United States v. Romero ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1706
UNITED STATES OF AMERICA,
Appellee,
v.
GADIEL ROMERO, a/k/a "TC,"
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Thompson, Kayatta, and Barron,
Circuit Judges.
Thomas J. O'Connor, Jr. for appellant.
Alexia R. De Vincentis, Assistant United States Attorney,
with whom Andrew E. Lelling, United States Attorney, was on brief,
for appellee.
October 12, 2018
THOMPSON, Circuit Judge.
OVERVIEW
Gadiel Romero pleaded guilty to conspiracy to commit
kidnapping and got a 276-month prison sentence, a below-guidelines
sentence — his guidelines range was 360 months to life. Ably
represented on appeal by new counsel, Romero principally claims
that his incarcerative term is both procedurally flawed and
substantively unreasonable. Concluding, as we do, that his attacks
miss the mark, we affirm.
HOW THE CASE GOT HERE
Because this appeal follows a guilty plea, we take the
facts from the undisputed parts of the probation office's
presentence report ("PSR") and the transcripts of the key court
hearings. See, e.g., United States v. Edwards, 857 F.3d 420, 421
n.1 (1st Cir.), cert. denied, 138 S. Ct. 283 (2017).
Abduction
Around 6 p.m. on July 23, 2012, masked gunmen abducted
Manuel Amparo and Jose Daniel Felipe Castro near a house on Allston
Street in Lawrence, Massachusetts. What happened is this. As
Amparo and Castro pulled into the driveway in Amparo's car, a white
van pulled in behind them and four men wearing masks and black t-
shirts emblazoned "POLICE" charged out shouting "police." Three
of the men had pistols and the fourth had a shotgun. One of the
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men smacked Amparo on the side of his face and forced him and
Castro into the van. The men then put a hood over Amparo's head
and bound his feet and hands. The van sped off to Manchester, New
Hampshire, it turns out. Responding to a 911 call from Amparo's
wife, police found a plastic handcuff on the ground near Amparo's
car and a GPS locator attached to the car's back bumper.
During the drive to the Granite State, Amparo was
periodically beaten (this part of the PSR is phrased in the passive
voice). The abductors eventually brought him and Castro to a house
in Manchester. One of the abductors put Amparo on the phone with
someone who threatened to kill him if he did not pay a ransom. An
abductor also burned him with a hot iron and repeatedly punched
and kicked him.
At some point that night, Amparo freed his hands and
feet, removed his hood, and escaped through a window. He started
knocking on the neighbors' doors, looking for help. Responding to
the commotion, one neighbor called the police and said he had a
man on his porch who claimed he had been kidnapped. This was
around 4:30 a.m. on July 24.
Investigation and Arrests
Arriving on the scene, officers heard from Amparo about
his ordeal, including where he had escaped from. And they learned
too that the suspects and another victim where still there. With
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backup help, the officers headed to the location, freed Castro,
and arrested Jose Guzman, Henry Maldonado, and Thomas Wallace.
Searches (either with a party's consent or with a warrant) later
revealed guns, police paraphernalia (badges, t-shirts with
"POLICE" on them, handcuffs, etc.), Amparo's wallet, cell phones,
and blood on the van's carpet.
During the investigation, law enforcement learned that
Guzman, Maldonado, and Wallace participated in a Lawrence-area
kidnapping gang led by Danny Veloz (nicknamed "Maestro") that also
included Romero, Luis Reynoso, and Jose Matos. The crew focused
on abducting drug dealers and holding them for ransom (in the form
of cash or drugs). Guzman, Maldonado, Wallace, and Reynoso
cooperated with the government. From their statements, a clear
picture emerged of the Amparo/Castro abductions. Matos installed
the GPS tracker on Amparo's car and stored uniforms and weapons
used during the kidnapping. Veloz tracked the GPS data and clued
the crew in on Amparo's whereabouts by calling Guzman. When Veloz
said Amparo was near his Lawrence home, Guzman, Maldonado, Wallace,
Reynoso, and Romero grabbed Amparo and Castro at gunpoint. Once
at Maldonado's Manchester home, Veloz and Guzman continued to talk
by phone throughout the evening as Maldonado tortured Amparo to
get him to pay a ransom. Eventually, Wallace drove Reynoso and
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Romero back to Lawrence (Maldonado and Guzman stayed with the two
abductees) and then returned to Maldonado's home.
Beyond that, the cooperating witnesses also talked about
a May 9, 2012 attempted kidnapping on Saratoga Street in Lawrence,
and a July 8, 2012 kidnapping on Whiting Street in Lynn,
Massachusetts. Guzman fingered Romero as part of the crew present
on Saratoga Street for the attempted kidnapping (the attempt fell
through when the police responded to reports of suspicious
activity). Guzman and Maldonado also fingered Romero as part of
the Whiting Street crew that kidnapped a drug dealer at gunpoint
and kept him in Maldonado's basement (Guzman and Romero beat and
kicked him, apparently) until the dealer's associate paid a ransom.
Indictment
After his arrest, a federal grand jury indicted Romero
— along with Guzman, Maldonado, Wallace, Veloz, Reynoso, and Matos
— for conspiring to "unlawfully seize, confine, kidnap, abduct,
and carry away" two persons "and to willfully transport them in
interstate commerce and hold them in ransom, in violation of" 18
U.S.C. § 1201(a) and (c). Reduced to its essentials, § 1201(a)
punishes anyone who "unlawfully seizes, confines, inveigles,
decoys, kidnaps, abducts, or carries away and holds for ransom or
reward or otherwise any person . . . when . . . the person is
willfully transported in interstate or foreign commerce . . . ."
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And § 1201(c) provides that "[i]f two or more persons conspire to
violate this section and one or more of such persons do any overt
act to effect the object of the conspiracy, each shall be punished
by imprisonment for any term of years or for life." Romero
initially pleaded not guilty to the charge.
Recorded Conversation
During Romero's pretrial detention, his then-attorney
gave prosecutors a letter that he said Romero had given him.
Signed by Maldonado, the letter purported to recant his
identification of Romero as a player in the July 23 kidnapping.
Maldonado told prosecutors in an interview that he wrote the letter
because Romero had threatened him by showing him a shank and having
some guys tell him they knew where his family lived (Maldonado has
a wife and two children). A later search of Romero's cell
uncovered a tooth brush sharpened to a point.
Maldonado agreed to wear a secret recording device and
talk to Romero in prison about Romero's plan to have him recant
his identification. And the tape captured Romero inculpating
himself in the July 23 conspiracy. Here is a taste of what he
said:
I was the first one that hit [Amparo], 'Be quiet,' and
then [Wallace] hit him hard. Bang! Bang! Bang! Holy
shit! . . . [Wallace] cracked him. When I hit him
. . . he bled a little bit, but when that dude hit him
with the grip of the shotgun, . . . blood was spurting
everywhere! That poor [Reynoso] in the back . . . .
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This is the third time I went to do something with
[Reynoso]. . . . He's not built for that.
And while complaining about what Veloz had paid him for his
participation, Romero also said:
I was out there doing my thing on my own too. Do you
remember one time when he says to me [unintelligible],
Oh, how did you buy that car? Not with you . . . . The
most I ever see you with, motherfuckers is five stacks
. . . . I went with another team and I make 50 stacks
one night. One night, one hit. With [Veloz] it's 5, 5,
5. No more . . . . It's like, you don't want us to get
fat, you want us to, like maintain and go.
The two then shifted to a discussion about the letter
Maldonado had given his attorney. "Listen off the book," Maldonado
began,
[Guzman's] the one . . . when we first, listen got when
we first got, first got in the tank together, [Guzman's]
— he's a dirty dude — all through this he told me,
yo. . . . At first he tried to tell me in Spanish to
tell [Veloz] to swear about everything about the guns
and everything and then he said "Yo, . . . tell them
that it was [Veloz] and [Romero] that put you up to all
of this you heard?
"If you said this shit to your attorney," Romero responded, "I can
leave." To that, Maldonado replied:
My man . . . I've . . . told them exactly everything
that I wrote in the letter everything. Everything that
you told me to tell him. Everything, and . . . I haven't
still come face to face with the dude with the prosecutor
but when I do come with the prosecutor even though I
know he's gonna know that I'm lying it doesn't matter
cause it's my word, you know what I'm saying.
"I don't know how . . . that shit works," Romero stated, "because
if you already went to a grand jury . . . [a]nd you gave a
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confession, then, they gonna hit you with perjury." And later in
the conversation, Romero said to Maldonado that "if you say . . .
what you were just telling me . . ., that in the pen . . . [Guzman]
said . . . 'We are going to say that it was [Romero] and [Veloz]'
that thing gets me out of this mess . . . ." "Everything you told
me to say I'm gonna say," Maldonado stressed. "I'm gonna tell my
other lawyer that: 'Yo, [Romero] had nothing to do with . . .
this and that.'"
Romero also brought up the alleged ransom with
Maldonado. Calling Amparo "a kilo carrier," Romero opined that
the government will "need [Amparo] to go to court to testify."
But "if the guy is intelligent and he knows what happened," Romero
added, "he won't go to court," because if he testifies about
everything — how the crew put "a GPS under [the] car" and "ask[ed]
for ransom money for [his] head" — the government will know "that
[he was] doing something big," which would get the "feds" on him.
Change of Plea
Represented by counsel, Romero attended a change-of-plea
hearing where he switched his plea from not guilty of conspiracy
to kidnap to guilty (he did so without a written plea agreement
with the government). Here are the highlights from that hearing.
Near the hearing's beginning, the judge noted that the
statute the government alleged Romero conspired to violate
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criminalizes the "knowing[] and willful[]" abduction of "a person
with the intent to receive a benefit, usually in the form of a
ransom or reward . . . ." The judge also touched on the law of
conspiracy, the details of which are not relevant here. Romero
said he understood. And the judge discussed how federal sentencing
works, noting in broad strokes that a court first calculates the
applicable advisory-sentencing "range" — after accounting for the
base "offense level," any "adjustment[s]" to the offense level,
and the defendant's criminal history — and then considers various
"factors" to come up with an appropriate sentence, whether within,
above, or below the range. "Ultimately," the judge said,
I have to see . . ., as best as I can . . ., that justice
is being done in the case, so there will be a [PSR]
prepared. It will be shared with you, obviously, with
me and with the government, and where there are
disagreements, we have a hearing, and that's where we
have an opportunity to work out finally what satisfies
me as a fair and just sentence, and, of course, you have
an opportunity to participate in that process and to
speak at [the] hearing as well.
Asked by the judge if he had any questions about sentencing, Romero
answered that he did not.
Because he had to see if Romero accepted responsibility
for committing the charged offense, the judge had the government
summarize the evidence against him. Among other details, the
government emphasized that the crew had "held" the kidnapped
victims, "and a ransom demand was made on one of [them] for his
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release." Romero did not dispute anything the government said.
Taking a belt-and-suspenders approach, the judge then repeated for
Romero's benefit the gist of the government's evidence — evidence
that included (in the judge's words) his being "part of an
agreement to kidnap" and transport a person across state lines
"with the intent to procur[e] a ransom for his release." "[W]ere
you part of that agreement with Mr. Veloz and others?" the judge
asked Romero. "Yes, sir," replied Romero, who then acknowledged
that he was "voluntarily" choosing to plead guilty. And with that,
the judge accepted Romero's change of plea.
Sentencing
After the change-of-plea hearing, probation prepared the
PSR, which recounted the pertinent facts in great detail. And
among the facts described there was the ransom aspect of the
conspiracy. For instance, the PSR noted that Amparo told the
police that Veloz threatened to kill him if he did not pay a
ransom. The PSR also noted that the cooperating co-conspirators
(to quote the PSR) admitted that "the crew tried to get Amparo to
pay a ransom."
Because the conspiracy charged the kidnapping of two
distinct victims — Amparo and Castro — the PSR treated Romero's
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conviction as two separate counts of conspiracy to kidnap.1 See
USSG § 1B1.2(d). The PSR set Romero's base-offense level for each
count at 32, see id. § 2A4.1(a), and added 2 levels because he
used a dangerous weapon, see id. § 2A4.1(b)(3). On the conspiracy-
to-kidnap-Amparo count, the PSR added 2 levels because Amparo
sustained serious bodily injury, see id. 2A4.1(b)(2)(B), and 6
levels because of the ransom demand, see id. 2A4.1(b)(1). The PSR
then adjusted the base-offense level for each count upwards 2
levels for obstruction of justice (because Romero schemed to have
Maldonado retract his identification). See id. § 3C1.1. All of
this resulted in adjusted-offense levels for the Amparo and Castro
kidnappings of 44 and 36, respectively.
Applying a multi-count adjustment, the PSR calculated a
combined adjusted-offense level of 45. See id. § 3D1.4. The PSR
then reduced that number 3 levels for acceptance of responsibility,
for a total-offense level of 42, see id. § 3E1.1(a), (b) — which
combined with Romero's criminal-history category of VI resulted in
an advisory-sentencing range of 360 months to life in prison.2
1 Probation applied the 2016 version of the sentencing
guidelines.
2Despite putting in a "request[]," probation had not received
information about "whether a ransom demand was made specific to
Castro and whether Castro sustained any injuries." But probation
said that, regardless, Romero's advisory-sentencing range "would
not be impacted, and would remain 360 months to life."
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Romero raised a multitude of objections to the PSR. As
pertinent here, he disagreed with the PSR's recommended 2-level
increase for obstruction of justice — his theory being that the
recorded conversation contained "no indication . . . that [he]
threatened, cajoled, forced, [or] enticed . . . Maldonado to do
anything or corroborated any previous threats, cajoling[,] or
force against Maldonado to do anything on . . . [his] behalf."
Romero also insisted that he played only a minor part in the
criminal activity and so should get a 2-level minor-role reduction.
See id. § 3B1.2(b). He did not object to the 6-level ransom-
demand enhancement, however.
Probation responded that even without the recorded
conversation, a preponderance of the evidence supported the
obstruction-of-justice enhancement given Maldonado's statement
that he penned the letter recanting his identification after Romero
(who had a shank) threatened him. And probation insisted that
Romero should not get a minor-role reduction because he "played an
active role in the abduction of the two victims at gunpoint."
Probation also noted that the evidence suggested that Romero had
a hand in the May 9 attempted kidnapping (on Saratoga Street) and
the July 8 kidnapping (on Whiting Street). So probation concluded
that the PSR properly assigned Romero's total-offense level of 42.
And probation noted that even if the district judge agreed with
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Romero on both objections, the total-offense level would be 38,
which would still yield a recommended-sentencing range of 360
months to life.
Romero filed a sentencing memo. Noting that the PSR
recommended a sentencing range of 360 months to life imprisonment,
he asked for a 120-month term based on his minor role in the
conspiracy, his not threatening Maldonado, and his "substantial"
steps he had taken "toward rehabilitation." He did not mention
the ransom-demand evidence, however.
In its sentencing memo, the government noted how
cooperating co-conspirators "identified [Romero] as a member of a
violent crew that kidnapped drug dealers for ransom" — like other
crew members, he "disguised himself as a police officer, armed
himself with a firearm, and abducted drug dealers for ransom." As
for the kidnapping of Amparo and Castro, the government chronicled
how "Amparo was tortured with a hot iron in Maldonado's home while
Veloz demanded a ransom from him (Romero did not do the actual
burning but was present when it occurred)." Romero was hardly "a
minor player," the government emphasized — based on what the
cooperating co-conspirators said, he was "an active, eager
participant in a conspiracy to kidnap multiple drug dealers at
gunpoint for ransom." And once caught, Romero "threatened"
Maldonado, a cooperating co-conspirator, "causing Maldonado to
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recant his identification of Romero." Still, the government
recommended a 312-month prison stint, below the PSR's recommended
range of 360 months to life.
At sentencing, the judge indicated that he had reviewed
the PSR and the parties' memos. And he noted that Romero had
"some" objections to the PSR. But because the government endorsed
a 312-month sentence — a term below the recommended 360-months-
to-life range "calculated by the Probation Office" — the judge was
"not sure that those objections" were "all that relevant," since
the government's proposal was "below" what Romero would get if he
sustained the objections and reduced the offense level
accordingly. The judge did not discuss Romero's objections any
further, however. And Romero did not object.
The judge then asked for argument on the parties'
"approach to the case and the recommendation." Obliging, the
government discussed the conspirators' relative levels of
culpability, emphasizing how Veloz, Guzman, and Romero "most
deserv[ed] . . . the kind of substantial penalties" permitted "for
this type of offense" because they were basically "in the business
of kidnapping drug dealers for ransom." The government then
contrasted these co-conspirators with Matos, who did not
participate directly in the kidnappings, and with Maldonado,
Wallace, and Reynoso, who did participate directly but on fewer
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occasions and in roles "subordinate . . . to persons [who] were
more experienced, or who had a leadership aspect to the case."
Conceding Romero was not a leader of the crew — Veloz was "the
overall leader," and Guzman was "the street leader or street boss"
— the government noted that Romero had boasted in the recorded
conversation with Maldonado that he was among the crew's more
experienced members. This plus the cooperating co-conspirators'
statements showed Romero "was engaged in this kind of activity on
a regular basis."
"You can't imagine a more dangerous, violent kind of
conduct," the government stressed in something of a final pitch —
"charging out of vans armed with guns, kidnapping, torturing"
(Romero did not put the iron on Amparo, the government conceded,
but he was there when it happened), "[a]ll to extort a ransom paid
in drugs or money." Yet despite the seriousness of the offense,
the government supported a slight departure from the low end of
the sentencing range because it thought Romero's criminal-history
designation significantly overstated the seriousness of his
criminal history. Which is why the government requested a below-
guidelines sentence of 312 months.
Agreeing with the government's comment about Romero's
criminal history, defense counsel asked for a sentence of 120
months. Counsel emphasized how Romero was not a leader, a
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torturer, or a person responsible for securing the GPS device and
equipping the crew. He also suggested that Romero's recorded
statements to Maldonado amounted to mere bolstering and failed to
show obstruction of justice. And he pointed out how Matos had
gotten a 144-month sentence (Matos was the only co-defendant
sentenced at that point), how the "national mean" sentence for
kidnapping is 192 months, and how other defendants had received
lighter sentences for similar offenses.
After considering the parties' extensive arguments,
listening to Romero's statement (his "allocution," as it is called)
where he professed to be a remorseful and changed man, and
reviewing the pertinent sentencing factors, see 18 U.S.C.
§ 3553(a), the judge chose to impose a 276-month term. Explaining
his decisional calculus, the judge noted that several factors cut
in favor of a below-guidelines sentence, including that Romero —
though "very important in the organization," as the government
said — was not "the mastermind"; that his criminal-history category
was "overstated"; and that he had accepted responsibility for his
crime and "taken some positive steps" to rehabilitate himself.
But measuring "the other side of the equation," the judge "agree[d]
with the government that this was a violent, brutal[,] and
reprehensible crime" for which "punishment is merited and earned."
Also and importantly, in the statement-of-reasons form issued
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after judgment entered, the judge checked a box indicating that he
had "adopt[ed]" the PSR "without change."
Anyone wondering about Romero's co-conspirators'
sentences: After a jury's guilty verdict on the conspiracy-to-
kidnap charge, Veloz got a life term. After they pleaded guilty
to conspiracy to kidnap, Guzman got a 192-month term, Maldonado a
156-month term, Wallace a 156-month term, and Reynoso a 131-month
term. And after he pleaded no contest to conspiracy to kidnap,
Matos (as we said) got a 144-month term.
OUR TAKE ON THE CASE
That brings us to the present, with Romero's appeal
challenging (as we noted) the sentence's procedural and
substantive reasonableness.3
3
Romero also argues — for the first time on appeal,
engendering plain-error review — that the sentence violates his
Eighth-Amendment right to be free from cruel and unusual
punishment. He concedes that the case law is against him. Still,
he raises the issue to preserve it for possible Supreme Court
review. It is preserved, though (obviously) given the presence of
authority contrary to his position, plain error is plainly missing
here. See, e.g., United States v. Morosco, 822 F.3d 1, 21 (1st
Cir. 2016).
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Procedural Reasonableness
Broadly speaking, Romero believes the judge botched the
sentencing-range calculation by giving him enhancements for ransom
demand and obstruction of justice, and by denying him a reduction
for minor participation. He also blasts the judge for not
"expressly rul[ing]" on his objections to the PSR's handling of
the obstruction-of-justice and minor-participant adjustments. The
government, however, sees no reason for us to vacate his sentence.
And we agree with the government.
Standard of Review
We generally inspect a procedural-reasonableness claim
for abuse of discretion, see United States v. Tanco-Pizarro, 892
F.3d 472, 478 (1st Cir.), cert. denied, 2018 WL 4361944 (2018) —
a multidimensional test that requires us to assess "factual
findings for clear error, arguments that the [sentencer] erred in
interpreting or applying the guidelines de novo, and judgment calls
for abuse of discretion simpliciter," see United States v.
Trinidad-Acosta, 773 F.3d 298, 309 (1st Cir. 2014) (quoting United
States v. Serunjogi, 767 F.3d 132, 142 (1st Cir. 2014)). Of
course, when a defendant fails to preserve a procedural-
reasonableness objection below, we review only for plain error.
See Tanco-Pizarro, 892 F.3d at 478-79. And as everyone knows by
now, the plain-error standard is a demanding one, requiring the
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defendant to "show (1) error, (2) plainness, (3) prejudice, and
(4) an outcome that is a miscarriage of justice or akin to it."
Id. (quoting United States v. Edelkind, 467 F.3d 791, 797 (1st
Cir. 2006)); see also United States v. Pires, 642 F.3d 1, 14 (1st
Cir. 2011) (calling the plain-error standard "daunting").4 But
when a party intentionally relinquishes or abandons an argument,
we deem it waived, meaning it is unreviewable. See, e.g., United
States v. Coleman, 884 F.3d 67, 71 (1st Cir. 2018).
Ransom Demand
We start with Romero's complaint with the ransom-demand
enhancement — a complaint he débuts here, so our review is at best
limited to plain error. Section 2A4.1(b)(1) of the guidelines
calls for a 6-level increase "[i]f a ransom demand or a demand
upon government was made . . . ." In Romero's telling, that
increase only applies if a kidnapper makes a ransom demand to
someone "other than the victim." To support his thesis, he relies
4 "[F]or sound reason," we have said, "the plain error rule
creates a high threshold where the supposed missteps are ones that
no one noticed at the time or, if noticed, thought worthy of a
timely objection." See United States v. Dehertogh, 696 F.3d 162,
170 (1st Cir. 2012). For example, this "exceedingly tough"
standard keeps the parties from hiding problems below — which
could've been fixed then and there — so that they might argue error
here. See Bielunas v. F/V Misty Dawn, Inc., 621 F.3d 72, 80 (1st
Cir. 2010).
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on a Seventh Circuit case, United States v. Reynolds, which held
that "§ 2A4.1(b)(1) may be applied only if kidnappers' demands for
money or other consideration reach someone other than the captured
person." See 714 F.3d 1039, 1044 (7th Cir. 2013) (internal
quotation marks omitted). And because the PSR indicates only that
a ransom demand was made to Amparo himself, his argument continues,
the judge had no business applying the ransom-demand enhancement.
This matters, he submits, because without that enhancement his
sentencing range would be 324 to 405 months, not 360 months to
life. See USSG Ch. 5, Pt. A (sentencing table) (setting a
sentencing range of 324 to 405 months for persons with a criminal-
history category of VI and an offense level of 36). Though
artfully framed, his argument fails for several reasons.
For openers, and to repeat, Romero pleaded guilty to an
indictment charging him with infracting 18 U.S.C. § 1201 by
(emphasis ours) conspiring to kidnap two persons, transporting
them interstate, and holding them "for ransom." At his change-
of-plea hearing, remember, he admitted (no ifs, ands, or buts)
that the government's version of events added up to a § 1201
violation — a version that prominently featured his having played
a role in a kidnapping conspiracy where (double emphasis ours)
"the victims were held and ransom demand was made on one of the
victims for his release." And by agreeing with the government
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that he violated § 1201 when a ransom demand "was made" only on
the kidnapped "victim[]," Romero arguably waived his current claim
that no ransom demand was ever made because the demand did not
reach a third party. See generally United States v. Walker, 538
F.3d 21, 23 (1st Cir. 2008) (holding that a defendant waived any
right to claim as error a sentencing rationale that she had agreed
to in the district court); United States v. Turbides-Leonardo, 468
F.3d 34, 37-38 (1st Cir. 2006) (emphasizing in a similar context
that "a defendant who eschews a warrantable objection" to a
sentencing enhancement "lulls both the prosecution and the
sentencing court into what will prove to be a false sense of
security if he is later allowed to do an about-face").
But even assuming, favorably to Romero, that the claim
is not waived, we discern no plain error. To win under this
standard, Romero must show (among other things) that the judge
committed an "indisputable" error by (for example) flouting
governing precedent or the guideline's clear text — such a showing
would satisfy plain error's plainness prong, the case law holds.
See United States v. Jones, 748 F.3d 64, 70 (1st Cir. 2014); see
generally United States v. Olano, 507 U.S. 725, 734 (1993)
(explaining that "plain" error is "synonymous with clear or . . .
obvious" error (internal quotation marks omitted)). This he has
not done, however.
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Romero pins his plain-error hopes to the Seventh
Circuit's Reynolds decision, which (as we noted) held that "'ransom
demand' under § 2A4.1(b)(1) requires that a demand be made to a
third party." See 714 F.3d at 1044 (bold-face type and
capitalization omitted). But Reynolds does not — repeat, does not
— control us, a fact that pokes a huge hole in his Reynolds-based
argument. See United States v. Richard, 234 F.3d 763, 771 (1st
Cir. 2000) (finding no plain error even though a majority of
circuits had adopted the interpretation of a statute urged by the
defendant); see also United States v. Caraballo-Rodriguez, 480
F.3d 62, 70 (1st Cir. 2007) (same).
Still trying to bring his claim within the sphere of
controlling precedent, Romero notes that Reynolds cited a case of
ours, United States v. Alvarez-Cuevas, 415 F.3d 121 (1st Cir.
2005). But his effort is for naught.
Alvarez-Cuevas interpreted a different subpart of
§ 2A4.1 — (b)(6), not (b)(1). As Alvarez-Cuevas said, subpart
(b)(6) tells sentencers to jack up a defendant's offense level by
3 if "the victim is a minor and, in exchange for money or other
consideration, was placed in the care or custody of another person
who had no legal right to such care or custody of the victim."
See id. at 122 (quoting § 2A4.1(b)(6)). The defendant in Alvarez-
- 22 -
Cuevas offered two reasons why that enhancement did not apply
there:
(1) the [kidnapped] child was never "placed in the care
or custody of another person who had no legal right to
such care or custody," because the enhancement refers to
placing the victim in the custody of a third party, not
one of the kidnappers; [and] (2) because [the two co-
conspirators] who kept the child . . . were not paid
money or other consideration to keep the child but rather
merely expected to receive some of the proceeds of the
ransom, the child was not placed in their custody "in
exchange for money or other consideration."
Id. at 124. Agreeing with the defendants, Alvarez-Cuevas held
that subpart (b)(6) applies only "where the child is kidnapped, by
special order, to be turned over to the custody of a third party
who has no custody rights and who has paid the kidnappers to do
the job," as well as where "the ransom-demanding kidnapper, who in
an effort to make it harder to find the [child], pays a third party
to keep and care for the child." Id. at 122, 126-27. A contrary
interpretation, Alvarez-Cuevas concluded, "would render the
'placed in the custody of another person' a nullity" and would
"create[] . . . incentive[s] for kidnappers to hide or even to
abandon children (thus avoiding responsibility for their custody
or care)." Id. at 127.
Reynolds dropped a "cf." citation to Alvarez-Cuevas,
with the following parenthetical: "(construing § 2A4.1(b)(6) to
apply only to situations involving third parties even though the
section makes no explicit reference to them, because of additional
- 23 -
harm implicated in such situations)." 714 F.3d at 1044-45. But
the "cf." signal is a dead giveaway that the Seventh Circuit
believed Alvarez-Cuevas did not speak directly to subpart (b)(1).
After all, and as the Supreme Court's cases make clear, "cf." is
"an introductory signal which shows authority that supports the
point in dictum or by analogy, not one that 'controls' or
'dictates' the result." Lambrix v. Singletary, 520 U.S. 518, 529
(1997) (emphasis added). And because Alvarez-Cuevas is not
controlling precedent on the § 2A4.1(b)(1) issue, Romero's first
attempt to clear the high plain-error hurdle falls short.
With no binding precedent on his side, Romero cannot
succeed on plain-error review unless he shows his ransom-demand
theory is compelled by the guidelines' language itself. See, e.g.,
Jones, 748 F.3d at 70; Caraballo-Rodriguez, 480 F.3d at 70. And
to the extent he tries to make that argument, it fails too.
In Reynolds — the case he hangs his hat on — the Seventh
Circuit candidly acknowledged how "difficult" the issue is,
because the guidelines do not define "ransom" and the guidelines'
commentary offers "no insight into what conduct the Sentencing
Commission intends § 2A4.1(b)(1) to punish."5 714 F.3d at 1044.
5
The Sentencing Commission is an agency tasked by Congress
with issuing sentencing guidelines and keeping them current. See
28 U.S.C. § 994.
- 24 -
The Seventh Circuit also rejected the ransom definition in Black's
Law Dictionary ("Black's," for short), see id. — which is the go-
to dictionary for courts in figuring out the commonest legal
meanings of terms, see generally United States v. Nason, 269 F.3d
10, 16 (1st Cir. 2001) (noting how the court was turning
"predictably" to Black's "to glean the most widely accepted legal
meaning" of the term at issue there (emphasis added)). Black's
defines "ransom" as "[m]oney or other consideration demanded or
paid for the release of a captured person or property," which, the
government in Reynolds argued, could include a demand made on the
victim himself. See 714 F.3d at 1044 (quoting Black's). But the
Seventh Circuit found that definition to be "overinclusive"
because under it "even a simple mugging would include a 'ransom'
demand if at some point during the attack" the attacker "offered
to let the victim go in exchange for her valuables or some other
benefit." Id.
The Seventh Circuit then said that the "language of the
guideline . . . presupposes the existence of a third party." Id.
(emphasis added). Section 2A4.1(b)(1), the court noted, "applies
if 'a ransom demand or a demand upon government was made.'" Id.
(quoting the provision). These "are distinct actions," the court
wrote, "and yet the Sentencing Commission . . . group[s] them
together," even though "a 'demand upon government' cannot be made
- 25 -
during a kidnapping without the communication of demands to people
other than those held captive." Id. And because "'a demand upon
government' cannot be made during a kidnapping without the
communication of demands to [non-captives]," the court said "that
'ransom demand' is fairly read to also include this third-party
element." Id.
Moving on, the Seventh Circuit then discussed potential
policy concerns;6 noted potential parallels between the provision
and the Hostage Taking Act ("HTA"), 18 U.S.C. § 1203;7 and mentioned
that while "no appellate court has considered whether § 2A4.1(b)(1)
requires the communication of demands to third parties," it had
"not found a single appellate decision where the adjustment had
6 "[K]idnapping someone . . . to compel others to act, as a
substitute for confronting or attempting to rob those others in
person," the court stated, "can be a very effective way to
accomplish crime that merits heightened deterrence." Id. But if
this is done "without the knowledge of anyone except for the
victim, the scope of the crime and risk of harm to others, while
undoubtedly extensive, is nonetheless not as great." Id.
7 "[T]he HTA," the court remarked, "punishes 'whoever . . .
seizes or detains and threatens to kill, to injure, or to continue
to detain another person . . . to compel a third person or a
governmental organization to do or abstain from doing any act as
an explicit or implicit condition for the release of the person
detained.'" Id. at 1045 (quoting 18 U.S.C. § 1203(a)) (first
alteration in original). And "[g]iven the[] similarities in
language and parallel structure," the court added, "§ 2A4.1(b)(1)
appears to paraphrase the language of the HTA," and so the court
"believe[d] it is meant to apply only when a kidnapper issues
demands . . . to compel a third party (either the government or
private citizen) to act." Id.
- 26 -
been applied to a defendant who did not intend for his demands to
reach a third party."8
That the Seventh Circuit judged the ransom-demand issue
"difficult" — justifying resort to interpretative aids (including
presupposition) — kiboshes any suggestion on Romero's part that
the guidelines' words unquestionably support his position.
Properly viewed, his ransom-demand argument ultimately "turns on
judicial construction of the [guidelines]," and "since we have not
yet adopted the construction he urges, there is no plain error."
See Caraballo-Rodriguez, 480 F.3d at 73.
If more were needed (and it is not), the Eleventh
Circuit, unlike the Seventh Circuit, accepts Black's definition in
interpreting "ransom demand" in § 2A4.1(b)(1) — specifically, the
Eleventh Circuit has held that "[n]othing in that definition
excludes" money that the kidnapper thinks the victim owes him from
qualifying as a "ransom demand." See United States v. Digiorgio,
193 F.3d 1175, 1178 (11th Cir. 1999) (per curiam). And the Fifth
and Second Circuits have upheld enhancements under § 2A4.1(b)(1)
where the kidnappers demanded money or other consideration from
the victim and not a third party. See United States v. Andrews,
503 F. App'x 257, 258 (5th Cir. 2012) (per curiam); United States
8 Id. (footnote omitted).
- 27 -
v. Escobar-Posado, 112 F.3d 82, 82-83 (2d Cir. 1997) (per curiam).
In a later case, the Second Circuit specifically observed that its
Escobar-Posado opinion "took a different approach" to the ransom-
demand guideline than the Seventh Circuit's Reynolds opinion. See
United States v. Cole, 594 F. App'x 35, 38 (2d Cir. 2015) (summary
order). Anyhow, the different precedents on the question at hand
preclude Romero from showing that any error (if error there was)
was plain — which is to say, clear or obvious.9 See, e.g., United
States v. D'Amario, 412 F.3d 253, 256–57 (1st Cir. 2005); United
States v. Diaz, 285 F.3d 92, 97 (1st Cir. 2002).
The bottom line: Perhaps someday we will have to take
a definitive stand on the ransom-demand issue. Cf. generally
Caraballo-Rodriguez, 480 F.3d at 70 (noting that a holding that a
party "has not met his burden of showing there was an error which
was plain" is not a "ruling on the merits"). But for today's
purposes, it suffices to say that Romero's ransom-demand theory is
not the stuff of plain error. See generally United States v.
Frady, 456 U.S. 152, 163 (1982) (noting that plain error assumes
9 To the extent Romero believes the government did not make —
and thus waived — any argument on the "clear or obvious" prong, he
is dead wrong, as the government believes Reynolds's holding does
not help Romero demonstrate "a 'clear or obvious' error" on the
judge's part.
- 28 -
an error so self-evident that the judge should have avoided it,
"even absent the defendant's timely assistance in detecting it").
Obstruction of Justice and Minor Role
Romero knocks the judge for not "expressly" ruling on
his objections to the PSR's inclusion of a 2-level obstruction-
of-justice enhancement and rejection of a 2-level minor-role
reduction. And he criticizes the judge for not properly
calculating the sentencing range because (the theory goes) the
record did not support the enhancement but did support the
reduction. Agreeing with Romero that the judge did not explicitly
rule on his two targeted objections, the government counters that
his protests "were inconsequential to the proper calculation" of
the sentencing range. The government also argues that the record
"amply support[s]" the judge's denial of his objections. For our
part, regardless of the applicable standard of review — the
government sometimes talks about plain error, and Romero talks
about abuse of discretion — we see no need for a sentencing do-
over.
Take Romero's first beef. We agree with the parties
that the judge did not expressly rule on his objections at
sentencing (though the judge arguably addressed Romero's minor-
role-reduction request at sentencing when he said he "agree[ed]
with the government's characterization that . . . Romero's role
- 29 -
was very important in the organization"). But that gets Romero
only so far.
Sentencers, of course, "must — for any disputed portion
of the [PSR] 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 [they] will not consider
the matter in sentencing." Fed. R. Crim. P. 32(i)(3)(B). Our
preference is for judges to make reasonably explicit rulings on
properly disputed matters. See, e.g., United States v. Van, 87
F.3d 1, 3 (1st Cir. 1996). But the lack of an explicit ruling is
not always catastrophic. United States v. Carbajal-Váldez, 874
F.3d 778, 783 (1st Cir. 2017). Our case law allows us to uphold
sentencing conclusions if the judges "implicitly resolved" the
disputes, like when their "statements and the sentence[s] imposed
show[] that the [disputes] were decided in a particular way." Van,
87 F.3d at 3 (emphasis added); see also United States v. Zehrung,
714 F.3d 628, 632 (1st Cir. 2013).
Returning to our case, we see that the judge started the
sentencing hearing by saying that he read the PSR and the parties'
sentencing memos. Which means he knew that (a) the PSR recommended
a sentencing range of 360 months to life, a range driven in part
by a rejection of Romero's obstruction-of-justice/minor-role-based
objections; that (b) Romero wanted a 120-month sentence; and that
- 30 -
(c) the government wanted a 312-month sentence. Saying he was
"not sure" if Romero's objections mattered — because, as he saw
it, the government's asked-for sentence was "below" what Romero
would get if he resolved the objections in Romero's favor — the
judge then had the lawyers flesh out their "approach to the case"
and their "recommendation." So the lawyers talked a lot to the
judge about Romero's role in the conspiracy and whether he had
obstructed justice. Ultimately, however, in selecting a 276-month
sentence (a term even lower than the below-guidelines sentence the
government recommended), the judge adopted the PSR (emphasis ours)
"without change" — i.e., he accepted the PSR's sentencing-range
calculations, including its rejection of Romero's obstruction-of-
justice/minor-role-based protests. This we know because of the
judge's written statement of reasons. So the record read as a
whole "reliably shows" that the judge implicitly resolved Romero's
objections against him. See Carbajal-Váldez, 874 F.3d at 783-84.
Which suffices to reject his no-express-ruling argument. See id.;
see also United States v. Zayas-Ortiz, 808 F.3d 520, 523-24 (1st
Cir. 2015) (rejecting a defendant's claim that the lower court did
not "give sufficient reasons for its decision" denying his
sentence-reduction motion, our rationale being that the court had
checked a box on a form indicating it had considered the
appropriate policy statements and sentencing factors, and we could
- 31 -
infer the denial's basis by comparing what the parties argued with
what the court did).
As for Romero's second argument — that the record does
not back the obstruction-of-justice increase but does back the
minor-role decrease — even less need be said. With a total-offense
level of 42 and a criminal-history category of VI, Romero had a
sentencing range of 360 months to life. Granting him a 2-level
minor-role reduction and jettisoning the 2-level obstruction-of-
justice enhancement would drop his total-offense level to 38 (a
number that includes the ransom-demand enhancement, which, as we
said, survives plain-error review). Combined with the same VI
criminal-history category, Romero's sentencing range would remain
360 months to life. See USSG Ch. 5, Pt. A (sentencing table).
Thus any error (if there was one) in resolving Romero's objections
against him provides no basis for upsetting the sentence. See
United States v. Hinkley, 803 F.3d 85, 93-94 (1st Cir. 2015)
(finding no reason to vacate a defendant's sentence because even
if the contested "enhancement were removed, the guideline sentence
would be unchanged" — which means "any error in the application of
this enhancement was harmless"); see also United States v.
Monteiro, 871 F.3d 99, 115 n.15 (1st Cir. 2017) (declining to
consider an argument about an enhancement because fixing any error
would not change defendant's sentence), cert. denied, 2018 WL
- 32 -
1278424 (2018); cf. United States v. Sepulveda, 15 F.3d 1161, 1199
(1st Cir. 1993) (stating that "[i]t is unnecessary to address an
allegedly erroneous sentencing computation if, and to the extent
that, correcting it will not change the applicable offense level
or otherwise influence the defendant's" sentencing range and
(thus) his sentence); United States v. Carrozza, 4 F.3d 70, 88
(1st Cir. 1993) (explaining that courts have "inherent power not
to decide disputes that are immaterial or irrelevant to the
ultimate sentence").
Enough said about Romero's procedural-reasonableness
challenge. On then to his substantive-reasonableness challenge.
Substantive Reasonableness
Romero separately argues that his 276-month sentence is
substantively unreasonable (or too long, in everyday speech) — a
multifaceted claim based on his belief that the judge, first,
wrongly hit him with an obstruction-of-justice increase and
unfairly withheld a minor-role decrease, and, second,
"unjustifiably" picked a term "more severe than those of more
culpable defendants in the instant case and than those sentences
imposed nationally at the median for this offense." Reviewing his
claim for abuse of discretion, see Tanco-Pizarro, 892 F.3d at 483,
we detect none.
- 33 -
Romero's argument about the obstruction-of-justice and
minor-role adjustments is simply a repackaged version of the one
just rejected. And it fails for reasons already given.
Romero's next contention — that the 276-month sentence
created an unwarranted sentencing disparity between himself and
his codefendants — is not without some surface appeal. But it
cannot be sustained.
Sentencers, no doubt, must consider "the need to avoid
unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct." 18 U.S.C.
§ 3553(a)(6). The key word is "unwarranted" — that is,
§ 3553(a)(6) does not ban all disparities, just "unwarranted"
ones. Anyway, the statute's main concern is minimizing
"national[]" sentencing disparities among like criminals who
commit like crimes. See United States v. Martin, 520 F.3d 87, 94
(1st Cir. 2008). Even so, our cases recognize that "legitimate
concerns may arise" if a judge sentences "similarly situated
coconspirators or codefendants" to "inexplicably disparate" terms.
See United States v. Demers, 842 F.3d 8, 15 (1st Cir. 2016); see
also United States v. Correa-Osorio, 784 F.3d 11, 28 n.25 (1st
Cir. 2015). But — and it is a big "but" — our cases also recognize
that such a disparity claim will flop "if material differences
between the defendant and the proposed comparator[s] suffice to
- 34 -
explain the divergence." Demers, 842 F.3d at 15. And by material
differences our cases mean things like dissimilar criminal
involvement, criminal histories, or cooperation with the
government, to name just a few. See United States v. Flores-
Machicote, 706 F.3d 16, 24 (1st Cir. 2013).
Yes, Guzman, Maldonado, Wallace, Reynoso, and Matos all
received sentences considerably less than 276 months. But unlike
Guzman, Maldonado, Wallace, and Reynoso, Romero did not cooperate
with the government. And unlike Matos, Romero abducted Amparo and
Castro at gunpoint.10 These differences make the sentencing
disparities reasonable.11 See, e.g., United States v. Mueffelman,
470 F.3d 33, 41 (1st Cir. 2006) (discussing cooperation); United
States v. Reverol-Rivera, 778 F.3d 363, 366 (1st Cir. 2015)
10 Citing a statement in the PSR that Matos was "part of the
team that kidnapped [the victims] on July 23, 2012," Romero asserts
that the evidence concerning Matos's role is "unclear at best."
But despite his best efforts, we see nothing inconsistent between
that statement and descriptions later in the PSR suggesting that
Matos's role as part of that team was limited to attaching a GPS
device and storing uniforms and weapons.
11Romero concedes, as he must, that a sentencing difference
is not a forbidden disparity if justified by a legitimate
consideration, like rewarding cooperation. But he thinks this
principle does not apply here because, in his words, prosecutors
opted to let "defendants who were among the most culpable to
cooperate against lower members of the organization." Romero rests
his theory on pure speculation, not case analysis. And so we say
no more about it. See Muñiz v. Rovira, 373 F.3d 1, 8 (1st Cir.
2004) (holding waived a skeletal argument unaccompanied by
"citation to any pertinent authority"); United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990) (same).
- 35 -
(discussing culpability). Also hurting Romero is his failure to
present info about his co-conspirators' criminal histories, info
we need so we can see if "he and his proposed comparators are
similarly situated." See United States v. Rodríguez-Adorno, 852
F.3d 168, 177 (1st Cir.), cert. denied, 138 S. Ct. 163 (2017).
Trying to avoid the inevitable result of this reasoning,
Romero argues that any dissimilarities between him and his co-
conspirators should not matter, thanks to United States v. Reyes-
Santiago, 804 F.3d 453 (1st Cir. 2015). But Reyes-Santiago is
easily distinguishable from our own case. Reyes-Santiago's
sentence reflected an unwarranted disparity for two reasons.
First, the district court did not accept his drug-amount
stipulation but did accept his co-defendants', without offering
any rationale to "justif[y] the uniquely harsh approach" in picking
his sentence." Id. at 468-73; see generally United States v. Ramos
Diaz, 702 F. App'x 1, 3 n.3 (1st Cir. 2017) (explaining that Reyes-
Santiago "involved a Sentencing Guidelines factor — drug quantity
— that was applicable to all of the defendants and was applied
uniquely harshly to the appellant"). And second, the district
court considered info that Reyes-Santiago had participated in a
"massacre" after saying it would "not . . . factor the murders
into the defendants' sentences for the drug conspiracy." Reyes-
- 36 -
Santiago, 804 F.3d at 473. Nothing like that happened here,
however.
That leaves us with Romero's suggestion of a disparity
between his sentence and the sentences of similarly situated
defendants across the country. The problem for him is that he
floats this suggestion in the "Summary of Argument" section of his
brief and then never gives it the sort of treatment needed to
preserve the point for appellate review. For instance, he does
not give us the necessary info about the other defendants — their
criminal involvement, their criminal histories, their cooperation
(or not) with the government, etc. — to do an "apples to apples"
comparison. See Rodríguez-Adorno, 852 F.3d at 177 (emphasizing
that "[a] credible claim of sentencing disparity requires that the
proponent furnish . . . enough relevant information" so that "the
court [can] compare apples to apples" (internal quotation marks
omitted)). So we deem the suggestion waived by perfunctory
treatment. See United States v. Pérez, 819 F.3d 541, 547 (1st
Cir. 2016); United States v. Pérez-Mejílas, 292 F. App'x 69, 70
(1st Cir. 2008).
WRAP UP
Having worked our way through the issues, we affirm
Romero's sentence.
- 37 -