text:
    Kamal ALI, Israa Hassan, Plaintiffs, Appellants, v. UNITED STATES of America; Jefferson B. Sessions, III, Attorney General of the United States; John F. Kelly, Secretary of the U.S. Department of Homeland Security; Lori Scialabba, Acting Director of U.S. Citizenship and Immigration Services; Andrea Rogers, Field Office Director of the U.S. Citizenship and Immigration Services Manchester Field Office, Defendants, Appellees.
    No. 16-2027
    United States Court of Appeals, First Circuit.
    February 28, 2017

      Nathan P. Warecki, with whom Nixon Peabody LLP, Anna Barbara Hantz, Manchester, NH, and Sheehan Phinney Bass & Green, PA were on brief, for appellants.
    Terry L. Ollila, Assistant United States Attorney, with whom Emily Gray Rice, United States Attorney, was on brief, for appellees.
    Before LYNCH, THOMPSON, and BARRON, Circuit Judges.

       Pursuant to Fed. R. App. P. 43(c)(2), the following substitutions have been made among the appellees: Jefferson B. Sessions, III, Attorney General of the United States, for former Attorney General Loretta E. Lynch; John F. Kelly, Secretary of the U.S. Department of Homeland Security, for former Secretary Jeh Charles Johnson; Lori Scialabba, Acting Director of U.S. Citizenship and Immigration Services, for former Director Leon Rodriguez; and Andrea Rogers, Field Office Director of the U.S. Citizenship and Immigration Services Manchester Field Office, for former Director Anthony Violanti.

   LYNCH, Circuit Judge.

Israa Hassan, a U.S. citizen, filed an I-130 petition seeking permanent resident status for her noncitizen husband, Kamal Ali. See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1154(a)(1)(A)(i); 8 C.F.R. § 204.2(a). After interviewing Ali and Hassan, U.S. Citizenship and Immigration Services (“USCIS”) issued a Notice of Intent to Deny (“NOID”) the petition because of the agency’s determination that Ali’s prior marriage to Priscilla Lewis was “entered into for the purpose of evading the immigration laws.” 8 U.S.C. § 1154(c). Ali and Hassan submitted additional evidence in response to the NOID, including affidavits from Ali and Lewis, aiming to prove that Ali’s first marriage had not been fraudulent. Not persuaded to change its decision, USCIS denied the petition.

On appeal from an adverse judgment against them in their lawsuit challenging that denial, Ali and Hassan argue that USCIS did not afford them sufficient procedural due process, required by the Constitution, in denying the 1-130 petition. Even if we assume arguendo that the plaintiffs are entitled to some form of constitutional due process from an interest in Ali having permanent resident status through the petition, the district court properly held that the plaintiffs have not shown how the additional process they seek would have made any difference to the outcome. See Ali v. United States, No. 15-cv-201-AJ, 2016 WL 3190190, at *7, *8 (D.N.H. June 7, 2016). We affirm the district court’s grant of summary judgment in the government’s favor.

I.

. Ali, a native of Sudan, entered the United States in 1988 on a student visa to attend Long Island University (“LIU”). He never enrolled and was living in Boston by 1989. In Boston he met Priscilla Lewis, a U.S. citizen, and they married in 1993.

On November 2, 1995, Ali applied for adjustment of status under the Diversity Immigrant Visa program. See 8 U.S.C. § 1153(c). When the Immigration and Naturalization Service (“INS”) requested an original copy of the photocopied and translated high school diploma he had submitted, Ali provided an ostensible original that was inconsistent with the photocopy. The INS concluded that the purported original diploma “e[ould] not be the original of the photocopy.” When the INS again requested a true original, Ali’s counsel responded that both versions of the document contained the same information and that “there [wa]s no original to the photocopy that was originally submitted.” The INS concluded that Ali had failed to submit a valid original diploma. See 8 C.F.R. § 103.2(b)(5). On November 19, 1996, the INS denied Ali’s petition to adjust status, citing the false documentation.

After Ali’s first failed effort to adjust his status, Lewis filed an 1-130 petition in October 1997 on Ali’s behalf. The petition, signed by Lewis and Ali, stated that the couple had lived together in Manchester, New Hampshire since August 1997. Before the couple’s scheduled interview with the INS in January 1998, however, Ali contacted INS officials and asked to reschedule, stating that he and Lewis had separated and wanted time to work toward a reconciliation. The interview was postponed two more times after that. At a scheduled meeting in June 1998, Ali appeared with a woman who claimed to be Lewis, but she had brought no valid photo identification despite prior instructions to do so.

An INS investigation into Ali’s and Lewis’ marriage found additional information that cast doubt on the marriage’s bona fides. For example, the investigators obtained Massachusetts welfare records that showed that Lewis had been receiving welfare checks at the same Boston address since 1985. Other records stated that Ali had lived at several different addresses in Massachusetts and New Hampshire between 1993 and 1998. No records linked Lewis to any address in New Hampshire.

In September 1999, two INS agents interviewed Lewis in Boston, finding her at the street address to which Massachusetts had been sending her welfare checks. During the interview, as described by a report signed by one of the INS agents, Lewis stated that Ali had offered her $1000 to marry him so that he could obtain a green card — that is, permanent resident status. She added that after she and Ali separated, in 1998, Ali had asked her to give the immigration authorities the false impression that the two of them were still living together.

After the interview, Lewis withdrew the 1-130 petition that she had filed on Ali’s behalf. Her explanation of the withdrawal, which was handwritten and signed by her, reiterated that Ali had asked her to lie about their relationship and had offered her $1000 to marry him. The plaintiffs have not disputed that Lewis signed the statement, and the INS agent verified that Lewis had signed. The statement is handwritten, in the first person, and appears to be in the same handwriting as her signature on the statement and on the 1-130 petition.

When an INS agent contacted the LIU registrar, he recovered information that Ali had never attended the school. On November 17, 1999, an INS agent spoke to Ali, and Ali admitted he had never attended:

Ali and Lewis divorced in May 2002. Ali and Hassan, the plaintiffs in this case, married in April 2003. Hassan filed an I-130 petition on Ali’s behalf in July 2007, the year after she became a naturalized U.S. citizen. A USCIS officer in the Manchester Field Office interviewed Ali and Hassan in January 2008. During that interview, Ali later alleged, he was told about Lewis’ 1999 statement. At the interview, while under oath, he denied paying Lewis to marry him. In the final decision that USCIS ultimately issued, USCIS said that Ali also confirmed in the interview that he and Lewis had “primarily” lived apart “during the duration of their marriage” and, USCIS said, he stated that they “were not, in fact, living together in 1998 when the two were asked to appear for an [INS] interview.”

On August 25, 2008, the Manchester Field Office Director (“the Director”) sent Hassan a NOID. The NOID explained that USCIS had reviewed the record and concluded that Ali’s marriage to Lewis had been fraudulent. The NOID relied most heavily on Lewis’ statements, in her 1999 interview with INS agents, that she had not been living with Ali “at the time of the June 1998 interview” and that Ali had offered to pay her “$1000 to marry him so he c[ould] get a green card.” The NOID then stated that “the evidence present in the file, mainly in the form of Ms. Lewis’ sworn testimony, weighted] heavily in the decision of [Hassan’s] visa petition for Mr. Ali” and that “[t]he file lack[ed] essential evidence that clearly indicatefd] Mr. Ali and Ms. Lewis lived together as husband and wife.” The NOID stated that “[f]ur-thermore” Ali’s statements at the January 2008 interview supported its conclusions. The NOID offered Hassan and Ali a chance to respond and “to establish why [Hassan’s 1-130 petition] should not be denied.”

On October 25, 2008, Hassan and Ali submitted additional evidence to USCIS in response to the NOID. The response included an affidavit from Lewis, Ali’s former wife, in which she contradicted her September 1999 interview and signed statement by asserting that she had married “out of love and not for money,” that Ali had “never offered [her] any money to marry him,” and that she had “never told anyone [from INS] that ... Ali offered [her] money for a green card.” But Lewis did not deny that she had met with an INS agent in 1999. Nor did she deny that she had executed and then signed the 1999 interview statement or that the agent had witnessed and confirmed her. signature. Lewis’ new affidavit also stated that she had “destroyed a lot of the proof of [their] life together, such as photos, because [she had been] angry at [their] separation.”

In response to the NOID, Hassan and Ali, represented by counsel, also submitted, in addition to Lewis’ recantatioa, an affidavit from Lewis’ mother stating that Lewis had moved to New Hampshire while married to Ali, as well as bills sent to Ali’s New Hampshire address with Lewis’ name on them.

In Ali’s own affidavit, he asserted that Lewis had lived with him in New Hampshire from July or August 1997 until at least June 1998. That claim was inconsistent with what the agency says were Ali’s statements under oath at the January 2008 interview.

Immigration Services Officer Susan Col-ler, in a memorandum to the case file dated October 31, 2008, recommended denying the 1-130 petition. The memorandum drew attention to the false documentation Ali had submitted in support of his Diversity Immigrant Visa application, and to the fact that “[t]he new affidavits [we]re self-serving to the latest 1-130.”

On November 14, 2008, USCIS sent Hassan a denial of her 1-130 petition. The denial reiterated that visa petitioners bear the burden of establishing their eligibility for the benefit sought. See Matter of Brantigan, 11 I. & N. Dec. 493, 495 (BIA 1966). It pointed Out that Lewis’ new affidavit “eontradict[ed] her previous oral and written testimonies” and that the new evidence meant to prove Lewis’ cohabitation with Ali in New Hampshire was inconsistent with her receipt of Massachusetts welfare benefits at her Boston address through at least 1998. It concluded that “USCIS ha[d] clear and convincing evidence that [Ali] had previous involvement in a fraudulent marriage.”

The USCIS denial informed Hassan that she could file a motion to reopen. See 8 C.F.R. § 103.5(a)(2) (“A motion to reopen must state the new facts to be provided in the reopened proceeding and be supported by affidavits or other documentary evidence.”). Hassan did not file such a motion, nor at any time between the NOID and the final decision did she request to file additional material beyond what was filed in response to the NOID, or request to have an evidentiary hearing.

Hassan sought review from the Board of Immigration Appeals, arguing primarily that substantial evidence did not support the denial. She did not argue that the agency was obliged to provide her with cross-examination or that she had requested it. The BIA dismissed her appeal on April 19, 2011, finding that “the record contained] substantial and probative evidence of prior marriage fraud.”

On June 2, 2015, Ali and Hassan filed this lawsuit in federal court. Their complaint alleged that USCIS had violated their Fifth Amendment procedural due process rights by denying the 1-130 petition without offering a pre-decision eviden-tiary hearing. This is the only claim presented on appeal. On June 7, 2016, the magistrate judge issued an order granting the government’s motion for summary judgment. With respect to the due process claim, the magistrate judge concluded that “even assuming that the plaintiffs have a constitutionally protected liberty interest in this matter, due process did not require an evidentiary hearing.” Ali, 2016 WL 3190190, at *6. As to whether the plaintiffs had shown prejudice from the purported denial of due process, she concluded that “the plaintiffs ha[d] not shown how a cross-examination of Lewis — or of immigration agents concerning a seventeen-yeqr-old interview with Lewis — would potentially change [USCIS’] credibility determinations or ultimate decision.” Id. at *8. She also decided the other issues in the defendants’ favor.

On appeal, the plaintiffs focus exclusively on the due process issue and no longer press their other arguments.

II.

Federal jurisdiction was invoked in this case under the Administrative Procedure Act (“APA”), which instructs federal courts to “hold unlawful and set aside agency action, findings and conclusions found to be ... contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2), (2)(B). Here, the claimed constitutional procedural due process violation is the failure sua sponte to provide a pre-decision evidentiary hearing, at which the plaintiffs say they would have cross-examined Lewis and the INS agents who interviewed her, in an effort to rebut US-CIS’ evidence of marriage fraud.

The APA also instructs courts to take “due account ... of the rule of prejudicial error.” Id. § 706. That statutory language references the harmless error standard that appellate courts normally apply when reviewing lower court decisions or administrative action. See Shinseki v. Sanders, 556 U.S. 396, 406-07, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009). Indeed, the Supreme Court has characterized § 706 as an “administrative law ... harmless error rule.” Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 659-60, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) (quoting PDK Labs. Inc. v. U.S. Drug Enf't Admin., 362 F.3d 786, 799 (D.C. Cir. 2004)) (choosing not to remand to agency because purported agency error “had no effect on the underlying agency action being challenged”).

Whether or not Hassan or Ali has a protected liberty interest invoked by the denial of the 1-130 petition, and whether or not that interest was offended by the procedures followed, the plaintiffs have not met their burden to show how the purported error prejudiced them.

Hassan and Ali never asked USCIS for the opportunity to put on additional evidence, nor for an evidentiary hearing. Their complaint states that no such hearing occurred, but does not allege that the plaintiffs asked for one when they responded to the NOID. And even assuming the agency, rather than the plaintiffs, would be responsible for producing the two agents involved in Lewis’ 1999 interview (an assertion not made by the plaintiffs), the plaintiffs never asked for production of the agents, much less to examine the agents about events, that took place seventeen years earlier.

There is no reason to think that, if an evidentiary hearing occurred, USCIS would not continue to rely on its own official records contemporaneous to the 1999 interview, as well as Lewis’ signature affirming what appears to be her own handwritten statement, and suddenly credit Lewis’, 2008 affidavit claiming she had never made the statement. Lewis’ credibility as to the 2008 recanting affidavit was severely undercut by the flat inconsistency between the contemporary statement and the later statement, and by her withdrawal of the petition. Her statements that she had resided with Ali in New Hampshire for a period are undercut by the Massachusetts welfare records. As for the INS agents who interviewed Lewis, who are the only other persons aside from Lewis that the plaintiffs seek to have testify at an evidentiary hearing, the plaintiffs have made no showing that the agents would be available to be interviewed or would have anything different to say about the 1999 interview after seventeen years.

Further, to the extent the plaintiffs argue that Lewis’ credibility might have been enhanced by live testimony or further evidence from her, Lewis acted as a witness for the plaintiffs in the post-NOID proceedings, not for the agency. She knew of the other evidence undermining her newfound recantation, but addressed none' of it by affidavit. Indeed, no offer of proof was made to either the agency or the district court as to what the other evidence was that the plaintiffs wished to produce. The plaintiffs simply have not shown how their preferred procedure would have made any difference.

III.

We affirm the judgment of the district court.

      . In 2003, USCIS and other components of the Department of Homeland Security assumed the functions of the now-defunct INS. See Ali, 2016 WL 3190190, at *1 n.2.

      . The complaint also alleged (1) that USCIS had erroneously focused its inquiry on 1997, when Lewis filed her 1-130 petition, rather than on 1993, when she married Ali; and (2) that USCIS’ decision was not supported by substantial evidence. The district court rulings on those issues are not appealed.

      . We will assume arguendo that Kerry v. Din, - U.S. -, 135 S.Ct. 2128, 192 L.Ed.2d 183 (2015), does not doom this suit by foreclosing any due process claim at all. In our view, Din did not produce a definitive answer to the question of whether a citizen has a liberty interest, warranting due process, in residing in the United States with his or her noncitizen spouse. And we will also assume that Din's holding that the process given there — much less than was given here — was sufficient, see id. at 2139-41 (Kennedy, J., concurring), does not control the outcome of this case, which involves a noncitizen husband already in the United States.

      . The record is silent as to whether the two agents are still employed by USCIS or by any other government agency.


source: Caselaw Access Project

author: HOWARD, Chief Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. SIHAI CHENG, Defendant, Appellant.
    No. 16-1144
    United States Court of Appeals, First Circuit.
    March 1, 2017

      Katherine C. Essington, Providence, RI, for appellant.
    B. Stephanie Siegmann, Assistant U.S. Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
    Before HOWARD, Chief Judge, SOUTER, Associate Justice, and STAHL, Circuit Judge.

       Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation.

   HOWARD, Chief Judge.

Sihai Cheng challenges the reasonableness of the 108-month incarcerative sen-fence he received for his role in an illicit scheme to export pressure transducers— sensitive goods with nuclear applications— from.the United States to Iran through the People’s Republic of China. We affirm.

I.

Between 2009 and 2011, Cheng caused at least 1,185 MKS Instruments, Inc. (“MKS”) Model 722A pressure transducers to be exported from the United States to Iran via China. Cheng placed numerous orders for the pressure transducers, participated in fraudulently obtaining U.S. export licenses for them, and was involved in stripping them of their MKS serial numbers and repackaging them in order to conceal the fact that they were being shipped in violation of U.S. export laws and the U.S. embargo against Iran. Cheng engaged in this course of conduct despite knowing that the MKS pressure transducers would be used at Iran’s uranium enrichment facilities to advance the country’s nuclear weapons program. Further, at various points, he expressed animosity towards the United States and invoked the specter of “WORLD WAR THREE” in an apparent effort to drum up sales.

After being extradited from the United Kingdom to the United States, Cheng pleaded guilty to six counts of a ten-count indictment, including: conspiracy to commit export violations in violation of 50 U.S.C. § 1705; conspiracy to smuggle goods in violation of 18 U.S.C. § 371; and four counts of unlawfully exporting U.S. goods to Iran in violation of 50 U.S.C. § 1705.

The parties and the Probation Office agreed that U.S.S.G. § 2M5.1 was the applicable Guideline and that — after applying a three-level reduction for acceptance of responsibility under § 3E1.1 — the total offense level was 23. When combined with Cheng’s Criminal History Category of I, this yielded an advisory Guidelines sentencing range of forty-six to fifty-seven months’ imprisonment.

During Cheng’s sentencing hearing, however, the district court upwardly departed six levels based on Application Note 2 to U.S.S.G. § 2M5.1. Application Note 2 provides that an upward departure may be warranted where the following factors are “present in an extreme form:” “the degree to which the violation threatened a security interest of the United States, the volume of commerce involved, the extent of planning or sophistication, and whether there were multiple occurrences.” U.S.S.G. § 2M5.1 cmt. (n.2). The district court explained that “[a]ll of those factors” were present to an extreme degree and observed that “[i]t’s almost as if someone were writing [Application Note 2] for this case.” The court therefore determined that the total offense level — after the six-level upward departure — was 29 and imposed a sentence of 108 months, the upper end of the Guidelines sentencing range. .

This appeal timely followed.

II.

On appeal, Cheng’s overarching claim is that this 108-month incarcerative sentence is unreasonable. Specifically, he argues: that the sentencing court erred in departing from the Guidelines under Application Note 2; that his sentence was disproportionate to sentences in similar and related cases; and that his sentence was greater than necessary to achieve the sentencing goals of 18 U.S.C. § 3553(a).

Claims of sentencing error trigger a two-step inquiry in this court: “we first determine whether the sentence imposed is procedurally reasonable and then determine whether it is substantively reasonable.” United States v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011). Cheng objects only to the substantive reasonableness of his sentence. Therefore, our review is for abuse of discretion, taking into account the totality of the circumstances. United States v. Zavala-Marti, 715 F.3d 44, 50 (1st Cir. 2013). Although Cheng did not object to the substantive reasonableness of his sentence below, we will assume arguendo that our review is nevertheless for abuse of discretion. Cf. United States v. Nuñez, 840 F.3d 1, 7 (1st Cir. 2016) (assuming without deciding that review of unpreserved claims of substantive unreasonableness is for abuse of discretion).

Considering. Cheng’s three arguments in turn, we find them unavailing.

A.

Cheng contends that the district court erred in upwardly departing under Application Note 2 because (1) neither planning nor sophistication were present in extreme form and (2) the security interests of the United States had already been taken into account in calculating his base offense level.

The district court properly considered the entire scope of the illegal scheme, see U.S.S.G. § 1B1.3, and could reasonably conclude from the record that Cheng was involved in an illegal procurement network that was both carefully planned and highly sophisticated, as it spanned three countries, involved more than five people, generated thousands of communications, and included circuitous shipping routes and other considerable efforts to evade detection. There was no abuse of discretion, and we need go no further on this particular point.

Cheng argues, however, that even if planning and sophistication were present in extreme form, inappropriate double counting is afoot. Yet, contrary to Cheng’s claims, the fact that the security interests of the United States are considered in determining the appropriate base offense level under U.S.S.G. § 2M5.1 does not mean that those security interests cannot also be used in assessing whether an upward departure is justified under Application Note 2. We have said that “[s]ince double counting is often perfectly proper, the guidelines themselves are the most helpful aid in the task of separating permissible double counting from its impermissible counterpart.” United States v. Lilly, 13 F.3d 15, 19 (1st Cir. 1994) (citation omitted). “The Sentencing Commission has not been bashful about explicitly banning double counting in a number of instances. We believe the Commission’s ready resort to explicitly stated prohibitions against double counting signals that courts should go quite slowly in implying further such prohibitions where none are written.” Id. at 19-20 (collecting cases).

The Guidelines do not prohibit double-counting under U.S.S.G. §-2M5.1. To the contrary, the Guidelines explicitly instruct courts to consider the degree to which an export violation threatened national security in determining (1) the base offense level for export violations, (2) the appropriate sentence within the Guideline range, and (3) the applicability of a departure. U.S.S.G. § 2M5.1. Simply put, Application Note 2 recognizes that export violations pose varying degrees of threat to national security and that those violations posing the most significant threats may warrant upward departure. This is entirely consistent with the principle that “a district court may rely on a particular fact for multiple sentencing purposes.” United States v. Sepúlveda-Hernández, 817 F.3d 30, 35 (1st Cir. 2016).

B.

Next, Cheng argues that his sentence was substantively unreasonable because it was disproportionate to sentences in similar and related cases.

Cheng complains that some participants in the instant scheme to illegally export MKS pressure transducers faced no consequences: some were not indicted, while others were subjects of a diplomatic arrangement. Therefore, he asserts, “it. was error for the district court judge to hold Mr. Cheng solely responsible for the illegal export of over a thousand pressure transducers where the export would not have been possible without the assistance” of others. In the circumstances of this case, this “he did it too!” argument is unpersuasive. Stated bluntly, the fact-that the sentencing court had no ability to sentence certain of Cheng’s co-conspirators does not make Cheng’s own sentence substantively unreasonable. Cf. United States v. Wallace, 573 F.3d 82, 97 (1st Cir. 2009) (“A ‘defendant is not entitled to a lighter sentence merely because his co-defendants received lighter sentences.’ ” (quoting United States v. Marceau, 554 F.3d 24, 33 (1st Cir. 2009)). To hold otherwise would lead to absurd consequences.

Second, Cheng points to the thirty-four month incarcerative sentence received by Qiang Hu, who was involved in this same scheme and sentenced by the same district court judge. We have observed that “concerns could arise if two identically situated defendants received different sentences from the same judge.” Id. No such concerns arise here, however, as the judge “confronted the [sentencing] disparity head-on.” Id. Unlike Cheng, Hu was not involved in exporting any of the MKS pressure transducers to Iran and was unaware that transducers were being sent to Iran to assist in Iran’s nuclear weapons program. Because Hu and Cheng were not identically situated, there is no reason to think that Cheng was entitled to the same sentence as Hu. See id.

Finally, Cheng’s efforts to establish a national sentencing disparity falter. See United States v. Ayala-Vazquez, 751 F.3d 1, 32 (1st Cir. 2014) (noting that consideration of sentencing disparity primarily targets disparities among defendants nationally). Although Cheng points us to several cases in which others received shorter sentences after committing export violations than he did, those cases are readily distinguishable. For example, defendants in those cases merely attempted to commit export violations, see United States v. Vaghari, 500 Fed.Appx. 139 (3d Cir. 2012) (attempting to buy a centrifuge), exported far fewer items, see United States v. Tsai, 954 F.2d 155 (3d Cir. 1992) (exporting 11 items of military electronics), exported less sensitive items, see id. or exported items to end-users in countries other than Iran, see United States v. Zhen Zhou Wu, 711 F.3d 1 (1st Cir. 2013) (exporting to end-users in China). Disparity analysis is simply not appropriate if a defendant’s “case ‘was not in the same camp’ as those he offer[s].” United States v. Reyes-Rivera, 812 F.3d 79, 89 (1st Cir. 2016) (quoting United States v. Garcia-Ortiz, 792 F.3d 184, 192 (1st Cir. 2015)). Therefore, we will not engage in it.

Because Cheng fails to show that the sentence imposed resulted in any kind of unwarranted or impermissible disparity, we decline to find that it was substantively unreasonable in this respect.

C.

Lastly, Cheng argues that his sentence was substantively unreasonable because it was greater than necessary to accomplish the sentencing goals of 18 U.S.C. § 3553(a).

Both during the sentencing hearing and again in its thoughtful sentencing memorandum, the district court noted that it had considered the 18 U.S.C. § 3553(a) factors. Further, the court made specific, detailed findings with respect to the relevant § 3553(a) factors — including both aggravating and mitigating factors — and adequately explained its sentence. See United States v. Arroyo-Maldonado, 791 F.3d 193, 201 (1st Cir. 2015). As we have said before, “[a] sentence will stand so long as there is a ‘plausible sentencing rationale and a defensible result.’” Reyes-Rivera, 812 F.3d at 89. “The district court had plenty of reason to sentence as it did here.” Id.

Cheng contends in particular that the sentence is greater than necessary to serve a deterrent function — either for Cheng himself or for others. As part of its sentencing rationale, the district court stated that “there is under the 3553(a) factors a need for deterrence.... You’re not the first case I’ve seen like this, and I think there has to be a deterrent message sent out there, particularly if you know you’re helping a nuclear weapons program.” We have repeatedly recognized that deterrence is an important factor in the sentencing calculus. E.g., United States v. Diaz-Arroyo, 797 F.3d 125, 129 (1st Cir. 2015). Moreover, a district court can — as it did here — consider at sentencing the gravity and prevalence of the crime. See United States v. Madsen, 809 F.3d 712, 720 (1st Cir. 2016). Cheng’s claim that he was motivated “solely by financial greed” does little to help his cause. See id. (affirming sentence as substantively reasonable in light of the defendant’s “goal of personal profit at the expense of the broader societal good”).

At bottom, Cheng disagrees with the district court’s weighing of the various sentencing factors, but we find no abuse of the court’s broad discretion. Cf. Arroyo-Maldonado, 791 F.3d at 200 (finding no plain error when defendant disagreed with the sentencing court’s weighing of factors). Criminal defendants are entitled to a weighing of the relevant § 3553(a) factors, “not to a particular result.” United States v. Carrasco-De-Jesús, 589 F.3d 22, 29 (1st Cir. 2009). Under the circumstances, imposition of a 108-month sentence was not substantively unreasonable. Cf. Clogston, 662 F.3d at 592 (“There is no one reasonable sentence in any given case but, rather, a universe of reasonable sentencing outcomes.”).

III.

For the forgoing reasons, we affirm.

      . The government invites us to categorize Cheng’s claim that the sentencing court erred in departing from the Guidelines'under Application Note 2 as an attack on his sentence’s procedural reasonableness. Cf. United States v. Torres-Rivera, 661 Fed.Appx. 727, 730 (1st Cir. 2016) (reviewing for procedural reasonableness claim that district court erred by relying on the application note to § 3B1.1 in imposing an above-guidelines sentence). Cheng did not object below, and our review would, as Cheng concedes, be for plain error if we accepted the government’s invitation. However, because we understand Cheng to be arguing that Application Note 2 does not apply to him regardless of the procedures used, we will assume (favorably to Cheng) without deciding that the claim speaks to the substantive reasonableness of his sentence. Therefore, we are choosing to evaluate the entirety of the sentence under the more lenient abuse of discretion standard. This does not change the outcome.


author: LYNCH, Circuit Judge.

text:
    Brittany IRISH, Individually and as Personal Representative of the Estate of Kyle Hewitt, and Kimberly Irish, Plaintiffs, Appellants, v. State of MAINE; State Police of the State of Maine; and John and/or Jane Does, State Police Officers 1-10, Defendants, Appellees.
    No. 16-2173
    United States Court of Appeals, First Circuit.
    March 1, 2017

      David J. Van Dyke, with whom Lynch & Van Dyke, P.A., Lewiston, ME, was on brief, for appellants.
    Christopher C. Taub, Assistant Attorney General, with whom Janet T. Mills, Attorney General, was on brief, for appellees.
    Before LYNCH, THOMPSON, and BARRON, Circuit Judges.
   LYNCH, Circuit Judge.

Plaintiffs Brittany and Kimberly Irish (together, “the Irishes”) brought this 42 U.S.C. § 1983 action against Maine State Police officers'after Anthony Lord, a former boyfriend of Brittany Irish (“Irish”), broke into her parents’ home, fatally shot her boyfriend (Kyle Hewitt), shot and grievously wounded her mother (plaintiff Kimberly Irish), abducted her, and engaged in a shootout with Maine State Police officers during which another individual was fatally shot.

The complaint alleges that Lord commenced this violent rampage after and because a State Police officer left Lord a voice message,- which notified him that Irish had made a complaint about Lord’s serious violent crimes against her earlier, and then did little more than ask Lord to come to the local State Police barracks to be interviewed. The officer left Lord this message despite Irish’s explicit request that the State Police refrain from doing so out of her fear that this action would incite further violence from Lord. The timing of the events suggests that she was correct in her fears. The complaint alleges that the Irishes’ losses “ar[o]se out of failures by Defendants to protect them from dangers which Defendants themselves created.”

On motion by the defendants, the district court dismissed the Irishes’ complaint at the 12(b)(6) stage, holding that their factual allegations did not amount to a state-created danger as would be necessary to maintain a substantive due process claim on these facts. The court heavily relied on Rivera v. Rhode Island, 402 F.3d 27 (1st Cir. 2005), to explain its decision. The court also found that qualified immunity shielded from Lability the ten unidentified State Police officers named as defendants.

We cannot conclude at this very early stage of the proceedings that, in consequence of our decision in Rivera, the plaintiffs either failed to state a substantive due process claim or that the defendants are entitled to qualified immunity. All we have are a bare-bones complaint and a 12(b)(6) motion. We have many questions to which we would prefer to have answers. While both of these issues can certainly be decided at the motion to dismiss stage, see Wood v. Moss, — U.S. -, 184 S.Ct. 2056, 2066, 188 L.Ed.2d 1039 (2014); Rivera, 402 F.3d at 31, they are often decided after some factual development or at summary judgment, Plumhoff v. Rickard, — U.S. -, 134 S.Ct. 2012, 2017, 188 L.Ed.2d 1056 (2014); DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 193, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). As to qualified immunity, we recognize the Supreme Court’s admonitions that it is “an immunity from suit rather than a mere defense to liability,” and should thus be decided early in litigation. Plumhoff, 134 S.Ct. at 2019 (citation omitted). But we are reluctant, to make law in the absence of more facts. We thus send the case back to the district court for some development of facts material to those issues.

We vacate the district court’s rilling as to the individual defendants and remand the case with instructions that the parties be permitted to conduct discovery on relevant facts. The discovery should include facts on whether there was any departure from established police protocol or training on, inter alia, the manner in which the police should notify the accused of allegations filed against him or her; what exactly the State Police officers knew about the risk that Lord posed to Irish and when exactly they knew it; and what message they left for Lord. Whether or not the officers followed proper procedure and how much they knew about the attendant risks of leaving a casual voice message, in turn, may bear on the questions of whether Irish has a due process claim that can withstand a 12(b)(6) motion and whether the officers'are entitled to qualified immunity.

I.

We recite the facts as alleged in the Irishes’ complaint but note where key information is left wanting.

Irish and Lord met through a mutual friend and carried on an ori-again, off-again relationship. Lord was a registered sex offender when the two met and, in 2011, Irish obtained a Protection from Abuse (“PFA”) order against Lord for herself and for her son. That two-year order expired in 2013. Although Irish had rekindled a friendship with Lord in March 2015, that relationship took a turn for the worse by the next month, when Lord began to “threaten[] and harass[]” Irish and send her “explicitly sexual communications.” Irish notified the Bangor Police Department (“BPD”) of Lord’s behavior, and the BPD advised her to obtain another PFA order against Lord. On or about July 6, 2015, Irish began the process of obtaining that second order against Lord. In July 2015, Irish was living with her boyfriend, Hewitt, with whom she had had a second son the previous year.

On July 14, 2015, Irish met with Lord at a local food store in Bangor, from which Lord abducted Irish and drove her to Aroostook County. There, he repeatedly raped her, strangled her with a seatbelt, and threatened to kill her. He specifically threatened to kill Irish if she reported the crime. The next day, on July 15, 2015, Irish submitted to a rape kit evaluation at her local hospital and reported what had happened to the BPD. The BPD referred her to the Maine State Police because the abduction and sexual assaults had taken place in two different counties. The State Police requested that Irish drop off a written statement the next day. No copy of the statement was appended to the complaint.

On July 16, 2015, Lord contacted Irish and asked her to meet with him to “talk about what had happened.” Irish advised the State Police of this request. The complaint does not explain how much information she provided to the State Police about her encounter with Lord. During the same conversation with the State Police, Irish also asked that she be permitted to meet with Lord, in order to elicit a confession from him, while wearing a wire or being monitored by a State Police officer. The State Police refused, telling Irish that “that’s not the way we do it.” The officers instead told her that they would call Lord, inform him of Irish’s accusations against him, and ask him to come to the local State Police barracks to “give his side of the story.” Irish asked the State Police to refrain from doing so, pleading that “she was afraid that that would incite Lord to terrible violence and that she would not thereupon be safe.” The complaint does not allege that Irish withdrew her allegations.

Shortly thereafter, on the same day, unidentified officers of the State Police contacted Irish and informed her that they had left Lord a voice message advising him of Irish’s criminal complaint against him and asking him to come to the local barracks. The record is silent on what exactly the message said.

Approximately two hours later, Irish learned from her father that her family’s barn in Benedicta, Maine was on fire. Immediately suspecting that Lord had set the fire, Irish reported it to the State Police and began traveling, with Hewitt, to her parents’ Benedicta home. While meeting with two State Police officers in Benedicta later that day, Irish received a phone call from her brother’s friend. That friend informed Irish that he was at a bar and had learned from Lord’s close friend there that “Lord had received a voice mail from the State Police, had become immediately incensed and agitated and had indicated that ‘someone was going to die tonight.’ ”

After receiving this call, Irish asked the two officers for a member of the State Police to be sent to protect her and her children overnight. The officers refused, saying that they could not spare the manpower but that they would “keep an eye on the situation.” Irish’s mother then asked if the officers could park an empty police car outside of the Benedicta home overnight “because she felt that that ruse, at least, would keep Lord away.” But the officers said that they also could not spare a car. Later that evening, “several State Police cars were observed approximately eleven miles away [from the Benedicta home] ‘dumpster diving,’ apparently looking for accelerant from the Benedicta fire.”

In the early morning of July 17, 2015, Lord entered the Benedicta home while Irish, Hewitt, and Kimberly Irish were present. Lord shot and killed Hewitt, shot and grievously wounded Kimberly Irish, and abducted Irish. With Irish in his car, Lord engaged in a shootout -with State Police and fatally shot another person in the process. Lord was later apprehended.

On December 10, 2015, the plaintiffs brought suit against the State of Maine, the State Police, and ten unidentified State Police officers in the U.S. District Court for the District of Maine. The complaint alleged in relevant part that the defendants had violated the plaintiffs’ substantive due process rights by failing to protect them from Lord’s violence after having taken affirmative steps to increase the threat that Lord posed to them.

The district court granted the defendants’ motion to dismiss, noting that the failure to protect against private violence is not a cognizable violation of due process. Irish v. Maine, 1:15-cv-00503-JAW, 2016 WL 4742233, at *8 (D. Me. Sept. 12, 2016). While the district court recognized, the possible “state-created danger” exception to this principle, it found that the Irishes’ complaint insufficiently alleged a state-created danger under Rivera. Id. at *10-11. The court also noted that the alleged conduct of the officers did not “shock the conscience,” id. at *11, and that the individual defendants were shielded by qualified immunity, id. at *12.

II.

The Fourteenth Amendment’s Due Process Clause provides that “[n]o State shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1. As a general matter, “a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.” DeShaney, 489 U.S. at 197, 109 S.Ct. 998. But some circuit courts have recognized the “state-created danger” exception to this rule based on language in DeShaney that “suggested, but never expressly recognized, the possibility that when the state creates the danger to an individual, an affirmative duty to protect might arise.” Rivera, 402 F.3d at 34-35 (citing DeShaney, 489 U.S. at 201, 109 S.Ct. 998). At least eight sister circuits have recognized the existence of the state-created danger theory. See Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 n.1 (9th Cir. 2006) (collecting cases). While this circuit has discussed the possible existence of the state-created danger theory, we have never found it applicable to any specific set of facts.

In addition to alleging a sufficient state-created danger, the plaintiff must meet “a further and onerous requirement” to prove a substantive due process violation: “the state actions must shock the conscience of the court.” Rivera, 402 F.3d at 35. To meet this standard, the state actions must be “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 847 n.8, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Although the circumstances of each case impact whether the state action at issue meets this standard, “where actors have an opportunity to reflect and make reasoned and rational decisions, deliberately indifferent behavior may suffice.” Rivera, 402 F.3d at 36 (citing Lewis, 523 U.S. at 851-52, 118 S.Ct. 1708). Finally, we “may elect first to address whether the governmental action at issue is sufficiently conscience shocking” before considering the state-created danger element. Id

The Irishes argue that the officers’ conduct in this case both exacerbated the danger that Lord posed to them and was sufficiently egregious to shock the conscience. Pointing to the voice message, the Irishes argue that by contacting Lord over Irish’s objections and advising him of the allegations against him, the officers “specifically created the peril” to the Irishes with deliberate indifference for their safety-

Defendants respond by first arguing that “trying to interview a suspect who has been accused of a crime is standard police practice,” and thus that Rivera must control. See id. at 37. But this argument fails to take into account the manner in which the officers tried to interview the suspect — at the very outset of the investigation, before any other precautions had been taken, and despite'being warned by the complainant about the suspect’s violent tendencies.

Defendants further contend that even if the officers’ actions violated Irish’s constitutional rights, they must still be shielded by qualified immunity because “[a]ny officer who reads DeShaney and Rivera [wa]s going to come away understanding that it [wa]s not a clearly established violation of Ms. Irish’s due process rights to leave a voicemail message with the alleged perpetrator.”

In our view, the bare-bones nature of the complaint and the record at this early stage of litigation makes vacating the appropriate course. To be sure, our concern is not that the State Police sought to interview Lord for “his side of the story.” Nor is our concern that they identified Irish as the complainant. After all, even had they not identified her by name, her identity might have been clear to Lord, given the one-on-one nature of the crime of rape. What we do question, however, is whether there are standard police protocols that were violated when the officers decided not to be present when they alerted Lord to Irish’s allegations but instead opted to leave Lord a voice message on his phone— notwithstanding Irish’s specific warning that such notification would “incite Lord to terrible violence.” Assuming the voice message was left on Lord’s cell phone, it is likely that he received immediate notification and was left free to immediately do violence. And given the timeline presented in Irish’s complaint, the police had apparently not taken any prior steps to evaluate Irish’s allegations or Lord’s propensity for violence before leaving him the voice message. Or if they did, the actions are not documented in the record.

Neither party at oral argument could provide any detail on acceptable police procedures or training, if any, on how and when to notify the accused of the allegations that have been filed against him or her under similar circumstances. Our developing caselaw in this area helps explain why we pause.

In Stamps v. Town of Framingham, 813 F.3d 27 (1st Cir. 2016), we denied qualified immunity to a police officer who had accidentally shot and killed an elderly civilian after “pointing his loaded assault rifle at the head of a prone, non-resistant, innocent person who present[ed] no danger, with the safety off and a finger on the trigger.” Id. at 39-40. Concluding that a reasonable officer would have known that such conduct constituted excessive force in violation of the Fourth Amendment, we emphasized how the officer’s decision to keep his finger on the trigger, to keep his weapon “off safe” at all times, and to point the weapon’s muzzle at an innocent civilian’s head, rather than in a safe direction, all violated police rules, training, and basic firearm safety procedures. Id. at 32-33.

Likewise, the violation of standard police protocols was pertinent to our analysis in Marrero-Rodriguez v. Municipality of San Juan, 677 F.3d 497 (1st Cir. 2012), a case in which we reversed in part a district court’s 12(b)(6) dismissal of a complaint alleging substantive due process violations. Id. at 499. In that case, the estate of a deceased police sergeant, Carlos Lozada, brought suit after he was shot to death during a police training session that simulated the arrest of a suspect. Id. at 500-01. While Lozada played the role of a subdued suspect, lying prone on the ground with another officer holding him down by his back, a lieutenant walked into the simulation, declared that the training was not being done “properly,” pulled out his weapon, put the barrel to Lozada’s back, and pulled the trigger. Id. at 500. Finding that the plaintiff’s factual allegations were sufficient to survive the motion to dismiss, we noted that the conduct of this lieutenant had violated several protocols, which stated that all officers must discharge their weapons in a sandbox before entering the training area, that officers must use only “dummy guns” in the training facility, and that no firearms were to be used during this particular training session. Id at 500, 502.

The record here is devoid of any facts on whether the State Police officers’ decision to leave a voice message for Lord — despite Lord’s foreseeable violent reaction; despite the fact that they were at the very outset of an investigation into allegations of violent assault, rape, and threats to kill; and without any effort to calm him down or prevent him from inflicting harm — was in line with police protocol and training. More specifically, based on this record, we do not know the steps, if any, that officers should take when they have reason to believe that an alleged perpetrator is violent and is likely to retaliate against a victim who reports such serious crimes. And as Stamps and Marrero-Rodriguez illustrate, violation of protocol and training is relevant both to the substantive due process and qualified immunity inquiries.

Beyond the dearth of facts on police procedure and training, the record also offers no facts on exactly what the officers knew about the veracity of the allegations that Irish had made, about Lord’s propensity for violence, and about the risk that Lord would act on that propensity to harm Irish. We do not know how much time the officers spent with Irish to go over her written statement that Lord had strangled, raped, and repeatedly threatened to kill her. We do not know whether the officers contacted the local hospital for Irish’s rape kit before alerting Lord about her accusations. We do not know whether the State Police had prior experience with Lord. We do not know whether the officers ran Lord’s name through the system to check if he had a criminal record. (In fact, the complaint alleges that Lord is a registered sex offender.) We do not know whether they reached out to the BPD, which had referred Irish’s case to the State Police. (If they had done so, they might have learned that Irish had obtained a PFA order against Lord and was in the process of obtaining another one.) We do not know whether the voice message was left on Lord’s cell phone. We do not know whether the officers made any attempt to find Lord after Irish reported that her parents’ barn had been set on fire and that he had told his friend that “someone was going to die tonight” after receiving the officers’ message. We do not know if the officers felt they had probable cause to arrest Lord but nonetheless chose only to leave the voice message and, if so, the reasons for that decision.

All or some of the answers to these questions may be pertinent to the substantive due process and qualified immunity issues. If discovery reveals that the officers’ actions violated accepted norms of police procedure or that they acted despite foreseeing the harm to Irish, it may strengthen the plaintiffs’ argument that the officers exacerbated the danger that Lord posed. It may also directly speak to whether the officers acted in deliberate indifference to Irish’s safety, so much so that their conduct shocks the conscience.

By contrast, if discovery reveals that no protocols were violated, then the plaintiffs may have a harder time surviving a 12(b)(6) motion. While the fact that the officers did not take further discretionary steps to ensure Irish’s safety may amount to negligence, mere negligence would be insufficient to maintain a claim of substantive due process violation. See Cummings v. McIntire, 271 F.3d 341, 344 (1st Cir. 2001) (“[N]egligent conduct is ‘categorically beneath the threshold of constitutional due process....’” (quoting Lewis, 523 U.S. at 849, 118 S.Ct. 1708)). Similarly, if no or few protocols were violated; then the officers’ chance of successfully asserting qualified immunity may increase, as a reasonable officer may not have known that acting in line with their own standard procedures and training would violate a private citizen’s constitutional rights. See Mlodzinski v. Lewis, 648 F.3d 24, 32 (1st Cir. 2011) (qualified immunity protects officers from liability “insofar as their conduct does not violate clearly established ... constitutional rights of which a reasonable person would have known” (citation omitted)). But we cannot reach any of these conclusions without a fuller development of the facts.

We vacate the district court’s ruling as to the individual defendants and remand the case with instructions for discovery not inconsistent with this opinion. No costs are awarded.

      . In Rivera, fifteen-year-old Jennifer Rivera was shot dead the day before she was scheduled to testify as an eyewitness in a murder trial. For months preceding the trial, Rivera continually received threats that she would be killed if she testified. When she notified the police of the death threats, they repeatedly "promised to protect her in order to secure her testimony.” Id. at 32. Rivera’s estate brought suit against the police officers, alleging that they had violated her substantive due process right by creating the danger that she faced when they identified her as a witness and took her witness statement while investigating the murder. Id. at 37. We affirmed dismissal of this claim, noting that "[b]oth are necessary law enforcement tools, and cannot be the basis to impose constitutional liability on the state.” Id.

      . The district court also dismissed all claims against the State of Maine and the State Police on jurisdictional grounds. The Irishes do not appeal these rulings.

      . The Rivera opinion observed the lack of clarity on whether DeShaney's creation-of-danger language recognized a discrete exception or whether that language was "simply in service of the special relationship exception and provides a set of circumstances where the state's actions might create a 'special relationship' and thus a duty to protect.” Rivera, 402 F.3d at 35 n.5.

      . Cf. Kennedy, 439 F.3d at 1063 & n.3 (denying qualified immunity to an officer who had told the alleged perpetrator about complaints of child molestation against him, where the record evidence made clear that officers had received training that the best time to contact an offender is "[a]t the end of the investigation” with "all [the] facts in order”).


text:
    UNITED STATES of America, Appellee, v. Verissimo TAVARES, Defendant, Appellant.
    No. 14-2319
    United States Court of Appeals, First Circuit.
    Entered: March 1, 2017
    Before THOMPSON, SELYA, and KAYATTA, Circuit Judges.
   ORDER OF COURT

In a timely petition for rehearing en banc, which the panel herein treats as also a petition for rehearing, see First Circuit Internal Operating Procedure X(C), Petitioner challenges, among other things, our conclusion that Massachusetts ABDW is a divisible offense with at least one elemental form that is a crime of violence. In so doing, Petitioner raises, among other contentions, an argument not made in his briefs on appeal: That, in determining whether the reckless and intentional forms of ABDW constitute alternative elements or simply alternative methods of satisfying a single element under Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), we must follow the decision of the Massachusetts Appeals Court (MAC) in Commonwealth v. Mistretta, 84 Mass.App.Ct. 906, 995 N.E.2d 814 (2013), even if we conclude (as we have) that the Massachusetts Supreme Judicial Court (SJC) would most likely rule that fundamentally different degrees of mens rea serve as different elements for different forms of the offense, rather than as mere methods of accomplishing a single indivisible offense. The rationales offered in support of this argument appear to be that (1) trial courts in Massachusetts likely followed Mistretta in the absence of an actual SJC opinion to the contrary; (2) criminal defendants have a due process right to rely on Mistretta in the same circumstances; and (3) the presence of an extant, as yet unrejected, MAC decision at least means that Massachusetts law does not provide a sufficiently “clear answer! ]” under Mathis, 136 S.Ct. at 2256.

Because this argument was never raised below or on appeal, it is waived. See Trull v. Volkswagen of Am., Inc., 187 F.3d 88, 104 (1st Cir. 1999) (new arguments raised for the first time in a petition for rehearing are waived). We observe, too, that Petitioner’s 2011 conviction at issue here was entered before Mistretta was decided in 2013, and there is no reason to think that the model jury instruction described in our opinion, 843 F.3d 1, 14 n.8, was not presumed to be correct at the time of that conviction.

In any event, our opinion provides that upon remand, Shepard documents may be submitted. To the extent that these documents shed new light on the nature of Petitioner’s conviction for ABDW, see Mathis, 136 S.Ct. at 2256 (“And if state law fails to provide clear answers, federal judges have another place to look: the record of [the] prior conviction itself.”), Petitioner is not barred from arguing that that new information calls for a different conclusion than the one we have reached.

The petition for rehearing is denied.


author: PER CURIAM:

text:
    UNITED STATES of America, Appellee, v. Hector NATAL a/k/a Boom Boom, Hector Morales, Defendants-Appellants.
    Docket Nos. 15-94, 15-1012, 15-1020
    August Term, 2016
    United States Court of Appeals, Second Circuit.
    Argued: November 22, 2016
    Decided: February 23, 2017

      Michael J. Gustafson (Sandra S. Glover, on the brief), Assistant United States Attorneys, for Deirdre M. Daly, United States Attorney, District of Connecticut, New Haven, CT.
    Jesse M. Siegel, Law Office of Jesse M. Siegel, New York, NY, for Hector Natal.
    Harry Sandick (George LoBiondo and Patricia S. Kim, on the brief), Patterson Belknap Webb & Tyler LLP, New York, NY, for Hector Morales.
    Before: KATZMANN, Chief Judge, WINTER, Circuit Judge, and STEIN, District Judge.

       Judge Sidney H. Stein of the United States District Court for the Southern District of New York, sitting by designation.

   PER CURIAM:

In this appeal of judgments of conviction and sentence involving crimes that include arson resulting in death, accessory after the fact to arson, and destruction and concealment of evidence, we write to address three issues:

(1) Whether testimony on how cell phone towers operate must be provided by an expert witness rather than a lay witness;
(2) Whether defendant Morales’s conviction for destruction and concealment of evidence for re-painting his van must be vacated in light of the Supreme Court’s holding in an intervening decision, Yates v. United States, — U.S. -, 135 S.Ct. 1074, 191 L.Ed.2d 64 (2015), that the statutory provision under which Morales was convicted covers “only objects one can use to record or preserve information”; and
(3) Whether, in calculating Morales’s Sentencing Guidelines range, Morales’s convictions for accessory after the fact must be “grouped” pursuant to U.S.S.G. § 3D1.2.

The essential factual background of this case is as follows:

On the early morning of March 9, 2011, three members of the Roberson family— Jaquetta Roberson, Quayshawn Roberson, and Wanda Roberson — died in an intentionally-caused fire at 48-50 Wolcott Street in New Haven, Connecticut. Hector Natal, a neighbor of the Robersons, was charged with arson resulting in death, and his father, Hector Morales, was charged with being an accessory after the fact to arson for conduct that allegedly included driving Natal away from the scene of the fire after Natal started the blaze. Both Natal and Morales were charged with conspiring to tamper with, and tampering with, witnesses during law enforcement’s investigation of the arson, including by seeking to cause witnesses to testify falsely to the grand jury. Additionally, Morales was charged with destruction and concealment of evidence for repainting the van that he had allegedly used to drive Natal away from the fire. Natal was also charged with attempted arson for trying to start a fire at the same New Haven building in approximately October 2010. Finally, both Natal and Morales were charged with participation in a drug conspiracy.

Defendants Natal and Morales were tried jointly in the United States District Court for the District of Connecticut (Ar-terton, /.), and on April 18, 2013, a jury found the defendants guilty on all counts. On January 8, 2015, the district court sentenced Morales to 174 months’ imprisonment and 36 months of supervised release. On February 25, 2015, the district court sentenced Natal to life imprisonment on the arson counts, 240 months on each of the other charges that went to trial, and 40 years on the conviction resulting from Natal’s guilty plea to the cocaine possession charge, all to run concurrently. Following the district court’s entry of judgment, both Natal and Morales timely appealed.

On appeal, the defendants raise numerous claims, including allegations that Natal’s Confrontation Clause rights were violated at trial, that there was a prejudicial variance between the indictment and the proof at trial, that the district court erroneously admitted lay opinion testimony concerning the operation of cell phone towers, that Morales’s conviction for destruction and concealment of evidence must be vacated in light of an intervening Supreme Court decision, that Natal’s sentence was imposed in contravention of the Eighth Amendment, and that the district court’s calculation of Morales’s U.S. Sentencing Guidelines range was procedurally erroneous. In a case with many issues, the district court was thorough and meticulous.

We affirm the district court except as to the following claims. First, we hold that testimony on how cell phone towers operate constitutes expert testimony and may not be introduced through a lay witness. However, the admission in the instant ease of lay opinion testimony on the operation of cell phone towers was harmless. Second, we hold that Morales’s conviction for destruction and concealment of evidence must be vacated in light of the Supreme Court’s decision in Yates v. United States, — U.S. -, 135 S.Ct. 1074 (2015), handed down shortly after Morales filed the instant appeal. We remand Morales’s case to the district court to vacate Morales’s conviction for destruction and concealment of evidence, and, pursuant to United States v. Powers, 842 F.3d 177 (2d Cir. 2016), to conduct de novo resentencing of Morales. Third, as part of the district court’s calculation of Morales’s Guidelines range at the resentencing, Morales’s three counts of conviction for accessory after the fact should be grouped pursuant to U.S.S.G. § 3D1.2. We reject the defendants’ other claims. Consequently, we uphold all counts of conviction except Morales’s conviction for destruction and concealment of evidence, and we remand Morales’s case to the district court to vacate Morales’s conviction for destruction and concealment of evidence and to resentence Morales de novo.

I. The admission of lay opinion testimony on how cell phone towers operate

Morales and Natal argue that the district court erred in admitting lay opinion testimony on the operation of cell phone towers instead of requiring this testimony to be presented by an expert witness. We review the district court’s eviden-tiary rulings for abuse of discretion. See United States v. Rosemond, 841 F.3d 95, 107 (2d Cir. 2016). “A district court has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence or rendered a decision that cannot be located within the range óf permissible decisions.” United States v. Rowland, 826 F.3d 100, 114 (2d Cir. 2016) (quoting United States v. Fazio, 770 F.3d 160, 165 (2d Cir. 2014)). However, “[w]e will reverse only if an error affects a ‘substantial right,’ meaning that the error ‘had a substantial and injurious effect or influence on the jury’s verdict.’ ” Id. (first quoting Fed. R. Evid. 103(a); then quoting United States v. Garcia, 413 F.3d 201, 210 (2d Cir. 2005) (internal quotation marks omitted)). “[W]here a court, upon review of the entire record, is sure that the evidentiary error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand.” Id. (quoting Garcia, 413 F.3d at 210) (alteration in original).

“Historical cell-site analysis,” as the Seventh Circuit recently explained, “uses cell phone records and cell tower locations to determine, within some range of error, a cell phone’s location at a particular time.” United States v. Hill, 818 F.3d 289, 295 (7th Cir. 2016). A cell phone connects to a cell phone tower in order to access the cellular network and communicate with other phones. Id. “Each cell tower covers a certain geographic area[,]” which “depends upon ‘the number of antennas operating on the cell site, the height of the antennas, topography of the surrounding land, and obstructions (both natural and man-made).’” Id. (quoting Aaron Blank, The Limitations and Admissibility of Using Historical Cellular Site Data to Track the Location of a Cellular Phone, 18 Rich. J. L. & Tech. 3, 5 (2011)). “While the proximity of the user is a significant factor in determining the cell tower with which the cell phone connects,” other factors also play a role, including structural features of the tower and the phone, as well as the geography and topography of the surrounding environment. Id. at 295-96; see also Matthew Tart et al., Historic Cell Site Analysis — Overview of Principles and Survey Methodologies, 8 Digital Investigation 185, 186-87 (2012).

Here, Natal and Morales attempted to show at trial that Michael Shamash, the landlord of the New Haven building burned in the arson, was a plausible alternative suspect in the arson. To counter this theory, the government sought to introduce evidence that Shamash’s cell phone was connecting to cell phone towers in Queens, New York, on the night of the fire. In particular, the government called Joseph Trawieki, an employee of the Sprint Nextel wireless communications company, to testify regarding Shamash’s cell phone activity. The district court permitted Trawieki to testify as a Sprint records custodian in order to explain records showing “what law enforcement relied on in ruling out Shamash” as a suspect in the arson, and admitted Shamash’s cell phone records as business records pursuant to Federal Rule of Evidence 803(6). The government did not seek to show that Traw-icki’s testimony satisfied the requirements for admissible expert testimony under Federal Rule of Evidence 702, and the district court, over the defendants’ objection, did not require the government to make this showing.

Trawicki, on the witness stand, explained entries on the Sprint phone records containing details about the calls in which Shamash’s phone had participated on the night of the fire (for example, the time and duration of each call), as well as the location of the cell phone towers to which Shamash’s cell phone had connected at the beginning and end of each call. When asked about the factors that would make a phone call “start with one cell tower and end with another cell [tower],” Trawicki responded:

Your handset is always looking for the strongest available signal, and your handset makes that determination, not the network, not anything else. And your handset, the instant it sees another strong signal that’s stronger than the one it has, it will jump to that signal. That could be movement, it could be radio frequency interference, it could be just a tower that had a better signal that was previously busy becomes available. Based on this information, it’s impossible — just looking at these individual records, it’s impossible to say if there’s movement there or not.... It’s just your line of site [sic] to the tower, any radio frequency interference, like that.

Trawicki also indicated that a cell phone •will connect to the tower with the “strongs est available signal,” which may not be the closest tower. Trawicki ended his testimony by stating that a certain cell phone number, which was elsewhere identified as belonging to Shamash, connected to a tower in .Queens at 1:41 a.m. on the day of the fire. The arson was alleged to have occurred at approximately 1:15 a.m. in New Haven.

In addition to admitting Trawicki’s testimony as lay testimony, the district court permitted the government to offer lay testimony from two law enforcement officers, who testified that Shamash had been eliminated as a suspect in the arson investigation partially because Shamash’s cell phone was shown by his cell phone records to be in Queens at the time of the fire. One of these law enforcement officers stated, for example, that Shamash’s “cell phone ... was down at [Shamash’s] house bouncing off a cell phone tower.”

On summation, the government drew the following conclusions from the cell phone tower evidence:

Before we move off the arson, I want to talk briefly about the landlord, the notion the landlord did it, Michael Sha-mash. Well, we know he was in Queens the night of the fire. And I’ve got these phone records here, which we can zoom in on.... And then we know from the representative from Sprint how cell phones work — cell towers, and I’ll direct your attention over to these columns. You get the repoll number and the cell tower number, and you go to another document at the back of the exhibit and you are going to see that the towers that Mr. Shamash was hitting off at the time, around 1:52 and 2:04 a.m., they all come back to 64th Street, Flushing, New York. So, I don’t think there is any dispute that Mr. Shamash was not in New Haven standing outside the door saying should I light it, or words to that effect.

On appeal, the defendants argue that the district court erred in admitting testimony on cell phone towers, especially the testimony offered by Trawicki, from a lay witness. Federal Rule of Evidence 701 provides that

[i]f a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

.Fed. R. Evid. 701. Federal Rule of Evidence 702, in turn, contains standards for the admission of expert testimony. See Fed. R. Evid. 702. “Lay opinion under Rule 701 must be limited to opinions that ‘result[ ] from a process of reasoning familiar in everyday life.’ ” United States v. Cuti, 720 F.3d 453, 459 (2d Cir. 2013) (quoting Fed. R. Evid. 701 advisory committee’s note, 2000 amend.). “[T]he purpose of Rule 701(c) is ‘to eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing.’ ” Bank of China, N.Y. Branch v. NBM LLC, 359 F.3d 171, 181 (2d Cir. 2004) (quoting Fed. R. Evid. 701 . advisory committee’s note, 2000 amend.).

The Second Circuit has not yet ruled on whether testimony concerning cell phone towers requires expertise. We hereby join the Seventh and Tenth Circuits in-holding that testimony on how cell phone towers operate must be offered by an expert witness. See Hill, 818 F.3d at 296 (“[The witness’s] testimony ... included statements about how cell phone towers operate. In our view,, this fits easily into the category of expert testimony, such that Rule 702 governs its admission.”); United States v. Yeley-Davis, 632 F.3d 673, 684 (10th Cir. 2011) (“The agent’s testimony concerning how cell phone towers operate constituted expert testimony because it involved specialized knowledge not readily accessible to any ordinary person.”); see also United States v. Reynolds, 626 Fed.Appx. 610, 614 (6th Cir. 2015). We need not hold that all evidence related to cell phone towers necessarily requires expertise. But we caution that the line between testimony on how cell phone towers operate, which must be offered by an expert witness, and any other testimony on cell phone towers, will frequently be difficult to draw, and so both litigants and district courts would be well advised to consider seriously the potential need for expert testimony.

In the- instant case, Sprint employee Trawicki offered testimony on how cell phone towers operate when he indicated, for example, that a cell phone will connect to the tower with the strongest available signal, which may not be the closest tower; that factors such as radio interference, tower availability, and the line of sight between a phone and a tower affect the tower to which a cell phone connects; and that the phone handset determines which signal is strongest. At least these aspects of Trawicki’s testimony did not “ ‘result[ ] from a process of reasoning familiar in everyday life.’ ” Cuti, 720 F.3d at 459 (quoting Fed. R. Evid. 701 advisory committee’s note, 2000 amend.). They were, instead, “based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701(c). Therefore, the government in the instant case introduced testimony that required expertise through a lay witness.

However, the admission here of lay opinion testimony on how cell phone towers operate was harmless and not reversible error. “The principal factors” in the harmless error “inquiry are ‘the importance of the witness’s wrongly admitted testimony’ and ‘the overall strength of the prosecution’s case.’ ” United States v. Dukagjini, 326 F.3d 45, 62 (2d Cir. 2002) (quoting Wray v. Johnson, 202 F.3d 515, 526 (2d Cir. 2000)). Here, the government’s case against the defendants’ theory that Shamash had committed the arson was not based solely on evidence concerning Sha-mash’s cell phone; an FBI agent testified at trial that Shamash was ruled out as a suspect partly on the basis of witness accounts that Shamash was in New York on the night of the fire, and a New Haven police officer testified that Shamash was ruled out partly because, in law enforcement’s view, Shamash had no financial motive to set the fire.

More significantly, the prosecution presented a very strong case against the defendants. Government witnesses testified that Natal admitted to them that he started the fire, including in a tape-recorded conversation that was played for the jury. One of these witnesses testified that Morales told her that he had driven Natal away from the fire. A neighbor of Natal and Morales testified that she saw the defendants driving away from 48-50 Wol-cott Street in Morales’s van on the night of the fire. The same neighbor also described previous confrontations between Natal and residents of 48-50 Wolcott Street. The government also presented substantial evidence of attempts by Natal and Morales to thwart the police’s investigation into the crime, including by instructing family members to testify falsely to the grand jury and by painting Morales’s van a different color after eyewitness reports surfaced of a blue van leaving the scene of the fire.

Natal and Morales, for their part, offered evidence in opposition to the government’s case. For example, they highlighted government witnesses’ prior inconsistent statements, and called their own witnesses, some of whom gave unfavorable testimony about Shamash. Nevertheless, “upon review of the entire record,” the Court can be “sure that the evidentiary error did not influence the jury, or had but very slight effect.” Rowland, 826 F.3d at 114 (quoting Garcia, 413 F.3d at 210). Therefore, we find that the admission of lay opinion testimony on how cell phone towers operate was harmless and not reversible error.

Relatedly, Natal and Morales argue that the government violated Federal Rule of Criminal Procedure 16 by not disclosing before trial its intent to offer expert testimony, and that the district court abused its discretion in not granting the defendants a continuance that defense counsel sought in order to retain an expert to assist defense counsel in cross-examining Trawicki. In light of our holding that testimony concerning how cell phone towers operate constitutes expert testimony, we also hold that such testimony is covered by the disclosure requirements of Federal Rule of Criminal Procedure 16, However, any error related to Federal Rule of Criminal Procedure 16 or the denial of a continuance was harmless for the reasons specified above.

II. Morales’s conviction for destruction and concealment of evidence

Morales argues, and the government concedes, that Morales’s conviction for destruction and concealment of evidence must be vacated in light of the Supreme Court’s decision in Yates v. United States, — U.S. -, 135 S.Ct. 1074 (2015), which issued after Morales filed his notice of appeal. Morales painted his blue van with black primer after the fire, and the government alleged that Morales took this action out of a concern that a blue van had been seen leaving the scene of the fire. Accordingly, Morales was charged, in Count Eleven of the indictment, with “knowingly altering] a tangible object, that is, a blue 1994 Dodge Caravan, with the intent to impede ... an investigation” in violation of 18 U.S.C. § 1519. The jury convicted Morales on this count.

The Supreme Court held in Yates, however, that a “tangible object” within the meaning of the Sarbanes-Oxley Act, 18 U.S.C. § 1519, covers “only objects one can use to record or preserve information, not all objects in the physical world.” Yates, 135 S.Ct. at 1081. Because Morales’s van was not an “object[ ] one can use to record or preserve information,” id. Morales’s act of repainting his van is not covered by 18 U.S.C. § 1519. Indeed, the dissenting opinion in Yates, specifically referencing the instant case, stated that Morales’s alleged act of “repainting [his] van to cover up evidence of [a] fatal arson” would, in light of the Yates Court’s holding, “now fall outside § 1519.” Id. at 1100 (Kagan, J., dissenting). The plurality opinion in Yates also referred to United States v. Morales and did not dispute the dissent’s statement that Morales’s conduct would not be covered by 18 U.S.C. § 1519. See id. at 1088 n.8.

Therefore, the Court hereby remands Morales’s case- to the district court to vacate Morales’s conviction for destruction and concealment of evidence (Count Eleven). Further, this Court has recently confirmed that when a count of conviction is overturned due to a “conviction error,” the proper remedy is de novo resentenc-ing, except in circumstances not applicable here. Powers, 842 F.3d at 179-81; see also United States v. Rigas, 583 F.3d 108, 117 (2d Cir. 2009). Consequently, on remand, Morales must be resentenced de novo.

III. The calculation of Morales’s Sentencing Guidelines range

Morales contends that his sentence was procedurally unreasonable because the district court should have grouped his three counts of conviction for accessory after the fact in calculating his Guidelines range. To elaborate, Morales was charged with three counts of being an accessory after the fact to arson. Each count referred to one of the three arson counts charged against Natal, one for each of the three victims of the arson. The district court at Morales’s sentencing, over Morales’s objection, declined to “group” Morales’s three counts of conviction for accessory after the fact to arson. As a result, the district court applied the multiple count analysis in U.S.S.G. § 3D1.4 (“Determining the Combined Offense Level”) without grouping the accessory counts. Morales notes that if the accessory counts had been grouped, Morales’s Guidelines range would have been 121-151 months’ imprisonment, not 168-210 months’ imprisonment. The district court sentenced Morales to 174 months’ imprisonment.

“A district court commits procedural error where it ... makes a mistake in its Guidelines calculation.... ” United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). “Procedural reasonableness is reviewed for abuse of discretion,” United States v. Desnoyers, 708 F.3d 378, 385 (2d Cir. 2013), but “[t]he district court’s interpretation and application of the Sentencing Guidelines is a question of law, which we review de novo,” United States v. Kent, 821 F.3d 362, 368 (2d Cir. 2016).

We hold that Morales’s counts of conviction for accessory after the fact to arson must be grouped pursuant to U.S.S.G. § 3D1.2. This provision, titled ' “Groups of Closely Related Counts,” states that “[a]ll counts involving substantially the same harm shall be grouped together into a single Group. Counts involve substantially the same harm within the meaning of this rule: (a) When counts involve the same victim and the same act or transaction. ...” U.S.S.G. § 3D1.2. Additionally, the application notes to this provision of the Guidelines state that “[a]mbiguities should be resolved in accordance with the purpose of this section as stated in the lead paragraph, i.e., to identify and group ‘counts involving substantially the same harm.’ ” U.S.S.G. § 3D1.2 cmt. n.2 (quoting U.S.S.G. § 3D1.2).

Here, Morales was convicted not of the substantive crime of arson, but of the “distinct” offense of accessory after the fact, which “is differently punished.” Bollenbach v. United States, 326 U.S. 607, 611, 66 S.Ct. 402, 90 L.Ed. 350 (1946); see also United States v. Cabrales, 524 U.S. 1, 7, 118 S.Ct. 1772, 141 L.Ed.2d 1 (1998); United States v. James, 998 F.2d 74, 80 (2d Cir. 1993). In particular, Morales’s “offense is ... that of interfering with the processes of justice.” Wayne R. LaFave, 2 Subst. Crim. L. § 13.6 (2d ed.); see also United States v. Vidal, 504 F.3d 1072, 1078 (9th Cir. 2007) (“Accessory-after-the-fact liability ... is aimed at post-offense conduct that aids the offender in evading law enforcement.”), abrogated on other grounds, see Cardozo-Arias v. Holder, 495 Fed.Appx. 790, 792 n.1 (9th Cir. 2012).

As the Supreme Court of Minnesota stated, in interpreting Minnesota’s criminal statutes, “accomplices after-the-fact come along after the victims have been harmed and do not further their victimization merely by helping the principal offenders evade the law.” State v. Skipintheday, 717 N.W.2d 423, 427 (Minn. 2006). Consequently, the Minnesota Supreme Court indicated, the defendant’s “three counts of being an accomplice after-the-fact, all arising from a single behavioral incident, were not multiple-victim crimes, and [we]re therefore not subject to multiple sentences.” Id. at 427. Similarly, Morales’s counts of conviction for accessory after the fact “involv[ed] substantially the same harm” under U.S.S.G. § 3D1.2, namely damage to the “administration of justice.” Id. at 425. The “victim” for the purpose of U.S.S.G. § '3D1.2 is hence “the societal interest that is harmed,” that is, society’s interest in the administration of justice, and “the societal interests that are harmed” by the conduct giving rise to Morales’s three convictions for accessory after the fact “are closely related.” U.S.S.G. § 3D1.2 cmt. n.2. Therefore, these counts should “be grouped together into a single Group.” U.S.S.G. § 3D1.2. We accordingly direct the district court, in calculating Morales’s Guidelines range at his resentencing, to group his three counts of conviction for accessory after the fact pursuant to U.S.S.G. § 3D1.2.

Conclusion

We have considered the other claims raised by defendants Natal and Morales, and we find them to be without merit. Accordingly, we AFFIRM the judgment of the district court except as to Morales’s conviction for destruction and concealment of evidence. We REMAND Morales’s case to the district court to vacate his conviction for destruction and concealment of evidence, and to conduct de novo resentenc-ing of Morales. We also direct the district court, at Morales’s resentencing, to group Morales’s counts of conviction for accessory after the fact pursuant to U.S.S.G. § 3D1.2.

      . This spelling of Jaquetta Roberson’s name appears in the indictment, although her name is spelled slightly differently in the government’s appellate brief.

      . Unless otherwise indicated, all references to "the fire” or “the arson” refer to the fire started in the early morning of March 9, 2011.

      . Natal was initially indicted on June 23, 2011 on drug-related charges, and on October 4,2011, he pled guilty to Count Two of that indictment. Count Two charged Natal with possession with the intent to distribute 28 grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).

      . The defense did not cross-examine Trawicki because, according to defense counsel, the defendants had not realized before trial that the government was planning to call a witness to discuss cell phone tower location data. The government, defense counsel argued, had violated a pretrial understanding that no evidence on cell phone towers would be offered. See infra for the Court’s conclusion that these claims by the defendants do not warrant a finding of reversible error.

      . In this case, asking the jury to draw the conclusion that Shamash could not have been in New Haven because his cell phone was using a tower in Queens required testimony on the possible ranges of any relevant cell phone towers and how they operate, which required expertise.