United States v. Rivera-Clemente , 813 F.3d 43 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 13-2275
UNITED STATES OF AMERICA,
Appellee,
v.
JOEL MANUEL RIVERA-CLEMENTE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Barron and Stahl, Circuit Judges,
and Sorokin, District Judge.
Joseph M. Bethony, with whom Gross, Minsky, Mogul, P.A. was
on brief, for appellant.
Francisco A. Besosa-Martínez, Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney,
were on brief, for appellee.
February 10, 2016

Of the District of Massachusetts, sitting by designation.
SOROKIN, District Judge. The defendant Joel Manuel
Rivera-Clemente pleaded guilty to two offenses in connection with
the killing of a security guard at the Sabana Seca Navy Base in
Puerto Rico. The district court sentenced him to 322 months in
prison. On appeal, the defendant argues error in the district
court’s failure to apprise him of the consequences of his guilty
plea, as required by Federal Rule of Criminal Procedure
11(c)(3)(B), and in the district court’s alleged failure to comply
with the requirements of 18 U.S.C. § 3553 during the imposition of
his sentence. Finding no error warranting reversal, we affirm.
I. Background. We recite the basic facts of the case,
which are not in dispute, and reserve some facts for later
discussion. Because the defendant pleaded guilty, we draw from
the stipulated version of the facts accompanying the plea
agreement, United States v. Jones, 551 F.3d 19, 21 (1st Cir. 2008),
as well as from “the plea colloquy, the unchallenged portions of
the pre-sentence investigation report (PSR), and the sentencing
hearing transcript.” United States v. Ortiz-García, 665 F.3d 279,
281 (1st Cir. 2011). On October 19, 2011, the defendant and a
minor, denoted E.R.P., entered the Sabana Seca base to steal
copper.1 Immediately thereafter, Frankie Rondon-Rosario, a base
1
The parties stipulated that the Sabana Seca Navy Base is
within the special maritime and territorial jurisdiction of the
United States.
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security guard, escorted the defendant and E.R.P. from the base.
In the course of this interaction, Rondon-Rosario displayed a
weapon.
Later that night, the defendant and E.R.P. returned to
the base intending to steal what they believed to be Rondon-
Rosario’s gun. With them were Josean Clemente and another minor,
denoted K.T.S., both of whom carried a firearm. Once Rondon-
Rosario was identified as the guard who had escorted the defendant
from the base earlier that night, Josean Clemente and K.T.S.
approached Rondon-Rosario, told him they intended to rob him, and
then shot Rondon-Rosario dead. The two shooters then searched the
victim and found only a fake firearm.
As is relevant to this appeal, Count One of the
superseding indictment charged the defendant with aiding and
abetting murder, in violation of 18 U.S.C. §§ 1111, 7(3) & 2, and
Count Two charged him with aiding and abetting in the carrying and
use of a firearm during and in relation to a crime of violence
causing death, in violation of 18 U.S.C. §§ 924(c)(1)(A), 924(j)(1)
& 2. Prior to trial, the defendant pleaded guilty to these
offenses in a plea agreement entered into under Fed. R. Crim. P.
11(c)(1)(A) & (B).2 In the plea agreement, the parties calculated
2
Pursuant to the plea agreement, the government agreed to
dismiss Count Three of the superseding indictment, which charged
the defendant with interfering with commerce by robbery in
violation of 18 U.S.C. § 1951(a).
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the guideline sentencing range (GSR) for both counts as 270-322
months in prison. The government and the defendant then
recommended in the plea agreement a sentence of 276 months in
prison. The district court accepted the defendant’s guilty plea
at the change-of-plea hearing and ordered preparation of a PSR.
At sentencing, the government and the defendant
requested the 276-month sentence in accordance with the
recommendation in the plea agreement. The district court concurred
with the parties' GSR calculations but, contrary to the
recommendation of the parties, imposed a high-end guideline
sentence of 322 months. The 322-month sentence is forty-six months
longer than the term of imprisonment recommended by the parties in
the plea agreement.3
II. Discussion. This appeal followed, in which the
defendant challenges both the district court’s failure to warn him
of the consequences of his guilty plea, and its imposition of his
sentence. We consider these contentions in turn.
A. Plea Hearing. The defendant contends that the
district court violated Fed. R. Crim. P. 11(c)(3)(B) by failing to
3
Because the district court did not adopt the recommendation
of the parties, the defendant is not precluded from bringing this
appeal by the plea agreement's appeal-waiver provision. Neither
party disputes this point. The district court appeared to believe
that any within-guidelines sentence would preclude appeal under
the waiver provision. We have previously rejected just such a
reading of an identical waiver provision. See United States v.
Ocasio-Cancel, 727 F.3d 85, 88-89 (1st Cir. 2013).
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inform him, at the change-of-plea hearing, that he could not
withdraw his guilty plea in the event that the court did not follow
the sentencing recommendation in the plea agreement. Because the
defendant entered into a plea agreement with the government under
Fed. R. Crim. P. 11(c)(1)(B), in which the government recommended
a particular sentence, Rule 11 required the court to inform the
defendant that he had “no right to withdraw the plea if the court
[did] not follow the recommendation . . . .” Fed. R. Crim. P.
11(c)(3)(B). The court did not give this warning at the change-
of-plea hearing.
However, at no point prior to the appeal did the
defendant seek to withdraw his plea or object to the district
court’s failure to provide the required warning, so we review only
for plain error. Ortiz-García, 665 F.3d at 285. “Plain error
review is not appellant-friendly.” United States v. Cortés-
Medina, No. 14-1101, 2016 WL 67358, at *2 (1st Cir. Jan. 6, 2016).
It requires the defendant to “show that: (1) an error occurred;
(2) the error was plain; (3) the error affected the defendant’s
substantial rights; and (4) the error ‘seriously affect[ed] the
fairness, integrity or public reputation of judicial
proceedings.’” Ortiz-García, 665 F.3d at 285 (quoting United
States v. Rivera-Maldonado, 560 F.3d 16, 19 (1st Cir. 2009)).
The district court’s failure to give the warning
required by Fed. R. Crim. P. 11(c)(3)(B) is an error that is plain
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on the record. See United States v. Hernández-Maldonado, 793 F.3d
223, 226 (1st Cir. 2015). Moreover, it relates to a “core concern”
of Rule 11, namely the defendant’s “knowledge of the consequences
of the guilty plea.” See United States v. Noriega-Millán, 110
F.3d 162, 166-67 (1st Cir. 1997).
Whether the error affected the defendant’s substantial
rights is another matter. “To meet [this] third prong of the plain
error test, ‘a defendant who seeks reversal of his conviction after
a guilty plea, on the ground that the district court committed
plain error under Rule 11, must show a reasonable probability that,
but for the error, he would not have entered the plea.’”
Hernández-Maldonado, 793 F.3d at 226 (quoting United States v.
Dominguez Benitez, 542 U.S. 74, 83 (2004)). This the defendant
has failed to do.
To reach this conclusion, we consider a number of
factors, including whether “the court made statements at the
change-of-plea hearing that put the defendant on plain notice that
it was not bound by the plea agreement.” United States v. Saxena,
229 F.3d 1, 8 (1st Cir. 2000); accord Noriega-Millán, 110 F.3d at
168.4 We also consider “the defendant’s statements at the
4
Saxena and Noriega-Millán each considered an earlier version
of Fed. R. Crim. P. 11, in which Rule 11(e)(2) required a court to
inform a defendant who entered a non-binding plea agreement that
the defendant could not withdraw his or her plea if the court did
not follow the plea-bargained sentencing recommendation. See
Saxena, 229 F.3d at 8; Noriega-Millán, 110 F.3d at 165. Although
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colloquy, ‘the overall strength of the Government’s case and any
possible defenses that appear from the record,’ and the inclusion
of the warning in the plea agreement.” Hernández-Maldonado, 793
F.3d at 226 (quoting Dominguez Benitez, 542 U.S. at 84-85).
Here, despite failing to offer the defendant the Rule
11(c)(3)(B) warning at the plea hearing, the district court advised
the defendant that each count carried a maximum punishment of life
imprisonment (with the sentence on Count Two running consecutively
as a matter of law), and confirmed the defendant understood. On
the heels of this warning, the Court explained that it had “the
discretion to sentence [the defendant] above the guidelines.” Next
the Court told the defendant that it was not bound by the
sentencing recommendation in his plea agreement.5 The defendant
then confirmed that he understood. All of these warnings came
after the court had unequivocally told the defendant that, as a
result of his plea, “[t]here will be no trial.”
this provision now appears as Rule 11(c)(3)(B), the requirement
“has not changed in substance.” Dominguez Benitez, 542 U.S. at 78
n.3.
5 Specifically, the court said to the defendant (and to his
co-defendant who also changed his plea at the hearing) that “[y]ou
should know that any sentencing recommendation that may come before
me is just a recommendation. I have an obligation to look at them,
and if I can follow them, because I understand that they are
appropriate for your cases, I will. If I understand for some
reason that the recommendations are not appropriate for your case,
of course I will not follow them.”
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Moreover, the defendant’s plea agreement delineated that
“the defendant may not withdraw [his] plea solely as a result of
the sentence imposed and the Court is not bound by this plea
agreement.” See Saxena, 229 F.3d at 8-9 (where the defendant’s
plea agreement stated that he “may not withdraw his plea of guilty
regardless of what sentence is imposed,” and where “the court made
statements at the change-of-plea hearing that put the defendant on
plain notice that it was not bound by the plea agreement,” there
was no reversible error in the district court’s failure to warn
the defendant that he could not withdraw his non-binding plea if
the court did not follow the plea agreement’s sentencing
recommendation).
The defendant argues that he did not read or understand
the portions of his plea agreement concerning the non-binding
nature of the sentencing recommendation or his inability to
withdraw his plea. This argument fails. The defendant, who
required an interpreter at the change-of-plea hearing, certified
in the plea agreement that he read the agreement, that he
“carefully reviewed every part of it” with his attorney, and that
his lawyer translated the plea agreement into Spanish which left
the defendant with “no doubts as to the contents of the agreement.”
The defendant’s attorney confirmed these statements in his
separate certification in the plea agreement in which he certified
both that he “translated the plea agreement” and that he “explained
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it in the Spanish language” to the defendant. Moreover, the
defendant stated at the plea colloquy that he discussed his guilty
plea with his attorney and was satisfied with his lawyer’s
services. See Dominguez Benitez, 542 U.S. at 85 (where the
defendant’s plea agreement was translated into his native language
and it “specifically warned that he could not withdraw his plea if
the court refused to accept the Government’s recommendations,” the
court concluded that these facts tend “to show that the Rule
11[(c)(3)(B)] error made no difference to the outcome . . . .”);
Hernández-Maldonado, 793 F.3d at 226 (finding no plain error in
the court’s failure to give the Rule 11(c)(3)(B) warning where the
warning appeared in the plea agreement and the defendant “stated
that he had time to consult with his attorney and was satisfied
with the attorney’s services”). And, at sentencing, defense
counsel represented that the PSR also was translated for the
defendant. Nothing affirmative in the record suggests that these
translations did not occur (as the defendant now contends in his
brief without record citation) or that the defendant failed to
appreciate the terms of his plea.
To be sure, “this court has repeatedly stated that the
defendant’s acknowledgement of a signed plea agreement or other
written document will not substitute for Rule 11’s requirement of
personal examination by the district court.” Noriega-Millán, 110
F.3d at 164. Here, however, there is more than just the plea
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agreement. To summarize, the “court’s admonitions, the
[defendant’s] statements, and the contents of the plea agreement
combined to put the [defendant] on ample notice of the consequences
of his plea.” Saxena, 229 F.3d at 9. This is to say that “had
the court told the [defendant] explicitly that he would not be
allowed to retract his plea if the court rejected the recommended
sentence, the sum total of the [defendant’s] knowledge would not
have been increased and his willingness to plead would, in all
probability, have been unaffected.” Id. Consequently, the
district court’s violation of Rule 11(c)(3)(B) does not rise to
the level of plain error.6
B. Sentencing. Turning to the defendant’s challenges
to his sentence, we bifurcate our review and first decide whether
the sentence is procedurally reasonable and then consider whether
it is substantively reasonable. See United States v. Clogston,
662 F.3d 588, 590 (1st Cir. 2011).
Before addressing the defendant’s arguments, however, we
review the relevant facts. At sentencing, the district court heard
6 The defendant also argues error in the court’s failure to
put his interpreter under oath during the change-of-plea and
sentencing hearings. It is true that the court failed to swear
the interpreter at each hearing, but the defendant did not object
below and we therefore conclude that these omissions do not rise
to the level of plain error because there is nothing in the record
to suggest that the defendant did not understand the proceedings
or that his substantial rights were affected otherwise.
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from defense counsel who urged the court to follow the sentencing
recommendation in the plea agreement, particularly in light of the
defendant’s youth, his lack of a criminal record, and the fact
that he did not intend for the victim to be killed. The prosecutor
likewise recommended the sentence in the plea agreement. The court
also heard briefly from the defendant, and then –- at length –-
from the mother of the victim. The court spoke with the victim’s
mother about the victim’s qualities and her grief. She told the
court that she viewed the parties’ sentencing recommendation as
too lenient, and the court then discussed with her the difficulties
inherent in arriving at a just sentence. When the court finished
speaking with the victim’s mother, he calculated the GSR, expressly
surmised from the record that the defendant had engaged in previous
undetected criminal conduct,7 and immediately thereafter imposed
the defendant’s sentence of 322 months in prison. With the arc of
the sentencing hearing in mind, we turn to the issues presented.
1. Procedural Reasonableness. First, the defendant
argues that the district court failed to consider at sentencing
the factors set forth in 18 U.S.C. § 3553(a). Specifically, the
defendant contends that the court violated § 3553(a) by overlooking
the defendant’s history and characteristics, his supposedly
7Both defense counsel’s oral confirmation at the sentencing
hearing and the unchallenged facts set forth in the PSR amply
support the district court’s conclusion.
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limited involvement in the underlying crime, and whether the
sentence imposed was greater than necessary to achieve the goals
of sentencing. We are not persuaded.
The defendant concedes that plain error review is
appropriate here because he did not object at sentencing. “A
violation of § 3553’s mandates will warrant reversal under plain
error review only if the defendant demonstrates ‘a reasonable
probability that, but for the error, the district court would have
imposed a different, more favorable sentence.’” United States v.
Rodríguez, 731 F.3d 20, 25 (1st Cir. 2013) (quoting United States
v. Mangual-Garcia, 505 F.3d 1, 15 (1st Cir. 2007)). The
defendant’s uphill battle is only intensified by the fact that he
was sentenced to 262 months’ imprisonment for the murder
conviction, a sentence at the high end of – but within – the
guideline sentencing range.8 “As the Supreme Court has explained,
the guideline range itself bears a direct relation to the
compendium of considerations listed in section 3553(a) and, thus,
8
As for the count against the defendant for aiding and
abetting in the carrying and use of a firearm during and in
relation to a crime of violence causing death, the PSR noted,
validly, that this count is “precluded from Guideline computations
as it mandates a fixed consecutive term of at least five (5) years
imprisonment.” See United States v. Vargas- García, 794 F.3d 162,
166 (1st Cir. 2015). In any event, the court imposed the lowest
legally authorized sentence on this count, the sixty month
mandatory minimum required by statute, which was below the parties’
sixty-six month recommendation.
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a within-the-range sentence ‘likely reflects the section 3553(a)
factors.’” Cortés-Medina, 2016 WL 67358 at *4 n.4 (quoting Rita
v. United States, 551 U.S. 338, 355 (2007)).
Although the court here did not state explicitly the
factors set forth in § 3553(a), we “have never required that
sentencing courts undertake ‘an express weighing of mitigating and
aggravating factors.’” United States v. Ocasio-Cancel, 727 F.3d
85, 91 (1st Cir. 2013) (quoting United States v. Lozada-Aponte,
689 F.3d 791, 793 (1st Cir. 2012)). “Instead, we have taken a
pragmatic approach and recognized that ‘a court’s reasoning can
often be inferred by comparing what was argued by the parties or
contained in the pre-sentence report with what the judge did.’”
Id. (quoting United States v. Jiménez-Beltre, 440 F.3d 514, 519
(1st Cir. 2006) (en banc)). The record establishes the district
court considered the § 3553(a) factors.
With regard to the defendant’s history and
characteristics, the district court heard argument on, or
expressly considered, the defendant’s youth and lack of criminal
history or trouble with substance abuse. The court indicated an
understanding that the defendant had no criminal record or history
of drug abuse, and heard from defense counsel that the defendant
was only eighteen at the time of the offense. Based on the gravity
of the murder for which the defendant was convicted, however, the
court expressed skepticism that this incident was, in fact, the
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defendant’s first foray into criminal activity, and defense
counsel agreed that the court’s perspective was valid.
The defendant is correct, however, that the district
court did not discuss his upbringing, but such an omission is not
fatal where, as here, the defendant did not raise this particular
issue at sentencing. See Gall v. United States, 552 U.S. 38, 54
(2007) (“[I]t was not incumbent on the District Judge to raise
every conceivably relevant issue on his own initiative”). Although
defense counsel did mention briefly that the defendant did not
complete high school, and the court did not discuss it further,
the court was “not required to address frontally every argument
advanced by the parties, nor need it dissect every factor made
relevant by 18 U.S.C. § 3553 ‘one by one, in some sort of rote
incantation, when explicating its sentencing decision.’” See
United States v. Turbides-Leonardo, 468 F.3d 34, 40-41 (1st Cir.
2006) (quoting United States v. Dixon, 449 F.3d 194, 205 (1st Cir.
2006)).
Furthermore, the district court’s reasoning from the
bench at sentencing indicates its consideration of certain factors
relevant to whether the sentence was no greater than necessary to
effectuate the goals of sentencing. See 18 U.S.C. § 3553(a)(2).
The court took into account the rights of the victim, which speaks
to the need for just punishment. The court also highlighted the
seriousness of the offense in at least two instances: it noted
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that the “death of a human being is a very serious matter,” and it
pointed out, plausibly, that even though the defendant was being
sentenced for second-degree murder, the facts of the case supported
the more severe charge of murder in the first degree.9 The court’s
colloquy at sentencing demonstrates a consideration and weighing
of these factors against and in light of the defendant’s youth and
lack of a criminal record, as well as in the context of the
difficulty of fashioning sentences.
Finally, the defendant’s argument that the district
court misjudged his involvement in the offense is without merit.
The defendant contends that he was less culpable than his
compatriots because he sought only to rob the victim and did not
fire the fatal shots. The district court disagreed. It cogently
explained its view that on the facts of this case, which the record
establishes it knew intimately, the defendant bore equal
9The defendant is correct that the district court did not
expressly consider factors relating to deterrence of other
criminal conduct, protecting the public from the defendant, or the
treatment needed by the defendant, see 18 U.S.C. § 3553(a)(2), but
this does not rise to the level of reversible error. See Cortés-
Medina, 2016 WL 67358, at *4 (“This court has not required
sentencing courts to walk, line by line, through the section
3553(a) factors.”); United States v. Ramos, 763 F.3d 45, 57 (1st
Cir. 2014) (“A sentencing court is required to consider relevant
§ 3553(a) factors, but need not address each one.”). In any event,
the court’s discussion of the seriousness of the offense, the
effect on the victim’s family, and the existence of other uncharged
responsible persons makes manifest the court’s consideration of
these factors.
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responsibility.10 In all, we discern no plain error in the court’s
consideration of the § 3553(a) factors. See United States v.
Lucena-Rivera, 750 F.3d 43, 54 (1st Cir. 2014) (noting that a
court’s failure to consider expressly the § 3553(a) factors does
not constitute plain error where the record indicates that the
court in fact considered relevant § 3553(a) factors at sentencing);
United States v. Ramos, 763 F.3d 45, 57-58 (1st Cir. 2014); Ocasio-
Cancel, 727 F.3d at 90-91.
The district court’s sufficient consideration of the §
3553(a) factors leads also to our rejection of the defendant’s
second procedural challenge to his sentence – that the court failed
to explain the sentence under 18 U.S.C. § 3553(c). Section 3553(c)
provides that “the court ‘at the time of sentencing, shall state
in open court the reasons for its imposition of the particular
sentence’ and, if the GSR spans more than 24 months, shall also
state ‘the reason for imposing a sentence at a particular point
within the range.’” Cortés-Medina, 2016 WL 67358, at *4 (quoting
18 U.S.C. § 3553(c) & (c)(1)). “The court’s explanation is
adequate for purposes of § 3553(c)(1) if it ‘specifically
identif[ies] some discrete aspect of the defendant’s behavior and
10 The court reasoned that “when you go into a property at
night to do something like this, and you are armed, or the – or
your colleagues are armed, don’t you think that it’s reasonable to
assume that something can go really wrong and that a death can
result, a murder can result?”
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link[s] that aspect to the goals of sentencing.’” United States
v. Rivera-Gonzalez, 626 F.3d 639, 646-47 (1st Cir. 2010)
(alteration in original) (quoting United States v. Vazquez-Molina,
389 F.3d 54, 58 (1st Cir. 2004), vacated on other grounds, 544
U.S. 946 (2005)). Accordingly, “the sentencing court need only
identify the main factors behind its decision,” and “need not ‘be
precise to the point of pedantry.’” United States v. Vargas-
García, 794 F.3d 162, 166 (1st Cir. 2015) (quoting Turbides-
Leonardo, 468 F.3d at 40). Because the defendant did not object
below, we adhere to the familiar plain error standard.
Given that the court took into account relevant § 3553(a)
factors – such as the defendant’s history and characteristics, the
seriousness of the offense, and the need for just punishment – in
explaining and arriving at the sentence, we find no plain error
here. See Rivera-Gonzalez, 626 F.3d at 647 (concluding that the
court did not plainly err in explaining its sentence where the
court considered the substance underlying relevant § 3553(a)
factors in justifying the sentence). The transcript makes clear
that the court weighed the relevant sentencing factors differently
than the parties, giving greater weight to the seriousness of the
offense, and discounting the significance of the defendant’s
status as a first time offender and very young man in light of his
history of prior uncharged misconduct and the nature of the
offense. As a result, the court imposed a high-end, rather than
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low-end, guideline sentence tempered, slightly, by imposing a
consecutive sentence of sixty rather sixty-six months on Count
Two. In all, we conclude that the defendant’s sentence is
procedurally sound.11
2. Substantive Reasonableness. Finally, the defendant
contends that his sentence is substantively unreasonable. We
disagree.
“Challenging a sentence as substantively unreasonable
is a burdensome task in any case, and one that is even more
burdensome where, as here, the challenged sentence is within a
properly calculated GSR.” Clogston, 662 F.3d at 592-93. Although
the “linchpin of a [substantively] reasonable sentence is a
plausible sentencing rationale and a defensible result[,]” United
States v. Pol-Flores, 644 F.3d 1, 4-5 (1st Cir. 2011) (quoting
United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)), a
“defendant who protests his within-the-range sentence” as
substantively unreasonable “‘must adduce fairly powerful
11
In any event, even if we were to conclude that the district
court failed to explain why a sentence at a particular point within
the GSR was appropriate, as required by § 18 U.S.C. § 3553(c)(1),
such an error would not warrant reversal here because it did not
affect the defendant’s substantial rights. See United States v.
Gilman, 478 F.3d 440, 447-48 (1st Cir. 2007) (noting that a
violation of § 3553(c)(1) did not affect the defendant’s
substantive rights where the court’s reasoning “tie[d] the
defendant’s specific conduct to Section 3553(a) considerations and
to specific relevant goals of sentencing,” and thus the defendant
had failed to show “that the court would be persuaded to alter its
course on a resentencing”).
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mitigating reasons and persuade us that the district court was
unreasonable in balancing pros and cons despite the latitude
implicit in saying that a sentence must be reasonable.’” Clogston,
662 F.3d at 593 (quoting United States v. Madera-Ortiz, 637 F.3d
26, 30 (1st Cir. 2011)). Although the defendant did not object
below on the ground of substantive unreasonableness, it is unclear
whether we are to review for abuse of discretion or plain error.
See United States v. Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir.
2015). We need not resolve this issue here, however, because even
under the abuse of discretion standard -- which is more favorable
to the defendant -- his claim fails.
This is so because the defendant puts forth no “powerful
mitigating reasons” to support a finding of substantive
unreasonableness here. He stands convicted of murder, a most
serious offense. The district court heard from the victim’s mother
how the murder devastated her family and, in doing so, considered
the need for punishment; it also considered the defendant’s
significant role in this grave offense and his previous criminal
activity. In the end, it arrived at a sentence that we cannot
conclude is erroneous. See United States v. Colón-Rodríguez, 696
F.3d 102, 108 (1st Cir. 2012) (determining that the defendant’s
sentence was not substantively unreasonable where the court based
it on consideration of the § 3553(a) factors, and “articulate[d]
a plausible rationale and arrive[d] at a sensible result”
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(alteration in original) (quoting United States v. Carrasco-De-
Jesús, 589 F.3d 22, 30 (1st Cir. 2009))).
Despite the defendant’s protestations on appeal, the
district court did in fact account for the defendant’s purported
limited involvement in the offense, his youth, and his lack of a
criminal record or history of substance abuse, but found these
considerations carried less weight than the defendant thought they
should. Likewise, the district court gave more weight to the
seriousness of the offense.12 The sentencing court has “the
latitude to ‘emphasize the nature of the crime over the mitigating
factors,’ and such a ‘choice of emphasis . . . is not a basis for
a founded claim of sentencing error.’” Ramos, 763 F.3d at 58
(quoting United States v. Zapata, 589 F.3d 475, 488 (1st Cir.
2009)).13
12 The defendant fares no better in arguing that his sentence
is unreasonable because it is identical to that imposed upon Josean
Clemente, the shooter in this case who, in the eyes of the
defendant, played a larger role in the murder. In support, the
defendant relies on United States v. Cirilo-Muñoz, 504 F.3d 106,
125-26 (1st Cir. 2007), in which Judge Torruella denounced
sentencing an aider and abettor defendant to the same or greater
sentence than that imposed on the principal. Judge Torruella’s
separate opinion in Cirilo-Muñoz is not controlling. See Cirilo-
Muñoz, 504 F.3d at 107. And, in any event, Cirilo-Muñoz is of no
help to the defendant because in that case the aider and abettor’s
sentence was particularly egregious in light of the district
court’s description of him as a “minor” participant in the offense.
Id. at 125. That type of disparity in culpability is not present
on the facts of this case.
13 The defendant contends also that the district court
thwarted appellate review of his sentence by failing to disclose
to defense counsel a Statement of Reasons form. Because we affirm
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III. Conclusion. For the foregoing reasons, we affirm
the sentence imposed by the district court.
the defendant’s sentence on the basis of the sentencing transcript,
the defendant’s contention is unavailing. To the extent the
defendant argues that the court committed reversible error simply
by failing to disclose to him the Statement of Reasons form, such
an argument fails for the same reason: because the court
adequately explained the defendant’s sentence, he cannot show
prejudice resulting from the form’s absence. See United States v.
Vázquez-Martínez, No. 14-1648, 2016 WL 324971, at *5 (1st Cir.
Jan. 27, 2016).
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