United States v. Galindo-Serrano , 925 F.3d 40 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 16-2505
UNITED STATES OF AMERICA,
Appellee,
v.
GABRIEL GALINDO-SERRANO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Howard, Chief Judge,
Lipez and Barron, Circuit Judges.
Mauricio Hernandez Arroyo, for defendant-appellant.
B. Kathryn Debrason, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, were
on brief, for appellee.
May 30, 2019
BARRON, Circuit Judge. Gabriel Galindo-Serrano
("Galindo") appeals his convictions for various federal carjacking
and firearm offenses relating to two incidents of carjacking in
June and July of 2014 as well as his 600-month prison sentence.
We affirm the convictions and the sentence.
I.
On July 24, 2014, a federal grand jury in the District
of Puerto Rico indicted Galindo and co-defendant Jean Morales-
Rivera ("Morales") for carjacking, in violation of 18 U.S.C.
§§ 2119(1) and (2) ("Count One"), and use of a firearm in relation
to a crime of violence, in violation of 18 U.S.C. § 924(c) ("Count
Two"). Those counts described an incident that allegedly occurred
on June 16, 2014. During the incident, Galindo and Morales
allegedly approached a man ("J.F.M.") and a woman ("M.R.N.")
standing near a car and threatened them with a revolver unless
they handed over their car keys. Galindo then allegedly drove
away in their car.
The indictment also charged Galindo with separate counts
of carjacking "resulting in serious bodily injury, that is: sexual
assault," in violation of 18 U.S.C. § 2119(2) ("Count Three"), use
of a firearm in relation to a crime of violence, in violation of
18 U.S.C. § 924(c) ("Count Four"), and being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g) ("Count Five").
Those counts described an incident that allegedly occurred on July
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8, 2014, in which Galindo allegedly pointed a gun at a woman
("N.A.M.") stopped at a traffic light, entered her car (which was
registered to her mother) and took over the wheel. He then
allegedly drove her to a basketball court, where he raped her and
left her bleeding.
Galindo proceeded to trial on all five counts. Two days
into the trial, he moved to suppress statements that he had made
to Federal Bureau of Investigation ("FBI") agents following his
arrest. In those statements, he confessed to both carjackings and
to the sexual assault. The government objected that the motion to
suppress was untimely. The District Court noted that the motion
had "been filed belatedly," but decided to "have a [suppression]
hearing anyway." The District Court denied the motion.
At trial, the government presented testimony from M.R.N.
and N.A.M. In that testimony, they recounted the carjackings and
positively identified Galindo as the perpetrator. The government
also presented testimony from the operator who took M.R.N.'s 911
call, the individual who assisted N.A.M. after she had been
abandoned on the basketball court, the doctor who treated N.A.M.
at the hospital and performed her rape kit, and the DNA specialist
who tested the rape kit and determined that the DNA samples from
the rape kit matched Galindo's DNA.
In addition, the government presented testimony from
police officers. They testified that they had heard Galindo's
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confession following his arrest and observed Galindo driving
N.A.M.'s mother's car while in possession of a firearm. The
defense did not present any evidence. A jury convicted Galindo of
all counts.
At the beginning of Galindo's sentencing hearing on July
6, 2016, defense counsel pointed out that Galindo had signs of
self-inflicted injury and moved for a continuance so that a
competency evaluation could be undertaken. The District Court,
noting a lack of evidence of psychological problems in the record,
responded that it would go forward with the sentencing that day
but indicated that it would order a post-sentencing competency
evaluation. Based on "the report from the evaluation," the
District Court would "[re]consider the matter [of competency]" and
might "resentence [Galindo] . . . or proceed accordingly,
depending on the evaluation, what it says."
The District Court then sentenced Galindo to concurrent
120-month prison sentences for Counts One, Three, and Five to be
served consecutive to a seven-year prison sentence for Count Two
and a thirty-three-year prison sentence for Count Four. In total,
the District Court sentenced Galindo to 600 months in prison.
After the District Court announced the sentence, defense
counsel again objected that Galindo "may or may not be competent
to understand what the proceedings have been here today." Defense
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counsel did not, at that time, make any other objection to
Galindo's sentence based on the state of his mental health.
On July 7, 2016, defense counsel filed a motion for "an
extension of time within which to file the notice of appeal or an
appeal until 15 days after the mental health report is filed by
the [Bureau of Prisons]." The District Court granted the motion
on July 27, 2016.
The competency evaluation was filed with the District
Court on November 23, 2016. The evaluation concluded that Galindo
did not present with a mental disease or defect that rendered him
incompetent to be sentenced. Galindo then appealed his convictions
and sentence on November 29, 2016.
On January 3, 2017, we issued an order to show cause why
Galindo's appeal should not be dismissed as untimely. Federal
Rule of Appellate Procedure 4(b) requires that a criminal
"defendant's notice of appeal . . . be filed within 14 days of the
entry of . . . the judgment . . . being appealed." Fed. R. App.
P. 4(b)(1)(A)(i). "Although the [D]istrict Court may extend the
time for filing a notice of appeal by up to 30 additional days
upon a showing of excusable neglect or good cause [under Federal
Rule of Appellate Procedure 4(b)(4)]," we explained, "the
[D]istrict [C]ourt does not have authority" -- as it did
here -- "to extend the time to appeal beyond that point [under
Federal Rule of Appellate Procedure 26(b)(1)]."
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On January 17, 2017, the government filed a response to
our show-cause order in which it "request[ed] that the instant
appeal be dismissed as untimely." On January 20, 2017, Galindo
filed a response to our show-cause order and cross-moved for a
stay of his appeal pending the resolution of a separate motion to
vacate his sentence that he had filed with the District Court on
January 19, 2017.
On June 29, 2017, the government moved to withdraw its
motion to dismiss the appeal as untimely. On July 13, 2017, we
granted the government's motion to withdraw its motion to dismiss
and denied Galindo's motion to stay his appeal. We have "h[e]ld
that Rule 4(b)'s time limits are not 'mandatory and jurisdictional'
in the absence of a timely objection from the government." United
States v. Reyes-Santiago, 804 F.3d 453, 458 (1st Cir. 2015)
(quoting Fed. R. Crim. P. 37(a)(2)). Our jurisdiction to consider
this appeal is therefore secure.
The separate January 19, 2017 motion to vacate Galindo's
sentence was filed with the District Court on the understanding
that "[t]he appeal st[ood] to be dismissed." In the motion,
Galindo contended that, pursuant to 18 U.S.C. § 4241 (providing
that a "court shall grant" a "motion for a hearing to determine
the mental competency of the defendant" "if there is reasonable
cause to believe that the defendant may presently
be . . . mentally incompetent"), the July 6, 2016 judgment "should
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not have been entered without the competency of the defendant being
assured."1 Galindo did not otherwise object to his sentence. On
August 30, 2017, the District Court dismissed the motion "as moot"
following our order allowing Galindo to go forward with his appeal.
II.
We begin with Galindo's challenge to the District
Court's denial of his motion to suppress his confession. "In
considering a challenge to a district court's denial of a motion
to suppress, we review the court's legal conclusions de novo and
its findings of fact for clear error." United States v. Jacques,
744 F.3d 804, 809 (1st Cir. 2014) (citing United States v. Mejía,
600 F.3d 12, 17 (1st Cir. 2010)).
Galindo premises his motion to suppress on the fact that
he made his confession after he had been held in custody for more
than eighteen hours without first having been presented to a
magistrate judge. He contends that, contrary to the District
Court's finding, this substantial delay in presenting him to a
magistrate judge was neither reasonable nor necessary. He thus
contends that the District Court erred in denying his motion to
suppress.
1 Although Galindo points out on appeal that the District
Court acted prematurely by imposing his sentence before it had
received and reviewed the competency report, he does not make any
developed argument to explain why his sentence should be vacated
on this basis. See United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990).
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Under Federal Rule of Criminal Procedure 5(a)(1), a
defendant who has been "arrest[ed] within the United States" is
entitled to be brought "without unnecessary delay before a
magistrate judge." Fed. R. Crim. P. 5(a)(1)(A) (emphasis added).
The Supreme Court has explained -- in a line of precedent that
begins with McNabb v. United States, 318 U.S. 332 (1943), and
Mallory v. United States, 354 U.S. 449 (1957) -- that this right
to prompt presentment "avoids all the evil implications of secret
interrogation of persons accused of crime," McNabb, 318 U.S. at
344, and ensures that the defendant "may be advised of his rights"
"as quickly as possible" and that "the issue of probable cause may
be promptly determined," Mallory, 354 U.S. at 454. To protect
this right, "the rule known simply as McNabb–Mallory 'generally
render[s] inadmissible confessions made during periods of
detention that violat[e] the prompt presentment requirement of
Rule 5(a).'" Corley v. United States, 556 U.S. 303, 309 (2009)
(quoting United States v. Alvarez–Sanchez, 511 U.S. 350, 354
(1994)) (alteration in original).
There is, however, another provision of federal law that
is relevant. "Following the Supreme Court's articulation of the
McNabb–Mallory exclusionary rule, Congress enacted 18 U.S.C.
§ 3501 to create a safe harbor period for certain voluntary
confessions [that are given within six hours of a defendant's
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arrest]."2 Jacques, 744 F.3d at 813 (citing Corley, 555 U.S. at
309).
Notwithstanding the safe harbor that § 3501 establishes,
the statute also provides that, if a confession is made more than
six hours after a defendant's arrest and before his presentment to
a magistrate judge, the "trial judge" is required to "find[]" that
"the delay in bringing [the defendant] before [a] magistrate
judge . . . is . . . reasonable" before admitting the confession.
18 U.S.C. § 3501(c). The Supreme Court has interpreted "§ 3501
[to have] modified McNabb–Mallory without supplanting it."
Corley, 556 U.S. at 322. "Under the rule as revised by
§ 3501(c), . . . [i]f the confession came within [six hours of
arrest], it is admissible, subject to the other Rules of Evidence,
so long as it was 'made voluntarily and . . . the weight to be
given [it] is left to the jury.'" Id. (quoting 18 U.S.C.
§ 3501(c)). "If the confession occurred before presentment and
beyond six hours," as was the case here, "the court must decide
whether delaying that long was unreasonable or unnecessary under
the McNabb–Mallory cases, and if it was, the confession is to be
suppressed." Id.2
Specifically, if a "confession was made or given by [a]
person within six hours immediately following his arrest or other
detention," the confession "shall not be inadmissible solely
because of [the] delay in bringing such person before a magistrate
judge." 18 U.S.C. § 3501(c) (emphasis added).
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There is one other provision of federal law that is
relevant to Galindo's motion to suppress. Federal Rule of Criminal
Procedure 12(b)(3)(C) provides that any "objections" concerning
the "suppression of evidence" "must be raised by pretrial motion
if the basis for the motion is then reasonably available and the
motion can be determined without a trial on the merits." Fed. R.
Crim. P. 12(b)(3)(C). Federal Rule of Criminal Procedure 12(c)(3),
however, sets forth an exception to this requirement. The
exception provides that "a court may consider [an untimely]
objection . . . if the party shows good cause." Fed. R. Crim. P.
12(c)(3). "We have interpreted the good cause standard to require
a showing of both cause (that is, a good reason for failing to
file a motion on time) and prejudice (that is, some colorable
prospect of cognizable harm resulting from a failure to allow the
late filing)." United States v. Santana-Dones, 920 F.3d 70, 81
(1st Cir. 2019) (citing United States v. Arias, 848 F.3d 504, 513
(1st Cir. 2017); United States v. Santos Batista, 239 F.3d 16, 19
(1st Cir. 2001)).
Here, defense counsel moved to suppress Galindo's
confession two days after his trial had already begun. Because
the motion was untimely, the government argues that we should
consider Galindo's motion waived under Federal Rule of Criminal
Procedure 12(c)(3). See, e.g., United States v. Sweeney, 887 F.3d
529, 534 (1st Cir.), cert. denied, 139 S. Ct. 322 (2018); United
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States v. Walker-Couvertier, 860 F.3d 1, 9 n.1 (1st Cir. 2017),
cert. denied sub nom. Lugo-Diaz v. United States, 138 S. Ct. 1303(2018), and cert. denied, 138 S. Ct. 1339 (2018); United States v.
Casey, 825 F.3d 1, 21 (1st Cir. 2016).
When the District Court asked defense counsel why he had
not "submit[ted] a motion to suppress before [trial]," he
responded, "I don't know why I didn't. I overlooked it[.]" On
appeal, Galindo offers no explanation for his failure to timely
file the motion.3 Moreover, the government represented
below -- and defense counsel did not deny -- that in August 2014
it had provided to defense counsel "the information regarding when
his client was arrested, when he was taken into MDC, by whom, at
what time, [and] what the FBI did on July 9th and July 10th."4 The
3
Defense counsel states in his reply brief, without any
further explanation, that "[t]here was a series of undue delay[s]
in bringing this case for trial by the Government as the record
clearly indicates that attributed to delays."
4
Defense counsel did represent to the District Court that
the government filed its designation of evidence expressing its
intent to offer evidence of the "[d]efendant's statements" only
eight days before the start of trial. But, the government
explained, "even though the government formally filed the
designation in 2016, the truth is that in the discovery letter
given to Brother Counsel in 2014, in the second page, the United
States specifies that we are designating every item on that
discovery letter under [Federal Rule of Criminal Procedure]
12(b)(4)(A)[,] [which] means we are designating all that discovery
like we're going to use that discovery on trial." Defense counsel
did not respond to the government's explanation at the suppression
hearing, nor does he raise that issue on appeal.
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government argued that there thus was "no reason why, a year and
a half later, the defense is filing this motion to suppress."
The District Court did not make any express finding as
to whether Galindo had shown "good cause" for the untimeliness of
the motion to suppress. The District Court stated only that it
was "going to have a [suppression] hearing anyway" and went on to
address the merits.
The fact that the District Court addressed the merits of
the suppression motion does not cure the defendant's waiver. A
District Court "may opt to address a waived claim simply to create
a record in the event that the appellate court does not deem the
argument waived." Walker-Couvertier, 860 F.3d at 9. Thus, "[e]ven
when the [D]istrict [C]ourt rules on an untimely motion, as the
[C]ourt did here, an untimely motion to suppress is deemed waived
unless the party seeking to suppress can show good cause as to the
delay," which defense counsel has not. Sweeney, 887 F.3d at 534.
We are nonetheless troubled by the District Court's
explanation for why it found that the eighteen-hour delay in
bringing Galindo before a magistrate judge "was not unreasonable"
and "was necessary" for the FBI "to be able to complete . . . the
booking [and] the other matters that the FBI was doing to obtain
their case to be able to present it to the magistrate judge," which
included "prepar[ation] [of the] search warrant." Thus,
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notwithstanding the waiver, we explain the source of our concern
in order to clarify the law in this area.
The District Court made its findings regarding the
nature of the delay based on the following undisputed facts.
Galindo was arrested by Puerto Rico Police Department officers
"around 7:00 p.m., at a public housing project," on July 9, 2014.
The Puerto Rico Police immediately turned over custody of Galindo
to the FBI. Galindo was detained at the Metropolitan Detention
Center ("MDC") Guaynabo overnight.
That night, FBI agents prepared and obtained a warrant
from a magistrate judge to search Galindo's mother's residence.
FBI agents executed the search warrant from 1:30 a.m. to 2:00 a.m.
and then "recessed" for the night.
The next day, on July 10, 2014, FBI agents took Galindo
to the federal building to "process[]" him around 11:00 a.m. The
FBI agents then read Galindo his rights around 1:30 p.m. and began
his interview around 1:58 p.m. During the interrogation, Galindo
confessed to both carjackings and to sexually assaulting N.A.M.
Shortly after the FBI questioning, Galindo was brought before a
federal magistrate judge.
Delay "for the purpose of interrogation" "is the epitome
of 'unnecessary delay.'" Corley, 556 U.S. at 308 (quoting Mallory,
354 U.S. at 455-56); see also Jacques, 744 F.3d at 815 n.4; United
States v. Garcia-Hernandez, 569 F.3d 1100, 1106 (9th Cir. 2009).
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The District Court found that Galindo "w[as] not subjected to any
interviews by anyone" while he was "under custody at MDC Guaynabo"
and was not interrogated until the following afternoon shortly
before presentment.
But, under McNabb-Mallory, "unexplained delays, despite
being in close proximity to an available judge can be considered
unreasonable." United States v. Thompson, 772 F.3d 752, 761 (3d
Cir. 2014) (citing United States v. Wilson, 838 F.2d 1081, 1085
(9th Cir. 1988)); see also United States v. Boche-Perez, 755 F.3d
327, 336 (5th Cir. 2014) ("A non-existent explanation (i.e., delay
for delay's sake) is unacceptable under McNabb–Mallory because a
delay for delay's sake is, by definition, unnecessary to any
legitimate law enforcement purpose.").
Thus, notwithstanding the District Court's finding that
Galindo was not interrogated until shortly before his presentment
to a magistrate judge, the critical question remains: what explains
the delay at issue? The District Court found that the delay could
be attributed to legitimate administrative concerns. See Jacques,
744 F.3d at 814 (noting that "a delay may be reasonable if caused
by administrative concerns, such as the unavailability of a
magistrate following an arrest, or by a shortage of personnel"
(citations omitted)). We doubt, though, that the administrative
concerns that the District Court identified -- or any other
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"legitimate law enforcement purpose," Boche-Perez, 755 F.3d at
336 -- made the delay in presentment reasonable or necessary here.
The undisputed record shows that "there were,
approximately, seven to 10 people" "participating in th[e]
investigation." See, e.g., United States v. Perez, 733 F.2d 1026,
1035 (2d Cir. 1984) (finding no "shortage of manpower" where "more
than six agents were assigned to the case, and . . . one of them
could have taken [the defendant] to the then available
magistrate"). The District Court noted some agents may have been
committed to assisting the Puerto Rico Police in containing the
"real threat that a riot would take place" at the housing project
where Galindo was arrested. But, no agent testified at the
suppression hearing as to how many FBI agents were in fact involved
in containing -- or needed to contain -- any impending riot or as
to how long they were in fact there.
The District Court also noted that some FBI agents were
occupied with "prepar[ing] a search warrant" for Galindo's
mother's residence, which involved "prepar[ing] the Affidavit, the
Complaint, talk[ing] to the Assistant U.S. Attorney on duty, and
thereafter go[ing] to the magistrate judge who is on duty to
request for the search warrant." The record again does not show
how many agents were involved in that process. See United States
v. Valenzuela-Espinoza, 697 F.3d 742, 752 (9th Cir. 2012) (noting
that "the fact that one officer out of nine was fulfilling his
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responsibility to obtain a search warrant did not make the delay
reasonable under McNabb–Mallory").
Moreover, the fact that the FBI agents went to a
magistrate judge within six hours of Galindo's arrest to obtain
the search warrant raises a question as to "why [Galindo could]
not [have] accompanied [the agents] to [the same magistrate] for
arraignment at that time." Perez, 733 F.2d at 1036; cf. United
States v. Wilson, 838 F.2d 1081, 1085 (9th Cir. 1988) (finding the
delay unreasonable where "arraignments were being conducted one
flight upstairs from the room where [the defendant] was being
questioned, and the magistrate was open for business while [the
defendant] was being questioned").
In any event, the search warrant and impending riot can
at most explain the overnight delay in bringing Galindo before a
magistrate judge. See Thompson, 772 F.3d at 762-63. There remains
the question why -- as the undisputed record shows -- Galindo was
not brought before a magistrate judge until after 2 p.m. the day
after his arrest, especially given that the undisputed record shows
that an available magistrate judge was only fifteen minutes away
from where the defendant was detained.
The District Court noted that Galindo had to be taken to
and "processed at the FBI office." But, "[t]he government
presented no evidence as to . . . why [Galindo] had to be processed
at the [FBI] prior to presentment." Id. at 763 (emphasis added).
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Nonetheless, even if the confession should have been
suppressed pursuant to McNabb-Mallory, we have no occasion to
consider whether Galindo was prejudiced thereby because, as we
have noted, his "suppression claim was waived -- and having waived
it, [he] is not entitled to any appellate review."5 Walker-
Couvertier, 860 F.3d at 9. We therefore must affirm the District
Court's denial of Galindo's suppression motion. See United States
v. George, 886 F.3d 31, 39 (1st Cir. 2018) ("We are at liberty to
affirm a district court's judgment on any ground made manifest by
the record . . . .").
III.
Galindo next contends that his convictions and sentence
must be vacated because the District Court erred in refusing to
admit a Facebook photo of one of Galindo's friends. Galindo
concedes that his unpreserved evidentiary objection must be
reviewed only for plain error. See United States v. Reda, 787
F.3d 625, 628 (1st Cir. 2015). Galindo thus must show that the
District Court's exclusion of the Facebook photo was "(1) an error
(2) that is clear and obvious, (3) affecting Galindo's substantial
5 For the same reason, we must also reject Galindo's
challenges -- raised for the first time on appeal -- to the
admission of his confession based on his limited mental capacity
and the government's failure to record the interrogation.
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rights, and (4) seriously impairing the integrity of judicial
proceedings." Id. We conclude that Galindo has failed to do so.
Galindo's only defense at trial to the July 2014
carjacking was that N.A.M. consented to letting Galindo into her
car and to having sexual intercourse with him. In support of that
defense, defense counsel asked N.A.M. during cross-examination
whether, prior to the carjacking, she had met Galindo or Erick
Joel Estrada Morales ("Estrada"), whom Galindo sought to show was
a mutual acquaintance. N.A.M. denied knowing either Galindo or
Estrada. Defense counsel then sought to ask N.A.M. whether she
recognized Estrada in a Facebook photograph. The District Court
refused to admit the photograph on the ground that it had not been
properly authenticated. Six months after the trial, defense
counsel made a proffer under Federal Rule of Evidence 103(a)(2)
regarding the photo, which the District Court denied at sentencing
as untimely.
Under Federal Rule of Evidence 901, "the proponent [of
an item of evidence] must produce evidence sufficient to support
a finding that the item is what the proponent claims it is." Fed.
R. Evid. 901(a). Here, defense counsel had proposed to introduce
the photograph at issue only by "turn[ing] the computer on and
show[ing] [the photograph] to [the Court] on Facebook." Defense
counsel did not -- during his initial offer or in his subsequent
untimely proffer -- point to any evidence that was "extrinsic to
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the document or item itself" or to "elements of the document
itself," which would provide "enough support . . . to warrant a
reasonable person in determining that the evidence is what it
purports to be." United States v. Blanchard, 867 F.3d 1, 5-6 (1st
Cir. 2017), cert. denied, 138 S. Ct. 2691 (2018) (citing Fed. R.
Evid. 901(b)(1) & 901(b)(4)) (internal quotation marks omitted).
Nor does Galindo contend that the photograph was self-
authenticating. See Fed. R. Evid. 902.
Galindo does contend that the District Court's refusal
to admit the photograph wrongly precluded him from "develop[ing]
th[e] line of questioning" concerning whether N.A.M. knew Galindo
or his friend, which was "crucial to the defense theory of
consent." But, that contention fails because "[the
defendant's] . . . right to present a complete
defense . . . do[es] not create an auxiliary right to have
all . . . evidentiary rulings turn in his favor." United States
v. Gemma, 818 F.3d 23, 35 (1st Cir. 2016).
IV.
We turn, then, to Galindo's challenge to his 600-month
prison sentence, which he contends was procedurally and
substantively unreasonable. We review a preserved claim of
sentencing error for abuse of discretion. See United States v.
Cortés-Medina, 819 F.3d 566, 569 (1st Cir. 2016). "[W]hen an
objection is not preserved in the court below[,] . . . review is
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for plain error." Id. (citing United States v. Duarte, 246 F.3d
56, 60 (1st Cir. 2001)).
A.
Galindo contends that the District Court erred in
failing to reconsider -- under 18 U.S.C. § 3553(a) -- Galindo's
sentence in light of the information presented in the post-
sentencing competency evaluation. But, Galindo did not raise this
objection to his sentence below. We therefore review this
challenge to the sentence only for plain error. See id. We find
none.
Galindo points to no authority to support his assertion
that a District Court must redo its § 3553(a) analysis sua sponte
after having received the results of a post-sentencing competency
evaluation. See United States v. Morosco, 822 F.3d 1, 21 (1st
Cir. 2016) (explaining that "plain error" is "an 'indisputable'
error by the judge, 'given controlling precedent'" (quoting United
States v. Correa-Osorio, 784 F.3d 11, 22 (1st Cir. 2015))). Nor
has Galindo shown that there is a "reasonable probability that,
but for the error, the [D]istrict [C]ourt would have imposed a
different, more favorable sentence." United States v. Mangual–
Garcia, 505 F.3d 1, 15 (1st Cir. 2007) (internal quotation marks
omitted).
The competency evaluation included more detailed medical
information concerning Galindo's history of personality disorders,
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ADHD, and various drug and alcohol abuse disorders. But, the
District Court had already specifically noted at sentencing that
Galindo had "abandoned school in seventh grade and has received no
further educational or vocational training," "was classified under
special education and diagnosed with attention deficit disorder
with hyperactivity," "has a history of aggressive and impulsive
behavior for which he has received treatment, but abandoned it at
the age of 16," and "has a history of poly drug use since age 15."
Galindo does not point to any specific mental health issue noted
in the competency evaluation that had not been raised to the
District Court by the PSR or the other materials that the District
Court considered at sentencing. Cf. United States v. Alvarez-
Cuevas, 210 F. App'x 23, 24 (1st Cir. 2007) (affirming the denial
of a motion for a new PSR because the defendant had not "identified
any new information not already considered by the sentencing judge
which a new or revised PSR would have provided").
To the extent that Galindo means to argue that the
District Court erred by not considering these mitigating features
concerning his mental health at all in sentencing him, the record
does not support that conclusion. In fact, the District Court
explicitly stated that it "ha[d] considered the . . . sentencing
factors as set forth in 18 U.S.C. § 3553(a)." See United States
v. Santiago-Rivera, 744 F.3d 229, 233 (1st Cir. 2014) ("Such a
statement is entitled to significant weight . . . ."); United
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States v. Arroyo-Maldonado, 791 F.3d 193, 199 (1st Cir. 2015)
(same).
The District Court did not expressly reference 18 U.S.C.
§ 3553(a)(2)(D) in its balancing of the § 3553(a) factors. But,
"we do not require an express weighing of mitigating and
aggravating factors or that each factor be individually
mentioned." United States v. Lozada-Aponte, 689 F.3d 791, 793
(1st Cir. 2012) (citing United States v. Arango, 508 F.3d 34, 46
(1st Cir. 2007)).
Finally, to the extent that Galindo means to argue that
the District Court erred in not assigning enough weight to his
mental health history, he "face[s] an uphill battle." United
States v. Caballero-Vázquez, 896 F.3d 115, 120 (1st Cir. 2018).
"Decisions [that involve weighing the § 3553(a) factors] are within
the sound discretion of sentencing courts, and we 'will not disturb
a well-reasoned decision to give greater weight to particular
sentencing factors over others.'" Id. (quoting United States v.
Santini-Santiago, 846 F.3d 487, 492 (1st Cir. 2017)) (alteration
in original).
Here, the record shows that the District Court found the
aggravating factors -- specifically, Galindo's criminal history,
"the violence inflicted upon the victims," and "the nature and
circumstances of the offense" -- to be more compelling than the
mitigating factors that it previously had noted. See id. at 121;
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United States v. Martins, 413 F.3d 139, 154 (1st Cir. 2005). Thus,
we conclude that "the sentencing transcript, read as a whole,
evinces a sufficient weighing of the section 3553(a) factors."
United States v. Dávila-González, 595 F.3d 42, 49 (1st Cir. 2010).
B.
Galindo separately contends that the sentence imposed
was unreasonable because the District Court failed to account for
"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). Galindo did not make
this particular objection below, despite the fact that his co-
defendant had been sentenced a full year before him. We therefore
review for plain error. See Cortés-Medina, 819 F.3d at 569.
"We have said that § 3553(a)(6) is primarily concerned
with national disparities," but we will also "examine[]
arguments . . . that a sentence was substantively unreasonable
because of the disparity with the sentence given to a co-
defendant." United States v. Reverol-Rivera, 778 F.3d 363, 366
(1st Cir. 2015) (citing Dávila–González, 595 F.3d at 49; United
States v. Mateo–Espejo, 426 F.3d 508, 514 (1st Cir. 2005)). Here,
Galindo argues that the District Court erred in giving him a 204-
month prison sentence for Counts One, Two, Three, and Five because
his co-defendant Morales received only a 93-month prison sentence
for Counts One and Two.
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We "have routinely rejected disparity claims" where
"complaining defendants . . . fail to acknowledge material
differences between their own circumstances and those of their
more leniently punished confederates." Reyes-Santiago, 804 F.3d
at 467; see also United States v. Rivera-Gonzalez, 626 F.3d 639,
648 (1st Cir. 2010). Here, "only [Galindo] went to trial, while
[Morales] . . . pleaded guilty," United States v. Bedini, 861 F.3d
10, 21-22 (1st Cir. 2017); see also United States v. Mena-Robles,
4 F.3d 1026, 1035 n.9 (1st Cir. 1993), Galindo had a higher
Criminal History Category than Morales, see United States v.
Graciani-Febus, 800 F.3d 48, 52 (1st Cir. 2015) (citing United
States v. Pierre, 484 F.3d 75, 90 (1st Cir. 2007)); United States
v. Saez, 444 F.3d 15, 18 (1st Cir. 2006), and Galindo was sentenced
for more serious offense conduct than Morales,6 see Mena-Robles, 4
F.3d at 1035 n.9; United States v. Butt, 955 F.2d 77, 90 (1st Cir.
1992). Yet, Galindo does not adequately account for these
"material differences" in pressing his challenge. Reyes-Santiago,
804 F.3d at 467.
6 Morales's sentence encompassed only his participation in
the first carjacking and the lesser included offense of carrying
and using a firearm in relation to a crime of violence. In
contrast, Galindo's sentence encompassed the more serious offense
of brandishing a firearm in relation to a crime of violence as
well as his participation in both the first and second carjackings,
the resulting bodily harm inflicted by him in sexually assaulting
N.A.M., and the felon-in-possession offense.
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V.
For the foregoing reasons, we affirm Galindo's
convictions and sentence.
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