United States Court of Appeals

For the First Circuit

Nos. 16-1251; 16-1252

UNITED STATES OF AMERICA,

Appellee,

v.

AKYLLE MURCHISON,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Thompson, Stahl, and Barron,

Circuit Judges.

Peter J. Cyr and Law Offices of Peter J. Cyr on brief for

appellant.
Thomas E. Delahanty II, United States Attorney, and Margaret
D. McGaughey, Assistant United States Attorney, on brief for
appellee.

July 26, 2017

 THOMPSON, Circuit Judge.

Background

Back in 2014, Akylle Murchison was picked up and charged

in connection with a lengthy investigation into a cocaine-

producing and -selling conspiratorial enterprise. Murchison pled

guilty to a one-count indictment for violating 21 U.S.C.

841(a)(1) and 846 (he conspired with others to distribute, and

possessed with intent to distribute, twenty-eight grams or more of

mixtures containing cocaine and cocaine base) and to a one-count

information under 21 U.S.C. 841(a)(1) (he possessed with intent

to distribute a substance containing bk-MDEA, or ethylone, usually

called a "bath salt").

At sentencing and in his sentencing memorandum,

Murchison objected to the Pre-Sentence Investigation Report's

(PSR) inclusion of paragraphs 10 and 83, which reference

information (false information, says Murchison) given by a

cooperating source who claims Murchison also was involved in

purchasing firearms.1 Murchison asked the court to strike those

1 Paragraph 10 states:
Notably, SOI-4 [(Source of Information)] also alleged
that Akylle Murchison arranged for third parties
(usually females) to buy firearms on his behalf at local
stores in Lewiston. According to SOI-4, the serial
numbers would be scratched off those weapons, and Akylle
Murchison then arranged for the guns to be delivered to
a "gang" in Boston, known as the Norwood Bulls. It's
noted that SOI-4 did not allege these firearms were
connected to Akylle Murchisons drug activity. Instead,

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paragraphs, or at least to initial the paragraphs and indicate

that there were insufficient facts to support the information. In

ruling, the district-court judge explained, "All right, I'm going

to leave [the paragraphs] in the report. I'm going to indicate

for the record that it won't make any difference with regard to

whatever sentence I give, but I think it's proper to be in the

report." After another effort by Murchison, in which he argued

that the information contained in paragraphs 10 and 83 would

negatively impact the Bureau of Prison's (BOP) classification

determination and the availability of a 500-hour drug treatment

program, the judge reiterated: "I'm not going to strike it. I

think I was more than lenient in not using it as part of my

sentencing determination. It's an accurate statement, and to the

extent the Bureau of Prisons considers it so be it, though I'm

advised by probation it probably won't happen, though that doesn't

according to SOI-4, Akylle Murchison told SOI-4 "I have

to supply the hood with guns, you know how I do."
And paragraph 83 states:
To the contrary, there also appears to be a basis for a
non-guideline sentence above the guideline range.
Namely, there is evidence that the defendant utilized
straw purchasers for firearms, which were later sold to
members of a gang in Boston, MA, known as the Norwood
Bulls. Because this conduct appears to be unrelated to
the instant offense, it cant be accounted for in the
guideline calculations.

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enter into my judgment on that."2 In due course, Murchison was

sentenced to concurrent prison terms of 108 months.

On appeal, Murchison presents us with two complaints:

(1) the court erred when it refused to strike paragraphs 10 and 83

from the PSR, and therefore the matter should be remanded so the

PSR can be amended,3 and (2) the sentence imposed is unreasonable.

We take each in turn.

Rule 32 and the Bureau of Prisons

Murchison claims the court's refusal to strike these

paragraphs was a violation of Fed. R. Crim. P. 32(i)(3)(B). He

also says the paragraphs' inclusion is prejudicial to the way in

2 The court determined that the PSR statement accurately

reflected what the cooperating source reported, sidestepping the
issue of the truthfulness of the accusation.
3 In passing, Murchison observes that, "[w]ithout a hearing
and the introduction of evidence" regarding the contents of the
challenged paragraphs, the district court "should have deleted"
those paragraphs. To the extent that Murchison intended to argue
that he wants us to remand for an evidentiary hearing, we decline
to address that angle -- Murchison has not developed this argument
on appeal. United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990) ("[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived."). But at any rate, while it is true that "[w]hen
a defendant objects to factual statements contained in such a
report, 'the sentencing court may not rely on those facts unless
the government proves them by a preponderance of the evidence,'"
United States v. Hopkins, 824 F.3d 726, 73435 (8th Cir.), cert.
denied, 137 S. Ct. 522 (2016) (quoting United States v. Bowers,
743 F.3d 1182, 1184 (8th Cir. 2014)), that is not a problem here.
As will be discussed, the district court did not rely on the
contested information in sentencing, so any hearing-related
argument has no pull.

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which the BOP will classify and house him, and will negatively

affect the availability of rehabilitation programs. We review a

district court's compliance with Rule 32 de novo. United States

v. Acevedo, 824 F.3d 179, 184 (1st Cir. 2016) (quoting United

States v. Gonzlez-Vlez, 587 F.3d 494, 508 (1st Cir. 2009)).

Before we get into these issues, we provide the following

primer to explain generally how the pieces of this Rule 32-and-

the-BOP puzzle come together.

Rule 32(i)(3)(B) -- the subsection specifically raised

by Murchison -- instructs that a court "must -- for any disputed

portion of the presentence report or other controverted matter --

rule on the dispute or determine that a ruling is unnecessary

either because the matter will not affect sentencing, or because

the court will not consider the matter in sentencing." Fed. R.

Crim. P. 32(i)(3)(B). And Rule 32(i)(3)(C) suggests a clear

connection between the PSR and the BOP: it requires a court to

"append a copy of the court's determinations under this rule to

any copy of the presentence report made available to the Bureau of

Prisons." Fed. R. Crim. P. 32(i)(3)(C). So Rule 32(i)(3)(C) tells

us that the PSR, accompanied by other Rule 32 "determinations,"

gets sent to the BOP.

For its part, the BOP's Inmate Security and Custody

Classification Manual (the BOP Manual) explains that, prior to

classification, the Designation and Sentence Computation Center

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(DSCC) must receive all sentencing material, including the PSR,

judgment, statement of reasons (SOR),4 and an "Individual Custody

and Detention Report"5 from the sentencing court, U.S. Probation

Office (USPO), and the U.S. Marshals Service (USMS).6 Custody &

Care: Designations, Fed. Bureau of Prisons,

https://www.bop.gov/inmates/custody_and_care/designations.jsp

(last visited July 17, 2017); see also Fed. Bureau of Prisons,

Program Statement: Inmate Security Designation and Custody

Classification No. P5100.08, Ch. 3, at 1 (2006),

https://www.bop.gov/policy/progstat/5100_008.pdf [hereinafter BOP

Manual].

4
The statement of reasons is a form completed after
sentencing -- it reports the court's findings and comments as to
the PSR, mandatory minimum sentence, guideline range for
sentencing, the sentencing determination, any departures or
variances from the guidelines, and the determinations of
restitution.
5
The Individual Custody and Detention Report is a USMS form
that reports information such as any aliases and gang affiliations.
6
The breakdown of events, roles, and responsibilities,
according to the BOP Manual, is: (1) "[t]he inmate is sentenced";
(2) "[t]he Clerk of the Court transmits the Judgment and Commitment
Order (old law cases) or Judgment in a Criminal Case (new law
cases) to the USMS;" (3) "[t]he USMS makes a request to the DSCC
advising that the inmate is now ready for designation to a
facility;" (4) "[i]f it has not already been provided, DSCC staff
must contact the necessary officials (USPO or USMS) for the
following: two copies of the PSR, a copy of the Judgment, to
include the SOR, and the Individual Custody and Detention Report."
BOP Manual, Ch.3, at 1.

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 So, together, Rule 32 and the BOP's system work to ensure

that the BOP classifies and processes sentenced offenders with the

benefit of all relevant and informative sentencing material.

Back to Murchison's Rule 32 argument. To be sure,

Murchison's concerns are not frivolous -- they are valid and

important contentions based on the interplay of Rule 32 and the

information that gets sent to the BOP, which in turn is used by

the BOP to make fundamental decisions about classification,

housing, and eligibility for rehabilitation and employment

programs, all of which will, of course, impact Murchison's day-

to-day life as an inmate. So getting it right is important. But

on these facts, we do not see the Rule 32(i)(3)(B) violation

Murchison complains of. Simply put, the judge complied with Rule

32(i)(3)(B) when he "rule[d] on the dispute" ("I'm going to leave

[the paragraphs] in the report" and "I'm not going to strike it"),

and, after that, he was required to do nothing more. United States

v. Melendez, 279 F.3d 16, 19 (1st Cir. 2002) (quoting United States

v. Turner, 898 F.2d 705, 710 (9th Cir. 1990)). Nevertheless, the

judge also made it plain that he would not rely on the contested

information in sentencing, and the record bears out that he stuck

to that plan. On this record, we fail to understand how this is

anything other than a measured ruling that constitutes compliance

with Rule 32(i)(3)(B).

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 Murchison's BOP angle also fails. That the BOP may see

in the PSR certain information Murchison believes is prejudicial

does not compel the district court to strike it from the PSR. See,

e.g., Hopkins, 824 F.3d at 735 (rejecting argument that court was

required to strike contested information in the PSR because the

BOP would rely on it); United States v. Beatty, 9 F.3d 686, 689

(8th Cir. 1993) ("[Rule 32] does not require that the objected-to

material be stricken."). And remember: The BOP does not receive

only the PSR for its classification determination, but rather it

receives "all sentencing material," including the PSR, judgment,

and SOR. BOP Custody & Care: Designations; see also Fed. R. Crim.

P. 32(i)(3)(C); BOP Manual, Ch. 3, at 1. This is important

because, in Murchison's case, the SOR indicated for the BOP's

consideration that "[t]he Court will not consider the reference to

firearms in paragraphs 10 and 83 when imposing sentence."7 Taken

together, that means the BOP was equipped with the full complement

7 This comment from the district court falls under "Additional

Comments or Findings" on the SOR. That section's instructions
echo Rule 32, asking the court to "include comments or factual
findings concerning any information in the [PSR],
including information that the [BOP] may rely on when it makes
inmate classification, designation, or programming decisions; any
other rulings on disputed portions of the [PSR]; identification of
those portions of the report in dispute but for which a court
determination is unnecessary because the matter will not affect
sentencing or the court will not consider it." (Emphasis added.)
That the SOR says the BOP "may rely on" certain information
contained in the SOR tells us, of course, that the SOR is intended
to be reviewed by the BOP.

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of sentencing information, so it was aware that, although there is

information about firearms in the PSR, the district court did not

consider that information in sentencing. This undercuts

Murchison's argument about the prejudicial impact of the firearms

information, which "will follow [him] to the [BOP]," since more

than just the PSR follows Murchison to the BOP.

We note too that, in the judgment, the district-court

judge recommended to the BOP that Murchison be allowed to

participate in the 500 Hour Comprehensive Drug Treatment Program,

which Murchison specifically wanted. If the BOP does otherwise,

as the district-court judge noted, "so be it," for classification

determinations are the BOP's call, not ours.8

Reasonableness of the Sentence

Next up: Murchison's similarly unavailing argument that

the sentence is "greater than necessary and unreasonable given the

totality of the circumstances." It is unclear whether Murchison

challenges the sentence on procedural or substantive grounds (he

takes issue with both the court's assessment of the 18 U.S.C.

3553(a) factors and the weight given to them), but since either

8
Determinations as to classification of prisoners and
eligibility to participate in certain programs are left to the
BOP, not the courts. See Melendez, 279 F.3d at 18 (quoting Thye
v. United States, 109 F.3d 127, 130 (2d Cir. 1997) ("Decisions to
place a convicted defendant within a particular treatment program
or a particular facility are decisions within the sole discretion
of the Bureau of Prisons.")); see also Hopkins, 824 F.3d at 735.

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route leads to a dead end -- even using the more defendant-friendly

abuse of discretion standard for each9 -- we quickly dispose of

each.10

Murchison's sentence challenge rehashes what he argued

at the hearing: he highlights mitigating factors that, in his

view, justify a lesser sentence (his young age, no prior

convictions, past abuse, loss of his mother at a young age, mental

health issues, and more), and he also argues that he "is a good

prospect for rehabilitation."

The district-court judge calculated the applicable

Guideline range of imprisonment of 151 to 188 months (neither party

9
Reviewing a challenged sentence requires a two-step process.
United States v. King, 741 F.3d 305, 307 (1st Cir. 2014) (citing
Gall v. United States, 552 U.S. 38, 51 (2007)). First, we resolve
claims of procedural error before inquiring into whether the
sentence is substantively reasonable. Id. at 308. We review the
procedural reasonableness of the sentence for abuse of discretion.
United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).
For a preserved challenge to the substantive reasonableness of a
sentence, "we proceed under the abuse of discretion rubric, taking
account of the totality of the circumstances." United States v.
Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015). Where, as here,
a defendant does not preserve an objection to the substantive
reasonableness of their sentence, "[t]he applicable standard of
review is somewhat blurred" as to whether the ordinary abuse of
discretion standard or the plain error standard applies. Id. at
228. But Murchison's challenge fails even under the abuse of
discretion standard.
10
This sentencing appeal follows a guilty plea, and we
therefore look to "the unchallenged portions of the presentence
investigation report (PSI Report), and the record of the
disposition hearing" for the relevant facts. United States v.
Vargas, 560 F.3d 45, 47 (1st Cir. 2009).

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objected to that calculation), and stated that he had considered

all of the 3553(a) factors, which "is entitled to significant

weight." United States v. Santiago-Rivera, 744 F.3d 229, 233 (1st

Cir. 2014) (citing United States v. DvilaGonzlez, 595 F.3d 42,

49 (1st Cir. 2010)). The judge acknowledged the defense's

mitigation arguments, and thanked those who spoke on Murchison's

behalf for providing insight into Murchison's character and story

before ordering the sentence of 108 months, a forty-three-month

downward variance. The judge told Murchison the sentence was

imposed in an effort to impress upon Murchison "not only the

seriousness of his actions but also indicate to him that the Court

has taken into account some of the ameliorating factors present in

this case."

So this comes down to yet another case where the true

complaint seems to be that "the court did not assign the weight to

certain factors that the [appellant] thought appropriate," which

is meritless. Ruiz-Huertas, 792 F.3d at 227; see also United

States v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011) (explaining

that "the weighting of [sentencing] factors is largely within the

court's informed discretion"). The judge correctly looked at

everything presented, considered all appropriate sentencing

factors, and, frankly, seemed particularly mindful of the

"ameliorating factors" in play. In the end and in his substantial

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discretion, the judge pronounced a procedurally reasonable

sentence.

Mindful that "[t]here is rarely, if ever, a single

correct sentence in any specific case," Santiago-Rivera, 744 F.3d

at 234, we turn to the substantive reasonableness of the sentence,

concluding that it easily passes muster. The district-court

judge's "ultimate responsibility [wa]s to articulate a plausible

rationale and arrive at a sensible result," United States v.

CarrascoDeJess, 589 F.3d 22, 30 (1st Cir. 2009), and he did so

by plausibly reasoning that Murchison's extensive involvement as

a leader and organizer in this conspiracy, the duration and

regularity of his involvement, the seriousness of the crime, and

the quantity of drugs involved warranted the sentence imposed.

"[T]he district court sufficiently weighed the history and

characteristics of both the offense and the offender," and the

judge's plausible rationale and careful consideration of the

relevant factors places this sentence squarely "within the

universe of acceptable outcomes." United States v. Anonymous

Defendant, 629 F.3d 68, 78 (1st Cir. 2010).

Affirmed.

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