Before Thompson, Circuit Judge, Souter, Associate Justice, [*]and Kayatta, Circuit Judge.
After some preliminary skirmishing, Christlee Fils-Aime pled guilty without a plea agreement to three heroin-related counts. In his sentencing memos, Fils-Aime's lawyer accused the government of what Fils-Aime claims is misconduct: (a) interviewing Fils-Aime without Mirandizing him; (b) trying to force him to become a confidential informant (a form of "involuntary servitude, " counsel wrote), threatening him with jail time if he said no; and, after he did say no, (c) arresting him at his work "in a manner that obviously would cause him to lose his job, " plus (d) charging him federally so that he could potentially get a harsher sentence.
Repeating all of this at the sentencing hearing, and agreeing (or at least not disputing) that the guideline sentencing range was 30-37 months, Fils-Aime's attorney insisted that his client should get a sentencing break because of the government's misconduct. And by a break counsel meant that Fils-Aime should get "straight probation, " a term of "community confinement as part of supervised release, " or "a year and a day" of jail time if the judge thought jail time was "necessary."
The prosecutor flatly denied the misconduct allegations, stressing too (among other things) that Fils-Aime had run heroin (a drug "wrecking people's lives, " the prosecutor said) for "a career drug offender" and so would have been charged federally "regardless of whether he cooperated or not." But conceding that Fils-Aime was eligible for the "safety valve" exception to the 5-year mandatory minimum for the heroin offense, the prosecutor recommended a 24-month prison stint.
Fils-Aime's lawyer shot back that the 24-month recommendation also showed prosecutorial vindictiveness, because the government had previously agreed to recommend 18 months. The prosecutor categorically denied any vindictiveness, noting that Fils-Aime had violated the earlier agreement by withdrawing a previously-entered guilty plea - which meant that the government was not obliged to recommend 18 months.
Then the judge weighed in. Having clearly told Fils-Aime that she had "the authority to depart or vary from the guideline sentencing range, " the judge expressly acknowledged studying defense counsel's sentencing memos and understanding his arguments. Next the judge thoroughly reviewed the relevant sentencing factors in 18 U.S.C. § 3553(a) and carefully considered the defense's mitigation arguments (e.g., Fils-Aime's age, employment history, and committed relationship with his daughter). And after complimenting defense counsel for his "excellent advocacy, " the judge concluded that some prison time was "warranted here, " though she agreed that Fils-Aime should get the benefit of the safety-valve adjustment.
But before pronouncing sentence, the judge wanted to address defense counsel's claims about "the government's conduct and advocacy here." The term "I'm going to impose, " the judge said, "does not reflect any punishment for asserting your constitutional rights or having any second thoughts about your plea the first time around." And then the judge said this, which is the key quote as far as Fils-Aime is concerned:
It's hard for me to comment on the law enforcement conduct, but I certainly haven't considered whether or not you gave further assistance to the government or chose not to do so in deciding this sentence.
For simplicity, we refer to this as the "block-quoted comment." Anyway, after saying her piece, the judge ultimately gave Fils-Aime a "12-months-and-a-day" prison term from which he now appeals.
Fils-Aime's reversal quest rises or falls entirely on his claim that the judge procedurally erred by not "appreciat[ing] [her] authority and the need to consider the government's pre-Indictment misconduct." For support he points to the block-quoted comment, which, as he sees it, conclusively shows that (a) the judge considered (and rejected) the idea that the prosecutor sought to punish him by asking for 6 more months of imprisonment (24 months, instead of 18) because of the earlier guilty-plea withdrawal, but that (b) the judge did not realize that she could and should consider "the government's unconstitutional interrogation or recruitment activity" in selecting a sentence as well. We see it differently, however.
What Fils-Aime basically wants is for us to view the block-quoted comment in splendid isolation, without considering context. But this we cannot do, as our caselaw compels us to "assess the record as a whole" to ascertain the sentencer's "thought process." See United States v. Clogston, 662 F.3d 588, 592 (1st Cir. 2011). And a holistic review of the record assures us that the judge (a) knew she had "the authority to depart or vary" from the recommended guideline range (that is a direct quote from the judge); (b) listened attentively to defense counsel's sentencing pitch, including a leniency plea based on the government's conduct; (c) considered all factors and arguments; and seeing no need to delve into the truth or falsity of the misconduct allegations, (d) agreed not to penalize Fils-Aime with a harsher sentence for refusing to cooperate and (e) actually did vary downward - all without suggesting that she could not have varied further had she wanted to. Cf. generally United States v. Stone, 575 F.3d 83, 91 (1st Cir. 2009) (rejecting defendant's theory that the district court procedurally erred by not recognizing its discretion to disagree with the child-pornography guidelines, noting (among other things) that the court "never lamented its lack of discretion to categorically disagree with the guidelines"). In other words, the very theory to which Fils-Aime pins his reversal hopes - that the judge thought she had no authority to consider the ...