration is a reliability indicator).
Also, Hudson consistently articulated the same version of events
—

he

spoke

to

Officer

DeMello

and

Probation

Officer

Lawton

separately, and their respective testimony about his comments
mirrored one another in every material way.2

2

See id. (finding it

Here's a sampling of what Officer DeMello said Hudson had

said:
So what had happened was [Hudson] called and he
stated that [Dell] had been getting invoices from a . . .
Mr. Marino in New Bedford, . . . and stated that he had
shipped him TVs, computers, and computer-related
equipment over a period of . . . a year, a year and a
half, . . . and during that time there were several
fraudulent transactions made, . . . one in which [Dell]
had shipped a TV and when the TV was supposed to have
arrived Mr. Marino contacted [Dell] and stated that he
never received a TV and that it must have been stolen
off of his front porch. And then [Dell] shipped him a
second TV, . . . and then he had contacted [Dell] again
and said that the second one wasn't . . . the one that
he wanted . . ., so [Dell] told him to return it for a
refund, however when he returned it for a refund he
actually returned the original one that was reported as
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significant that the declarant "never changed her description" of
the key events).

And given this concatenation of circumstances,

Marino has no leg to stand on here.3
Explanation
Marino complains that the government never explained at
the hearing why it chose not to produce any of the following:
(a) Hudson or another Dell witness, (b) an affidavit from Hudson
or another Dell employee, or (c) Dell business records — for
simplicity, we sometimes refer to this stuff as the "pined-for
evidence."
argument

Anyhow, because of the government's failure (Marino's
continues,

at

least

implicitly),

performed the required balancing.

the

judge

never

This argument has some bite.

being stolen and not the second one [Dell] shipped him,
which [Dell] had done I guess through matching the serial
numbers.
Also [Hudson] had stated that [Dell] shipped [Mr.
Marino] several TVs and computers over a time, . . .
amounting to somewhere over $20,000[,] and [Mr. Marino]
would ask to return these items and when he returned
them instead of [Dell] getting back a TV or computer
equipment or whatever [Dell] had shipped him, [Dell]
would instead get construction materials, sheetrock,
slats of wood, things of that nature . . . .
3

Marino argues against the
evidence" touching on the DTA fraud.
in his reply brief.
So we deem it
States v. Eirby, 515 F.3d 31, 36 n.4
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"reliability" of "hearsay
But he débuts that argument
waived.
See, e.g., United
(1st Cir. 2008).

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But given the specific circumstances of this case, it cannot
prevail.
Yes, the government did not explain below why it relied
on hearsay testimony rather than, say, on Dell business records
(i.e., documents that fall within an exception to the hearsay rule)
or

on

an

affidavit

from

a

Dell

employee

(an

affidavit

is

substantially more reliable because it is both in writing —
eliminating reliance on the listener's memory — and sworn to).
wish the government had:

We

such an explanation would undoubtedly

help in working through the balancing test.

And we expect the

government to have an explanation of this sort at the ready in
future cases (prosecutors would do well to remember that warning,
obviously).
But here is why we find no abuse of discretion in this
particular instance. Both sides played up the balancing test below
— the government (to cite just one example) reminded the judge
that he had to "balance" Marino's "right to confront witnesses
with the government's good cause for denying confrontation."

And,

after reading the relevant caselaw, the judge straight-out said
that he had done precisely that.

Again, the government did not

directly tell the judge what its good cause was.

It focused its

energies instead on defending the evidence's reliability, perhaps
because Marino centered his attacks on reliability — he said
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nothing about the government's explanation (or lack of one), which
means that he did not (as he does now) fault the government for
not explaining why it passed on presenting the pined-for evidence.
But remember, the record shows that Hudson worked out of Texas.
And remember too, Marino copped to several infractions before the
hearing, conceded the judge should revoke his supervised release,
and declared no need for any "mini-trials" to deal with the other
alleged infractions.

Well, given these specific circumstances, we

accept the idea that it was reasonable for the government not to
incur "the difficulty and expense of procuring" Hudson "from . . .
thousands of miles away," see Gagnon, 411 U.S. at 782 n.5, just so
he could testify at a hearing where Marino did not dispute the
need to revoke his supervised release and saw no grounds for "minitrials" — which pours cold water on his the-government-shouldhave-produced-Hudson

argument.

Of

course,

there

remains

the

troubling fact that the government did not secure an affidavit
from Hudson.

While such a failure might in many cases tip the

balance against the government, here the numerous reliability
indicators — especially the self-confirming match between the
numbers on the list and the numbers on the items found in Marino's
residence — provide enough support to sustain the ruling as within
the judge's discretion.

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The

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abuse-of-discretion

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standard

is

not

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"appellant-

friendly," to put it mildly, because it requires "strong evidence
that the . . . judge indulged a serious lapse in judgment."

Texaco

P.R., Inc. v. Dep't of Consumer Affairs, 60 F.3d 867, 875 (1st
Cir. 1995). And ultimately, despite the able arguments of Marino's
lawyer, we see nothing concerning the pined-for evidence that rises
to that level in this unique case — so we let the judge's ruling
stand.
Cir.

See generally Dopp v. Pritzker, 38 F.3d 1239, 1253 (1st
1994)

(stressing

that

most

"appellants

who

consider

themselves aggrieved by discretionary decisions of the district
court . . . are destined to leave this court empty-handed").
Sufficiency of the Evidence
That takes us to Marino's sufficiency claims — claims
premised on his belief that the government offered insufficient
evidence to establish his Dell or DTA fraud or his tampering with
the electronic-monitoring gizmo.

Before tackling his arguments,

we briefly sketch the legal rules governing our review.
Guiding Principles
The government must prove it is more likely true than
not (the usual preponderance standard) that the defendant violated
a condition of supervised release.
Rivera,

586

F.3d

63,

66

(1st

See United States v. Oquendo-

Cir.

2009)

(citing

18

U.S.C.

§ 3583(e)(3)); see also United States v. Cruz, 120 F.3d 1, 4 (1st
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Cir. 1997) (en banc) (describing the preponderance standard).
the

government

meets

its

burden

and

the

judge

revokes

If
the

defendant's supervised release, we inspect his factual findings
for clear error — clear error (for those not in the know) means
the judge got things "wrong with the force of a 5 week old,
unrefrigerated, dead fish," Toye v. O'Donnell (In re O'Donnell),
728 F.3d 41, 46 (1st Cir. 2013) (quoting S Indus., Inc. v. Centra
2000, Inc., 249 F.3d 625, 627 (7th Cir. 2001)); and we examine his
revocation decision only for abuse of discretion, see, e.g.,
Oquendo-Rivera, 586 F.3d at 66.
Sufficiency challenges are notoriously hard to win,
because

"(a)

the

evidence

must

be

viewed

in

the

light

most

agreeable to the government, (b) the judge's choice among competing
but plausible inferences from the evidence cannot as a matter of
law be clearly erroneous, and (c) credibility calls" are for the
judge — not for us.

United States v. Vixamar, 679 F.3d 22, 29

(1st Cir. 2012); see also Oquendo-Rivera, 586 F.3d at 67; Portalla,
985 F.2d at 622.

No surprise, then, that Marino's challenges come

up short.
Dell Fraud
Evaluated

using

the

just-described

techniques,

the

record here features sufficient evidence to sustain the judge's
finding that Marino defrauded Dell. Recall first Officer DeMello's
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testimony:

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He said that Dell's Hudson ID'd Marino as the suspect

in a merchandise-ordering scam, reporting conduct that bore the
hallmarks of fraud — e.g., he referenced Marino's false claims
that merchandise never showed up and discussed Dell's receipt of
"return" boxes containing construction materials or rocks instead
of Dell items.

And he added that Dell later gave a detailed

inventory of the pilfered products, complete with serial numbers
(a reasonably inferable inference, given that we take the evidence
in the light most flattering to the government).

Now also recall

Detective Espinal's testimony and Detective Brown's report:

Both

confirm that police found the items Dell reported stolen within
Marino's home, with Detective Brown's report also noting that when
he explained to Marino's wife that the police had a warrant to
search for Dell products that "were never paid for," she said,
"that's all Paul, he ordered the stuff."
Unfortunately for Marino, his arguments against the
evidence's sufficiency are not difference makers.

He suggests,

for starters, that the judge did not admit Officer DeMello's
testimony for the truth.

The judge made this not-for-the-truth

comment after Marino's lawyer argued that the officer's testimony
about Hudson's report was "rank hearsay."

But once the government

concluded its case, the judge reviewed the pertinent precedent
(e.g., Rondeau), performed the required balancing, and deemed the
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hearsay "reliable" enough to be admitted — which cuts the legs out
from under Marino's initial argument.
unreliable.
not a winner.

He also calls the evidence

But we have already explained why that argument is
Finally, he says nothing establishes that he "had

ordered any computers" or "that he returned any boxes to Dell."
But the record, read as it must be, in the light most amiable to
the government, shows otherwise.4
Enough said about the sufficiency of the evidence on the
Dell-fraud charge.
DTA Fraud
As for the DTA-fraud issue, Marino does not dispute that
he applied for public assistance with DTA, certifying under the
pains and penalties of perjury that he did not earn any income.
Neither does he dispute that he knew (thanks to the form he signed)
that he had to notify DTA "within 10 days" of any change in income.
Nor does he dispute that he never reported any income to DTA.
Instead he contends that the government provided insufficient
evidence to prove that he actually received public assistance from

4

Marino says in his supplemental pro se brief that the "IP
address" used to purchase the Dell products is not associated with
his residence and that he did not "own" that "IP address." We see
no record support for either claim. And the evidence actually in
the record — read in the required light — is sufficient to link
him to the Dell fraud under the preponderance standard.
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DTA or that he earned any income during his supervised release.
Neither contention is convincing.
Taking the evidence and permissible inferences in the
light most flattering to the government, we think sufficient proof
supports the judge's finding that Marino got DTA public assistance.
Among other evidence, the government introduced a letter DTA sent
Marino during the relevant period warning him that his "benefits
may stop" if he "did not keep" a scheduled "appointment" with a
DTA official — the obvious inference from this is that Marino
collected public assistance from DTA.

Equally devastating to this

aspect of his claim, Marino concedes in his pro se supplemental
brief that he actually did get a "public assistance monthly
allowance."
Viewed in the proper light, the evidence and reasonable
inferences also amply support the finding that Marino earned income
that he should have told DTA about.

Marino, recall, stipulated at

the

worked

revocation

hearing

to

having

industry without probation's blessing.

in

the

construction

And the evidence admitted

at the hearing showed that Cheryl Fontaine hired Marino as a
contractor and sent thousands of dollars' worth of checks to "CWD
Construction Company Inc." — a company she had contacted by email
after doing some online research.

Marino points out that Fontaine

made these checks payable to CWD, not to him.
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But there was

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evidence that Marino "ran" CWD — Marino's own lawyer called CWD
"Mr. Marino's company."

From this evidence the judge could

reasonably count at least some of Fontaine's payments as income to
Marino, income that — the uncontested evidence shows — could have
caused DTA to reduce or even eliminate Marino's public-assistance
benefits.
Device Tampering
Marino does not contest that a condition of release
required him to submit to "location monitoring technology as
directed by the . . . supervising officer" and "abide by all of
the program requirements and instructions provided by the . . .
supervising
technology."

officer

related

to

the

proper

operation

of

the

Nor does he contest that he put "glue or plastic

substance" on the base unit of his electronic-monitoring device
without permission.

Instead he says that he added the glue "to

protect the device from being separated from its power adapter
while [his] dog jump[ed] around playing with [his] daughter."

He

insists too that this no-tampering condition must require proof of
some "nefarious effect" to result in a violation — and, his
argument continues, the government provided no evidence that the
device "did not work properly."
The simple answer to Marino's argument is that Probation
Officer Lawton instructed him not "to tamper" with the device,
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adding that if Marino "had some concerns about it" he had to bring
them up with probation.

Given this testimony, together with the

condition's clear-as-day language, the judge could supportably
conclude that the "program['s] requirements" barred Marino from
making

any

unauthorized

changes

to

the

device

—

not

just

"nefarious" changes that actually disabled the device.5
Sentencing
Marino last argues that the special condition that he
spend the first year of supervised release at Coolidge House makes
his sentence "substantively unreasonable" and is "unwarranted by
the evidence."

But this argument meets the same fate as his

preceding ones.
When a judge revokes a defendant's supervised-release
term, the new sentence may include an additional supervisedrelease stint, see 18 U.S.C. § 3583(h), including a requirement
that he live at a reentry center like Coolidge House, see id.
§ 3563(b)(11).


Of course, any supervised-release condition must

be "reasonably related," id. § 3583(d)(1), to "the nature and
circumstances

of

the

offense

5

and

the

history

and

Through his supplemental pro se missive, Marino argues — as
he did during his allocution at sentencing — that Probation Officer
Lawton had it in for him from the get-go and that this bias led to
his violations. But the judge rejected Marino's blame-shifting
theory.
And Marino gives us no persuasive reason to upset the
judge's conclusion.
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characteristics of the defendant," id. § 3553(a)(1), and to
the need to deter and protect others and to rehabilitate the
defendant, see id. § 3553(a)(2)(B)-(D);


"involve[]

no

greater

reasonably

necessary"

deprivation
for

of

deterring

liberty
criminal

than

is

conduct,

protecting the public, and rehabilitating the defendant, id.
§ 3583(d)(2); see also id. § 3553(a)(2)(B)-(D);


be consistent with policy statements issued by the United
States Sentencing Commission, see id. § 3583(d)(3); and



"be supported by the record," United States v. Garrasteguy,
559 F.3d 34, 42 (1st Cir. 2009).
A judge has "significant flexibility" in formulating

special conditions of supervised release.

Id. at 41.

And given

his front-row seat at the proceeding, we review his selection of
supervised-release conditions for abuse of discretion, knowing
that "[t]he touchstone of abuse of discretion review . . . is
reasonableness" and that "any one of several sentences may be
reasonable in a particular case."

United States v. Vargas-Dávila,

649 F.3d 129, 130 (1st Cir. 2011).

What this means is that we

will jettison the judge's sentencing decision "only if" it "falls
outside

the

'expansive

boundaries'

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of

the

entire

range

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reasonable sentences."

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Id. (quoting United States v. Martin, 520

F.3d 87, 92 (1st Cir. 2008)).6
Marino insists that a one-year stay at Coolidge House is
"assuredly" excessive, given that he has "no convictions for crimes
of violence or drug offenses" and has "employable skills."

But he

has not shown us how these commonplace offender characteristics
outweigh the obvious need for deterrence, public protection, and
rehabilitation (a.k.a., the statutory sentencing goals):

As the

judge supportably found — based on the copious evidence presented
at the hearing — Marino has a "long history" as a "con man," a
history that includes (a) the wire-fraud conviction that led to
his original supervised-release term, as well as (b) the schemes
to

defraud

Dell

supervised-release

and

DTA

(proven

revocation,

forgery convictions.

plus

below)
(c)

that

his

triggered

many

larceny

the
and

Marino's recidivist ways show that ordinary

supervised-release conditions will not help achieve the statutory
goals of sentencing, making it reasonably necessary to impose

6

The parties fight over whether Marino said enough below to
preserve his substantive-reasonableness challenge.
But we need
not say who is right, because Marino's challenge fails under either
abuse-of-discretion or plain-error review. See United States v.
Ruiz–Huertas, 792 F.3d 223, 228 & n. 4 (1st Cir.) (taking that
approach in a similar case after noting the uncertainly surrounding
whether a substantive-reasonableness claim must be preserved
below), cert. denied, 136 S. Ct. 258, 258–59 (2015).
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greater restrictions.

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Or so the judge reasonably could — and did

— conclude.
Trying a slightly different tack, Marino argues that
Coolidge House is too restrictive, citing to the center's rules
controlling the residents' comings and goings and limiting their
cell-phone, internet, and computer use on the center's premises.
According to his pro se supplemental brief, he needs a job to earn
the "several thousand dollars a month" his family needs to sustain
its lifestyle.

And — his argument continues — the center's

restrictions will severely crimp his ability to find work.

He

also complains that Coolidge House is too far from his family,
noting how the center is about 60 miles from where his wife and
daughter live.

None of these arguments persuades, however.

Take Marino's the-center-is-too-restrictive argument.
We agree that a judge should not lightly impose restrictions of
the type complained about here.

But the judge did not impose the

Coolidge House special condition lightly — again, he hit Marino
with it only after the earlier supervised-release conditions had
indisputably failed.
Also, Marino's own counsel conceded at the revocation
hearing that the judge should "buil[d]" a "structured environment"
into the sentence.

And surely the center's coming-and-going

limitations are part and parcel of a "structured environment."
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On

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top of that, Marino's complaints about the center's cell-phone,
internet,

and

computer

restrictions

conveniently

ignore

that

residents in his shoes (i.e., residents not dealing with courtimposed release conditions restricting their internet and computer
use) can use — repeat, can use — "the internet for job searching
purposes at a local career resource center, or as part of their
employment if required as part of their job responsibilities or
duties" (a quote lifted from the center's resident handbook that
Marino relies on).
Marino is also wrong in suggesting that the special
condition denies him his fundamental right to associate with his
family because the Coolidge House is located about 60 miles from
his family's home.

Almost every supervised-release condition

restricts a felon's liberty.
436

F.3d

307,

permissible

310

(1st

condition

See, e.g., United States v. Smith,

Cir.

from

an

2006).

The

line

impermissible

one

separating
depends

a
on

whether, given the case's facts, the "particular restriction is
clearly unnecessary."

Id.

Marino's Coolidge House stay may be

inconvenient for him and his family.

But we cannot say that the

condition is "clearly unnecessary," especially given his proven
track record of backsliding into crime.7

7

Marino thinks that rehabilitation would "best be
accomplished" by letting him live with his family and score work
in his home town.
But Marino has already shown that ordinary
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As

a

fallback,

Page: 25

Date Filed: 08/09/2016

Marino

argues

that

Entry ID: 6023769

his

one-year

community-confinement term "directly contravenes" section 5F1.1 of
the

federal

Sentencing

Guidelines.

That

section

says

that

"[c]ommunity confinement may be imposed as a condition of probation
or supervised release."

Application note 2 to that section states

(emphasis ours) that "[c]ommunity confinement generally should not
be imposed for a period in excess of six months" and adds that
"[a] longer period may be imposed to accomplish the objectives of
a specific rehabilitative program, such as drug rehabilitation."
But

by

using

the

word

"generally"

the

Sentencing

Commission

injected some "flexibility" into this area — thus if a "judge has
specific rehabilitative goals in mind, and believes that those
goals cannot be accomplished within six months, the judge may
impose a longer period of community confinement."

See United

States v. Stephens, 347 F.3d 427, 430 (2d Cir. 2003) (citing United
States v. Lominac, 36 F.3d 1095, 1994 WL 510242 (4th Cir. 1994)
(per curiam) (unpublished)).

True, the judge here never said the

word "rehabilitative."

But we can infer that the judge had

Marino's

in

rehabilitation

mind,

especially

from

the

judge's

comments about how Marino needs "a structured environment" to set

conditions of supervised release will not do the trick, giving the
judge ample reason to conclude that he needs a more "structured
environment."
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him back on the straight and narrow and how Marino must stay at
Coolidge House for a year because "insofar as supervised release
goes, he's a failure."
Accusing the judge of not really "consider[ing]" section
5F1.1,
justify

Marino

calls

the

judge's

him

double

the

giving

explanation

"length

of

insufficient

time

in

to

community

confinement . . . suggested by the Sentencing Commission."

But he

also insists that his lawyer said enough at the hearing to preserve
the section-5F1.1 issue for appeal.

And we can infer that the

judge considered and rejected Marino's points before settling on
one year of community confinement, with the judge's comments about
Marino's past failures justifying the need for a more "structured
environment" — which means the condition imposed is grounded in a
plausible view of the circumstances and culminates in a "defensible
overall result."

See United States v. Jiménez–Beltre, 440 F.3d

514, 519 (1st Cir. 2006) (en banc) (emphasizing that the telltale
sign of a reasonable sentence is a defensible outcome supported by
a plausible rationale); see also United States v. Colón de Jesús,
No. 15-1962, 2016 WL 4056033, at *3 (1st Cir. July 29, 2016)
(emphasizing that even "an unexplained condition of supervised

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release may be upheld as long as the basis for the condition can
be inferred from the record").
Wrap Up
Having

carefully

considered

all

of

Marino's

claims

(including some that merit no discussion), we affirm the judgment
below in all respects.

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