US v. Rittall
Filing
OPINION issued by Sandra L. Lynch, Appellate Judge; David H. Souter, Associate Supreme Court Justice* and Bobby R. Baldock, Appellate Judge**. Unpublished. *The Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the Unted States, sitting by designation. **Of the Tenth Circuit, sitting by designation. [15-2475]
Case: 15-2475
Document: 00117139704
Page: 1
Date Filed: 04/07/2017
Entry ID: 6082507
Not for Publication in West’s Federal Reporter
United States Court of Appeals
For the First Circuit
No. 15-2475
UNITED STATES OF AMERICA,
Appellee,
v.
JOANN C. RITTALL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lynch, Circuit Judge,
Souter, Associate Justice,*
and Baldock, Circuit Judge.**
Kerry A. Haberlin, with whom Rankin & Sultan was on brief,
for appellant.
Margaret McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on
brief, for appellee.
April 7, 2017
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
**
Of the Tenth Circuit, sitting by designation.
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BALDOCK, Circuit Judge.
Date Filed: 04/07/2017
Entry ID: 6082507
Defendant Joann Rittall pleaded
guilty to two counts of filing false income tax returns and
using
other
people’s
identities.
Based
on
her
history
and
characteristics, the nature and circumstances of the offense,
and the need to obtain restitution for the victims, the district
court would have imposed a sentence at the high-end of the U.S.
Sentencing Guidelines range.
medical
court
issues,
instead
primarily
imposed
a
But because of Rittall’s serious
her
Anorexia
sentence
Nervosa,
at
the
the
district
low-end
of
the
Guidelines, resulting in 63 months’ imprisonment on both counts
to be served concurrently.
complains
that
substantively
the
In this sentencing appeal, Rittall
sentence
unreasonable.
is
After
both
procedurally
careful
consideration,
and
we
affirm the district court’s sentence on Count 2 but remand with
instructions
to
resentence
on
Count
1
consistent
with
the
statutory maximum of 60 months’ imprisonment.
I.
Beginning in 2005, Rittall acquired other people’s personal
identifiers,
including
their
birth
dates
and
social
security
numbers, by offering to help them file tax returns and claims
for rent rebates under Maine’s Residents Property Tax and Refund
“Circuit
Breaker”
program.
Between
2006
and
2012,
Rittall
prepared and filed false federal and state income tax returns in
her own name and the names of at least 24 others, including her
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son,
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boyfriend,
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neighbors,
and
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individuals
she
Entry ID: 6082507
met
through
Alcoholics Anonymous and drug treatment programs she attended.
The returns included false claims about income, dependents, and
the
Earned
$435,298,
Income
and
Tax
the
Credit.
federal
The
claimed
government
and
refunds
Maine
combined total of $238,961.85 from 2007 to 2010.
totaled
paid
out
a
The IRS paid
refunds into bank accounts Rittall designated and could access.
In
August
Information
2013,
against
the
government
Rittall.
Count
filed
1
a
charged
two-count
False
Claims
Against the Government, in violation of 18 U.S.C. § 287, for
filing false federal income tax returns claiming refunds of more
than $200,000 from 2009 to 2012, subject to a statutory maximum
of five years’ imprisonment.
Count 2 charged Identity Theft, in
violation of 18 U.S.C. § 1028(a)(7) and 1028(b)(1)(D), for using
the personal identifiers of 24 people without their permission
and
obtaining
a
thing
of
value
over
$1,000,
statutory maximum of 15 years’ imprisonment.
subject
to
a
Rittall waived
indictment and pleaded guilty to the Information.
Rittall’s
sentencing.
14
years
serious
health
problems
caused
delays
in
Rittall had developed Anorexia Nervosa when she was
old
and
faced
multiple
serious
medical
conditions
likely stemming from her eating disorder, including tachycardia
(rapid heart rate), hyperthyroidism (overactive thyroid), and
hypokalemia (low potassium).
She also has Von Hippel-Lindau
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disease, a genetic condition causing benign and malignant tumors
to develop throughout her body.
presentence
conferences
and
The district court held seven
delayed
sentencing
for
over
two
years after Rittall pleaded guilty, in an attempt to allow her
to seek medical help and stabilize her condition.
But those
efforts were met with limited success and continued setbacks.
feeding
tube
stomach
to
required
her
upper
attention
bowel;
after
a
it
wound
A
migrated
from
her
associated
with
her
intravenous feed became infected and she suffered renal failure;
she had a mass in her throat that required additional testing;
and doctors continued to treat her rapid heart rate, abdominal
pain, and chronic kidney disease.
conference,
the
district
court
At the seventh presentence
noted
that
two
of
Rittall’s
doctors suggested Rittall might be sabotaging her own health to
avoid incarceration, perhaps out of fear that the Bureau of
Prisons (“BOP”) could not adequately treat her host of medical
conditions.
At sentencing in November 2015, the district court adopted,
without objection, the Guidelines calculation recommended in the
Third Revised Presentence Investigation Report.
Based on an
adjusted offense level of 20 and a criminal history category V,
Rittall’s Guidelines imprisonment range was 63 to 78 months.
The
district
court
then
heard
testimony
from
the
clinical
director at Federal Medical Center (FMC) Carswell in Fort Worth,
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who
Texas,
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the
Rittall’s
testified
numerous
to
medical
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facility’s
conditions
Entry ID: 6082507
ability
through
to
treat
inpatient
and
outpatient care, including medical and mental health services.
The district court then heard arguments from the government and
Rittall’s attorney, as well as comments from Rittall, before
stating the sentence.
Focusing
on
the
factors
in
18
U.S.C.
§ 3553(a),
the
district court explained that it determined Rittall’s sentence
based
mainly
defendant,
on
(2)
(1)
the
the
history
nature
and
and
characteristics
circumstances
of
the
of
the
offense,
(3) the need to obtain restitution to the victims, and (4) the
need to provide the defendant with adequate medical care.
As to
Rittall’s
court
history
and
characteristics,
the
district
outlined her abusive relationships, substance abuse problems,
mental health history, employment history, and criminal history.
It noted that her past crimes “reflect a very strong streak of
dishonesty.”
jail,
she
crimes.
Despite having spent a fair amount of time in
had
Next,
not
as
been
to
deterred
the
nature
from
and
committing
additional
circumstances
of
the
offense, the district court described Rittall’s scheme and how
she obtained the personal identifying information from people
she
knew
or
met
through
Alcoholics
Anonymous,
falsified
information, obtained the money, and blamed the victims when
confronted with her scheme.
The district court emphasized that
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the scope of the fraud was wide and substantial, involving over
25 victims and receipts of nearly a quarter of a million dollars
from 2007 to 2010.
Thus, the district court next turned to the
need to obtain restitution for the victims, which included the
federal and state governments as well as the taxpayers whose
identities she fraudulently used.
And it noted the unlikelihood
that Rittall would be able to pay anything in restitution.
The
district court concluded that, “but for the defendant’s medical
condition, I would, without any hesitation whatsoever, impose a
high end of the guideline sentence on this defendant.”
The district court next addressed how Rittall’s physical
and mental conditions impacted her sentence.
Although Rittall
had an “unusual set of medical conditions,” the district court
concluded
medication
those
or
conditions
changes
in
were
diet
mostly
or
the
treatable
“with
defendant’s
own
cooperation,” rendering them less serious and less influential
over
the
district
sentence.
court
As
to
concluded
Rittall’s
that
Anorexia
Rittall
Nervosa,
“has
the
deliberately
attempted to manipulate her sentence through her manipulation of
her physicians, and it’s unfortunately consistent with her track
record
in
life.”
The
negative
experience
it
different
defendant
with
district
had
with
Anorexia,
court
mentioned
FMC
Carswell
but
the
court
a
previous
regarding
a
nonetheless
concluded that Rittall “does well when she is hospitalized” and
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that she “actually bears a greater risk of physical problems
when she’s left to her own devices.”
The district court noted
that “there is sort of an irreducible risk of someone with her
condition being at Carswell, but I think the risk at Carswell is
no greater than the risk of her remaining [at home] in Augusta.”
The district court concluded that, if Rittall “did not have
the physical issues that she obviously does have, I would be
looking
at
a
high-range
sentence.
However,
because
of
her
physical problems, it strikes me that the correct sentence to
impose is a low-end-of-the-guideline sentence and that is the
sentence I will impose.”
The district court sentenced Rittall
to a term of 63 months’ imprisonment on both Counts 1 and 2, to
run
concurrently.
Rittall
appealed
her
sentence
on
both
procedural and substantive grounds.
II.
In
sentencing
appeals,
“we
first
determine
whether
the
sentence imposed is procedurally reasonable and then determine
whether
it
is
substantively
reasonable.”
United
Clogston, 662 F.3d 588, 590 (1st Cir. 2011).
States
v.
Procedural errors
may consist of “failing to calculate (or improperly calculating)
the
Guidelines
range,
treating
the
Guidelines
as
mandatory,
failing to consider the § 3553(a) factors, selecting a sentence
based
on
explain
clearly
the
chosen
erroneous
facts,
or
sentence—including
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failing
an
to
adequately
explanation
for
any
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deviation from the Guidelines range.”
552
U.S.
38,
reasonableness
51
(2007).
for
abuse
We
Entry ID: 6082507
Gall v. United States,
review
procedural
discretion,
of
generally
with
subsidiary
questions of law reviewed de novo and of fact for clear error.
United States v. Carrasco-de-Jesús, 589 F.3d 22, 27 (1st Cir.
2009).
When
a
defendant
does
not
object
to
an
alleged
procedural error below, as is true here, we review for plain
error, in which case a defendant must show (1) that an error
occurred;
(2) the
error
was
clear
or
obvious;
(3) the
error
affected the defendant’s substantial rights; and (4) the error
seriously impaired the fairness, integrity, or public reputation
of the judicial proceedings.
United States v. Duarte, 246 F.3d
56, 60 (1st Cir. 2001).
We review the substantive reasonableness of a sentence for
abuse of discretion, taking into consideration the totality of
the circumstances.
Cir. 2009).
United States v. Stone, 575 F.3d 83, 94 (1st
Under the abuse-of-discretion standard, we will
affirm unless the sentence falls outside the range of reasonable
sentences.
Id.
We
focus
on
whether
the
district
court
articulated a “plausible rationale” en route to a “defensible
result,” United States v. Martin, 520 F.3d 87, 96 (1st Cir.
2008), and give due deference “to the District Court’s reasoned
and
reasonable
whole,
decision
justified
the
that
the
sentence.”
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§ 3553(a)
Gall,
552
factors,
U.S.
at
on
the
59–60.
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Because Rittall did not object below, the parties acknowledge an
open question in this Circuit as to whether a defendant must
object to the substantive reasonableness of a sentence to avoid
plain error review.
See United States v. Ruiz-Huertas, 792 F.3d
223, 228 (1st Cir. 2015) (noting that the applicable standard of
review
“is
somewhat
blurred,”
but
not
deciding
whether
a
defendant must “preserve a claim that the duration of a sentence
is substantively unreasonable”).
A.
Rittall’s
first
complaint
is
that
the
district
court
committed plain procedural error by relying on her need for
rehabilitation in imposing a prison sentence.
Reform
Act
instructs
sentencing
courts
to
The Sentencing
“recogniz[e]
that
imprisonment is not an appropriate means of promoting correction
and rehabilitation.”
18 U.S.C. § 3582(a).
Sentencing courts
thus “may not impose or lengthen a prison sentence to enable an
offender to complete a treatment program or otherwise to promote
rehabilitation.”
(2011).
the
But a sentencing court does not err by discussing with
defendant
prison
Tapia v. United States, 564 U.S. 319, 335
or
programs.”
the
“the
opportunities
benefits
Id. at 334.
of
for
specific
rehabilitation
treatment
or
within
training
The “dividing line” between permissible
and impermissible references to rehabilitative needs centers on
whether the reference is “causally related to the length of the
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sentence or, conversely, was merely one of a mix of sentencing
consequences and opportunities.”
United States v. Del Valle-
Rodriguez, 761 F.3d 171, 174 (1st Cir. 2014).
Rittall argues that the district court violated Tapia by
relying
on
her
rehabilitative
needs—specifically
needs—to select the prison term.
her
medical
She points to the district
court’s discussion regarding how she
does well when she is hospitalized.
She actually
bears a greater risk of physical problems when she’s
left to her own devices. So when she’s hospitalized,
she gains weight, and she is overseen, and she’s
controlled by other people, and she doesn’t have the
same risk that she has when she is out of the hospital
and has an incentive, at least in the run up to this
sentence, to manipulate the system.
Rittall
argues
decision
to
an
impose
important
factor
a
sentence
prison
in
the
was
district
that
she
court’s
would
do
better in prison than at home.
Even
if
we
assume
Rittall
is
correct
that
a
district
court’s concerns for a defendant’s medical needs could result in
Tapia error, Rittall’s argument fails because she disregards the
context in which the district court made these comments.
turning
to
Rittall’s
health
concerns,
the
district
Before
court
explained that, “but for the defendant’s medical condition, I
would, without any hesitation whatsoever, impose a high end of
the
guideline
sentence”
based
on
Rittall’s “extremely serious” crime.
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other
circumstances
of
The only issue putting
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downward pressure on the sentence was Rittall’s serious medical
issues and the BOP’s ability to treat her, but the district
court
care.
concluded
that
FMC
Carswell
could
provide
appropriate
The district court was not imposing a prison sentence or
basing the length of that sentence on the fact that Rittall
might do better with constant medical supervision; it imposed
the prison sentence because Rittall’s crime and history called
for the sentence and the district court was satisfied that she
would fare no worse in prison than at home.
As in Del Valle-
Rodriguez, “the actual basis for the district court’s sentencing
determination
is
crystal
clear”:
extensive criminal history.
of Tapia error.”
Rittall’s
Rittall’s
761 F.3d at 175.
serious
crime
and
“There is no hint
Id. at 176.
supplemental
authority
of
United
States
v.
Thornton, 846 F.3d 1110 (10th Cir. 2017), does not convince us
otherwise.
In Thornton, the Tenth Circuit found that a district
court erred (but did not plainly err) when the district court
refused to vary downward or impose a lesser sentence based, in
part, on a need for rehabilitation.
The district court had
commented that a lower sentence was not “in the defendant’s best
interest” as he “doesn’t do well on his own.
Never has.
And
he needs all kinds of services that he can get and will get in
prison.”
Id. at 1113.
The district court concluded, “I am
firmly convinced that defendant needs enough time in prison to
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get treatment and vocational benefits.”
Entry ID: 6082507
Id. at 1114–15.
While
the Tenth Circuit determined the district court committed Tapia
error by refusing to sentence below the Guidelines, the same
cannot be said here.
sentence
below
the
Instead, the district court refused to
Guidelines
because
of
Rittall’s
serious
offense, not because she needed a sufficient amount of time in
prison
to
receive
medical
treatment
and
supervision.
The
district court’s comments regarding how Rittall’s health fared
on
her
district
address
own
versus
court’s
her
many
while
concern
health
in
that
inpatient
the
BOP
concerns.
care
might
related
not
Ultimately,
be
the
to
the
able
to
district
court was satisfied that the BOP could adequately treat Rittall
and thus imposed a prison sentence in line with its view of
Rittall’s serious criminal history and current crime.
Rittall
fails on the first prong of plain error review because we see no
error here.
B.
Rittall
procedural
next
error
asserts
by
the
district
effectively
court
treating
the
committed
plain
Guidelines
as
mandatory rather than advisory when it refused to vary below the
Guidelines range based on her physical and mental conditions.
See Gall, 552 U.S. at 51 (stating that a district court commits
procedural error by treating the Guidelines as mandatory).
acknowledges
that
the
district
court
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called
the
She
Guidelines
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“advisory,”
but
demonstrate
Guidelines
she
the
as
Page: 13
points
to
district
mandatory
Date Filed: 04/07/2017
the
court
when
it
following
discussion
to
treated
the
nonetheless
came
to
Entry ID: 6082507
imposing
a
prison
sentence or allowing for an at-home probationary sentence:
Here, the defendant, at least under the guidelines,
would not be entitled to a straight probationary
sentence, so in order to go outside the guideline,
it’s the courts view that it could not downward depart
under the guideline and award simply a straight
probationary sentence.
The court has the obvious
authority under 3553(a) to impose any sentence that is
statutorily authorized, but to do so, it would be a
nonguideline sentence if it were straight probation.
Rittall
does
not
assert
the
district
court
erred
in
refusing to depart based on U.S.S.G. § 5H1.3, which allows for
departures based on the mental and emotional condition of the
defendant, or § 5H1.4, which allows for a departure based on the
physical condition of a defendant, but rather contends that the
district court erred in applying the same departure standard
while it was discussing the possibility of a variance.
the
standards
Court
has
for
recently
departures
under
reaffirmed
that
§§ 5H1.3
and
“[d]epartures
Under
5H1.4,
this
based
upon
health problems are discouraged and can only be justified if the
medical problems are present in unusual kind or degree.”
States
v.
Herman,
848
F.3d
55,
59
(1st
Cir.
2017)
United
(quoting
United States v. LeBlanc, 24 F.3d 340, 348 (1st Cir. 1994)),
petition for cert. filed Feb. 14, 2017.
To “be entitled to a
departure, a defendant must establish that her ‘life would be
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threatened or shortened by virtue of being incarcerated’ or that
‘the Bureau of Prisons would be unable to adequately accommodate
[her] medical needs.’”
LeBlanc,
24
F.3d
at
Id. (alteration in original) (quoting
349);
see
also
United
States
v.
Díaz-
Rodríguez, No. 15-1307, 2017 WL 1137016, at *5 (1st Cir. March
17, 2017) (affirming a district court’s refusal to depart when
the district court found the defendant would receive adequate
treatment
district
while
court
considering
in
custody).
held
whether
her
to
to
Rittall
these
vary,
same
which,
complains
high
in
that
standards
her
view,
the
while
shows
the
district court treated the Guidelines as mandatory.
We do not read the record the same way Rittall does.
she
sees
the
district
court
treating
the
Where
Guidelines
as
mandatory, we see the district court recognizing its authority
to vary under 18 U.S.C. § 3553(a) and simply refusing to do so.
The district court started with the “guideline sentence range of
63 to 78 months, which is advisory.”
It then turned to the
factors set forth in 18 U.S.C. § 3553(a), including Rittall’s
serious health concerns.
complaint
is
that
the
In our view, the essence of Rittall’s
district
court
“attached
too
little
weight” to her health concerns, but “deciding how much weight
should be given to particular factors in a specific case is,
within
court.”
broad
limits,
the
core
functioning
of
a
sentencing
United States v. Maguire, 752 F.3d 1, 7 (1st Cir.
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2014).
Rittall
court
did
not
cannot
Page: 15
Date Filed: 04/07/2017
seriously
carefully
complain
consider
her
that
health
the
Entry ID: 6082507
district
issues—those
problems took center stage in her seven pre-sentencing hearings
and at the sentencing hearing itself.
district
court
decided
that
her
And in the end, the
medical
issues
put
downward
pressure on her sentence to the low end of the Guidelines, but
no lower.
The district court was well within its discretion to
decide that the other 3553(a) factors—primarily the nature of
the crime, the history and characteristics of the defendant, the
need
for
restitution,
and
the
need
to
afford
adequate
deterrence—outweighed any downward pressure her unusual health
issues presented, particularly after finding that the BOP could
adequately
treat
her.
The
district
court,
aware
that
the
Guidelines were not mandatory, reasonably declined to vary below
them and did not commit plain procedural error, or, for that
matter,
any
error
(“[D]iscretionary
at
all.
refusals
See
to
vary
Maguire,
or
752
depart
F.3d
are
at
open
7
to
reasonableness review in accordance with an abuse of discretion
standard.”).
C.
Rittall’s third point of error is that the district court
imposed a substantively unreasonable sentence when it refused to
vary downward from the Guidelines range.
She asserts this is
“one of the rare cases in which a sentence imposed within the
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Guidelines range is substantively unreasonable” because (1) the
Guidelines range did not take into account her physical and
mental
conditions,
including
her
long
battle
with
Anorexia
Nervosa and the host of other health problems she has faced;
(2) the amount of intended and actual loss, while not nominal,
was also not exorbitant and the Guidelines fully accounted for
that loss; (3) several of her previous convictions that placed
her in a category V criminal history were relatively minor, such
as operating an unregistered vehicle, operating with a suspended
license, and negotiating a worthless instrument and theft with
loss amounts of less than $7,000; and (4) she pleaded guilty to
the Information, saving the government from presenting the case
to a grand jury or a jury, yet the district court did not take
that into account and instead disqualified her from a reduction
because
she
stole
less
than
$5
of
melatonin
while
she
was
released pending sentencing.
Because of an open question in this Circuit on the standard
of review, the parties disagree as to whether we review for
plain error or abuse of discretion, but as in Ruiz-Huertas,
“[w]e need not resolve this apparent anomaly today” because even
under
the
more
favorable
outcome is the same.
abuse
of
discretion
792 F.3d at 228.
discretion, let alone plain error.
standard,
the
We discern no abuse of
The district court carefully
considered and balanced a host of competing sentencing factors,
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Case: 15-2475
and
Document: 00117139704
it
explained
its
defensible result.
Page: 17
rationale
Date Filed: 04/07/2017
on
and
way
to
reaching
a
The district court started with the advisory
guideline range of 63 to 78 months.
history
its
Entry ID: 6082507
characteristics,
It then outlined Rittall’s
concluding
that
her
prior
convictions “reflect a very strong streak of dishonesty” and
noting that jail has not deterred her from committing additional
crimes.
Next,
circumstances
the
of
district
the
court
offense
and
turned
to
the
emphasized
nature
that
and
Rittall’s
scheme was “quite elaborate,” involving over two dozen people
over six years.
The district court also carefully considered
Rittall’s health concerns and concluded that, although serious,
the BOP could address those concerns at FMC Carswell.
Finally,
the district court noted the victims’ reactions to Rittall’s
offense and the need to deter similar behavior.
court
concluded
that
Rittall
merited
a
The district
significant
term
of
imprisonment, one that, but for her mental and physical issues,
would be at the high end of the Guidelines range.
Because of
her health concerns, the district court imposed a sentence at
the low end of that range.
This is a defensible result and
within the range of reasonable sentences.
The district court
did not impose a substantively unreasonable sentence.
D.
Rittall’s
final
complaint
is
that
the
district
court
imposed a sentence exceeding the statutory maximum on Count 1.
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Case: 15-2475
Document: 00117139704
Page: 18
Date Filed: 04/07/2017
Entry ID: 6082507
The district court sentenced Rittall to 63 months’ imprisonment
on both Count 1 and Count 2, to run concurrently, even though
Count 1 had a statutory maximum of five years’ (60 months’)
imprisonment.
Rittall did not object before the district court,
and thus, we review for plain error.
In United States v. Almonte-Nunez, 771 F.3d 84 (1st Cir.
2014),
we
faced
an
almost
identical
situation:
the
district
court sentenced the defendant to a 150-month concurrent sentence
on two counts that had been grouped together, despite the 120month statutory maximum on one of the counts.
clear
and
obvious,
as
“Guideline
calculations
That error was
simply
cannot
usurp a maximum level of imprisonment established by Congress.”
Id. at 92.
Even though fixing the above-maximum sentence would
not affect the defendant’s ultimate sentence, we explained that,
“under normal circumstances, our discretion should be exercised
in favor of trimming back an excessive sentence.”
Id.
To begin, in an appropriate case, leaving intact a
sentence that exceeds a congressionally mandated limit
may sully the public’s perception of the fairness of
the proceeding.
That perception, in turn, may
threaten respect for the courts and may impair their
reputation.
From
the
defendant’s
standpoint,
collateral consequences may arise as a result of an
above-the-maximum sentence imposed on a particular
count.
The existence and extent of these collateral
consequences are notoriously difficult to predict, but
they have the potential to harm the defendant in a
myriad of ways.
It strikes us as both unwise and
unfair to place the risk of such harm on the defendant
where, as here, the excessive sentence is easy to
correct.
In the last analysis, correcting such an
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Case: 15-2475
Document: 00117139704
Page: 19
Date Filed: 04/07/2017
Entry ID: 6082507
error will rarely tax judicial resources and may
(depending on what an uncertain future brings) provide
some small benefit to the defendant. When (as in this
case) there are no countervailing circumstances, we
believe that the interests of justice ordinarily will
tip the scales in favor of relief.
Id. (citations omitted).
Following the approach in Almonte-Nunez, we will remand for
the district court to enter a modified sentence in accordance
with the statutory maximum of 60 months’ imprisonment on Count
1.
III.
For the reasons stated above, we order the district court
to enter a modified sentence on Count 1 consistent with the
statutory
maximum
of
60
months’
affirm.
- 19 -
imprisonment.
We
otherwise
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