          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
             SELYA, Circuit Judge.    Defendant-appellant Kevin Joseph

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.        He now appeals

his upwardly variant sentence.       Discerning no error, we affirm.

I.   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).


                                 - 2 -
             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.    See 18 U.S.C.

§ 641.   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


                                - 3 -
violation.    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 device-

making 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


                                  - 4 -
possession or use of device-making equipment.                    Though he had

manufactured counterfeit checks, he had not employed them in his

stamp-stealing       scheme.     The    district       court    sustained   this

objection     and    reduced   the     appellant's      total    offense    level

accordingly.        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    impose     an    above-the-range

sentence of 30 months' imprisonment.           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   earlier      prison    terms   had   failed   to

ameliorate his behavior.         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).    Within this rubric, though, some specific parameters

pertain.     "[S]entencing claims are addressed under a two-step

pavane.    First, we address those claims that affect the procedural

integrity of the sentence.             Second, we address any residual


                                     - 5 -
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


       1Of 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.


                                     - 6 -
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   use   of

clearly erroneous facts is really two separate claims.              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 stamp-

stealing 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.       This does not mean,


                                  - 7 -
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




                                   - 8 -
actions.           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    on-the-spot      judgment   is    entitled     to

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

(1st        Cir.    2003).     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."                        United

States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990).                     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
        2

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.

       At the same time, we note that, had the district court
        3

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).


                                             - 9 -
            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
       4

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."


                                  - 10 -
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    warranted    substantial    weight   in   the   sentencing

calculus.5      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.




      5In 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]."


                                   - 11 -
            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."        18 U.S.C. § 3553(c).           Beyond that, the court is

obligated    to     complete   "a    statement    of    reasons    form."      Id.

§ 3553(c)(2); see 28 U.S.C. § 994(w)(1)(B).              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   the     sentence   varies    from     the    guideline

sentencing range.       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.             See id.




                                      - 12 -
              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"    criminal    history   warranted   the

upwardly variant sentence.         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)


                                   - 13 -
("[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.                 He suggests that having the

district     court    complete      the      form   in   full   would    have   made   a

difference in his sentence.               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    the

appellant's objection to this proposed enhancement.                     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


                                          - 14 -
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        accounted    for   them

before imposing an above-the-range sentence.              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 Valle-

Rodríguez, 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 non-

violent    and   stated     "that's    why    the   guideline     range   on    this

. . . is light."          It then explained that, notwithstanding their

non-violent      nature,    the   appellant's       crimes     were   serious    and


                                       - 15 -
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




                                   - 16 -
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-


                                  - 17 -
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.




                                - 18 -
