US v. Slater

Filing

OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Rogeriee Thompson, Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Unpublished. [16-1188]

Case: 16-1188

Document: 00117162481

Page: 1

Date Filed: 06/02/2017

Entry ID: 6096570

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit
No. 16-1188
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN C. SLATER,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before
Howard, Chief Judge,
Thompson and Kayatta, Circuit Judges.

William S. Maddox on brief for appellant.
Margaret D. McGaughey, Assistant United States Attorney, and
Thomas E. Delahanty II, United States Attorney, on brief for
appellee.

June 2, 2017

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KAYATTA, Circuit Judge.
two issues:

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Entry ID: 6096570

This sentencing appeal presents

(1) whether the district court plainly erred by

considering a victim-impact statement that the defendant claims he
was not able to review prior to sentencing; and (2) whether the
defendant's
unreasonable.

sentence

was

procedurally

or

substantively

Because the defendant has failed to show how he was

prejudiced by any delay he may have experienced in receiving the
victim-impact statement, and because the district court appears to
have adequately considered and explained the relevant factors that
led it to impose a within-guidelines sentence, we affirm the
district court.
I.
The facts of this case are drawn from the revised
presentence investigation report ("PSI Report") and are not in
dispute.

On June 23, 2014, local police officers responded to a

bank robbery at a Bank of Maine branch in Hallowell, Maine.

The

officers' investigation revealed that a male customer had entered
the branch and told a teller that he was interested in opening an
account. After the teller led the customer into an office to begin
the account-opening process, the customer handed the teller a note
that stated the following:
Im [sic] Here to Rob your Bank,
Alarms my cell phone rings, your
dead, I have a hand grenade, and
marked bills, or inked, if so, one

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no Silent
[sic] all
a gun, no
day I will

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come back and
understand???

Page: 3

kill

all

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of

The man then told the teller, "I'm sick.
care, I'll shoot.

the

do

branch

you

I want $15,000.

Now you didn't set off the alarm?

my phone will go off."
told

you,

Entry ID: 6096570

I don't

If you did,

The teller thereafter left the office,
manager

what

was

happening,

and

the two employees retrieved $15,000 in brand new $100 bills, which
they gave to the man.
Within a matter of days, and with the public's help, the
man was identified as defendant John Slater.

The execution of

warrants for two residences listed under Slater's name yielded a
number of incriminating items, including some of the clothes that
the man wore on the day of the robbery, stationery that matched
the note that the man provided the teller, a Bank of Maine cash
bag, and a partially used box of ammunition.

On July 9, 2014, law

enforcement agents located and arrested Slater at a motel in Twin
Mountain, New Hampshire.

Before the agents were able to advise

him of his Miranda rights, Slater asked them how they had found
him and stated that he "knew [he] shouldn't have done it."

The

agents recovered $2592 in cash as well as a gun that matched the
ammunition box discovered at one of Slater's residences.

Slater

did not have a permit to possess the gun, which he had purchased
through a private sale.

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After waiving his Miranda rights, Slater admitted to the
robbery and revealed various details not only about the robbery
but also about his activities after the fact.

Slater also stated

that although he did not know why he had robbed the bank, he had
not taken his medication for bipolar disorder as prescribed.
Slater further claimed that he regretted committing the robbery
and that he was planning on turning himself into the police the
following day.
On October 28, 2016, Slater pled guilty to one count of
bank robbery in violation of 18 U.S.C. § 2113(a).

Pursuant to the

United States Sentencing Guidelines Manual ("Guidelines Manual"),
the PSI Report calculated a total offense level of twenty-five and
a criminal history score of twelve, which corresponded with an
advisory guidelines range of 100 to 125 months' imprisonment.
Slater's criminal history score--which placed him in criminal
history category V--was based on a string of criminal convictions,
with the most recent conviction occurring in 2009.

The district

court later "calculated that the total amount of time the defendant
has been sentenced since age 18 is over 63 years," although
"[m]uch . . . of that time . . . involved sentences that were
suspended."
Slater's
below-guidelines

initial

sentence

sentencing
based

on

memorandum

"his

early

requested
acceptance

a
of

responsibility" as well as his "age, health, and military service."

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In support of his request, Slater noted that he was sixty-six years
old at the time of the robbery; that he suffered from "Parkinson's
disease,

PTSD,

anxiety,

depression

and

left

arm

paralysis,

arthritis, as well as [a] lesion on his nose"; and that he suffered
from

"PTSD,

anxiety

and

[military]

service"

memorandum

specifically

depression

in

Vietnam.
requested

as

a

consequence

Slater's
a

subsequent

sentence

of

of

his

reply

forty-eight

months' imprisonment, and further noted that a soon-to-be adopted
amendment to the Guidelines Manual lowered the relevant guidelines
range to ninety-two to 115 months' imprisonment.
The

government's

sentencing

memorandum

requested

a

sentence at or near the top of the guidelines range, followed by
a three-year term of supervised release.

The government noted the

nature and seriousness of Slater's offense and drew upon a "victim
impact statement that has been submitted to the court" to suggest
that the robbery "was a terrifying event for bank employees."
After pointing to Slater's "long and serious criminal history,"
the

government

responded

to

Slater's

request

for

a

below-

guidelines sentence based on his age by arguing that "[h]is
criminal conduct has spanned most of his life unaffected by age or
lengthy prison sentences," and therefore, that "[t]here is no
reason to believe that his age has or will deter his criminal
conduct and his age does not distinguish his case in a meaningful
way from the typical case."

The government further argued that

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Slater's

"[mental]

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conditions

Date Filed: 06/02/2017

are

serious

but

.

Entry ID: 6096570

.

.

not

extraordinary," and that there "is nothing to suggest that they
played any role in the instant offense or that treatment of those
conditions cannot be achieved in a Bureau of Prisons facility."
The

government

also

downplayed

the

significance

of

Slater's

"commendable" military service, insofar as "[t]he honor that the
defendant showed in his military service is notably absent from
his long history of criminal conduct."
On

January

29,

2016,

the

district

court--using

the

advisory guidelines range of ninety-two to 115 months--sentenced
Slater to 115 months of imprisonment to be followed by a threeyear term of supervised release. The grounds on which the district
court based that sentence, as well as the manner in which it was
imposed, form the basis of this appeal.
II.
"[A] sentencing court, whenever it considers documents
to which Rule 32 [of the Federal Rules of Criminal Procedure] does
not apply, should . . . disclose to the defendant as much as was
relied upon, in a timely manner, so as to afford the defendant a
fair opportunity to examine and challenge it."

United States v.

Curran,

Here,

926

F.2d

59,

63

(1st

Cir.

1991).

the

court

indisputably relied upon the victim-impact statement submitted by
the bank teller:

during sentencing, the government referred to

the statement at some length, and the district court expressly

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referred to the "trauma" experienced by the bank teller in imposing
its sentence.

Thus, the question is whether Slater received the

statement "in a timely manner, so as to afford [him] a fair
opportunity to examine and challenge it."

Id.

However, because

Slater failed to object to the admission of the teller's statement
or to the government's and district court's repeated references to
that statement, Slater and the government agree that this court's
review is for plain error only.

See United States v. Bramley, 847

F.3d 1, 5 (1st Cir. 2017); see also Fed. R. Crim. P. 52(b).
Slater contends that he did not receive the bank teller's
statement until just prior to sentencing.

The sentencing hearing

transcript indicates that both the bank teller's statement, as
well as a statement from the bank, were in fact not entered into
the record until sentencing, although "the court . . . received
and reviewed the victim statements" at some point prior to the
hearing.

Slater himself stated at the hearing that he had "just

read" the teller's statement, and on appeal he claims that the
relevant certificate of service indicates that he did not receive
the statement until the day before sentencing.
The government contends that "the precise date on which
Slater was given the teller's victim impact statement is unclear,"
but that "the record suggests that it was well in advance of
sentencing."
the

fact

In support of its position, the government points to

that

the

PSI

Report

notes

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that

"one

Victim

Impact

Case: 16-1188

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Statement

has

been

Page: 8

received,"

and

Date Filed: 06/02/2017

further,

that

Entry ID: 6096570

"[t]he

one

statement, as well as receipt of any additional statements or
restitution requests will be forwarded to the Court and counsel
prior

to

sentencing."

The

government

also

sentencing memorandum provides the following:

notes

that

its

"The robbery and

the fear that the defendant was at large caused considerable
apprehension to the victims of the robbery.

It is clear from the

victim impact statement that has been submitted to the court that
this

was

a

terrifying

event

for

bank

employees."

Slater's

sentencing memoranda neither challenge nor mention any part of
this assertion or the teller's impact statement.
The problem for Slater is that even if we agree that he
did not receive the victim-impact statement until sentencing, we
do not see how this delay caused him prejudice.

Nor does Slater

allege any procedural or substantive grounds on which he would
have challenged the statement's admission or the district court's
reliance on the statement.

See Bramley, 847 F.3d at 7 ("[T]he

appellant must show a reasonable probability that, but for the
error, the outcome would have been different [in order to satisfy
the plain error standard].

Such a showing demands some level of

certainty and particularity." (citation omitted)).

Accordingly,

Slater's challenge to the district court's reliance on the victimimpact statement does not survive plain error review.

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III.
Slater next challenges his sentence as procedurally and
substantively unreasonable. Slater's procedural challenge alleges
that the district court erred by failing to "adequately explain
the chosen sentence in view of [Slater's] request for a downward
departure based on defendant's age, physical condition, emotional
condition and military service." Although we would normally review
this challenge for abuse of discretion, see United States v.
Dávila-González, 595 F.3d 42, 47 (1st Cir. 2010), Slater's failure
to raise any such challenge below limits our review to plain error,
id.
To be sure, "[t]ransparency is an important virtue in
the sentencing realm, and we do not lightly countenance a district
court's failure to provide a coherent explanation of its sentencing
rationale as required by 18 U.S.C. § 3553(c)."
Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir. 2015).

United States v.
However, as we

have previously suggested, "a within-the-range sentence usually
demands a less detailed explanation than a variant sentence."

Id.

at 227 (quoting United States v. Ocasio-Cancel, 727 F.3d 85, 91
(1st Cir. 2013)).

And even the failure of a court to "state in

open court the reasons for its imposition of the particular
sentence," 18 U.S.C. § 3553(c), is not "in and of itself . . .
plain error," Ruiz-Huertas, 792 F.3d at 227.

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Here, the district court expressly noted at sentencing
that it had "read the memoranda that counsel ha[d] submitted" and
yet did not think that Slater "qualifie[d] for any downward
departures

under

the

guidelines"

because

they're applicable in his particular case."

it

"d[idn't]

think

The court also made

ample and specific references to Slater's age, physical condition,
emotional condition, and military service throughout the course of
the sentencing hearing:

The court not only stated Slater's age at

the outset of sentencing, but also noted that Slater seemed unable
to "age-out of crime" insofar as he "committed the worst crime of
[his] life in [his] late . . . 60s" and that "it's really past
time for [him] to figure out what it is that's causing [him] to be
so violative of the law."

The court acknowledged Slater's various

health conditions, and recommended that he "be placed in a Bureau
of Prisons facility that can address his medical needs" and that
he seek counseling.

The court also made repeated references to

Slater's military service, including noting that the court "can
sympathize with [Slater] as being . . . a veteran of the Marine
Corps and a veteran of the hard and very traumatic fight that this
nation had in Vietnam," which Slater was "in the thick of."

In

fact, the court noted that it was especially "bother[ed]" by the
nature of Slater's conduct because his experience in the military
apprised him of the "terrible . . . psychological trauma" that his
conduct caused the bank teller. Clearly, then, the court expressly

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considered Slater's age, health conditions, and military service
in sentencing him.
The court otherwise explained its reasons for imposing
its sentence.

As evidenced by Slater's challenge to the victim-

impact statement, the court emphasized the "terror" and "hurt"
that Slater caused the bank teller.

The court also noted Slater's

lengthy criminal history--which it described as Slater's "most
striking
behavior.

feature"--and

his

seeming

inability

to

change

his

And just prior to announcing Slater's sentence, the

court stated that it "d[idn't] like imposing this sentence," but
determined that the sentence was necessary "to protect the public."
At bottom, then, this case does not present a situation in which
the district court was cursory or inattentive in imposing its
sentence;

rather,

the

record

reflects

a

district

court

that

specifically and expressly addressed the various factors that
informed its decision.

Thus, Slater's challenge to the procedural

reasonableness of his within-guidelines sentence must fail.
For similar reasons, we can find no substantive error in
the

district

court's

sentence.

Though

it

appears

to

be

an

unsettled question of law whether Slater's failure to object to
the substantive reasonableness of his sentence below limits the
scope of the panel's review to plain error, see United States v.
Rivera-Clemente, 813 F.3d 43, 53 (1st Cir. 2016) (citing RuizHuertas, 792 F.3d at 228), even under an abuse of discretion

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standard, Slater's sentence was not substantively unreasonable.
In choosing to remain within the relevant guidelines range, it was
not unreasonable for the court to have weighed the nature of
Slater's crime and his lengthy criminal history against those
factors arguably cutting in Slater's favor, such as his age, health
conditions, and military service.

Nor was it unreasonable for the

court to have concluded that Slater's criminal history suggested
that his likelihood of recidivism was high despite his relatively
advanced age.

Accordingly, the district court did not abuse its

discretion in sentencing Slater to 115 months of imprisonment.
IV.
For

the

foregoing

reasons,

imposed by the district court.

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we

affirm

the

sentence