          United States Court of Appeals
                      For the First Circuit


No. 17-1234

                     UNITED STATES OF AMERICA,

                             Appellee,

                                v.

                          ROBERT DAOUST,

                       Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

              [Hon. Jon D. Levy, U.S. District Judge]


                              Before

                        Howard, Chief Judge,
                 Selya and Barron, Circuit Judges.


     Inga L. Parsons and Law Offices of Inga L. Parsons on brief
for appellant.
     Halsey B. Frank, United States Attorney, and Benjamin M.
Block, Assistant United States Attorney, on brief for appellee.


                            May 1, 2018
            SELYA, Circuit Judge. Defendant-appellant Robert Daoust

mounts a multi-pronged challenge to the sentence imposed following

the revocation of his supervised release term.             Concluding, as we

do, that his claims of sentencing error are futile, we affirm the

sentence.

I.   BACKGROUND

            We briefly rehearse the facts and travel of the case.

In 2010, the appellant pleaded guilty to possession of heroin with

intent to distribute.       See 21 U.S.C. § 841(a)(1).         The district

court sentenced him to a seven-year term of immurement, to be

followed    by   a   three-year   term   of    supervised    release.    The

appellant's prison sentence was later reduced to seventy months,

see 18 U.S.C. § 3582(c)(2), and he served that sentence.                 His

supervised release commenced on September 29, 2016.

            The appellant moved into a motel room, obtained full-

time employment, and began participating in various treatment

modalities.       Soon   thereafter,     the   appellant    relocated   to   a

different motel room, sharing his new accommodations with a female

companion (herself a convicted felon).          This new relationship did

not last long:        approximately two months after regaining his

freedom, the appellant became intoxicated at a party, returned to

his motel, and wound up in an altercation with his companion.            The

appellant punched the woman in the head, covered her face with a

pillow, and repeatedly threatened that he was going to kill her.


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When another motel resident tried to intervene, the appellant

struck him and pushed him to the ground.

             The police were notified and charged the appellant with

misdemeanor domestic violence assault.               See Me. Rev. Stat. Ann.

tit. 17-A, § 207-A.        Not surprisingly, the United States Probation

Office moved expeditiously to revoke the appellant's supervised

release.    The probation officer's filing identified four putative

violations     of    the   appellant's     supervised     release    conditions,

namely,    that     he   had   possessed   or     consumed   alcohol    or   other

intoxicants, that he had associated with a convicted felon, that

he had committed a state crime, and that he had failed to give

timely notice to the probation office prior to changing residences.

             At a revocation hearing held on March 3, 2017, the

government dismissed the charge of untimely notification.                       In

return, the appellant admitted to the remaining three violations.

The appellant did not object to anything in the revised revocation

report, and the district court adopted the report in its entirety.

The   court    proceeded       to   note   that     the   admitted     violations

constituted Grade C violations, see USSG §7B1.1(a)(3); that the

advisory guideline sentencing range was eight to fourteen months,

see id. §7B1.4(a); and that the maximum penalty provided by statute

was two years' imprisonment, see 18 U.S.C. § 3583(e)(3).

             The probation officer recommended a sentence of one year

and one day.      The government suggested that the court either adopt


                                      - 3 -
the probation officer's recommendation or impose a top-of-the-

range sentence (fourteen months).           For his part, the appellant

argued for a sentence in the three-to-six-month range.                 After

mulling the relevant guideline provisions and sentencing factors,

the district court imposed a two-year incarcerative term, to be

followed    by   an    additional   thirty-four      months   of   supervised

release.    This timely appeal ensued.

II. ANALYSIS

            The appellant advances several claims of sentencing

error.    We address them one by one.

                              A. Rule 32(h).

            To begin, the appellant argues for the first time on

appeal    that   the   notification    requirement    of   Federal   Rule   of

Criminal Procedure 32(h) obligated the district court to provide

him advance notice of its intention to impose a sentence above the

peak of the guideline range.1         This argument is doubly flawed.




     1   The rule provides that:

            Before the court may depart from the
            applicable sentencing range on a ground not
            identified for departure either in the
            presentence report or in a party's prehearing
            submission, the court must give the parties
            reasonable notice that it is contemplating
            such a departure. The notice must specify any
            ground on which the court is contemplating a
            departure.

Fed. R. Crim. P. 32(h).


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             Preserved claims of sentencing error ordinarily are

reviewed for abuse of discretion.      See Gall v. United States, 552

U.S. 38, 41 (2007).      But where, as here, an appellant has failed

to preserve his claim, appellate review is for plain error.2           See

United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).              To

prevail under plain error review, the appellant must demonstrate

"(1) that an error occurred (2) which was clear or obvious and

which not only (3) affected the defendant's substantial rights,

but also (4) seriously impaired the fairness, integrity, or public

reputation of judicial proceedings."          Id.   For two reasons, we

discern no error (plain or otherwise).

             The short reason is that Rule 32 and its various subparts

(including Rule 32(h)) simply do not apply to sentences imposed

for supervised release violations.          See United States v. Redcap,

505 F.3d 1321, 1323 (10th Cir. 2007); United States v. Leonard,

483 F.3d 635, 638-39 (9th Cir. 2007); see also United States v.

Smith, 639 F. App'x 348, 352 (6th Cir. 2016) (collecting cases).

Procedures     for   supervised   release     revocation   sentences   are

delineated in a separate rule:     Federal Rule of Criminal Procedure


     2 The appellant suggests that the facts of this case warrant
a more relaxed standard of review. See, e.g., United States v.
Cortes-Claudio, 312 F.3d 17, 24 (1st Cir. 2002) (noting that, in
some limited circumstances, a contemporaneous objection may not
necessarily be required). This suggestion finds no firm footing
in the circumstances of this case and, in all events, the
appellant's claim of error lacks merit under any conceivable
standard of review.


                                  - 5 -
32.1.         Unlike   Rule       32(h),    Rule     32.1     contains       no    advance

notification requirement in the event that the sentencing court

elects to impose a sentence above the advisory guideline sentencing

range.

              There is a slightly longer — but equally conclusive —

reason why the appellant's Rule 32(h) argument fails.                             Although

Rule 32(h) generally requires reasonable notice if the sentencing

court is contemplating a departure from the applicable guideline

range    on    a   ground    not    identified       either    in   the      presentence

investigation report or in the parties' prehearing submissions,

the supervised release revocation sentence imposed in this case

was a variant sentence, not a departure.                      See United States v.

Santini-Santiago,           846     F.3d      487,     490      (1st      Cir.       2017)

(distinguishing variances from departures).                    This is a critically

important distinction, as Rule 32(h) does not apply at all to

variances.         See Irizarry v. United States, 553 U.S. 708, 714

(2008); United States v. Román-Díaz, 853 F.3d 591, 596 & n.5 (1st

Cir. 2017); Santini-Santiago, 846 F.3d at 490.

              To be sure, we have indicated, albeit in dictum, that in

a rare case advance notice may be required when a sentencing court

proposes "to adopt a variant sentence relying on some ground or

factor   that      would    unfairly       surprise   competent        and    reasonably

prepared counsel." United States v. Vega-Santiago, 519 F.3d 1, 5

(1st Cir. 2008) (en banc) (emphasis in original).                        It is readily


                                           - 6 -
evident, though, that this is not such a rare case.                        Upwardly

variant sentences are well-known to be within the universe of

possible     sentences    and,     in    this    case,    the   district   court's

sentencing rationale did not depend on any ground or factor that

could plausibly be characterized as a surprise.

                           B. Sentencing Factors.

             When imposing a supervised release revocation sentence,

a district court is obliged to consider the various factors

specified in 18 U.S.C. § 3583(e).                See United States v. Márquez-

García, 862 F.3d 143, 145 (1st Cir. 2017).                 This list of factors

borrows heavily from the factors enumerated in 18 U.S.C. § 3553(a),

and includes the nature and circumstances of the offending conduct,

see    id.   §    3553(a)(1);    the     need     to    deter   further    criminal

misbehavior, see id. § 3553(a)(2)(B); the need to protect the

community        from   "further        crimes     of    the    defendant,"    id.

§     3553(a)(2)(C); and the need to consider the policy statements

promulgated by the Sentencing Commission, see id. § 3553(a)(5).

While the sentencing court must consider all of the enumerated

factors, it is not required to analyze each factor separately or

at length.       See United States v. Turbides-Leonardo, 468 F.3d 34,

40 (1st Cir. 2006).          Rather, the court's explication of its

sentencing calculus need only "identify the main factors driving

its determination."        United States v. Sepúlveda-Hernández, 817

F.3d 30, 33 (1st Cir. 2016).


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               Here,    the   appellant    claims   that    the     district   court

failed adequately to assess the relevant sentencing factors.                    This

claim, raised for the first time on appeal, is mistaken: the court

below       plainly    recognized    its   responsibility      to    consider    the

sentencing guidelines and the full range of applicable sentencing

factors.       Indeed, the court stated explicitly that it had given

consideration to each of the relevant factors.                 This statement is

"entitled      to     significant   weight,"   United      States    v.   Santiago-

Rivera, 744 F.3d 229, 233 (1st Cir. 2014), and there is nothing in

the sentencing record that calls the statement into question.3

               What is more, the district court identified the main

factors that drove its ultimate sentencing determination.                         It

discussed       the    appellant's    personal      history,      his     continuing

struggles to comply with the law, the serious nature of the

domestic violence offense and the circumstances surrounding it,

and the obvious need for both deterrence and protection of the

public.       Nor did the court take a one-sided view:                it commented

specifically on the few mitigating factors that were made manifest

by the record.




        3
       The appellant contends that the district court "did not
appear to appreciate that [it] was going above the guidelines"
when it imposed the two-year sentence.   This contention blinks
reality:   the transcript of the final revocation hearing makes
pellucid that the district court considered the guideline
sentencing range, rejected it, and chose instead to impose a
statutory maximum sentence.


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          Even so, the appellant argues that the court gave too

much weight to the seriousness of the domestic violence offense.

That conduct, however, was properly weighed in the sentencing

calculus, see 18 U.S.C. §§ 3583(e), 3553(a)(1)(A), and district

courts are afforded wide discretion to determine how much weight

to assign to a particular sentencing factor, see United States v.

Clogston, 662 F.3d 588, 593 (1st Cir. 2011).    A district court has

an obligation to consider the totality of relevant sentencing

factors, but it has no obligation to assign to those factors the

weight that the defendant would prefer.        See United States v.

Leahy, 668 F.3d 18, 25 (1st Cir. 2012).

          The short of it is that we see no sign that the district

court erred — let alone plainly erred — either in its treatment of

the relevant sentencing factors or in its choice to give heavy

weight to the gravity of the violations committed by the appellant.

After all, those violations — especially the domestic violence

assault — were egregious, and only a brief period of time had

elapsed between the commencement of the appellant's supervised

release and the offending conduct.

                  C. Substantive Reasonableness.

          The appellant's final claim of error challenges the

substantive reasonableness of his sentence.     Although this claim

was not raised below, the standard of review is "somewhat blurred."

United States v. Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir. 2015).


                              - 9 -
To skirt this unsettled question, we assume — favorably to the

appellant — that our review is for abuse of discretion. See, e.g.,

id. at 228 & n.4.

             A sentence is substantively reasonable as long as it is

supported by a "plausible sentencing rationale" and achieves a

"defensible result."          United States v. Martin, 520 F.3d 87, 96

(1st Cir. 2008).        Since there can be a wide universe of reasonable

sentences    in   any    single   case,   a   sentence   fails     the    test   of

substantive reasonableness only if it "falls outside the expansive

boundaries of that universe."         Id. at 92.

             In   the    case   at   hand,    the    district     court    lucidly

articulated its sentencing rationale.                Specifically, the court

focused on the appellant's perceived dangerousness:                it noted that

his alcohol use made him "quite dangerous," pointed out that the

domestic violence offense could have "easily ended with a death,"

and remarked the threats that he repeatedly had voiced.                   Building

on this sturdy foundation, the court emphasized the need for

deterrence and the importance of public safety.             Threaded through

the court's comments was an apparent judgment that the appellant

should be sentenced to significant prison time for a flagrant

breach of the court's trust.

             With this backdrop in place, we have scant difficulty in

concluding     that     the   district    court     articulated    a     plausible

sentencing rationale.           The appellant, released from custody on


                                     - 10 -
specific   conditions,   lost   little   time   in   committing   serial

violations of those conditions — and the court was certainly

entitled to take that chronology into account.

           The appellant has another shot in his sling.      He asserts

that the length of his sentence is not defensible.         To this end,

he says that because the maximum sentence in Maine for misdemeanor

domestic violence assault is 364 days, see Me. Rev. Stat. Ann.

tit. 17-A, §§ 207-A(1)(A), 1252(2)(D), his supervised release

revocation sentence should not exceed that maximum.

           The appellant's premise is correct:       Maine limits a jail

sentence for misdemeanor domestic violence assault to 364 days.

See id.    But the conclusion that he draws from this premise does

not follow:     a supervised release violation is an independent

offense4 and, thus, when conduct comprises both a state crime and

a violation of a federal supervised release condition, the maximum

sentence for the former does not control the maximum sentence for

the latter.    Cf. United States v. Work, 409 F.3d 484, 490 (1st

Cir. 2005) (noting that "the permissible term of incarceration

authorized for a supervised release violation is not circumscribed




     4 The appellant argues that the district court punished him
for the domestic violence offense per se, in violation of USSG Ch.
7 Pt. A(3)(b). This argument lacks force. The court's comments
make it pellucid that it was punishing the appellant for the breach
of trust that his supervised release violations entailed, not for
the domestic violence offense per se.


                                - 11 -
by the substantive sentence" under the guidelines).                    This case

illustrates the point.

              As said, the appellant's original conviction was for

possession of heroin with intent to distribute — a class D felony.

See 18 U.S.C. § 3559(a)(4).           Congress set the maximum supervised

release revocation sentence for a defendant (like the appellant)

whose original offense of conviction was a class D felony at two

years.     See id. § 3583(e)(3).              That statutory maximum pertains

even   when    the    conduct     underlying      the   defendant's    supervised

release    violation        is   itself   a    misdemeanor.     See    id.     In

establishing this paradigm, Congress plainly contemplated that

some defendants might be sentenced to a longer term of imprisonment

for supervised release violations than for the state offense

underlying that violation.

              We add that the sentencing outcome — a two-year sentence

for the appellant's supervised release violations — is easily

defensible.       Although the revocation sentence exceeds the top of

the advisory guideline range by ten months, we have found more

dramatic upward variances to result in substantively reasonable

sentences.     See, e.g., United States v. Alejandro-Rosado, 878 F.3d

435,     440-41      (1st    Cir.    2017)      (finding    two-year    sentence

substantively reasonable despite guideline sentencing range of

four-to-ten months); Márquez-García, 862 F.3d at 147-48 (same).

At the end of the day, the guideline ranges for supervised release


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violations are "merely advisory" United States v. Soto-Soto, 855

F.3d 445, 451 (1st Cir. 2017), and the two-year sentence imposed

in this case is roughly proportionate to the appellant's breach of

trust.      So viewed, the sentence falls comfortably within the

"expansive boundaries" of the universe of reasonable sentences.

United States v. Matos-de-Jesús, 856 F.3d 174, 180 (1st Cir. 2017)

(quoting Martin, 520 F.3d at 92).

            No more is exigible.         We conclude, without serious

question,     that   the   appellant's    sentence   was   substantively

reasonable and, therefore, not an abuse of discretion.

III. CONCLUSION

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

the sentence is



Affirmed.




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