US v. Angiolillo

Filing

OPINION issued by Sandra L. Lynch, Appellate Judge; Bruce M. Selya, Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. [16-2045]

Case: 16-2045

Document: 00117179856

Page: 1

Date Filed: 07/20/2017

Entry ID: 6107409

United States Court of Appeals
For the First Circuit
No. 16-2045
UNITED STATES OF AMERICA,
Appellee,
v.
TRACY ANGIOLILLO,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]

Before
Lynch, Selya and Thompson,
Circuit Judges.

Julia Pamela Heit on brief for appellant.
Stephen G. Dambruch, Acting United States Attorney, and
Donald C. Lockhart, Assistant United States Attorney, on brief for
appellee.

July 20, 2017

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SELYA, Circuit Judge.

Date Filed: 07/20/2017

Entry ID: 6107409

Lurking in the penumbra of this

case is an unsettled question about the scope of a waiver-ofappeal provision.

Although we identify that question, we assume,

without deciding, that the waiver is inapplicable in this instance.
With that assumption in place, we reach the merits of the appeal
and affirm the judgment below.
I.

BACKGROUND
We

draw

the

relevant

facts

from

the

unchallenged

portions of the presentence investigation reports and the record
of the resentencing hearing.

See United States v. Vargas, 560

F.3d 45, 47 (1st Cir. 2009); United States v. Dietz, 950 F.2d 50,
51 (1st Cir. 1991).
On

February

22,

2007,

defendant-appellant

Tracy

Angiolillo met a man (who turned out to be an undercover agent) in
a hotel parking lot in Pawtucket, Rhode Island.

During the

encounter, the appellant gave the undercover agent $100, 1.15 grams
of cocaine base (crack cocaine), and .46 grams of heroin in
exchange for two semi-automatic firearms.

After the swap was

completed, the authorities arrested the appellant and read him his
Miranda rights.
(1966).

See Miranda v. Arizona, 384 U.S. 436, 444-45

He admitted trading cash and controlled substances for

the guns.
In

due

course,

the

government

filed

an

information

charging the appellant with being a felon in possession of two

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firearms (count 1), see 18 U.S.C. § 922(g)(1), distribution of
cocaine base (count 2), see 21 U.S.C. § 841(a)(1), and distribution
of heroin (count 3), see id.

At around the same time, the

government filed a supplemental information alleging that the
appellant fell within the ambit of the Armed Career Criminal Act
(ACCA),

see

18

U.S.C.

§

924(e),

because

he

had

three

prior

convictions for violent felonies or serious drug offenses.

The

ACCA, where applicable, requires a mandatory minimum sentence of
15 years for violations of section 922(g).
The
pursuant

to

appellant
a

written

pleaded
plea

guilty

agreement

to

all

(the

three

Agreement).

counts
The

Agreement included a provision waiving his right to appeal as long
as

the

court

sentenced

him

within

the

applicable

guideline

sentencing range (GSR).
The

probation

office

prepared

a

presentence

investigation report (PSI Report), which confirmed that the ACCA
applied to the appellant's case. Taking that as a given and making
a

number

of

other

adjustments

(including

a

career

offender

enhancement, see USSG §4B1.1), the PSI Report calculated the
appellant's GSR to be 188-235 months.

The district court accepted

this calculation and sentenced the appellant to three concurrent
bottom-of-the-range 188-month terms of immurement.
taken.

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No appeal was

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While the appellant was serving his prison sentence, he
twice moved for a reduction of his sentence (once in 2013 and again
in 2014).1

Both motions were denied.

The appellant then took

another tack: on August 4, 2015, he moved to vacate his sentence
under 28 U.S.C. § 2255.

This effort was premised on Johnson II,

in which the Supreme Court held that the definition of a violent
felony in the residual clause of the ACCA was so vague as to work
an unconstitutional denial of due process.

See Johnson v. United

States (Johnson II), 135 S. Ct. 2552, 2557 (2015).2

While the

appellant's section 2255 motion was pending, the Supreme Court
made pellucid that its decision in Johnson II was substantive and,
thus, retroactive.
1265 (2016).

See Welch v. United States, 136 S. Ct. 1257,

At that juncture, the government conceded that the

appellant could no longer be viewed as subject to the ACCA, and

1

The appellant filed these motions under 18 U.S.C. § 3582(c),
which provides that a district court may reduce a previously
imposed sentence if certain conditions are satisfied.
2

The residual clause of the ACCA defines a "violent felony"
as "any crime punishable by imprisonment for a term exceeding one
year . . . that . . . involves conduct that presents a serious
potential risk of physical injury to another." Johnson II, 135 S.
Ct.
at
2555-56
(emphasis
omitted)
(quoting
18
U.S.C.
§ 924(e)(2)(B)). The Court found this language problematic because
it left uncertain both the way to measure risk of physical injury
and the amount of risk that qualified a crime as a violent felony.
See id. at 2557-58.
These indeterminacies "produce more
unpredictability and arbitrariness than the Due Process Clause
tolerates." Id. at 2558.
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the district court, without objection, vacated the appellant's
sentence and ordered resentencing.
In anticipation of resentencing, the probation office
prepared a new version of the PSI Report.

This version concluded

that the appellant's GSR, calculated without reference to the ACCA
but still including the career offender enhancement, was 151-188
months.

The district court thereupon convened a resentencing

hearing, and both the court and the parties accepted the accuracy
of the reconstituted GSR.
At the hearing, the appellant argued for a time-served
sentence on all counts.

The government argued for a 120-month

sentence on count 1 and concurrent 151-month sentences on counts
2 and 3, with full credit for time served.

The district court

sided with the government and sentenced the appellant to 120
months' imprisonment on count 1 and 151 months' imprisonment on
counts 2 and 3, giving full credit for time served and specifying
that all terms of imprisonment would run concurrently.3 This timely
appeal followed.

3

The lower sentence on count 1 reflects the fact that,
stripped of an ACCA enhancement, any period of imprisonment under
count 1 was capped at 120 months.
See 18 U.S.C. § 924(a)(2).
Since the appellant has fully served his prison sentence on count
1, we treat his appeal, consistent with the briefing, as targeting
the amended sentences imposed on counts 2 and 3.
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II.

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ANALYSIS
As a threshold matter, the government argues that this

appeal is barred by the waiver-of-appeal provision contained in
the

Agreement.

By

its

terms,

this

provision

precludes

appellant from appealing any within-the-range sentence.

the

Although

the government acknowledges that the Agreement makes no reference
to resentencing, it nonetheless asserts that "there is nothing in
the text of the appeal waiver or in the language of the [Agreement]
that

would

render

the

waiver

inapplicable

in

this

context."

Construing this silence favorably to its position, the government
contends

that

the

within-the-range

sentence

imposed

at

resentencing falls within the compass of the waiver.
The appellant demurs.

He points out that the government

has not identified a single case in which a court has applied a
waiver-of-appeal
resentencing.

provision

to

pretermit

an

appeal

from

a

Waivers of appeal are to be construed narrowly, see

United States v. Fernández-Cabrera, 625 F.3d 48, 51 (1st Cir.
2010); United States v. Teeter, 257 F.3d 14, 23-24 (1st Cir. 2001),
and in the appellant's view, the plain terms of the Agreement
extend only to his "sentence" — not to any subsequently imposed
resentencing.

If the government wanted to limit his right to

appeal from a resentencing, the appellant insists, the Agreement
could have — and should have — included a specific term to that
effect.

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To be sure, this concatenation of events poses a novel
question, and the correct answer to that question is not readily
apparent.

As we recently have admonished, though, "courts should

not rush to decide unsettled issues when the exigencies of a
particular

case

do

not

require

such

definitive

measures."

Privitera v. Curran (In re Curran), 855 F.3d 19, 22 (1st Cir.
2017).

This is such a case.

Even if we assume two preliminary

points in the appellant's favor — that the appeal waiver does not
extend to resentencings and that the appellant has not forfeited
his right to contest the waiver by failing to include an argument
to that effect in his opening brief — the record discloses no
grounds upon which to vacate the appellant's new sentence.

We

explain briefly.
In a sentencing appeal, the customary praxis is first to
review any challenges to the procedural integrity of the sentence
and then to review any challenge to its substance.

See Gall v.

United States, 552 U.S. 38, 51 (2007); United States v. Martin,
520 F.3d 87, 92 (1st Cir. 2008).

Here, however, the appellant

makes only a bottom-line challenge to his newly imposed sentence:
he strives to persuade us that the sentence is substantively
unreasonable, given considerations such as his troubled childhood,
his poor health, the mistreatment he endured while incarcerated,
and the Sentencing Commission's recent recommendations to Congress

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regarding modifications to the career offender guideline.

We are

not convinced.
We review the appellant's preserved claim of substantive
unreasonableness for abuse of discretion.

See United States v.

Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir.), cert. denied, 136 S.
Ct. 258 (2015). We start with first principles: the district court
must evaluate an amalgam of factors in fashioning a condign
sentence, see 18 U.S.C. § 3553(a), but the "weighting of those
factors is largely within the court's informed discretion," United
States v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011).

In any

given case, there is more than one reasonable sentence; there is
a range of reasonable sentences.

See Martin, 520 F.3d at 92

(noting that there is likely to be an "expansive" universe of
reasonable sentences in any particular case).

This makes perfect

sense: reasonableness is the touchstone of the inquiry and, in the
last analysis, "reasonableness is a protean concept."

Id.

Of course, the discretion vested in a sentencing court,
though broad, is not unbounded.

With respect to any sentence

imposed, the court must supply "a plausible sentencing rationale"
and reach "a defensible result."

Id. at 96.

It is against this

backdrop that we examine the challenged 151-month sentence.
We

turn

first

to

the

sentencing

court's

rationale.

Before imposing the sentence, the court considered the appellant's
checkered criminal history, which featured an array of convictions

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beginning at age 18 and continuing virtually unabated until the
commission of the crimes at issue here.

These convictions added

up to 21 criminal history points — more than enough to ensure the
appellant's

placement

for

sentencing

purposes

in

the

highest

criminal history category (CHC) — VI. In its discussion, the court
took pains to observe that the appellant's 21 criminal history
points were appreciably more than the 13 points necessary to place
a

defendant

in

CHC

"underrepresentation"

VI.
that

Thus,

CHC

failed

to

VI

was,

"capture

in
the

effect,
many,

an

many

convictions and . . . violations of bail and probation" that formed
the appellant's extensive criminal record.
In addition, the court commented specifically on the
appellant's conduct while in custody.
records

of

the

Bureau

of

Prisons

The court noted that the

memorialized

disciplinary incidents, some as recent as 2015.

over

a

dozen

Taken in the

ensemble, these infractions were, the court concluded, "indicative
of a lack of impulse control, a lack of maturity, [and] a lack of
respect for authority."
criminal

history,

The court explained that the appellant's

coupled

with

his

unruly

behavior

while

in

custody, counseled against accepting the appellant's invitation to
impose a time-served sentence.

In the court's view, a sentence at

the low end of the GSR was necessary in order to protect the
public.

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To pass the test of plausibility, a district court's
sentencing rationale need not be ironclad.
Dixon, 449 F.3d 194, 205 (1st Cir. 2006).
rationale

in

reasonable.

this

case,

though

not

See United States v.
The court's sentencing

unarguable,

is

certainly

No more is exigible to pass the test of plausibility.

Cf. Ruiz-Huertas, 792 F.3d at 226-27 (explaining that "judgment
calls" normally fall within the scope of a sentencing court's
discretion).
This brings us to the defensibility of the sentencing
outcome, that is, whether "the punishment fit[s] the crime."
United States v. Narváez-Soto, 773 F.3d 282, 289 (1st Cir. 2014).
We need not find a perfect fit; rather, we must only determine
whether the sentence falls within the wide universe of reasonable
sentences for the crimes of conviction.

With respect to such an

inquiry, the fact that the sentence is within a properly calculated
guideline sentencing range is entitled to significant weight.

See

Rita v. United States, 551 U.S. 338, 347 (2007); United States v.
Coombs, 857 F.3d 439, 452 (1st Cir. 2017).

Seen in this light,

challenging a bottom-of-the-range sentence is a heavy lift.

The

appellant's arguments are not strong enough to accomplish such a
lift.
In support of his claim that his sentence is overly
harsh, the appellant cites his troubled childhood, his physical
and mental health, and the mistreatment that he allegedly received

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while incarcerated. He says that, as a child, he suffered repeated
sexual abuse and was exposed to lead poisoning.

Moreover, he has

an injured leg, suffers from diabetes, and has a portfolio of
psychiatric problems, including an anxiety disorder, a bipolar
condition, and schizophrenia.
was

physically

assaulted

He adds that, while in custody, he
on

exacerbating his health issues.

multiple

occasions,

thereby

And prior to his incarceration,

he struggled with drug and alcohol dependency.
These are mitigating factors, and the appellant argues
that they should have led the sentencing court to vary downward
from the GSR.

Relatedly, he argues that, given his age (48 at the

time of resentencing), his life of crime is behind him — a
circumstance that also supports a downwardly variant sentence.
But the appellant's compendium of potentially mitigating factors
is counterbalanced by a compendium of aggravating factors, not the
least of which are his prolific criminal record and his long string
of disciplinary infractions while incarcerated.

Given this mixed

picture, the district court's decision to impose a sentence within
but at the low end of the GSR is an easily defensible outcome.4

4

The appellant also invokes the Sentencing Commission's 2016
Report to Congress (the Report), in which the Commission recommends
that career offender enhancements be reserved for those career
offenders who have committed felony crimes of violence rather than
those (like the appellant) who are career offenders by reason of
other kinds of offenses. See U.S. Sentencing Comm'n, 2016 Report
to the Congress: Career Offender Sentencing Enhancements 44
(2016). The district court considered and rejected this argument,
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We need go no further. For the reasons elucidated above,
we hold that the appellant's 151-month sentence is substantively
reasonable.
III.

CONCLUSION
The judgment of the district court is

Affirmed.

reasoning that the appellant's lengthy criminal history weighed
against leniency on account of the Report's hypothesis. This sort
of weighing of factors is emblematic of the type of function that
a sentencing court must perform, see Clogston, 662 F.3d at 593,
and the record reveals no sound basis for second-guessing the
district court's thoughtful evaluation. That is especially true
where, as here, the Report is merely a set of recommendations,
without any binding effect. Cf. United States v. Demers, 842 F.3d
8, 15 n.6 (1st Cir. 2016) (observing that "[w]e must decide [an]
appeal on the basis of the law as it stands, not on the basis of
the law as it might someday be").
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