          United States Court of Appeals
                     For the First Circuit


No. 18-1965

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

              BRENT HERCULES, a/k/a Herc, a/k/a B,

                      Defendant, Appellant.


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

        [Hon. John A. Woodcock, Jr., U.S. District Judge]


                             Before

                    Lynch, Selya, and Barron,
                         Circuit Judges.


     Angela G. Lehman for appellant.
     Benjamin M. Block, Assistant United States Attorney, with
whom Halsey B. Frank, United States Attorney, was on brief, for
appellee.


                         January 9, 2020
              SELYA, Circuit Judge.       This appeal presents a question

of first impression in this circuit:           is a defendant's potential

future deportation a factor that a sentencing court may consider

under 18 U.S.C. § 3553(a)?         Although we answer this question in

the affirmative, we conclude that the court below acted well within

the encincture of its discretion in determining that it would not

give   weight    to   the   appellant's    potential   future     deportation.

Therefore, we reject the appellant's claims of error and uphold

the challenged sentence.

I. BACKGROUND

              Because this sentencing appeal follows a guilty plea, we

gather the relevant facts from the change-of-plea colloquy, the

undisputed portions of the presentence investigation report (PSI

Report), and the transcript of the disposition hearing. See United

States   v.    Narváez-Soto,    773    F.3d   282,   284   (1st   Cir.   2014).

Beginning in September of 2015, defendant-appellant Brent Hercules

participated in a conspiracy to transport drugs into central Maine

for distribution.      During a period of approximately eleven months,

the appellant drove vehicles carrying drugs, drug dealers, and/or

drug proceeds between New York and Maine once or twice each week.

              In May of 2017, the hammer fell:         a federal grand jury

sitting in the District of Maine charged the appellant with one

count of conspiracy to distribute and possess with intent to

distribute controlled substances, see 21 U.S.C. §§ 841(a)(1), 846,


                                      - 2 -
and one count of possession with intent to distribute the same,

see id. § 841(a)(1).            After some preliminaries, not relevant here,

the appellant pleaded guilty to both counts.                     When prepared, the

PSI Report revealed that the appellant had been born in the British

Virgin Islands in 1986 and had immigrated to the United States

with his parents when he was three years of age.                          He became a

lawful permanent resident in July of 1999.                           By the time of

sentencing, U.S. Immigration and Customs Enforcement (ICE) had

filed       a    detainer      against    the    appellant    with   an       eye   toward

subsequent deportation.

                 Prior    to     the     disposition     hearing,       the     appellant

submitted a sentencing memorandum in which he asserted that he was

certain to be deported after serving his sentence.                        He therefore

beseeched         the    sentencing          court,   when    mulling     the       factors

delineated         in    18    U.S.C.    §    3553(a),   to   consider        his   future

deportation and the possibility of a downward variance on that

basis.1         The government opposed this entreaty, contending that the

appellant's deportation was not a "foregone conclusion" and that




        1
      A variance is a non-guidelines sentence that "result[s] from
a court's consideration of the statutory sentencing factors
enumerated in 18 U.S.C. § 3553(a)." United States v. Rodríguez-
Reyes, 925 F.3d 558, 567 (1st Cir.) (quoting United States v.
Aponte-Vellón, 754 F.3d 89, 93 (1st Cir. 2014)), cert. denied, 140
S. Ct. 193 (2019); see United States v. Heindenstrom, ___ F.3d
___, ___, No. 18-2187, slip op. 1, 10-11 (1st Cir. 2019).


                                              - 3 -
a criminal defendant's potential deportation was an inappropriate

ground for imposing a downwardly variant sentence.

             The district court addressed this dispute at the outset

of the disposition hearing.      The court enumerated three reasons

why it would not take the appellant's potential future deportation

into account either as a sentencing factor or, by extension, as a

basis for lowering the appellant's sentence.

             First, the court stated that although there was surely

"a risk" that the appellant would be deported after serving his

sentence, it was "not at all convinced that [he] will, in fact, be

deported."      In support, the court noted shifting immigration

enforcement priorities among various presidential administrations,

particularly with respect to "individuals like the [appellant,]

who was brought here as a child."        In a similar vein, the court

noted that the appellant had two prior state drug convictions,

neither of which had triggered his deportation.2       Given what it

characterized as the "uncertainty" surrounding the appellant's

deportation, the court expressed discomfort with reducing his

sentence based on a future event that might never occur.

             Second, the court explained its view that potential

future deportation qualifies as a "collateral consequence" of


     2 The PSI Report indicates that these two state convictions
were misdemeanors, but the district court initially referred to
them as felonies.   The court, though, accurately described the
substance of these convictions later in the disposition hearing.


                                 - 4 -
committing a federal criminal offense.                   Even though the court

recognized that it was not "forbidden from considering" collateral

consequences,    it    described    such       consequences     as   difficult   to

assess inasmuch as every defendant potentially faces wide-ranging

repercussions    as    a   result   of     a    federal     criminal   conviction

(including difficulty securing employment and strained personal

and familial relationships).

             Third, the court highlighted its "greatest concern" with

considering the possibility of future deportation:                   that placing

such a factor into the mix might lead inexorably to sentencing

disparities between citizen- and noncitizen-defendants.                     In the

court's judgment, it would be "fundamentally wrong" to reduce a

noncitizen-defendant's       sentence          because    of   potential    future

deportation when comparable arguments about immigration status

"would   not    be    available"    to   a      similarly      situated    citizen-

defendant.

             Relying on these reasons, the court determined that it

would not give weight to the appellant's potential deportation

when fashioning the appellant's sentence.                  Later on, the court

reiterated its view that it had "the discretion to consider

deportation" but that "this is not the right case to do it."

             Without objection, the district court proceeded to adopt

the guideline calculations limned in the PSI Report, set the

appellant's total offense level at 29, and placed him in criminal


                                     - 5 -
history category III.      These computations yielded a guideline

sentencing range (GSR) of 108 to 135 months.               The government

recommended   a   bottom-of-the-range          sentence    (108   months).

Stressing his acceptance of responsibility and his relatively

limited role as a driver for the drug ring, the appellant sought

a downwardly variant 60-month sentence.

          After weighing the pertinent section 3553(a) factors,

the district court varied downward (albeit not on the basis of the

appellant's potential deportation) and imposed an 87-month term of

immurement.   In explaining its sentencing rationale, the court

acknowledged the large amount of drugs and drug proceeds that the

appellant had transported and found that the appellant had played

a "limited but essential role" in the conspiracy. The court noted,

however, that the appellant had neither performed a managerial

role in the conspiracy nor engaged directly in distribution.

          Along   with   the   prison   sentence,    the   district   court

imposed a three-year term of supervised release, attaching several

special   conditions.      These     special     conditions   included    a

stipulation that the appellant be surrendered to ICE after serving

his prison sentence and, "[i]f ordered deported," remain outside

the United States during the period of supervised release.

          This timely appeal followed.




                                   - 6 -
II. ANALYSIS

              When confronted with claims of sentencing error, we

engage   in    a    two-step      pavane.    See   United    States   v.    Flores-

Machicote, 706 F.3d 16, 20 (1st Cir. 2013).                 To begin, we inquire

into any alleged procedural errors, such as miscalculating the

GSR, failing to consider the section 3553(a) factors, or basing a

sentence on clearly erroneous facts.               See id.      If the sentence

proves procedurally sound, we then inquire into its substantive

reasonableness.        See id.

              At each step of this bifurcated analysis, the abuse-of-

discretion standard governs our review. See Gall v. United States,

552 U.S. 38, 51 (2007); Narváez-Soto, 773 F.3d at 285.                           This

standard is not monolithic: under its umbrella, we review findings

of fact for clear error and questions of law (including those

involving the application and interpretation of the sentencing

guidelines) de novo.         See Narváez-Soto, 773 F.3d at 285.

              The appellant's principal plaint is that the district

court misapprehended the likelihood of his future deportation.

Specifically, he submits that the court erred by deeming his future

deportation merely "possible," when in point of fact "he is subject

to   mandatory      deportation      with   no   possible    relief."       In   the

appellant's        view,   this    misapprehension    infected     the     district

court's decision not to consider his future deportation when

crafting an appropriate sentence.


                                        - 7 -
          Before grappling with the appellant's arguments, we

pause to locate them within the applicable analytic framework.         In

his opening brief, the appellant did not explicitly characterize

his argument about the inevitability of deportation in terms of

either procedural or substantive error.        The government, though,

characterized this argument as a claim of procedural and factual

error, and the appellant has not disputed this characterization.

Consequently,    we   treat   the    appellant's   argument    about   the

likelihood of his deportation as a claim of procedural (and more

specifically, factual) error.

          Against this backdrop, we turn to the district court's

determination that the appellant's future deportation was possible

but not a sure thing.     We review this factual determination for

clear error.     See United States v. Fields, 858 F.3d 24, 29 (1st

Cir. 2017).    Clear error review is deferential and "requires that

we accept findings of fact and inferences drawn therefrom unless,

'on the whole of the record, we form a strong, unyielding belief

that a mistake has been made.'"         Id. (quoting United States v.

Demers, 842 F.3d 8, 12 (1st Cir. 2016)).       When a sentencing court

faces "more than one plausible view of the circumstances, [its]

choice   among    supportable       alternatives   cannot     be   clearly

erroneous."     Id. at 30 (quoting United States v. Ruiz, 905 F.2d

499, 508 (1st Cir. 1990)).




                                    - 8 -
            Here, it cannot be gainsaid that the appellant is quite

likely to be deported to his homeland (the British Virgin Islands)

once he has served his prison sentence. After all, the appellant's

convictions     are     for     aggravated         felonies.       See     8    U.S.C.

§ 1101(a)(43)(B) (defining "aggravated felony" to comprise "drug

trafficking    crime[s]"       under   18    U.S.C.     §   924(c));      18    U.S.C.

§ 924(c)(2) (defining "drug trafficking crime" to include "any

felony punishable under the Controlled Substances Act").                          This

status entails wide-ranging consequences.                   As a general matter,

noncitizens convicted of aggravated felonies are deportable under

federal law.3         See 8 U.S.C. § 1227(a)(2)(A)(iii).                   In turn,

deportable noncitizens "shall, upon the order of the Attorney

General, be removed" from the United States.                   Id. § 1227(a).      And

the   appellant's       aggravated      felony        convictions        render    him

ineligible for various forms of relief from removal.                           See id.

§ 1229b(a)(3) (cancellation of removal); id. § 1231(b)(3)(B)(ii)

(withholding    of     removal);       id.     §     1158(b)(2)(A)(ii),         (B)(i)

(asylum).       Theoretically,          then,        "removal     is     practically

inevitable" under contemporary law for noncitizens who commit

removable offenses.           Padilla v. Kentucky, 559 U.S. 356, 363-64


      3Noncitizens convicted of violations of federal, state, or
foreign laws relating to controlled substances are also deportable
under federal law. See 8 U.S.C. § 1227(a)(2)(B)(i). There is an
exception to this rule. See id. (memorializing "own use" exception
relating to single offense for possession of 30 grams or less of
marijuana). That exception is not relevant here.


                                       - 9 -
(2010).      What is more, the Supreme Court has noted that the risk

of removal is especially pronounced for noncitizens convicted of

offenses     "related        to    trafficking      in    a    controlled        substance"

because    discretionary           relief    from       removal   is     generally      "not

available" for such individuals.                Id. at 364.

              But    despite       the   high   likelihood        of    the      appellant's

eventual deportation under the current statutory scheme,4 we cannot

say   that    the     district       court      clearly       erred    by     deeming    the

appellant's         future        deportation       uncertain.              In    practice,

enforcement of the immigration laws has not always been a model of

consistency, and the district court plausibly noted that the

immigration enforcement priorities of the Executive Branch "seem

to be in flux," changing with the ebb and flow of political tides.

So, too, the court correctly observed that the appellant had not

been deported in the past notwithstanding two prior convictions

for   state    drug     offenses.           See     8    U.S.C.       § 1227(a)(2)(B)(i)

(establishing that noncitizens convicted of violations of state

controlled substances offenses are deportable).                          Relatedly, the

court commented on the appellant's 2007 state felony conviction

for attempted criminal possession of a weapon.                              Although this


      4We think it worth noting that the appellant did not cite
either the statutory scheme or the Padilla decision before the
sentencing court.   Instead, he based his argument about his
virtually certain deportation on the ICE detainer and generic
assertions that, for instance, he would "in all likelihood" be
deported.


                                          - 10 -
conviction almost certainly rendered the appellant deportable, see

id. § 1227(a)(2)(C) (deeming noncitizens convicted under any law

for   attempted    possession   of   firearm   deportable),     the   record

contains no evidence that this conviction ever triggered any

proceedings aimed at the appellant's deportation.

           Given     the    substantial    possibility     of     shifting

immigration policies and fluctuating enforcement priorities during

the appellant's lengthy 87-month incarcerative term, the district

court's determination that the appellant's future deportation was

not a matter of absolute certainty was a reasonable assessment of

the appellant's circumstances.         Consequently, we hold that the

district court's finding as to the likelihood of the appellant's

future deportation was not clearly erroneous.            See Fields, 858

F.3d at 30.

           This brings us to the district court's decision not to

consider the appellant's potential deportation when calibrating an

appropriate sentence.      Our review is under the abuse-of-discretion

rubric.   See id. at 28.

           In an earlier case involving a conviction for illegal

reentry under 8 U.S.C. § 1326(a), we rejected a defendant's

argument that the sentencing court should have imposed a non-

guidelines sentence on the basis of his "immediate detention and

likely future deportation once released from prison."                 United

States v. Jiménez-Beltre, 440 F.3d 514, 520 (1st Cir. 2006) (en


                                 - 11 -
banc), abrogated on other grounds by Rita v. United States, 551

U.S. 338 (2007).        There, the defendant argued that his potential

future deportation "made a normal guideline sentence unnecessary

for deterrence or public protection and was a pertinent factor

under 18 U.S.C. § 3553(a)(2)."         Id.    Dismissing these arguments,

we observed that because the "crime in question — re-entry after

deportation — is ordinarily going to be committed by persons who

will be deported after their sentences have been served," the GSR

"was likely predicated on this understanding."         Id.     We added that

the defendant in that case, who had reentered the United States

after deportation, was "hardly in a good position to argue for a

shorter sentence on the ground that another deportation of him

will   protect      the    public   adequately     against     yet   another

repetition."      Id.

             We have not yet had occasion, though, to explore a

sentencing court's ability to consider a defendant's potential

deportation outside the illegal reentry context.               Like several

other courts of appeals, see, e.g., United States v. Flores-Olague,

717 F.3d 526, 535 (7th Cir. 2013) (observing that a "sentencing

court is well within its prerogatives and responsibilities in

discussing    a   defendant's   status   as   a   deportable    alien"   when

considering a defendant's history); United States v. Petrus, 588

F.3d 347, 356 (6th Cir. 2009) (acknowledging that sentencing court

may consider defendant's "potential deportation" and "immigration


                                    - 12 -
status"), we now hold that a sentencing court has the discretion,

in   an   appropriate     case,   to    weigh   the    possibility   of   future

deportation when mulling the section 3553(a) factors in an effort

to fashion a condign sentence.5

             Under appropriate circumstances, a defendant's potential

deportation may properly be considered as part of a broader

assessment of his history and characteristics pursuant to section

3553(a)(1).     On the right factual record, a defendant's potential

deportation also may prove relevant to whether a sentence will

adequately     "protect    the    public    from      further   crimes    of   the

defendant."     18 U.S.C. § 3553(a)(2)(C).             Future threats to the

community might conceivably be mitigated in a situation in which,

upon release from imprisonment, the defendant will promptly be

deported.    Cf. United States v. Morales-Uribe, 470 F.3d 1282, 1287

(8th Cir. 2006) (making this point but concluding that defendant's

impending deportation "would not support a substantial downward

variance" on this basis since defendant had thrice attempted

unlawful entry).

             This is not to say that a sentencing court always must

consider a defendant's potential deportation when fashioning an




      5The out-of-circuit decisions cited in this opinion discuss
potential deportation in a variety of factual contexts. We cite
these opinions to support general legal propositions, without
implying endorsement of each court's specific application of those
propositions.


                                       - 13 -
appropriate sentence.        Moreover, we expect that variances from the

GSR on this basis, although permissible in the right factual

context, will likely prove rare.             In the last analysis, though,

"[s]entencing is much more an art than a science," and the weight

to   be    given     relevant    data     points    "is    largely     within    the

[sentencing]       court's   informed     discretion."        United    States   v.

Clogston, 662 F.3d 588, 593 (1st Cir. 2011).                We think it follows

that a sentencing court does not perforce abuse its discretion by

declining     to     speculate    on     a   defendant's      potential      future

deportation.        See United States v. Gomez-Jimenez, 750 F.3d 370,

384 n.8 (4th Cir. 2014).          Thus, our holding here simply adds to

the chorus of circuit courts recognizing that, in the relatively

rare circumstances in which potential future deportation is an

arguably appropriate sentencing factor, a district court does not

abuse its discretion either by weighing or declining to weigh that

factor in its sentencing calculus under section 3553(a).                        See,

e.g., id.; Flores-Olague, 717 F.3d at 535.

            In this instance, the district court expressed some

general reservations about taking a defendant's potential future

deportation into account.         Withal, the court did not categorically

foreclose the consideration of a defendant's potential deportation

in all cases.        To the contrary, the court stated explicitly that

it   had   the     discretion    to    consider    the    likelihood    of   future

deportation in the "right case."             Seen in this light, the court


                                        - 14 -
did not run afoul of the longstanding principle that "generally

courts should not categorically reject a factor as a basis for"

deviating from a guidelines sentence.        United States v. Olbres, 99

F.3d 28, 34 (1st Cir. 1996); see Koon v. United States, 518 U.S.

81, 106-07 (1996) ("Congress did not grant federal courts authority

to   decide     what   sorts     of   sentencing   considerations   are

inappropriate in every circumstance.").

             The record makes manifest that three factors informed

the district court's decision that this was not an appropriate

case in which to take the likelihood of the appellant's future

deportation into account.         These factors included the court's

assessment     that    the     appellant's   future   deportation   was

"speculative"; its conclusion that future deportation would be a

"collateral consequence" of committing a federal crime; and its

concern that reducing a noncitizen's sentence because of the

prospect of future deportation could create sentencing disparities

vis-à-vis similarly situated citizen-defendants.         Nothing in the

sentencing transcript or elsewhere in the record suggests that the

court gave any one of these variables dispositive weight.        Where,

as here, a sentencing court declines to factor into the sentencing

calculus a defendant's potential future deportation because of an

amalgam of appropriate concerns, no abuse of discretion occurs.

             In sum, a sentencing court enjoys wide discretion to

"custom-tailor an appropriate sentence" using a "flexible, case-


                                   - 15 -
by-case approach."       Flores-Machicote, 706 F.3d at 20-21.                 The

district    court's    decision    not     to    consider    the    appellant's

potential future deportation in the case at hand falls comfortably

within the ambit of this wide discretion.                Here, moreover, the

district court did not clearly err by determining that deportation

was not absolutely certain to transpire.               And to the extent that

the   appellant   "seeks   to     substitute     his    judgment"    about    the

relevance of his potential deportation for the contrary judgment

of    the   district   court,      "[w]e     cannot     countenance    such     a

substitution."    Clogston, 662 F.3d at 593.

III. CONCLUSION

            We need go no further.6             For the reasons elucidated

above, the appellant's sentence is



Affirmed.




      6The appellant has not argued, either below or on appeal,
that his sentence is substantively unreasonable. Thus, we have no
need to address that issue.


                                    - 16 -
