US v. Field

Filing

OPINION issued by Sandra L. Lynch, Appellate Judge; Bruce M. Selya, Appellate Judge and William J. Kayatta, Jr., Appellate Judge. Published. [16-1451]

Case: 16-1451

Document: 00117160027

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Date Filed: 05/26/2017

Entry ID: 6095169

United States Court of Appeals
For the First Circuit
No. 16-1451
UNITED STATES OF AMERICA,
Appellee,
v.
KEVIN JOSEPH FIELDS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Landya B. McCafferty, U.S. District Judge]
Before
Lynch, Selya and Kayatta,
Circuit Judges.
Claudia Leis Bolgen and Bolgen & Bolgen on brief for
appellant.
Emily Gray Rice, United States Attorney, and Seth R. Aframe,
Assistant United States Attorney, on brief for appellee.
May 26, 2017

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Defendant-appellant Kevin Joseph

SELYA, Circuit Judge.

Fields stole more than $30,000 worth of postage stamps by passing
bad checks at various post offices.

This stamp-stealing scheme

proved ill-conceived and, following his conviction, the appellant
was sentenced to a 30-month term of immurement.
his upwardly variant sentence.
I.

He now appeals

Discerning no error, we affirm.

BACKGROUND
Because this appeal follows a guilty plea, "we glean the

relevant facts from the change-of-plea colloquy, the unchallenged
portions of the presentence investigation report (PSI Report), and
the record of the disposition hearing."

United States v. Vargas,

560 F.3d 45, 47 (1st Cir. 2009).
In June of 2014, the United States Postal Inspection
Service began investigating reports that an individual was using
bad checks to purchase stamps at a number of post offices in New
Hampshire and Maine.

A copy of one of the checks, written on an

account at the Kennebunk Savings Bank, displayed the name and
address of the appellant.

The inspectors requested information

about this account from the bank.

It supplied the requested

information and also disclosed that it had contacted the local
sheriff's department about the account.

That contact was inspired

when — a few weeks earlier — the appellant made two deposits into
the account using counterfeit checks (each in an amount in excess
of $3000).

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Warming to the chase, postal inspectors located the
appellant in Dover, New Hampshire. They advised him of his Miranda
rights, see Miranda v. Arizona, 384 U.S. 436, 478-79 (1966), which
he waived.

The appellant admitted to opening the checking account

and using checks furnished by the bank to purchase stamps despite
his knowledge that the account did not contain sufficient funds.
He estimated that he had purchased nearly $27,000 worth of stamps
using bad checks, explained that "[m]oney drives me," and related
that he had taken the stamps to pawn shops and exchanged them
either for cash or for merchandise.

He added that he had created

fake checks on his computer (though he had not purchased stamps
with those home-made checks).
Following a review of post office and bank records,
inspectors concluded that, during the period from June 9 through
June 17, 2014, the appellant had obtained more than $30,000 worth
of stamps by passing bad checks at post offices in New Hampshire,
Maine, and Massachusetts.

In due course, a federal grand jury

sitting in the District of New Hampshire returned an indictment
charging the appellant with possessing stolen government property
(the stamps) with intent to convert that property.
§ 641.

See 18 U.S.C.

A summons and, later, an arrest warrant were issued but

never served.
We fast-forward to May of 2015, at which time the
appellant wound up in state custody for an unrelated parole

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violation.

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He was brought before a federal magistrate pursuant to

a writ of habeas corpus ad prosequendum and subsequently entered
a guilty plea to the charge of possession of stolen government
property with intent to convert.

The district court allowed a

change of counsel at the appellant's request and, some months
later, held a sentencing hearing.
The probation department submitted the PSI Report, which
recommended a base offense level of six, see USSG §2B1.1(a)(2); a
four-level enhancement premised on the amount of loss, see id.
§2B1.1(b)(1)(C); and a two-level enhancement on the basis that the
offense of conviction involved the possession or use of devicemaking equipment, see id. §2B1.1(b)(11)(A)(i).

After subtracting

two levels for acceptance of responsibility, see id. §3E1.1(a),
the PSI Report recommended a total offense level of ten.

The

appellant's past convictions — including convictions for identity
fraud, forgery, larceny, and the fraudulent use of credit cards —
produced a criminal history score of 30, which the PSI Report
augmented by two points because the appellant had committed the
offense of conviction while on parole for unrelated state charges.
See

id.

§4A1.1(d).

These

computations

placed

the

appellant

squarely in criminal history category VI.
At sentencing, the district court adopted most of the
guideline calculations limned in the PSI Report.

The appellant

objected, however, to the two-level enhancement for his alleged

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possession or use of device-making equipment.

Entry ID: 6095169

Though he had

manufactured counterfeit checks, he had not employed them in his
stamp-stealing

scheme.

objection

reduced

and

accordingly.

The
the

district

court

appellant's

total

sustained

this

offense

level

This adjustment in the appellant's offense level,

coupled with his placement in criminal history category VI, yielded
a guideline sentencing range of 18 to 24 months (as opposed to the
24- to 30-month range suggested in the PSI Report).
The

court

proceeded

to

sentence of 30 months' imprisonment.

impose

an

above-the-range

In pronouncing sentence, the

court emphasized the appellant's extensive criminal history and
fretted that the appellant would not be deterred from future
criminal

conduct

because

ameliorate his behavior.

earlier

prison

terms

had

failed

to

Thus, a relatively stiff sentence was

needed to protect the public and to promote general deterrence.
This timely appeal ensued.
II. ANALYSIS
As a general matter, we review the imposition of a
sentence for abuse of discretion.

See Gall v. United States, 552

U.S. 38, 51 (2007); United States v. Martin, 520 F.3d 87, 92 (1st
Cir. 2008).
pertain.
pavane.

Within this rubric, though, some specific parameters
"[S]entencing claims are addressed under a two-step

First, we address those claims that affect the procedural

integrity of the sentence.

Second, we address any residual

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question as to the substantive reasonableness of the sentence."
United States v. Rodríguez-Adorno, 852 F.3d 168, 175 (1st Cir.
2017) (citations omitted). Our review "is characterized by a frank
recognition of the substantial discretion vested in a sentencing
court."

United States v. Flores-Machicote, 706 F.3d 16, 20 (1st

Cir. 2013).
Consistent with our bifurcated process, we first address
the appellant's assignments of procedural error.

Specifically, he

claims that the sentencing court relied on clearly erroneous facts
and,

moreover,

failed

adequately

to

explain

its

reasons

for

imposing an upwardly variant sentence.
We start with the appellant's claim that the sentencing
court relied on clearly erroneous facts.

In approaching this

claim, we pause to recognize that the abuse of discretion standard
is not monolithic. Within it, we review findings of fact for clear
error and embedded questions of law de novo.1

See United States

v. Carrasco-de-Jesús, 589 F.3d 22, 26-27 (1st Cir. 2009).

Clear

error review is respectful and requires that we accept findings of
fact and inferences drawn therefrom unless, "on the whole of the

Of course, unpreserved claims of sentencing error are
normally reviewed for plain error. See United States v. Duarte,
246 F.3d 56, 60 (1st Cir. 2001). Here, the parties dispute whether
any or all of the appellant's procedural claims of sentencing error
were preserved below. We need not resolve this dispute: we assume
instead, favorably to the appellant, that the ordinary standard of
review for preserved claims of error applies.
Even so, the
appellant's procedural claims still fail.
1

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record, we form a strong, unyielding belief that a mistake has
been made."

United States v. Demers, 842 F.3d 8, 12 (1st Cir.

2016) (quoting Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152
(1st Cir. 1990)).
The

appellant's

complaint

about

the

court's

clearly erroneous facts is really two separate claims.

use

of

We take

these claims one by one, beginning with the appellant's contention
that the district court clearly erred in refusing to find that the
appellant's criminal conduct was attributable to his substance
abuse.

After setting the stage, we explain why we reject this

claim.
At the disposition hearing, the appellant asked for
leniency on account of his lengthy struggle with substance abuse.
In support, his counsel sought to attribute the appellant's stampstealing spree to the fact that he was in the thrall of drugs.
The lawyer noted that the appellant's most recent arrest involved
the

possession

of

heroin.

Furthermore,

in

his

presentence

interview, the appellant had explained that "he did whatever he
had to do to support his habit."

And on appeal, counsel called

our attention to the PSI Report's suggestion that the appellant
was using heroin daily at the time of the offense of conviction.
We recognize that drug abuse is at the root of many
crimes.

To some extent, addiction may play a role in virtually

everything that an addict does or does not do.

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This does not mean,

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however, that every crime committed by a person with a drug habit
can automatically be written off as a by-product of that habit.
In this instance, the district court was fully aware of
the appellant's protracted involvement with drugs.

It nonetheless

rejected the appellant's plea and found that "his crimes [did] not
appear to be related to drug abuse."

The court implied instead

that the appellant was motivated by greed.
In reaching this conclusion, the court mentioned the
absence of any evidence that the appellant, when writing the bad
checks, purchasing the stamps, or swapping the stamps at the pawn
shop, was either under the influence of any controlled substances
or

in

possession

of

such

substances.

Stressing

that

the

appellant's crime was "premeditated," the court concluded that he
appeared to "enjoy[] the process of deceiving . . . the bank, the
United States Post Office, [and] the pawnshop."

The court stated

that, although it would recommend substance abuse treatment given
the appellant's history, it did not believe that any such treatment
would help to allay the appellant's larcenous inclinations.
The circumstances surrounding the offense of conviction
lend credence to the district court's view.

The appellant's

explanation as to why he had embarked on his stamp-stealing spree
("[m]oney drives me"), given during his post-Miranda interview,
was consistent with a finding that greed was the impetus for his

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The appellant did not claim, for example, that he had

intended to sell or trade the purloined stamps to obtain drugs.2
At any rate, the standard of review is determinative
here.

The district court had the opportunity to see and hear the

appellant,

and

its

considerable weight.
(1st

Cir.

2003).

on-the-spot

judgment

is

entitled

to

See United States v. Matos, 328 F.3d 34, 40
Though

a

different

finding

may

have

been

supportable in view of the appellant's history of drug abuse, the
district court was not required to interpret the record in the
manner that the appellant urged.

See Rivera-Rivera v. United

States, 844 F.3d 367, 373 (1st Cir. 2016).

We have said before,

and today reaffirm, that "where there is more than one plausible
view of the circumstances, the sentencing court's choice among
supportable alternatives cannot be clearly erroneous."
States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990).

United

We therefore

uphold the district court's determination that the appellant's
offensive conduct was not attributable to his drug habit.3

In point of fact, the appellant exchanged at least some of
the stolen stamps for pawn shop merchandise rather than cash. A
number of these items were found in his home, including an iPad
and a laptop — and nothing in the record indicates that he was
planning to sell or swap these devices for controlled substances.
2

At the same time, we note that, had the district court
agreed with the appellant and found that his criminality was driven
by his addiction, his sentence may well have been the same. How
much weight to afford such a conclusion would have been subject to
the court's discretion. See United States v. Bermúdez-Meléndez,
827 F.3d 160, 165 (1st Cir. 2016).
3

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The appellant's other claim about the sentencing court's
supposed reliance on a clearly erroneous fact fails for a different
reason.

Simply put, there is less to this claim than meets the

eye.
The appellant asserts that the court became confused and
found (incorrectly) that his offensive conduct involved identity
fraud.4

This assertion has two parts.

First, it presumes that

the appellant did not engage in identity fraud as part of the
offense

of

conviction.

Second,

it

presumes

that

the

court

misconstrued the appellant's crime and thought that it involved
identity fraud.

Only one of these presumptions is true.

We agree with the appellant that the record is barren of
any evidence that his stamp-stealing scheme included identity
fraud.

For instance, there is no evidence that he opened the

checking account using a false identity, or that the checks he
submitted to the various post offices bore any name other than his
own, or that he gave a pseudonym to the pawn shops when unloading
the stamps.
The

appellant's

claim

runs

aground,

though,

on

the

second part of his hypothesis: the record makes pellucid that the

Both in the colloquy in the district court and in their
briefs, the parties refer variously to "identity fraud," "identity
theft," "credit card fraud," and the like. Whatever the precise
phrase, the point is the same. So for simplicity's sake, we refer
throughout (except where direct quotations are involved) to
"identity fraud."
4

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district court made no finding that the offensive conduct involved
identity fraud.

While the court did comment about identity fraud,

the appellant's plaint yanks the court's comments from their
contextual moorings.

We explain briefly.

In the critical portion of its remarks at sentencing,
the court discussed the weight to be given to the appellant's
criminal record ─ a record that it characterized as "horrendous."
The

court

expressed

particular

concern

about

the

appellant's

historical record of fraud and theft crimes, including state-court
convictions for forgery, fraudulent use of credit cards, and
identity fraud.

The court's passing reference to the importance

of protecting the victims of identity fraud was made in the course
of concluding that, although the appellant's past crimes were not
violent, they nonetheless signified a significant threat to the
public

and

calculus.5

warranted

substantial

weight

in

the

sentencing

This was an entirely appropriate factor for the court

to consider at sentencing.

See 18 U.S.C. § 3553(a)(1); see also

Flores-Machicote, 706 F.3d at 21.

We discern no error, clear or

otherwise.

In particular, the court stated that "victims of credit card
fraud," though not subjected to violence, certainly experience "a
violation" and face difficulty when they "try to clear their
record[s]" and "clear their name[s]."
5

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The appellant has one more shot in his procedural-error
sling.

He alleges that the district court failed adequately to

explain its reasons for imposing an upwardly variant sentence.
It is common ground that a sentencing court must "state
in open court the reasons for its imposition of the particular
sentence."
obligated

18 U.S.C. § 3553(c).
to

complete

"a

Beyond that, the court is

statement

of

§ 3553(c)(2); see 28 U.S.C. § 994(w)(1)(B).

reasons

form."

Id.

Even so, the court's

failure to complete this form does not require vacation of the
sentence absent a showing of prejudice.

See United States v.

Vázquez-Martínez, 812 F.3d 18, 25-26 (1st Cir. 2016).

We will not

set aside a sentence on such a ground if, after reviewing "the
district court's oral explanation, we believe that the district
court would have imposed the same sentence had it filed a written
statement of reasons form."

Id. at 25.

We are mindful that the challenged sentence represents
an upward variance, exceeding the top of the applicable guideline
range by six months.

A sentencing court's obligation to explain

its reasons for the sentence imposed is heightened in proportion
to

the

extent

that

sentencing range.

the

sentence

varies

from

the

guideline

See United States v. Montero-Montero, 817 F.3d

35, 37 (1st Cir. 2016).

Larger variances require more cogent (or,

at least, more detailed) explanations.

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See id.

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In the case at hand, the appellant asseverates that the
district court did not furnish an adequate explanation for his
above-the-range sentence.

The court did file a written statement

of reasons form, but the appellant argues that the court did not
sufficiently address that form's component parts.

Specifically,

the appellant points out that the court did not complete section
VI(D) of the form, which directs that the court "[s]tate the basis
for a variance."

This asseveration is true as far as it goes, but

it does not take the appellant very far.
Despite the omission on which the appellant relies, the
court did complete section VI(C) of the form, entitled "18 U.S.C.
§ 3553(a) and other reason(s) for a variance."

This section

presents a checklist of the section 3553(a) factors and provides
blank lines for the court to insert more particularized comments.
The

court

checked

several

boxes

listing

pertinent

statutory

factors, and it specified (in the space allotted) that the nature
of the offense — a "[p]lanned, premeditated fraud" — together with
the

appellant's

"[e]xtensive"

upwardly variant sentence.

criminal

history

warranted

the

Given that the court did supply its

reasons for the variance, we are not convinced that its failure to
complete section VI(D) was error.
Even assuming, for argument's sake, that the failure to
fill out section VI(D) was error, any such error was harmless.
See United States v. Fernández-Garay, 788 F.3d 1, 5 (1st Cir. 2015)

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("[A]n error is deemed harmless if a reviewing court can say with
fair assurance that the sentencing court 'would have imposed the
same sentence even without the error.'" (quoting United States v.
Tavares, 705 F.3d 4, 25 (1st Cir. 2013)).

What the court wrote in

responding to other sections of the form, combined with what it
said at the disposition hearing, leaves no doubt that the district
court would have imposed the same sentence had it filed a fully
completed statement of reasons form.
The appellant demurs.
district

court

complete

the

difference in his sentence.

He suggests that having the

form

in

full

would

have

made

a

In his view, the district court was

"subconsciously" influenced by the proposed two-level enhancement
for the possession or use of device-making equipment, see USSG
§2B1.1(b)(11)(A)(i),

even

though

the

court

sustained

appellant's objection to this proposed enhancement.

the

Had the court

written out the basis for the variance, the appellant says, it
"may have noted the eerie similarity between the variant sentence
handed

down

and

the

top

of

the

Guideline

Sentencing

Range

[including] the disallowed two-level enhancement."
This argument, though creative, is woven entirely out of
tattered threads of speculation and surmise. Nothing in the record
so

much

as

hints

that

the

court

confused

the

two

guideline

sentencing ranges and thought it was imposing a top-of-the-range
sentence.

Nor does the record indicate that once the court had

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rejected the proposed enhancement, it nonetheless continued to
take it into account.
The appellant makes one last effort to pull a rabbit out
of

a

hat.

The

sentencing

court's

oral

reasoning

makes

transparently clear that the driving force behind the upward
variance was the combination of the appellant's prolific criminal
history

and

the

gravity

of

the

offense

of

conviction.

The

appellant strives to transmogrify the clarity of this explanation
into a fatal flaw.

He posits that the sentencing guidelines

already accounted for these factors and, thus, the court needed to
explain

why

the

guidelines

insufficiently

before imposing an above-the-range sentence.

accounted

for

them

See United States v.

Zapete-Garcia, 447 F.3d 57, 60 (1st Cir. 2006) (explaining that
when a sentencing court relies on a factor already accounted for
by the sentencing guidelines to impose a variant sentence, the
court must indicate what makes that factor worthy of extra weight
in the defendant's case); see also United States v. Del ValleRodríguez, 761 F.3d 171, 176 (1st Cir. 2014).
The appellant's argument collapses because the court did
exactly what the case law requires.

The court noted that both the

appellant's past convictions and the offense conduct were nonviolent

and

stated

. . . is light."
non-violent

"that's

why

the

guideline

range

on

this

It then explained that, notwithstanding their

nature,

the

appellant's

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crimes

were

serious

and

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emphasized the hardship that fraud of the type perpetrated by the
appellant in past cases imposes on its victims.

Similarly, the

court was "very concerned" about protecting the public from the
appellant's "serial nonstop criminal conduct" and worried that the
appellant would resume his criminal behavior "the minute he gets
out."

No more detailed explanation was exigible: "a sentencing

court's obligation to explain a variance requires the court to
offer a plausible and coherent rationale — but it does not require
the court to be precise to the point of pedantry."

Del Valle-

Rodríguez, 761 F.3d at 177.
This brings us to the appellant's challenge to the
substantive

reasonableness

of

his

sentence.

The

government

concedes that the appellant preserved this objection below and,
thus, our review is for abuse of discretion.

See United States v.

Medina-Villegas, 700 F.3d 580, 583 (1st Cir. 2012).
"In

appraising

the

substantive

reasonableness

of

a

sentence, we first ask whether the district court has offered a
plausible rationale for the sentence and then ask whether the
sentence embodies a defensible result."

United States v. Díaz-

Arroyo, 797 F.3d 125, 129 (1st Cir.), cert. denied, 136 S. Ct. 272
(2015).

We must affirm the sentence if it is "within the universe

of acceptable outcomes."

United States v. Vargas-Dávila, 649 F.3d

129, 132 (1st Cir. 2011).

This remains true even if reasonable

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jurists could disagree on the length of the ideal sentence.

See

id.
This standard is "highly deferential" to the district
court's judgment, even when that court has imposed a variant
sentence.

United States v. Matos-de-Jesús, ___ F.3d ___, ___ (1st

Cir. 2017) [No. 16-1695, slip op. at 10].

Here, moreover, the

court below provided a surfeit of reasons in support of the
sentence imposed.
As we already have discussed, the appellant came before
the court with a lengthy criminal history — one that convinced the
court that the appellant presented a very high risk of recidivism.
In

addition,

the

court

was

troubled

by

the

fact

that

the

appellant's criminal conduct seemed to be increasing in severity,
as his current offense was "a planned, premeditated scheme" of
"deceit and fraud" that "lasted over many weeks" as opposed to a
crime of opportunity. This escalation reflected a change of course
(in the wrong direction) from the appellant's earlier convictions
for, say, stealing wallets.
To be sure, the court recognized that there were two
sides to the story. For example, it found the appellant's personal
circumstances mitigating.

He had been raised by a supportive

foster family from the age of four, but his upbringing was marred
by behavioral and mental health issues.

The court considered the

appellant's psychological infirmities — anxiety, depression, post-

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traumatic stress disorder, and polysubstance dependence — to weigh
in mitigation.

The court told the appellant that it had "taken

into consideration everything I've heard" and "come down from where
I really thought you should be based on my reading of your criminal
record."
The sentencing court's comments, read as a whole, paint
a clear picture of the court's thought process.

We consider its

carefully balanced rationale to be thoroughly plausible.
So, too, we take no issue with the resulting sentence.
The duration of the sentence is readily defensible: the appellant's
criminal history is substantial, the offense of conviction is
serious, and the appellant's past encounters with the legal system
have not altered his behavior.

Seen in this light, the 30-month

sentence falls well within the universe of reasonable sentences.
See Vargas-Dávila, 649 F.3d at 132.

Accordingly, the appellant's

claim of substantive unreasonableness fails.
III.

CONCLUSION
We need go no further. For the reasons elucidated above,

the sentence is

Affirmed.

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