United States v. Reyes-Santiago , 804 F.3d 453 ( 2015 )

United States Court of Appeals
For the First Circuit
Nos. 12—2372
12—2381
UNITED STATES OF AMERICA,
Appellee,
V.
JORGE REYES-SANTIAGO,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Torruella, Lipez, and Barron,
Circuit Judges.
VivianneDL Marrero—Torres, Assistant Federal Public Defender,
with whom Hector E. Guzman—Silva, Federal Public Defender, and
Hector L. Ramos—Vega, Assistant Federai Public Defender,
Supervisor, Appeals Section, were on brief, for appellant.
Luke Cass, Assistant United States Attorney, with whom Rosa
Emilia Rodriguez—Vélez, United States Attorney, and Nelson Perez—
Sosa, Assistant United States Attorney, Chief, Appellate Division,
were on brief, for appellee.
September 23, 2015
LIPEZ, Circuit Judge. Appellant Jorge Reyes—Santiago
("Reyes") was among 110 defendants charged in a two—count
indictment with drug and firearms offenses arising from a massive
drug ring operating in public housing projects in Bayamon, Puerto
Rico. Most of the high—level members of the conspiracy, Reyes
among them, pled guilty pursuant to plea agreements. Other than
for Reyes, the sentences imposed on Count One, the drug count,
1
ranged from 78 months to 324 months, the latter imposed on the
Chieftain of the enterprise. Rcyos roc ivcd tho stiffest Count One
sentence: 360 months. In this appeal, he seeks resentencing on
Count One on three grounds: the government's alleged breach of his
plea agreement, the sentencing court‘s alleged inappropriate
conduct in demanding witness testimony, and the disparity between
his sentence and those of similarly situated co—defendants. Reyes
also claims the district court erred in ordering a 24—month
consecutive sentence for his violation 0: supervised release
conditions imposed in an earlier case.
1 Nineteen individuals in addition to Reyes also were charged
in Count Two, including the first seventeen listed in the
indictment. Each of those discussed in this opinion also received
a 60—month consecutive term for aiding and abetting the use and
carrying of firearms in furtherance of the drug conspiracy. gee l8
U.S.C. § 924(c)(l)(A)(i).
-2-
or”eited objection to a claim—processing rule because it responded
on the merits to petitioner's late—filed appeal).8
Applying ordinary forfeiture principles in this context
is consistent with the Supreme Court's assertion in Eberhart that
"[t]hese claim—processing rules . . . assure relief to a party
properly raising them." 546 U.S. at 19 (emphasis added). Further,
in Kontrick, the Court endorsed the notion that "[t]ime bars
generally must be raised in an answer or responsive pleading." 540
U.S. at 458. Although the Court's reference was to trial court
proceedings, the obligation to "timely assert[] the untimeliness"
of a litigation. adversary's conduct is equally applicable on
appeal. Id; Hence, even if the government had not waived the
timeliness issue, we would. hold. that the clainl was forfeited
because it was not raised in its opening brief.
II.
In assessing Reyes's challenge to his sentence in the
conspiracy case, we draw the facts from his and his co—defendants'
change—of—plea and sentencing hearings, PSRs, and plea agreements.
8 In United States v. Watson, 623 F.3d 542 (8th Cir. 2010),
the court apparently noticed the violation of Rule 4(b) on its own
when the defendant's pro se appeal was filed. The court appointed
counsel to represent the defendant and asked the parties to brief
whether‘ Rule 4(b) is jurisdictional. and, if not, whether the
government forfeited any objection to the timeliness of the notice
of appeal. ;dL at 544. The government moved to dismiss the
appeal, and the parties then filed. their briefs. The court
concluded. that Rule 4(b) is not jurisdictional and that the
government "properly objected" in its motion to dismiss and in its
responding brief. Id. at 544, 546.
_ll_
ee United States v. Rivera—Gonzalez, 776 F.3d 45, 47 (1st Cir.
2015).9
A. Sentencing Overview
Count One of the indictment against Reyes and his
numerous co-defendants alleged. possession with the intent to
distribute substantial quantities of various drugs —— including
heroin, crack cocaine, and cocaine ~— in a conspiracy that operated
at four public housing projects in Bayamon at least from 2005 to
2010. _ee 21 U.S.C. §§ 841(a), 846, 860. Count Two charged the
defendants with aiding and abetting their co~conspirators in using
and. carrying’ firearms in connection. with. the drug trafficking
enterprise identified 111 Count One, j11 violation of 18 U.S.C.
§§ 924(c)(1)(A) and 2.
The indictment divided. the defendants into multiple
groups: the Leaders (defendants ##1—5), Managers/Drug Owners
(defendants ##6—14), Supplier (defendant #15), Enforcers
(defendants ##16—17), Runners (defendants ##18—34), Sellers
(defendants ##35—84), Lookouts (defendants ##85~106), and
Facilitators (defendants ##107—110). Reyes, #9, was in the second
tier and designated a Manager/Drug Owner.” The PSRs for the top
9 Although Reyes was sentenced for violating his conditions of
supervised release in the same proceeding as for the conspiracy, we
address separately his challenge to that additional term of
imprisonment. §§e infra Section III.
w The sequence of names in an indictment charging a conspiracy
typically reflects an assessment of the conspiracy's hierarchy and,
_l2_
defendants stated that, during the enterprise's five—year span, it
was responsible for distributing approximately the following
amounts of drugs: 210 kilograms o: heroin, 485 kilograms or crack
h
cocaine, 505 kilograms o: cocaine, 2,000 kilograms of marijuana,
and undetermined amounts of Percocet and Xanax pills.
Most of the high—level defendants pled guilty pursuant to
non—binding plea agreements and were sentenced by the district
court judge here. The plea agreements contained recommended
sentences or sentencing ranges based in part on stipulated amounts
of cocaine,u with some recommendations contingent on the
defendant's not—yet—determined Criminal History Category ("CHC").
Most of the agreements also included stipulations on whether a
role—in—the—o ’ense enhancement should be added to the Base Offense
Level ("BOL"), and the extent of any such increase. The stipulated
drug amounts, the sentences or sentencing ranges recommended by the
thus, varying levels of responsibility for the criminal activity.
See, e.g., United States v. Fornia*Castillo, 408 F.3d 52, 57—58 &
n.4 (lst Cir. 2005).
M Under the Sentencing Guidelines, a defendant's Base Offense
Level for a controlled substance crime is linked to the drug'
quantity for which he is deemed responsible. See, e.g., United
States v. Rodriguez, 731 F.3d 20, 26 (lst Cir. 2013) (noting that
drug quantities have "corresponding guideline range[S]"); U.S.S.G.
§ 2Dl.l(c) (Drug Quantity Table). The plea agreements presumably
relied solely on cocaine amounts because that drug alone sufficed
to achieve the punishments sought.
_l3_
government, and the sentences actually imposed for nine of the top
ten defendants, including Reyes, are as follows:m
Defendant Stipulated Recommended Count One
Drug Amt. Term Sentence
#1 Jose Colon 5—15 kilos 180 months 324 months
de Jesus
#2 Angel Colon 3.5—5 168 months 135 months
de Jesus kilos '
#3 Jimenez— 2—3.5 108 months 108 months
Echevarria kilos
#4 Sevilla— 2—3.5 unspecified 240
Oyola kilos monthsB
#6 Adalberto 3.5—5 135 months 151 months
Rivera Bermudez kilos
#7 Rafael 2—3.5 78 months 78 months
Nazario—Pedroza kilos
M We present the details for these defendants because their
sentcnccs arc the ones relevant to Reyes's argument that he was
improperly sentenced more harshly than other highly ranked members
of the conspiracy. For convenience, we have limited the chart to
those within the top ten positions in the indictment.
” Each defendant listed in the chart, with the exception of
Sevilla—Oyola, also received.a consecutive 60—month sentence on the
firearms count. gee 18 U.S.C. § 924(c)(1)(A)(i) (imposing minimum
consecutive sentence of five years for use and carriage of a
firearm in connection with a drug trafficking offense). Sevilla—
Oyola received an aggregated sentence of 300 months on both counts
when he was re—sentenced following an appeal. gee supra n.2.
Hence, given the statutory mandatory minimum of five years that the
others received for the firearms count, Sevilla~Oyola effectively
received a 240—month sentence on the drug count and a 60—month
sentence on the firearms count. Sevilla—Oyola also is distinctive
because he qualified as a career offender, which substantially
elevated. his Guidelines range despite the low stipulated. drug
quantity.
_l4_
#8 Sadid 5—15 151 months 121 months
Medina—Rivera kilosM
#9 Appellant 2—3.5 100 months 360 months
kilos
#10 Luis Ramos— 2—3.5 78 months 78 months
Oyola kilos
Thus, as the chart reveals, Reyes's 360—month sentence is
the longest 0: any of the defendants, including both the
conspiracy's leader and a career offender, and his term exceeds
most of the other sentences by wide margins. Also pertinent to
this appeal are two facts applicable only to Reyes, Sevilla~0yola
and José Colon de Jesus —— i.e., the three co—defendants with the
longest sentences. First, the district court heard witness
testimony at sentencing only for those three, relying in the
remaining cases on the PSRs, the plea agreements, and the parties'
arguments. Second, those three defendants were implicated in
notorious killings: the so~called "Pitufo Murder" and the "Pajaros
H
Massacre. Reyes and Colon de Jesus were acquitted in state court
M The higher stipulated drug quantity for Medina~Rivera (#8)
—— the same as for Defendant #1 ~— may reflect that Medina4Rivera
was a fugitive from the time the indictment was issued in 2010
until his arrest on October 28, 2014. gee No. 3:10—cr—00251—JAF—8,
Dkt. 3282 (Dec. 12, 2014). He was sentenced in April 2015.
Defendant #5, Wilfredo Rodriguez—Rodriguez, was arrested in
March 2015 and is scheduled to be sentenced on September 24, 2015.
flis plea agreement stipulated a drug quantity of 15 to 50 kilograms
of cocaine, perhaps reflecting his lengthy fugitive status and the
fact that, at the time of his arrest, he was found in possession of
firearms and drugs. gee No. 3:10—cr—00251—JAF~5, Dkt. 3404 (April
21, 2015). The agreement calculates a total offense level of 37,
but does not stipulate a CHC.
_15_
on charges stemming from the latter, in which a drug dealer, his
two—year—old daughter, and another individual were killed in a
barrage of shots in Toa Alta, Puerto Rico, in 2009. Sevilla~Oyola
was identified by a cooperating witness as the shooter in the
Pitufo incident, in which another coeconspirator under federal
supervision (Jose Manuel Torres—Morales, known as "Pitufo") was
murdered in front of the federal courthouse in Hato Rey, Puerto
Rico, in 2007. See United States V. Sevilla—Oyola, 770 F.3d 1, 5
(lst Cir. 2014).
B. Reyes's Sentencing
l. Plea Agreement and PSR
As reflected in the chart above, Reyes's plea agreement
stipulated that he was accountable for at least 2 but less than 3.5
kilograms of cocaine, which produced a 30L of 28. With a two—level
enhancement because the drug trafficking occurred in a protected
location, see U.S.S.G. § 2D1.2(a)(l), and a three~level reduction
.C
for acceptance o_ responsibility, see U.S.S.G. § 3E1.l, his
.C
proposed total of_ense level was 27. The government agreed to
recommend a sentence of 87 months if Reyes's CHC was III or below,
and. if the CHC was higher, the government would recommend a
sentence at the low end of the applicable guidelines range. No
role enhancement was proposed. Because Reyes's CHC turned out to
be IV, the Guidelines range consistent with the plea agreement was
100 to 125 months.
.16_
Reyes's PSR, however, calculated a substantially longer
Guidelines sentence. Although the PSRs for most of the defendants
listed in the chart above used the cocaine amounts stipulated in
the plea agreements for their BOL calculations, the PSRs for Reyes
and the conspiracy's head, Jose Colon de Jesus, used the higher
quantities alleged. by law enforcement authorities. Based on
roughly 241,000 kilograms of marijuana,b Reyes's BOL was 38. The
PSR added both the two—level enhancement for protected location
proposed in the plea agreement and three levels for Reyes's role in
the o
"ense. With the three—level reduction for acceptance of
responsibility, the total offense level was 40. The PSR calculated
Reyes‘s CHC to be IV, producing a Guidelines range of 360 months to
life. The PSR also included information about the Pajaros Massacre
15 Under the Sentencing Guidelines, when various controlled
substances are involved in a crime, the quantity of each type of
drug ordinarily is converted into its marijuana equivalent to
calculate the BOL. gee U.S.S.G. § 231.1 cmt. n.8(B), (D) (2012).
Reyes's PSR thus used a total of 241,021.3265 kilograms of
marijuana for his 10? calculation. Colon de Jesus's PSR instead
relied solely on a quantity of cocaine —— 150 kilograms —— to set
his BOL. The BOL for both defendants was the same because the
Guidelines provide that a BOL of 38 is triggered by 30,000
kilograms or more of marijuara and 150 kilograms or more of
cocaine. Egg id; § 231.1(c). Although the particular drug amount
attributed to each defendant is thus irrelevant —— because both
quantities meet the threshold for BOL 38 —— we note that the
quantity used in Reyes's PSR was roughly eight times the quantity
used in Colon de Jesus‘s based on the Guidelines' Drug Equivalency
Table. The Table equates one gram of cocaine with 200 grams of
marijuana (i.e., 241,000 kilograms of marijuana divided by 200 =
1,205 kilograms of cocaine; 1,205 kilograms is roughly eight times
150 kilograms).
_17_
as criminal conduct that might warrant a departure or variance from
the Guidelines range.
In a February 2017 order applicable to both Reyes and
Colon de Jesus, prior to their sentencing hearings, the district
court directed the gov rnmcnt to produce evidence on the amount of
drugs trafficked during the conspiracy and to secure testimony
from three sources: (1) a "cooperating witness" to the Pitufo
Murder, (2) "the principal witness" to the Pajaros Massacre, and
(3) witnesses familiar with "the facts behind the extensive
criminal activity that ended up dismissed in state court throughout
the years." The court advised the two defendants that it had
obtained the full -ranscript of the Pajaros trial and that it was
available for examination by the parties. The court also made
available to those two defendants, along with Sevilla~Oyola, police.
and FBI reports about the Pitufo Murder that it had obtained from
the United States Marshal. Subsequently, however, after an
informal status conference with counsel for Colon de Jesus, the
district court notified both defendants that it would not take the
Pitufo Murder or Pajaros Massacre into account for their
sentencings. The court stated that it would hear testimony only on
"drug amount, dismissed criminal prosecutions and nature of the
drug trafficking charge in referen[ce] to firearms and violence."
_18_
2. The Hearing and Aftermath
At the outset of Reyes's sentencing hearing, held in May
2012, the district court noted that it was not bound by the plea
agreement and.observed that "the amount of drugs in this case is so
huge, so huge that it makes it up to a certain point unacceptable
to adopt the stipulation." In response, defense counsel pointed
out that the same judge had accepted the drug stipulations during
prior sentencings of Defendants #2 (Angel Colon de Jesus), #3
(Jimenez—Echevarria), #6 (Rivera Bermudez), and #7 (Nazario—
Pedroza). The court responded by noting that the conspiracy's
leader had "relied a lot" on Reyes and that "he was also like a
Lieutenant to number one." The court further explained that he was
"not happy . . . with the stipulation in this case regarding
narcotics, because there is an issue as to whether he was something
larger, bigger in the organization than what he pled to," and noted
its understanding that Reyes "was the owner of th[e] Boston Red Sox
marijuana [marijuana sold for $6/bag], and he was like an assistant
to number one." The court directed the government to present its
witness to clarify "the issue of role and the issue of drugs."
Before the witness took the stand, however, the parties
and. the court discussed. defense counsel's contention. that the
government's examination of the witness would be a breach of the
_19_
plea agreement. After the objection was addressed,m and before the
witness testified, counsel again raised the differential treatment
among defendants, prompting the following exchange:
COUNSEL: But then my question, Your Honor,
that we have with these people that are
numbers higher in the ranking of this
Indictment ——
COURT: It doesn't matter. The cases are
different.
COUNSEL: The cases are the same, Your Honor.
COURT: Presentence Reports are different.
Criminal records are different.
COUNSEL: Exactly, but then I go back, why is
it, why is it that the Presentence Report for
my client is different than probably the other
ones? I wonder if the other ones received the
same calculations as to the whole amount of
the drugs, and not —— than Mr. Reyes did? And
I can only say, I can. only understand or
figure out that it might be because he was
acquitted of the P[a]jaros massacre.
We can always say that we are not
considering this, we are not considering that;
but it's still there, because no one wants to
be ——
COURT: Absolutely, it's still there. Yes.
COUNSEL: It's still there. So that's why I
wanted to place the Court in a position to
understand that my client was the only one
that presented an alibi defense [in the
Pajaros case], and that alibi defense was not
shady. It was good.
And then because that probably we ——
the Court and the Probation Office and the
Government might have a different eye to my
client, instead, and probably he would get
there lik the other on s that were already
sentenced.
M We provide additional detail on this colloquy in Section
II.D below.
_20_
We find merit in the disparity argument. Ultimately,2in
sentencing the lead conspirators, the district court refused to
accept stipulated drug amounts only for Reyes, listed as Defendant
#9 in the indictment, and for the conspiracy's kingpin, Defendant
#1. Although sentencing courts have the discretion to reject
recommendations made in plea agreements, and need not uniformly
accept or reject such stipulations for coedefendants, they
nonetheless must impose sentences along' a spectrun1 that makes
sense, given the co~defendants' criminal conduct and other
individual circumstances. In this case, after reviewing
Presentence Investigation Reports ("PSRs") and sentencing
transcripts for the leaders in the conspiracy, we conclude that the
rationale offered by the district court for the substantial
disparity between Reyes's sentence and the sentences of others
above him jll the conspiracy's hierarchy is unsupported by the
record. We therefore must remand this case to the district court
for reconsideration of Reyes's sentence.
Given that resentencing must occur, we need not decide
whcthcr tho govcrnmcnt breached Reyes's plea agreement in the prior
sentencing proceedings. However, we discuss certain aspects of the
2 We use the term "ultimately" because at least one defendant
was resentenced (to a lower term) as a result of challenges to his
original sentence. gee United States v. Sevilla—Oyola, 770 F.3d 1,
9, 16 (1st Cir. 2014) (appealing a sentence of 345 months on Count
One and 60 months on Count Two); United States v. Sevilla*Oyola,
No. 3:10—cr—OOZSl—JAF—4, Dkt. 3278 (Dec. 16, 2014) (imposing 300—
month term of imprisonment on both counts).
_3_
Defense counsel sought to provide the court with evidence
substantiating Reyes's Pajaros alibi, but the court said it was
"not going to go anymore into the P[a]jaros massacre," noting that
the crime "is a dead case for me." The court then directed the
government to call its witness, Carlos Burgos Rodriguez ("Burgos"),
to elicit testimony on Reyes's "involvement with this particular
brand of marijuana that we've been talking about" and "his
involvement with number one in the context of role."
Burgos, a cooperating co—defendant who was a runner at
the Virgilio Davila Public Housing Project,” testified.that Reyes's
"position there was to find the workers, to assign the shifts, to
organize the runners, and to look out for the stash that was kept
there, the drugs." He reported that Reyes at one point received a
commission from the sale of four drugs *— including "the Boston" ——
that "belonged" to Colon de Jesus, but that the profits from that
brand of marijuana (i.e., the Boston Red Sox variety) were divided
among five individuals after the death of Pitufo: Reyes, Sevilla—
Oyola, Jimenez—Echevarria, Rodriguez—Rodriguez, and an individual
whom Burgos identified as "Menovito" and added, "may he rest in
peace."
Based on this testimony, the district court found "by
more than a preponderance of the evidence" that Reyes was a
17Among other tasks, runners provided drugs to the sellers and
collected sales proceeds.
-21-
supervisor, and it concluded that the three—level role enhancement
included in the PSR calculation was appropriate. The court also
stated that "a person with this degree of supervision and
involvement in the conspiracy knew or should have known the extent
0: the drug amounts that were handled by this conspiracy, and it
wasn't what is stipulated." In response to these findings, defense
counsel returned to the issue of disparity:
COUNSEL: Then, Your Honor, I would just renew
my objection as to the other people, the other
defendants that were sentenced prior to Mr.
Reyes Santiago, who have administrator or
supervision roles, and they were not
attributed this amount of drugs as ~— and they
were probably foreseeable to them, too. And
that treatment ——
COURT: I don't remember that being an issue in
those cases. I don't remember ``
COUNSEL: Because it was ——
COURT: —— ever having a situation like that in
the other cases, how much were they
responsible ——
COUNSEL: It was not an issue, because the
Court followed. the Plea .Agreement, did. not
bring any witness to testify as to the amount
of drugs. So that's why. And probably the
presentence report did not show that
information. So that is basing my objection
that there is a disparity [in] treatment as to
Mr. Reyes Santiago and the other co—defendants
in this case as ——
Counsel again speculated that the different treatment occurred
because the Pajaros Massacre "was still in the back of the mind of
everyone." The probation officer, who attended the hearing,
disclaimed reliance on the Pajaros Massacre "to achieve the
calculation of the drugs, and his participation in the conspiracy."
_22_
As the discussion continued, defense counsel noted that
Sevilla—Oyola was similarly situated.to Reyes. The court responded
that Sevilla~Oyola was serving a "hefty sentence" and, in addition,
did not have the same role as Reyes. Counsel replied that Sevilla~
Oyola's long sentence was attributable to his career offender
status and observed that, in addition, Burgos had testified that
Sevilla—Oyola "was in charge when the other ones were in jail."
The court again attempted to draw a distinction between the two
defendants:
COURT: And I did not enhance his [Sevilla—
Oyola's] drugs, because the record did not
allow that —~ I don't think that I had to do
it. There was plenty there to _deal with
objectively without getting into this kind of
—— but here you have a situation whereby there
is big time drug dealing for a number of years
here,/ and the stipulation —— if the
stipulation were 15 kilos, 30 kilos, or
something of the sort, but two but not more
than 3.5 kilos? That's the stipulation?
Imagine.
Additional colloquy followed, in which the court noted
its responsibility to evaluate plea agreements and its prerogative
to reject drug amount stipulations. The court assured counsel it
would not depart or vary from the Guidelines, but said it could not
accept the stipulated drug amount and instead would sentence Reyes
based on the PSR calculation. Accordingly, using a sentencing
range of 360 months to life imprisonment, the court imposed the
low~end 360—month sentence.
_23_
Reyes filed. a xnotion seeking reconsideration. of the
sentence, arguing that it was procedurally defective and
substantively unreasonable. fie again raised an objection to the
disparity among co—defendants, which he attributed to his
prosecution for the Pajaros Massacre. Reyes also asserted, inter
alia, that the government had. breached. the plea agreement by
eliciting Burgos‘s testimony, which was directed toward increasing
his total offense level. In its response, the government
emphasized that it stood behind the plea agreement and the parties'
stipulations, and it noted the court's explicit disclaimer of
reliance on the Pajaros Massacre. The government did not address
the disparity argument. The district court denied the motion, and
this appeal followed.”
C. Discussion
Reyes asserts three errors that he claims require
resentencing on the drug count: (1) the government breached the
parties' plea agreement by actively eliciting prejudicial testimony
from Burgos while remaining silent on the disparity issue; (2) the
district court abused its discretion by "act[ing] as a prosecutor"
and demanding witness testimony to support a sentence higher than
the term of imprisonment proposed in the plea agreement, Br. at 43;
” Reyes's disparity claim covers only the sentence imposed
on the drug charge (Count One) because, as noted above, all
defendants received the same 60—month consecutive sentence on the
firearms charge (Count Two).
_24_
and (3) the court abused its discretion by treating Reyes uniquely
among the top defendants in the charged conspiracy and rejecting
the drug quantity stipulation in his plea agreement, a disparity
Reyes attributes to "reprisal for his acquittal in the Pajaros
massacre trial." Br. at 36 (internal quotation marks omitted).
We address tte government's compliance with the plea
agreement in Section 11.3 below. Reyes's second contention —— that
the district court overstepped its role by requiring the government
to present witness testimony -u- is easily dispatched. Reyes
entered into a non—binding plea agreement under Federal Rule of
Criminal Procedure 11(c)(l)(A) and (B), which preserved the court's
discretion over the sentence to be imposed. ee United States v.
Diaz—Bermudez, 778 F.3d 309, 311 & n.2 (lst Cir. 2015) (describing
the different types of plea agreements available under Fed. R.
Crim. P. 11(c)(1)); United States v. Torres—Oliveras, 583 F.3d 37,
41 (lst Cir. 2009). We find no reversible error in the court's
decision to hear testimony before deciding whether the agreement,
which stipulated to a drug amount substantially lower than reported
in the defendant's PSR, was appropriate. See, e.g., United States
v. Eirby, 262 F.3d 31, 38 n.3 (lst Cir. 2001) ("[T]he essence of a
non—binding plea agreement is that the judge may override the
parties' agreements."); U.S.S.G. § 6B1.4(d) ("The court is not
bound by [a stipulation of facts in a plea agreement], but may with
the aid of the presentence report, determine the facts relevant to
_25_
sentencing."); see also 18 U.S.C. § 3661 ("No limitation shall be
placed on the information concerning the background, character, and
conduct of a person convicted of an offense which a court of the
United States may receive and consider for the purpose of imposing
an appropriate sentence."). Apart from the separate issue of
disparity, the court's inquiry was within the bounds of its
discretion.
We thus turn to Reyes's contention that his sentence was
unreasonable, and must be vacated, because of the disparity between
his terH1 of imprisonment and those of similarly situated. co—
defendants.
1. Sentencing Disparity: Legal Principles
In fashioning an appropriate sentence, judges are
directed by statute to consider "the need to avoid unwarranted
sentencing disparities among defendants with similar records who
have been found guilty of similar conduct." 18 U.S.C.
§ 3553(a)(6); see also United States v. Reverol—Rivera, 778 F.3d
363, 366 (lst Cir. 2015). We have observed that this provision is
"primarily aimed at national disparities, rather than those between
co—defendants," United States v. Rivera—Gonzalez, 626 F.3d 639, 648
(1st Cir. 2010) (internal quotation marks omitted), but we have
recognized‘ that a sentence may' be “substantively unreasonable
because of the disparity with the sentence given to a co—
defendant," Reverol—Rivera, 778 F.3d at 366. ee also United
_26_
States v. Correa—Osorio, 784 F.3d ll, 28 n.25 (lst Cir. 2015)
("[S]entencers can consider disparities between codefendants, we
have noted —— even though § 3553(a)(6) chiefly addresses
disparities among defendants nationwide."); United States v.
Martin, 520 F.3d 87, 94 (lst Cir. 2008) ("[D]istrict courts have
discretion, in appropriate cases, to align codefendants' sentences
somewhat in order to reflect comparable degrees of culpability ——
at least in those cases where disparities are conspicuous and
threaten to undermine confidence in the criminal justice system.").
We have routinely rejected disparity claims, however,
because complaining defendants typically fail to acknowledge
material diffcrcnccs b twccn their own circumstances and those of
their more leniently punished confederates. To present "[a] well—
founded claim of disparity," a defendant must compare apples to
apples, United States v. Mateo—Espejo, 426 F.3d 508, 514 (lst Cir.
2005), and the myriad factors that come into play at sentencing
make it difficult to isolate "identically situated" co—defendants,
Rivera—Gonzalez, 626 F.3d at 648 (internal quotation marks
omitted). We have noted, for example, the permissible distinction
between co—defendants who go to trial and those who plead guilty,
see, e.g., United States v. Rodriguez—Lozada, 558 F.3d 29, 45 (lst
Cir. 2009), between those who cooperate and those who do not, see
United States v. Rossignol, 780 F.3d 475, 478 (lst Cir. 2015), and
between those whose cooperation is "prompt and full" and those
.27~
Whose cooperation is "belated and grudging," Mateo~3spejo, 426 F.3d
at 514. We have pointed to various other facts that can undermine
an assertion of unjustified disparity. See, e.g., Rivera—Gonzalez,
626 F.3d at 648 (noting that some of appellant's "co—defendants
were first—time offenders, . . . others were convicted of
possessing a smaller quantity of drugs[,] [s]till others received
point reductions for the minor role that they played. in the
offense"). Nonetheless, although "our general rule of thumb is
that a defendant is not entitled to a lighter sentence merely
because his co¥defendants received lighter sentences," there may be
"reason. for concern" i: "two identically situated defendants
receive different sentences from the same judge." Id. (internal
quotation marks omitted).
2. Standard of Review
Sentencing challenges often include both a complaint of
procedural error and an assertion that the sentence imposed is
substantively unreasonable. Rivera—Gonzalez, 626 F.3d at 646.
Where both. types of objections are made, we ordinarily will
consider first "whether the district court committed any procedural
missteps and, if the sentence is procedurally sound, we then ask
whether the sentence is substantively reasonable." Rossignol, 780
F.3d at 477. In both contexts, we review the district court's
discretionary judgments for abuse of discretion, its findings of
fact for clear error, and its conclusions of law de novo. Reverol—
_28_
Rivera, 778 F.3d at 366. "Ultimately, the linchpin of a reasonable
sentence is 23 plausible sentencing rationale and ea defensible
resultfl' Rivera—Gonzalez, 626 F.3d at 647 (internal quotation
marks omitted).
Reyes asserts that the disparity between his sentence and
the sentences of his co—defendants reflects both procedural and
substantive error. Most of his contentions target procedural
flaws. Pe argues that the district court relied on improper facts
(i.e., the Pajaros Massacre) when it rejected the stipulations in
his plea agreement, see id. at 646 n.9; failed. to adequately
explain why he should be held responsible for the distribution of
substantially more drugs than higher—level members 0; the
conspiracy, see id.; and neglected its statutory obligation to
avoid unwarranted disparity among similarly situated defendants,
see, e.g., United States v. Flores—Machicote, 706 F.3d 16, 24 (lst
Cir. 2013) (citing l8 U.S.C. § 3553(a)(6)). At bottom, however,
his objection is that his sentence is substantively unreasonable
because it far exceeds the sentences imposed. on equivalently
culpable co—defendants without any justifiable rationale for the
greater severity. Thus, because Reyes's procedural concerns can be
captured in our discussion of substantive reasonableness, we move
directly to consider whether "the court has provided a plausible
explanation, and the overall result is defensible." United States
-29-
v. Torres—Landrua, 783 F.3d. 58, 68 (lst Cir. 2015) (internal
quotation marks omitted).”
3. The Reasonableness of Reyes‘s Sentence
To briefly recap the disparity of which Reyes complains:
he was sentenced to a term of 360 months on the drug count based on
a substantially greater drug quantity than Other similarly situated
0
members of the conspiracy,2 producing a longer sentence than even
the conspiracy's Chieftain (324 months) and the one high—level co—
defendant who was classified as a career offender (240 months).
Reyes does not, and could not, argue that his sentence would be
unlawful in all circumstances. Even. the limited quantity‘ of
cocaine for which he accepted responsibility (2 to 3.5 kilograms)
exposed him by statute to a term of imprisonment up to 40 years.
_§§ 21 U.S.C. § 84l(b)(1)(B)(ii).
N The line between. procedural and substantive sentencing
issues is often blurred. We have placed the disparity argument in
both categories. Compare, e.g , Rossignpl, 780 F.3d, at 477
(substantive, based on court's inconsistent application. of an
enhancement), with, e.g., United States v. Davila—Gonzalez, 595
F.3d 42, 47, 49—50 (lst. Cir. 2010) (procedural, based (n1 co—
defendant's lighter sentence). Similarly, we have noted that
"[t]he lack of an adequate explanation can be characterized as
either a procedural error or a challenge to the substantive
reasonableness of the sentence." United States v. Crespo—Rios, 787
F.3d 34, 37 n.3 (lst Cir. 2015) (citing cases).
m As discussed supra, the drug amounts used to sentence Reyes
and Colon de Jesus were effectively the same, even though Reyes's
PSR used an amount eight times larger than the amount used in Colon
de Jesus's PSR. Indeed, the district court at Reyes's sentencing
noted that 30,000 kilograms of marijuana was enough to reach BOL 38
and, hence, it was unnecessary to rely on the PSR's total of
241,021.
_30_
government's performance to provide guidance for the proceedings on
remand. Finally, as explained below, resentencing also is
necessary for Reyes's violation of his conditions of supervised
release.
I.
i3efore delving into the substance of this case, we
address the government's motion to dismiss the appeal on the ground
that it was not timely filed.3 Under Federal Rule of Appellate
Procedure 4(b), with exceptions inapplicable here, a notice of
appeal in a criminal case must be filed within fourteen days of the
entry of judgment. In United States v. Gonzalez—Rodriguez, 777
F.3d 37 (lst Cir. 2015), we explained that the filing of a motion
seeking reconsideration of a criminal sentence does not extend Rule
4(b)'s filing period. lg; at 41. Reyes properly recognizes that
his appeal is untimely under Gonzalez—Rodriguez, as he filed his
notice of appeal more than five months after judgment entered.4 He
argues, however, that the government both waived and forfeited its
untimeliness challenge. As explained below, we agree that the time
3 We denied this motion in a summary order issued on March 6,
2015. We now explain the basis for that decision.
4 Reyes filed a motion for reconsideration within the initial
fourteen—day period after judgment entered, and he filed a notice
of appeal one day after the district court denied his motion for
reconsideration. He thus adhered to the time limits he incorrectly
thought applicable.
_4_
Reyes argues, however, that his personal background,
criminal history, and involvement in the charged conspiracy do not
stand out among the circumstances of his co—defendants as
warranting a uniquely harsh sentence. He points, in particular, to
Burgos's testimony revealing —— as the district court acknowledged
—— that he was not the "owner" of the Boston Red Sox marijuana, as
his PSR had suggested. Rather, he was one of five co—defendants
who shared in the profits of that particular drug, which was owned
by Colon de Jesus. He asserts that other defendants were
identified as drug point owners and that Burgos's testimony did not
«substantiate the district court's assumption that Reyes was the
overall first lieutenant for Colon de Jesus.
Without question, Burgos's testimony confirms that Reyes
was a high—level member of the conspiracy. Burgos identified Reyes
as a manager at the Virgilio Davila Public Housing Project (finding
workers, assigning shifts, organizing runners), and, as the
district court noted at the hearing, the evidence showed that Reyes
"acted as one of the right hands" of Colon de Jesus. Indeed, the
district court could reasonably infer that Reyes's position in the
conspiracy's hierarchy was higher than suggested by his #9 ranking
in. the indictment. Of the five individuals WhOHI Burgos said
received profits from the Boston Red Sox marijuana, Reyes was the
only one listed in the indictment's second tier —— i.e., an alleged
Manager/Drug Owner —— rather than in the Leader group.
_31_
Nonetheless, the record does not show that Reyes played
a uniquely prominent role in the conspiracy such that, in
calculating o ’ense levels, there was a factual basis for holding
only him accountable for the full quantity of drugs allegedly
dis:ributed by the conspiracy. As defense counsel emphasized, the
dis:rict court heard details about Reyes's conduc: because it
insisted that the government produce a witness at his sentencing
hearing —— a procedure the court followed only with Reyes and the
two other defendants who also had been implicated in the Pitu:o
murder or the Pajaros Massacre. The court did not solicit
comparable information about the responsibilities of the five other
top defendants listed in the chart above. Although the conspiracy
operated at four housing projects, Burgos's testimony placed Reyes
at the helm of only one, making it likely that others played
similar roles at other locations. Indeed, Burgos testified that
Wilfredo Rodriguez—Rodriguez (#5, who has yet to be sentenced), was
"in charge of the crack" and the leader at the Brisas Housing
Project. Reyes‘s PSR identifies a dozen other defendants who were
named as owners of particular types of cocaine and marijuana,
including two who were referred to as leaders at the Falin Torrech
and Las Gardenias Public Housing Projects.
Notably, the court's concern about the stipulated drug
quantities was not limited to Reyes's plea agreement. At Riverae
Bermudez's sentencing, for example, the court observed that it had
_32_
"a number of issues with the gradation . . . 0: several defendants
in this case." Elaborating, the court stated:
I do think that the plea negotiations resulted
in a very beneficial relevant conduct
stipulation, which in some of these cases I
may not accept, and in some I will, and I
have. ‘
. . . [I]n this case, I am accepting at
least 3.5 kilos but less than five kilos of
cocaine, with the understanding that I do
think that it would. have been very, very,
very, very, easy to —— for this to be a lot,
lot higher had. this case been tried. But
that's fine. Let's leave it at that. '
He definitely was a leader. What I'm
going to do is, he had a heroin and cocaine
drug point. He accepted being a leader, but
even if he didn't accept being a leader, he
was a leader. What I am going to do . . . ,
rather than use four levels, I'm going to use
three levels for that. More than anything
else, not because four is not the number, but
as an act of good faith trying to figure out a
way to make some sense to the plea bargaining
process.m
The court similarly accepted the amount stipulated for Sevilla—
Oyola, despite misgivings. The court explained:
m Earlier in the hearing, the court noted that it had been
puzzled. by' the government‘s plea offers and sentencing
recommendations for the conspirators in this case, describing them
as "extremely lenient pleas for something that I think is not that
lenient and that simple." In discussing a role enhancement for
Rivera—Bermudez, the court observed that he already was benefitting
from the stipulated drug amount:
He's being responsible for only 3.5 kilos less than five
kilos of cocaine, when it is obvious from the knowledge
that we have of this file that any of these leaders would
be responsible for a lot more drug than that, a lot more
drug.
_33_
The conspiracy to possess, even though
he was a drug point owner, gave him in the
context of the plea negotiations a very, very,
very beneficial stipulation regarding relevant
conduct. He pled with a recommendation that I
accept at least two kilos but less than 3.5
kilos of cocaine . . And when I took his
plea, a reader of the plea colloquy must
clearly see that II was kind of puzzled, a
little bit concerned with the stipulation, but
that's the stipulation. And the Government is
bound by it.
And other than the testimony of Carlos
Burgos in one of the sentencing hearings that
he mentioned a little bit more drug, perhaps
nine kilos or something of the sort, the truth
of the matter is I don't have anything that I
can put my finger on other than logic and
inference as to how much drug there is. So I
have to go by the stipulation, at least two
kilos, but less than 3.5 kilos of cocaine;
. . . but with the clear understanding, and I
will say it for ,he record, that I have no
doubt in my mind that there was a lot more
drug attributable to him than what he was able
to stipulate, because that's something that is
so obvious from the facts of this case. But,
anyway, let's go with at leas[t] two kilos,
less than 3.5 kilos.
Meanwhile,
court accepted the stipulatior
sentencing proceeding for Angel Colon de Jesus
the following remarks about drug quantity:
When you go to the drug counts,
to the stipulation that appears in
regarding relevant conduct which we'
to accept for purposes of the dis
know there's a lot more drug
involved, but in this case, I am
say
cocaine.
-34-
s with little comment.
for two 0: the highest ranked defendants, the
In a short
(#2), the court made
and-due
the record
re willing
cussion, I
than this
willing to
I'll take 3.5 but less than five kilos of
In an even shorter proceeding held to sentence Jimenez—Echevarria
( 3), the court addressed the issue as follows:
This case involves ea huge conspiracy' in a
number of housing projects in Bayam[o]n
involving at least four of these projects that
have been no man‘s land in reference to drugs
for more than at least since in the '90s.
Early '90s, we already were having cases from
Virgilio D[a]vila, major cases involving
Virgilio D[a]vila.
Anyway, he got a stipulation, which I
will honor in this case, not necessarily in
every case, for at least two but not more than
3.5 kilograms of cocaine; distribution within
one thousand feet of a protected location; use
o_ and carrying firearms in furtherance of the
drug crime.
A: the sentencing hearing for the conspiracy's leader,
Colon de Jesus, the government acknowledged.that the plea deal took
into consideration, inter alia, "the fact that the case was a big
case, 110 defendants." In explaining its decision to reject the
recommended sent ncc, tho court recognized the government's need
for plea agreements:
I think that the problem is that when
you are dealing with cases of this magnitude,
and you have an Indictment that calls in 110
people, you are dealing with an unmanageable
case, an unmanageable situation.
And of course when you are dealing with
that, and you have also in the docket of this
Court many, many, many' cases of that same
nature going on at the same time, not counting
the death penalty cases and all, it's
impossible, impossible to try them all.
Therefore, what happens is that in order to
get rid of the cases, people involved in the
process, in the best of faith, in the best of
faith, try to find solutions. They stipulate
_35_
amounts that are palatable, that are
acceptable to the people who are about to take
the responsibility.
The court concluded, however, that it could not accept the
stipulated amount —— 5 to 15 kilos of cocaine `` in light of Colon
de Jesus's position as head of the entire operation, though it
refrained from the most severe punishment:
I'm going to be mindful of the fact that Z
never counted the drugs myself. I'm mindful
of the fact that I sentenced other people in a
particular way. I am mindful of the fact that
.C
he was the leader, organizer, and in charge o_
this, the chairman of the board as I called it
before. And I could use easily the top end of
the guidelines in this case, the lower end of
the guidelines in this case, but I cannot
honestly use the stipulation.
Using the highest BOL (38) associated with drug
quantities, see supra n.11, the court calculated a sentencing range
of 324 to 405 months and initially announced a 360—month term for
Colon de Jesus on Count One. His attorney pointed out that even
the low end of the range, when combined with the mandatory five
years on Count Two, produced a sentence 15 years or more longer
than anticipated by the plea agreement (i.e., a sentence totaling
32 years, compared to "an expectation between 15 and 20") —— a
difference she said was far greater than typical when a sentencing
judge rejects a drug trafficking plea deal. The court then agreed
to reduce the term on Count One to 324 months.
We think it evident from these excerpts that the court's
attitude toward Reyes and his plea agreement —— and particularly
_36_
the stipulated drug amount —— was decidedly different from its
approach toward most, if not all, of the other high—level
defendants. In multiple instances, the court accepted the
stipulation without dwelling on it. On two occasions, it accepted
the stipulation after observing that it had no independent
knowledge of the actual drug amount. Even in selecting a sentence
for Colon de Jesus, the court was "mindful of the fact that [it]
never counted the drugs myself" and "mindful of the fact that [it]
sentenced other people in a particular way."”
In Reyes's case, by contrast, the court explained its
rejection of the stipulated drug quantity and its use of the
highest drug—related offense level (i.e., BOL 38) by pointing to
Reyes‘s high position it the conspiracy: "All I am relying on is a
person who is a supervisor at that level has the foreseeability of
how much drug is involved when he has been in a conspiracy since at
least 2005." The court further noted that the 30,000 kilograms of
marijuana that trigger BOL 38 would. be reached. even without
H
counting all the drugs identified in the PSR: [I]t's easy, easy,
easy to reach the 30,000 [kilo] figure when you convert to
marijuana." It also observed that "no matter how you calculate it,
x All of the sentencing proceedings described above occurred
before Colon de Jesus's sentencing in July 2012, with Reyes's in
May 2012 the latest of those. Although Medina—Rivera's sentencing
occurred much later, in April 2015, the record does not currently
contain a transcript of that proceeding. A docket entry reports
that the hearing began at 10:38 AM and ended at 10:45 AM. gee No.
3:10—cr—00251—JAF-8, Dkt. 3392 (April 14, 2015).
-37-
he's a level 38. There is no way to do it differently." This
depiction of the drug quantity attributable to Reyes could be
applied as well to the other defendants in the chart, yet the
court's approach was markedly more lenient in other sentencings.
To be sure, there are significant differences in criminal
histories among the co—defendants. Reyes's PSR calculated that he
was in CHC IV based on two prior convictions and his violation of
supervised. release. Most of the Others had. less substantial
criminal backgrounds. The Probation Office placed Nazario—Pedroza
(#7), MedinaéRivera (#8), Ramos—Oyola (#10), and Jose Colon de
Jesus in CHC I, and calculated a CHC of II for Jimenez—Echevarria
(#3) and Angel Colon de Jesus (#2). On the other hand, the PSR
for Rivera—Bermudez (#6) noted three prior convictions, two of
which involved possession of heroin and cocaine, yielding the same
CHC as Reyes, Iv.”
These differences in criminal history, however, are
reflected in the Guidelines ranges apart from the 30L determined by
drug quantity. The Guidelines Sentencing' Table sets out six
possible sentencing ranges for each offense level, depending upon
the defendant's CHC. ee U.S.S.G. Ch. 5 Pt. A. Offense level 38,
for example, produces a sentencing range of 235—293 months in CHC
B The addendum to Rivera—Bermudez's PSR noted that the report
erroneously stated that his criminal history points added up to CHC
III. The addendum observed that, "in the abundance of caution,"
the court calculated his Guidelines range using CHC III.
_38_
I and a range of 360 months to life in both CHC V and CHC V1.
Indeed, Rivera—Bermudez's sentence —— 151 months —— was the longest
imposed on the nine co—defendants in the chart except for Reyes and
the two defendants with unique circumstances (i.e., the top
position in the conspiracy or career offender status), reflec:ing
his higher CHC. If Reyes had been held responsible for 3.5 to 5
kilograms of cocaine —— the largest amount used for most of the co—
defendants —— his BOL would have been 30 instead of 38 and, with
the adjustments applied by the court, his total offerse level would
have been 32 instead of 40. Using his CHC of 1V, his Guidelines
sentencing range would have been 168 to 210 months instead of 360
months to life. If the court had used 2 to 3.5 kilograms as the
applicable drug amount —~ the quantity the government stipulated
for Reyes ~— his sentencing range would have been 135 to 168
monthsfM Even if Reyes had been held responsible for 5 to 15
kilograms —— the quantity the government stipulated for Jose Colon
de Jesus —— his sentencing range would have been only 210 to 262
months.
In sum, we find no rationale articulated by the court,
and supported by the record, that justifies the uniquely harsh
approach to drug quantity taken by the district court in sentencing
M The sentence recommended in the plea agreement was lower ——
100 months —— because the government agreed not to seek a role—in—
the—offense enhancement, which both the PSR and district court
applied.
_39_
Reyes. As discussed above, we cannot conclude, based on Burgos‘s
account, that Reyes played a significantly larger role in the drug
trafficking than other high~level defendants. To the contrary,
Burgos's testimony suggests that others were equally culpable.
Moreover, it is striking that, like his two co~defendants who also
received relatively long terms of imprisonment, Reyes was accused
of participating in a notorious violent crime. Although the court
eventually decided not to factor the murders into the defendants'
sentences for the drug conspiracy, Reyes's prosecution for the
Pajaros Massacre appears to have been a significant factor in the
court‘s decision to hear testimony about his role and the quantity
of drugs foreseeable to him. Indeed, when defense counsel noted
that the incident is "still there" despite assertions that it would
not be considered, the district court acknowledged, "Absolutely,
it's still there." gee supra Section II.B.2. It thus appears that
Reyes's disparate sentence may be indirectly traceable to events
the court said it was not taking into account, resulting in a
conspicuous and facially unjustified disparity between his sentence
and. those" of co—defendants with "comparable degrees of
culpability." Martin, 520 F.3d at 94.
This case thus presents the unusual circumstance of a
sentence that is substantively unreasonable and, hence, an abuse of
discretion, because of its substantial disparity with the sentences
given to co~defendants and the absence of any identified,
_40_
limit set by Rule 4(b) may be waived and that the government did so
in this case.
A. The Consequence of Untimely Filing
Although we previously have described the time limits in
Rule 4(b) as 'mmndatory and jurisdictional," United States V.
Rapoport, 159 F.3d 1, 3 (lst Cir. 1998) (internal quotation marks
omitted); see also Gonzalez—Rodriguez, 777 F.3d at 40 n.4, more
recent Supreme Court cases have pointed out the difference between
"'a rule governing subject—matter jurisdiction and an inflexibie
claim—processing rule,'" Eberhart v. United States, 546 U.S. 12, L3
(2005) (per curiam) (quoting Kontrick v. Ryan, 540 U.S. 443, 456
(2004)). In the latter instance, a failure to adhere to prescribed
time limits does not foreclose jurisdiction, but may bar the tardy
litigant from securing the relief sought if the opposing party
properly objects. _§§ Kontrick, 540 U.S. at 456 (noting that "a
claim—processing rule, . . . even if unalterable on a party's
application, can nonetheless be forfeited if the party asserting
the rule waits too long to raise the point"); see also Eberhart,
546 U.S. at 19.5
We have not had occasion to revisit our earlier precedent
describing Rule 4(b) as jurisdictional, but every circuit to decide
5 As we have observed, nonjurisdictional claims—processing
rules "do not define what cases courts can and cannot hear, and a
modicum of flexibility attaches to their administration." Alphas
Co., Inc. v. William.H. Kopke, Jr., Inc., 708 F.3d 33, 37 (lst Cir.
2013).
_5_
supportable basis for the inconsistency. See Reverol—Rivera, 778
F.3d at 366 (noting that a sentence may be "substantively
unreasonable because of the disparity with the sentence given to a
co—defendant"). This is not a matter of an incomplete explanation
by the court. With respect to drug quantity, the record does not
support the comparatively harsh approach taken toward Reyes by the
same judge who scntcnccd th other high—ranking members of the
conspiracy. The disparity is particularly pronounced and
detectable here because of the numerous co-defendants who entered
into similar plea agreements with the government.
Our colleague agrees that a resentencing is necessary,
but he believes the district court should be given another
opportunity to provide a supportable rationale for the disparate
treatment of Reyes. His view is that the court's explanation for
the disparity is inadequate. But the problem in this case is not
the lack of explanation for the court's sentencing decision or the
lack of clarity of its reasoning. In such cases, we do remand to
allow the district court to provide the missing explanation. See
United States v. Gilman, 478 F.3d 440, 446—47 (lst Cir. 2007)
(noting that the appeals court may remand "to provide the district
court an opportunity to explain its reasoning at resentencing" if
the expressed rationale was "less—than—explicit" or "a court has
provided no explanation at the sentencing hearing" (citing cases)).
-41-
Here, however, the court's rationale is clear: because
Reyes was closely tied to Colon de Jesus —— i.e., "like a
Lieutenant to number one" —— he should be treated like him with
respect to drug quantity. The problem, instead, is the lack of
record support for the court's finding that Reyes played a larger
role in the conspiracy as a manager at the Virgilio Davila Public
Housing Project than the other high—level defendants played as
leaders, owners, or managers at other locations. Although Reyes
happened to work at the same housing project where Colon de Jesus
owned the drugs, that proximity alone cannot justify attributing to
Reyes, uniquely among defendants with similar roles in the
conspiracy, the quantity of drugs calculated in each of their PSRs.
There are no other facts in the record that could support the
differential treatment.”
” Our colleague notes that we should be wary of adopting a
"rigid approach" to disparities in the treatment of drug—quantity
stipulations among co—conspirators. We agree. Sentencing judges
have discretion to accept or reject stipulations in ple
agreements, and a judge may treat co—defendants differently —— if
they are not similarly situated. Here, the district court
identified a factual basis for treating Reyes uniquely. If the
court's rationale were supported by the record, Reyes would not
have a viable disparity claim. Our decision thus establishes no
general rule about the nature of remediable sentencing disparity.
Indeed, even on remand, the district court need not accept the
drug quantity stipulated. in Reyes's plea agreement (2 to 3.5
kilograms of cocaine). However, the record lacks support for
exceeding the quantity (3.5 to 5 kilograms) that was the highest
amount attributed to the others (besides Colon de Jesus) listed in
the chart in Section II.A.
_42_
We therefore conclude that it is necessary to vacate
Reyes's 360—month sentence on Count One and remand for resentencing
so that Reyes's sentence can be appropriately aligned with those
of his co—defendants.”
D. Breach of the Plea Agreement
Reyes argues that the government breached. his plea
agreement when it: (1) went beyond brief and neutral questioning of
Burgos to elicit testimony that would support a much higher BOL,
(2) informed the court it had evidence to support a higher
sentence, (3) objected.to defense counsel's questions during cross—
examination, (4) failed to address the disparity issue, and (5) did
not oppose sentencing enhancements that were not contemplated by
the parties. Where, as here, the defendant properly objects to the
government's conduct in the district court, "breaches of plea
% Reyes also asserts unjustified disparity between him.and his
co—defendants in the district court's application of the
Guidelines‘ role—in—the—offense adjustment. gee U.S.S.G. § 3Bl.l.
The court, however, did not take a consistent approach for all
defendants. For example, like Reyes, Rivera—Bermudez (#6) received
a three—level adjustment, though his plea agreement did not
recommend any leadership adjustment. Angel Colon de Jesus (#2)
received a three—level adjustment, though his plea agreement
contemplated a two—level increase. Jimenez—Echevarria (#3) was
given a two~level adjustment, as recommended by his plea agreement.
In other ins:ances (e.g., Nazario—Pedroza (#7) and Ramos—Oyola
(#lO)), the court followed the plea agreements and did not include
role adjustments in its Guidelines calculations. Although we would
not vacate Reyes's sentence solely on the basis of these
inconsistencies, it would be appropriate on remand for the district
court to revisit Reyes's role adjustment.
_43-
agreements present questions of law for plenary review." United
States v. Gonczy, 357 F.3d 50, 52 (lst Cir. 2004).
We have long recognized the competing responsibilities
that confront the government at sentencing when it has entered into
a plea deal with the defendant. "[T]he prosecution's solemn duty
to uphold forthrightly its end of any bargain that it makes in a
plea agreement" must be balanced against "its equally solemn duty
to disclose information material to the court's sentencing
determinations." United States v. Saxena, 229 F.3d 1, 5 (1st Cir.
2000) (citation‘ omitted); see also United. States v. Miranda-
Martinez, 790 F.3d. 270, 275 (1st Cir. 2015) (referencing the
"equilibrium [that must be] struck by these competing tugs"). In
this case, however, we need not decide whether the government
properly calibrated its "obligation to furnish relevant
. information" with its "corollary obligation to honor commitments
made under‘ a plea agreement" because we have determined. that
Reyes's sentence must be vacated for another reason. Saxena, 229
F.3d at 6. We therefore do not review the government's conduct in
full, and consequently offer no judgment on the ultimate question
of breach. ee United States v. Almonte-Nufiez, 771 F.3d 84, 91
(1st Cir. 2015) ("We consider the totality of the circumstances in
determining whether a prosecutor engaged in impermissible
tactics."). Instead, we limit our comments to two objectionable
_44_
aspects of the government's behavior to provide guidance for its
approach to the proceedings on remand.
First, the government had an obligation to address the
disparity issue, which it did not do either at the sentencing
hearing or in its response to the defendant's motion for
reconsideration. As described above, defense counsel repeatedly
raised the discrepancy between. the court's handling of drug
quantity for Reyes and its treatment of drug quantity for other
high—level defendants. Although the prosecutor reaffirmed the
government's commitment to the plea deal multiple times during the
colloquy, the governm nt noithcr cxplained why it believed a low
quantity stipulation was appropriate for Reyes despite his high
rank in the indictment nor acknowledged. that Reyes's sentence
significan-ly diverged from those 0: other top—ranked defendants.”
By its silence, the gov rnmcnt almost certainly reinforced the
court's view that the record provided a basis for attributing more
” The prosecutor offered an explanation ~— of sorts —— for the
terms of the plea agreement only in the context of discussing the
appropriateness of a role enhancement. Although affirming the
government's commitment not to recommend a role enhancement, the
prosecutor reported that authorities had sufficient evidence to
justify an enhancement but "took into consideration other things in
the case."
On appeal, the government does not attempt to factually
justify the drug quantity disparity, instead defending the sentence
by noting that the district court "disagreed that the defendants
were similarly situated." The government also cites the court's
reference to Reyes's criminal history and relies on the court's
statement that it found the stipulation "in two or three of these
defendants absolutely unacceptable." As explained above, neither
of those points offsets the disparity problem.
_45_
drugs to Reyes than to other defendants, and it impliedly endorsed
the court's belief that the low stipulation was irrational and
unjustifiable. Cf. Reverol—Rivera, 778 F.3d at 365 (noting the
government's argument at the sentencing hearing that "any sentence
higher than 108 months would create an unjustified disparity with
his accomplice's already—imposed sentence"). It is not enough for
the government to voice adherence to a plea bargain if its other
actions —- or inaction —— belie its support for the deal. gee
Gonczy, 357 F.3d at 53 ("A plea agreement is a binding promise by
the government and is an inducement for the guilty plea; a failure
to support that promise is a breach of the plea agreement, whether
done deliberately or not."); United States v. Canada, 960 F.2d 263,
271 (lst Cir. 1992) ("In the circumstances, . . . the Assistant
United States Attorney's silence about [the‘ defendant's]
cooperation . . . becomes another factor which, when added with
[others], suggests an implied. repudiation. of the government's
28
bargain.").
Second, while the government cannot be faulted for
complying' with the district court's demand, that it produce a
witness at the sentencing hearing, it went beyond its obligation to
28
Of course, if speaking up would be detrimental to the
defendant's position, restraint would be an appropriate tactic.
See, e.g., Miranda—Martinez, 790 F.3d at 274 ("[W]e have
acknowledged. that certain factual omission[s], helpful to the
defendant, may' be an implicit part of the bargain." (second
alteration in original) (internal quotation marks omitted)). The
record reveals no reason for such restraint in this instance.
-46-
the court by objecting when defense counsel, seeking to impeach
Burgos's credibility, questioned him about inconsistencies between
his testimony at the hearing and his testimony before the grand
jury. The government's "duty to bring all facts relevant to
sentencing to the judge's attention," Gonczy, 357 F.3d at 53, does
not come with license to impede defense counsel's effort to
persuade the court to adopt the parties' agreed~upon sentencing
recommendation. Indeed, the government in effect acknowledged at
argument that silence in response to the cross—examination would
have been more consistent with the government's duty to support the
plea agreement,” and we agree.”
” The pertinent exchange between the appellate panel and the
Assistant United States Attorney ("AUSA") was as follows:
COURT: There are various points at which the defense
counsel on crossflexamination.is asking certain questions,
and the prosecution objects ~—
AUSA: Yes, Your Honor, I noticed that in the transcript.
COURT: How is that consistent with just providing the
evidence to the judge?
AUSAJ‘ I don't remember the specific basis for the
objections, Your Honor, but I would agree it probably
would have been better not to object, to affirmatively
contest ——
COURT: And why do you think that would have been better?
AUSA: It would be more consistent and akin with our
duties to follow and abide by the terms of the plea
agreement. There's a certain point where we have to
fulfill our duty to the court. But I'm not sure the
objection was on a substantive issue, but . . .
COURT: By that logic, when defense counsel sought
reconsideration of the sentence you probably shouldn't
have opposed the motion for reconsideration, which you
did, isn't that correct?
AUSA: We didn't, Your Honor, actually until the court
ordered us to oppose it. He ordcr d th government to
_47_
We thus expect that, on remand, the government will be
more cirCumspect and will adhere as strictly as possible to its
obligation to support the terms of the plea agreement. As we have
'1
emphasized. in the past, a defend ant entering into a plea
agreement with the government undertakes to waive certain
fundamental constitutional rights; because of that waiver, the
government is required to meet the most meticulous standards of
both. promise and. performance." Id. (internal quotation Inarks
omitted).
III.
A. Revocation Sentence: Background
In September 2000, based on a guilty plea he entered in
an earlier drug conspiracy case, Reyes was sentenced to 60 months
imprisonment followed by four years of supervised release. He was
C
released irom custody in March 2004, and twice thereafter violated
the conditions of his release. Each violation resulted in
revocation of supervised release and a term 0: imprisonment: six
months the first time and nine months the second time. After
completing the required periods of incarceration, Reyes again was
respond to it. Initially we did not file an opposition
to it, Your Honor.
w Of course, we do not mean to suggest that the government
must remain silent if defense counsel seriously misrepresents the
facts. That was not the situation here.
-48—
released from federal custody and placed on supervised release in
February 2009.
In May 2009, Reyes's probation officer alerted the
district court to new violations 0: his supervised release
requirements and also reported Reyes's arrest by local authorities
in connection with the Pajaros Massacre. In May 2010, following
Reyes's acquittal in the Massacre trial, he was immediately taken
into federal custody for revocation proceedings for the latest
supervised release violations. A few weeks later —— in July 2010
—— Reyes was indicted in the 110—member drug conspiracy case that
is the primary subject of this appeal, and the pending revocation
hearing was first postponed and then combined with the sentencing
proceedings in the later case. See No. 3:99—cr—00264~JAF—CVR, Dkt.
339 (Nov. 12, 2010) (stating that "[t]he pending revocation reqaest
will be handled . . . as part of the proceedings in Criminal No.
10—251").
The combined sentencing hearing took place in May 2012.
In addition to the 420—month term 0: imprisonment imposed in the
more recent drug conspiracy case (i.e., 360 months on Count One and
60 months on Count Two), the district court imposed a 24—month,
consecutive sentence for Reyes's 2009 violation of conditions. The
court concluded that the Guidelines range for the type of
violations Reyes committed was 24 to 30 months, and it chose the
lower end of that range. In imposing the 24~month term, the court
_49_
explained that it was crediting Reyes —— as his attorney had
requested —— for the year he spent in jail leading up to the
Pajaros Massacre trial. Reyes subsequently argued to the district
court, in an unsuccessful motion for reconsideration, that the 24*
month sentence is unlawful because it exceeds the applicable
statutory cap governing penalties for violations of supervised
release conditions.
On appeal, Reyes reiterates his contention that, under
the applicable version of 18 U.S.C. § 3583(e)(3), 36 months is the
maximum aggregate term of imprisonment that may be imposed for
violations of conditions related to his 2000 conviction. He thus
claims that, because he previously served terms of six months and
nine months for violating the same conditions, the maximum sentence
available for his third transgression is 21 months (i.e., the 36—
month maximum less the combined 15 months already served). In its
brief, the government inaptly argues that the 24~month sentence is
lawful because the court properly used the Guidelines manual in
effect at the time of Reyes's original sentencing, and sentenced
him below the 36—month statutory cap. In a memo responding to
questions posed by the panel at oral argument, the government
asserts that the court was not obligated to credit Reyes for time
served for his prior supervised release violations.
_50_
the issue since Kontrick and Eberhart has concluded that Rule 4(b)
is a claims—processing rule and, hence, may be waived or forfeited.
_ee United States v. Gaytan—Garza, 652 F.3d 680, 681 (6th Cir.
2011) (per curiam) (citing cases). As the other circuits have
interpreted the Supreme Court‘s cases, the distinction rests on
whether the time—bar at issue originated in a statute. Id; We
see merit in that view, which draws support from the Court's
comparison in Bowles V. Russell, 551 U.S. 205 (2007), between the
"longstanding treatment of statutory time limits for taking an
appeal as jurisdictional," and the conclusion in Kontrick that the
limitations period at issue was a claims-processing rule.' BOwles,
551 U.S. at 210—11. In Bowles, the Court observed that critical to
the Kontrick holding was "the fact that '[n]o statute
specifies a time limit for filing a complaint objec:ing to the
"
debtor's discharge.‘ (quoting Kontrick, 540 U.S. at 448)
(alteration and omission in original)). Id. at 211; see also id.
at 211—12 (referring to "the jurisdictional distinction between
court—promulgated rules and limits enacted by Congress").
Rule 4(b) does not arise from a statutorily imposed time
constraint,6 and we see no rationale for crossing the line the
6 In United States v. Sadler, 480 F.3d 932 (9th Cir. 2007),
the court noted that the only statutory reference to the timing of
criminal appeals it could find was at 18 U.S.C. § 3732. Id; at 938
n.6. That provision has no substantive content. The section is
entitled "Taking of appeal; notice; time~-(Rule)" and it has a
subheading in all capital letters: "SEE FEDERAL RULES OF CRIMINAL
PROCEDURE," followed by the following text: "Taking appeal; notice,
-6-
B. Discussion
Notwithstanding the government's contrary view, the legal
parameters of Reyes's revocation sentence are clear. Reyes is
correct that, under well—established law, he must be sentenced
based on the statutory limits in effect at the time of his original
sentencing proceeding in September 2000. _§e United States v.
Tapia~Escalera, 356 F.3d 181, 188 (lst Cir. 2004) (citing Johnson
v. United States, 529 U.S. 694, 701—02 (2000), where the Supreme
Court noted that, "[s]ince postrevocation penalties relate to the
original offense," imposing sanctions retroactively would raise an
ex post facto issue); see also, e.g., United States v. Thomas, 600
F.3d 387, 389 (5th Cir. 2010) (per curiam). In addition, we have
concluded, in accord with other circuits, that § 3583(e)(3) as it
existed in 2000 set cumulative maximum sentences for all
revocations of supervised release relating to the same original
offense. See Tapia—Escalera, 356 F.3d at 187—88; see also United
States v. Perry, 743 F.3d 238, 241 (7th Cir. 2014) (noting the
uniform interpretation of the circuits).31 Here, both parties agree
“ Before 2003, § 3583(e)(3) stated that "a defendant whose
term is revoked under this paragraph may not be required to serve
more than [the applicable 1naximum]." 18 U.S.C. § 3583(e)(3)
(2000). In 2003, Congress added the words "on any such
revocation," so that the provision now states that "a defendant
whose term is revoked under this paragraph may not be required to
serve on any such revocation more than [the applicable maximum]."
18 U.S.C. § 3583(e)(3) (2015) (emphasis added); see also PROTECT
Act, Pub. L. 108—21, § 101(1), 117 Stat. 650, 651 (2003). Every
circuit to consider the issue has held that the amendment
"eliminate[s] the credit for terms of imprisonment resulting from
_51_
that the applicable statutory maximum is three years.% Hence,
Reyes's sentence for the 2009 violation of release conditions
should have been capped at 21 months, and the 24—month sentence
imposed by the district court must therefore be vacated.
We offer an observation concerning the resentencing that
will need to occur for the supervised release violation. We are
uncertain how the district court determined that the applicable
Guidelines range was 24 to 30 months. The court labeled Reyes's
conduct as a Grade A violation based on criteria set forth in
U.S.S.G. § 7Bl.l (1999), which sets out three levels of supervised
release violations (Grades A, B, and C). Grade A violations are
the most serious, and they include conduct constituting a federal
controlled substance offense or firearm possession, if punishable
by a term of imprisonment exceeding one year. Id. The Guidelines
specify different sentencing ranges for each grade of violation,
based on the defendant's CHC "at the time the defendant originally
prior revocationsfl' Perry, 743 F.3d at 241~42 (citing cases)
(alteration in original) (internal quotation marks omitted).
J:
” The statute prescribes a three—year maximum “or a "class B
felony." See 18 U.S.C. § 3583(e)(3). Pursuant to 18 U.S.C.
§ 3559(a), "[a]n offense that is not spec‘fically c‘assified by a
letter grade in the section defining it" is classified on the basis
of its maximum term of imprisonment. A Class B felony is one for
which the maximum term is 25 years or more, but not including life
imprisonment (which signifies a Class A felony).
Under this classification scheme, the drug conspiracy crime
underlying Reyes's 2000 conviction is a Class B felony. He was
sentenced to the statutory minimum of 60 months, with the related
statutory maximum set at 40 years. gee 21 U.S.C. §§ 841(a)(1)(3),
846.
_52_
was sentenced t1) a tern1 of supervision," 11L § 731.4 (Policy
Statement) (Revocation Table), and on the class of felony
committed, see supra n.32.
Reyes was on supervised release for a Class B felony, and
it is undisputed that his CHC at the applicable time was 1. Under
Guidelines § 7B1.4, the recommended 3 ntcncing range is 12 to 18
months for a defendant in CHC I who commits a Grade A violation of
supervised release conditions related to a Class 3 felony
conviction. Hence, in choosing the appropriate sentence for
Reyes's violation. o:’ conditions on remand, the district court
should look to the correct Guidelines range, see, e.g., United
States v. Figueroa—Figueroa, 791 F.3d 187, 191 (1st Cir. 2015)
(notin that "district courts must still ive res ec:ful
g g p
consideration to the now—advisory Guidelines" (internal quotation
mark omitted)), and may not impose a term that exceeds 21 months of
imprisonment.
IV.
To recap our holdings:
1. Federal Rule of Appellate Procedure 4(b) is a claims-
processing rule whose time limitations may be waived or forfeited
if the opposing party fails to challenge appellate jurisdiction in
a timely manner. Here, the government both waived and forfeited
the timeliness issue.
-53..
2. Reyes's 360—month sentence on Count One of the llO~
defendant drug conspiracy indictment must be vacated because the
record. shows no justification for the wide disparity' between
Reyes's sentence and those of similarly situated co—defendants
insofar as the gap is attributable to the substantially higher drug
.1_
quan-ity for which Reyes was held responsible.
3. Reyes's 24—month sentence for violating conditions of
supervised release mist be vacated because, when aggregated with
his prior sentences for violating the same conditions, it exceeds
the applicable statutory maximum of 36 months.
Although both of Reyes's sentences must be corrected, we
note that the district court attempted to take a moderate approach,
in certain respects, in imposing those punishments. As recounted
above, the court chose a sentence at the low end of the Guidelines
range it deemed appropriate on the drug conspiracy charge, and it
gave Reyes credit for his time in state custody when sentencing him
for violating his conditions of release. In addition, the court
decided against imposing another period of supervised release to
follow the latter, consecutive term of imprisonment. Hence,
despite flaws in its assumptions about the facts and the law, the
court manifested an intention to "impose . . . sentence[s]
sufficient, but not greater than necessary, to comply with the
purposes" of sentencing identified by Congress. 18 U.S.C.
§ 3553(a). We expect that, on remand, the court will again
_54_
endeavor to achieve that objective,
aided by the government's more
complete adherence to its obligations under the plea agreement.
Accordingly, we vacate both of
on appeal and remand for
opinion.
the sentences challenged
further proceedings consistent with this
—Concurring and Dissenting Opinion Follows-
_55_
BARRON, Circuit Judge, concurring in part and dissenting
in part. I fully join the majority's persuasive analysis save for
one part, regarding sentencing, where I see things somewhat
differently.
I.
The defendant, Reyes, contends that he has been treated
disparately in sentencing from his co~conspirators for no good
reason. And the majority is understandably troubled —— as am
I —~ that he was.
Reyes points to the fact that a number of his
co—conspirators stipulated in their plea agreements —— as he did
in his —— to a relatively small amount of drugs. But while those
co—conspirators were sentenced on the basis of those stipulated
quantities, the District Court refused to accept Reyes's
stipulation.
As a. result, the District. Court used a. dramatically
higher drug quantity in calculating Reyes's base offense level
under the Sentencing Guidelines. The District Court set Reyes's
base offense level at 38 due to the higher drug quantity it found
should be attributed to him. That level of 38 was much higher
than that assigned to some number of his co—conspirators, who
received base offense levels of 28 or 30 in consequence of the low
drug quantity amounts to which they had stipulated in their plea
agreements and which the District Court had accepted in calculating
their guidelines ranges and thus in determining their sentences.
Moreover, by assigning this higher base offense level to
Reyes (due to the higher drug quantity attributed to him), the
sentencing judge assigned a much higher guidelines calculation to
Reyes. And, in consequence, R ycs r ccivcd a sentence on the drug
conspiracy count of 360 months, which was far greater than his co—
conspirators' sentences (ranging from 108 months to 151 months).E
Even the co—conspirator that the District Court acknowledged was
vthe conspiracy's true leader only received a prison sentence or
324 months on the drug conspiracy count. Yet Reyes was not
identified in either the indictment or the plea agreement as being
as high up in the conspiracy's hierarchy as others who received
lesser sentences based on guidelines calculations that rested on
the acceptance of low drug—quantity stipulations. Hence, Reyes
contends that his sentence reflects an impermissible disparity in
the way he was treated relative to other co—conspirators.
But while I agree with the majority that we should vacate
and remand the sentence, the complexities underlying the kind of
B One co—conspirator, Carlos Sevilla Oyola, —~ a career
offender —— was initially sentenced to life in prison but the
District Court then. changed. that sentence to 327 months, 960
months, and then 345 months. United States v. Sevilla—Oyola, 770
F.3d 1, 6—9 (lst Cir. 2014). We vacated and remanded, id; at 16,
and the District Court ultimately sentenced Sevilla to 300 months
on the drug conspiracy count.
disparate sentencing claim that this case presents lead me to
follow a somewhat different analysis in getting to that result.
And the consequence of this different analysis is that I would
allow the District Court more discretion on remand to explain the
basis for this sentence than the majority seems willing to allow.
II.
As the majority recognizes, the mere fact that a
defendant is sentenced differently from his co—conspirators is not
a reason to conclude that he has been sentenced impermissibly. As
we have explained many times b fore, thc sentencing statute aims
primarily at addressing nationwide disparities, not ensuring equal
treatment among' co—conspirators. See, e.g., United. States v.
Reverol—Rivera, 778 F.3d 363, 366 (1st Cir. 2015). And here there
is no question that the sentence imposed on this defendant is in
line with the sentences received by defendants who engage in the
same conduct in which he was found to have engaged. After all, he
was sentenced within a guidelines range that was itself predicated
on a base offense level pegged to the quantity of drugs involved
in the conspiracy for which he was responsible. And the interest
in uniformity supports keying the base offense level in a drug
conspiracy to drug quantity. Such keying avoids the disparity in
treatment that could arise if the base offense levels —— and thus
the resulting recommended sentencing ranges `` were not so keyed.
But the fact that the sentencing statute aims primarily
at addressing national disparities does not mean that the statute
aims exclusively at addressing that concern —— a point we have
also made numerous times. See, e.g., id; And so a sentencing
disparity can arise from the disparate sentences handed out to
co—conspirators —— even if all received sentences that were in
line with the guidelines.
The question, then, is whether there was such a disparity
here, given the harshness of Reyes's sentence relative to those
that some co—conspirators received. And that in turn raises the
question whether there is something wrong with treating Reyes as
having known about such a large drug quantity when others, also
high up in the conspiracy, were sentenced as if they did not have
such knowledge.
The simple answer is that there is certainly nothing
wrong with this outcome if Reyes is differently situated in some
relevant way from those co—conspirators whose stipulations as to
drug quantity were accepted. See id. ("[D]ifferences in
culpability can justify disparate sentences among co—defendants
. ."). But, unfortunately, the answer is not in fact so simple
in a case like this one. And that is because of the difficulty in
determining what should suffice as a showing that a defendant is
differently situated —— and thus not identical 4— to his
co—conspirators in such circumstances.
The sentencing statute itself offers little guidance.
See 18 U.S.C. § 3553. It instructs us to avoid "unwarranted"
disparities in sentences. See id; § 3553(a)(6) ("The court, in
determining the particular sentence to be imposed, shall consider
the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct."). But it leaves unclear exactly what avoiding
unwarranted sentencing disparities means with respect to
calculations made under non—binding sentencing guidelines that in
turn depend on calculations drawn from judgments about whether to
accept generous stipulations or not.
To be sure, guidelines calculations that are wrong can
lead to sentencing errors, precisely because tr scntcnco may be
imposed only after a correct guidelines calculation is made. See
Gall v. United States, 552 U.S. 38, 51 (2007). But the sentencing
range recommended by the guidelines is not binding, and
§ 3553(a)(6) states that it is the "sentence" that must not be
disparate. So the statute says little that bears directly on our
issue, beyond making clear that disparities in sentences (of some
kind) should be avoided.
Similarly, it is clear that factual findings on which
guidelines calculations rest may be reviewed for clear error. See
United States v. Gracie, 731 F.3d 1, 2 (1st Cir. 2013). And so
factual findings that are clearly wrong —n when challenged by the
Supreme Court seemingly has drawn between statute—based time limits
and those without legislative origin.7 Hence, we hold that Rule
4(b)'s time limits are not "mandatory and jurisdictional" in the
absence of a timely objection from the government. We thus must
consider whether the government waived or forfeited its challenge
to appellant's tardiness.
contents, signing; time, Rule 37(a)." The substance of Rule 37(a)
now appears in the Federal Rules of Appellate Procedure. See Fed.
R. App. P. 4 advisory committee's note (1967 adoption) (stating
that Rule 4(b) is "derived" from Federal Rule of Criminal Procedure
37(a)(2) "without change of substance").
7 Arguably, the Supreme Court has itself indicated that Rule
4(b) is a non—jurisdictional claims—processing rule by suggesting
that its predecessor, Federal Rule of Criminal Procedure 37(a)(2),
was such a rule. In United States v. Robinson, 361 U.S. 220(1960), the Court characterized the filing of a notice of appeal
within the period prescribed by Federal Rule of Criminal Procedure
37(a)(2) as "mandatory and jurisdictional." id; at 224. However,
in Eberhart, 546 U.S. at 18, the Court, in describing "the central
point of the Robinson case," linked "mandatory and jurisdictional"
to the government's objection: "[W]hen the Government objected to
a filing untimely under Rule 37, the court's duty to dismiss the
appeal was mandatory." The Court in Eberhart then continued its
thought with a reference to its observation in Kontrick that it had
been "less than meticulous" in using the label "jurisdictional,"
lg; (internal quotation marks omitted):
The net effect 0: Robinson, viewed through the clarifying
lens of Kontrick, is to admonish the Government that
failure to object to untimely submissions entails
forfeiture of the objection, and to admonish defendants
that timeliness is of the essence, since the Government
is unlikely to miss timeliness defects very often.
Id. We agree with the Ninth Circuit in Sadler that "[t]he clear
implication of this statement is that the timeliness dictates of
Rule 4(b) are forfeitable, because Rule 4(b) is a nonjurisdictional
claim—process;ng rule." 480 F.3d at 940.
-7...
defendant —— cannot support a sentence. But the defendant here
does not claim that the District Court clearly erred in finding
him responsible for the entire quantity of drugs in the conspiracy.
(Perhaps he could have made such a claim, though I doubt it would
have been persuasive, based on the evidence on the record of his
involvement in this conspiracy and the quantity of drugs sold by
the conspiracy.) Instead of challenging the factual basis for
finding that he, in fact, was responsible for such a large amount
of drugs, the defendant contends only that even though such a
finding of fact would not be clearly erroneous, it was error for
the District Court to attribute that quantity to him when the
District Court could have accurately attributed that same quantity
to the other conspirators but did not do so.
Precedent also offers little guidance. The truth is
that -— for as many times as we have said that identically situated
co—cdnspirators may not be sentenced disparately —— I have yet to
find a case before this one in which we have actually conclided
that co—conspirators were identical yet were disparately
sentenced.M Nor have I found a case suggesting with any clarity
34 In United States v. Cirilo—Mufioz, 504 F.3d 106 (1st Cir.
2007) (per curiam), two judges voted to vacate and remand the
sentence while a third voted to affirm. Id; at 107. One of the
two in the majority concluded. both. that the District Court's
explanation was inadequate and that the defendant's sentence was
substantively unreasonable for being unjustifiably disparate from
a co—conspirator. Id; at 126 (Torruella, J., concurring in the
judgment). The other judge concluded the explanation was merely
-61-
how to go about determining what makes co—conspirators identical
or distinguishable in a case with facts meaningfully analogous to
ours. And a search beyond our own Circuit turns up nothing useful
either. So while there are cases (scores really) noting how
defendants may be different —— for example, bccausn onc plcd and
another did not, see United States V. Ayala—Vazquez, 751 F.3d 1,
31 (lst Cir. 2014) ~— I have not come across any precedent (and
the parties cite to none) that seems to give much guidance here.E
To be sure, 1 do not doubt that a clear disparity would
exist if two people with identical roles in the same conspiracy
and with identical offense levels and identical criminal
inadequate and declined to address the substantive disparity
issue. Id. at 127 (Lipez, J., concurring in the judgment).
5 Reyes does cite United States v. Barnes, 602 F.3d 790 (7th
Cir. 2010), but that case does not help our consideration of this
question in this Circuit. In Barnes, most participants in a
cocaine conspiracy pled guilty with low~level quantity
stipulations that the District Court accepted at sentencing. 1d;
at 794. Barnes was convicted after a trial and obtained the same
low—level quantity stipulation from the government going in to
sentencing. 1d; But the District Court rejected the stipulation
and imputed a much higher drug quantity to Barnes, which affected
his guidelines calculation, without offering any reason for having
done so. Id. The Seventh Circuit concluded that this disparate
treatment as to quantity stipulations was error, vacated. the
sentence, and remanded for resentencing. Id. at 797. Barnes is
of no help in our case for two reasons. First, the Seventh Circuit
framed its analysis around review of the District Court's fact—
finding, concluding the drug quantity it attributed to Barnes was
clearly erroneous, rather than around sentencing disparity per se.
And second, under First Circuit precedent, Barnes, who went to
trial, would have been differently situated from the co—
conspirators who pled guilty. See Ayala—Vazquez, 751 F.3d at 31.
_ 62 _
histories —— and thus identical guideline sentencing ranges —— were
sentenced by the same judge to different terms of imprisonment
without an adequate justification. See United States v. Saez, 444
F.3d 15, 19 (lst Cir. 2006). But that is not our case.
Reyes. received the longest sentence of any of the
conspirators. But he had a higher criminal history than most other
conspirators. We thus deal here with the very different question
of how to administer the calculation Of the guideline sentencing
range itself on the basis of what seems to be a claim of disparate
factefinding leading to disparate guidelines' calculations of base
offense levels. And that is the question for which guidance is
wanting.
Reyes does argue that, on disparity grounds and
disparity grounds alone, the District Court should have held him
to the stipulated drug quantity. And there is an intuitive appeal
to that contention. Why should co—conspirators with roughly
equivalent knowledge of the amount of drugs involved in the
conspiracy be sentenced as if they in fact had different levels of
awareness?
But I am nonetheless wary of mandating a rigid rule of
equal treatment in determining whether stipulated drug quantities
should. be accepted. For although I recognize drug quantity
determinations do influence sentences indirectly, insofar as
guideline sentencing ranges influence final sentences, I am
concerned. about the risks of injecting a 'too—rigid. disparity
analysis into our sentencing review in cases of this sort, for
fear of how it might affect :he process of making and accepting
stipulated quantity determinations.
As we have recognized, and as the record in this case
reveals, guilty pleas to stipulated drug quantities serve a number
of practical purposes even if they do not reflect the truth. So,
too, do decisions to allow such stipulations to stand even when
they are accurate only in the sense that the defendant certainly
was responsible for at least that quantity (though the stipulated
amounts are otherwise, sometimes wildly, understated). Sethnited
States v. Yeje—Cabrera, 430 F.3d 1, 23 (lst Cir. 2005) ("Fact
bargaining may arise when there are different views of the facts,
counsels' ability to prove them, and their consequences.").
That is in part why we have said there is no
constitutional problem. with the prosecutor and the defendant
bargaining over factual stipulations as to drug quantity. See
United States v. Hall, 557 F.3d 15, 21 (lst Cir. 2009). And those
practical considerations also help to explain why there is also
not a problem with a judge choosing to accept the bargain —— at
least when it does not result in a defendant taking responsibility
for more than he did —— even if a Hare—searching inquiry would
show that the stipulation was generous. Simply put, fact
bargaining is central to the plea bargaining system, as it provides
H
an incentive to plea rather than go to trial, and a means 0;
potentially reducing the harshness o; the punishment that
otherwise might be imposed. §ee Yeje—Cabrera, 430 F.3d at 25.
In shaping the scope of our review of disparity—based
challenges to a sentencing judge's decision to accept or reject
factual stipulations in plea agreements that are favorable to
defendants, it seems to me we should be equally sensitive to these
practical considerations. Importing a rigid, substantive
disparity analysis into our review 0: a district court's decision
to reject a bargained-for fact, I worry, may undermine the
foundations on which the fact—bargaining system operates. For a
District Court with a strong suspicion that the real weight of
drugs in a conspiracy is far higher than the factual stipulations
reveal might then be in a curious position. The District Court
might feel the need to reject stipulations it would otherwise
accept in order to maintain its discretion to impute the full
weight to particular co—conspirators to be sentenced in the future.
And, in turn, those involved in the bargaining might have their
incentives altered, too.
Were that the consequence, I am dubious that there would
be much virtue in our having altered the calculus for sentencing
judges in that way. It may be that a district court, considering
the quality of cooperation of the various defendants, their
particular roles in the conspiracy, and their past criminal
histories, is trying to settle on individualized quantity
determinations for each defendant that reflects a reasonable
assessments of the individualized sentence that each warrants,
given the characteristics of the defendant that the sentencing
statute instructs the district court to consider. And, in :he
process of trying to arrive at those individualized sentences, the
district court may choose, therefore, to accept certain
stipulations and reject others not for no reason, but instead with
an eye on the ultimate sentencing range it considers to be
appropriate for each defendant in light of the considerations that
the sentencing statute directs the sentencing judge to consider
and that the guidelines do not otherwise seem to prohibit.
So, for example, a district court might chose to accept
a low stipulated drug quantity for a conspirator with a high
criminal history category. The judge might figure that the
criminal history category, paired with the offense level dictated
by‘ the lower quantity, will e "ectively Zbring' the defendant's
guidelines sentencing range in line with what ~— all things
considered, including levels of cooperation ~- it should be under
the statute. And thus, the District Court might choose not to
probe further into what the true amount was and accept the lower
amount contained in the plea agreement. By contrast, the district
court might choose to look past the stipulated amount for another
conspirator whose role seemed greater but whose criminal history
category was less, figuring that such an approach will, again,
best capture the sentence that is appropriate for that defendant,
given that defendant's individual role and characteristics. As to
that defendant, therefore, a deeper dive into the facts might seem
appropriate to ferret out the higher quantity that is true.
It is far from clear to me that a District Court may not
take account of such holistic sentencing judgments —— when rooted
in the statutory considerations set forth in 18 U.S.C.
§ 3553 *— when considering whether to accept or reject stipulated
drug quantities that are defendant~friendly. I thus would be wary
of setting a rule regarding disparities among co—conspirators in
calculating sentencing guidelines that could discourage the
process through which low stipulations are forged and allowed to
stand, especially given the uncertain (and unbriefed) impact such
a rule might have on the practical administration of the criminal
justice system.
I doubt we improve things by reducing the discretion of
already—restricted sentencing judges (given mandatory minimum
sentences) through an approach to disparity analysis that is not
sensitive to these realities. Such an approach could have the
perverse effect of making a plenty—punitive criminal justice
system yet more punitive still.
Having said all that, I do not read the majority to be
imposing the kind of rigid approach that most worries me. This
case is fact—bound, and the majority's analysis is, appropriately,
dependent on these particular facts as well. And the facts here
are troubling. Nonetheless, rather than characterizing the
District Court's sentence as substantively unreasonable —— that
is, inherently unjustifiable —— as the majority does, I prefer to
analyze this case through the lens of procedural reasonableness
and inadequate explanations. Doing so, I believe, poses the least
risk of unintended consequences while still fulfilling our
obligation to ensure that a sentence meets the "the basic
requirement of rationality[.]" Saez, 444 F.3d at 19.
Of course, as the majority rightly notes, the
distinction between matters of substance and procedure is less
than clear in this context —— and, at the margins, may not matter.
But it also might, particularly with respect to the scope of
remand. And here I believe that is the case. Thus, in my view,
the reason we must vacate and remand is only that the District
Court failed to provide an adequate explanation for its conclusion
that Reyes was not identically situated to those for whom drug—
quantity stipulations were accepted. I would not go so far as to
say (as I read my colleagues to conclude) that no such explanation
is possible on this record, and thus that on remand the District
Court has no choice but to sentence this defendant on the basis of
a quantity that is closely aligned with the quantities on which
his co—conspirators were sentenced. In my View, my approach —— by
treading more lightly —— best accounts for the lurking complexities
that inhere in this type of disparity—based challenge.
III.
Still, I do agree with the majority that the sentence
must be vacated and remanded. And so I need to say more about the
nature of the disparity concern that I believe must be redressed
on remand, which, in turn, requires that I describe in more detail
both what I understand to be the DiStrict Court's explanation for
the senterce that it chose and why I do not believe that
explanation is adequate.
The chain of logic undergirding the District Court's
sentencing in this case —— as best I can tell —— seems to go like
this. There was a large conspiracy with many members, and they
played different roles. There was an overall leader. There were
leaders 0: many drug points in various housing projects. And there
were other significant participants —— like Reyes —— who performed
neither the role of overall leader nor the leader 0: a particular
drug point. The key for the District Court, therefore, seems to
be what it suggested was the close relationship between Reyes and
the overall leader of the conspiracy. And, as best I can tell,
the District Court thought that relationship. matters :or
determining drug quantity in the following way.
The overall leader of the conspiracy, Jose Colon de
Jesus, like Reyes, stipulated to a very low drug quantity in his
plea agreement. But the District Court thought that
number —— which was dramatically at odds with the figure contained
in the presentence report —— was risible. As I read the record,
the District Court quite plausibly explained that Colon de Jesus
was, in effect, the "Chairman of the Board" and, like the head of
a large franchising corporation, "relicensed .. . housing projects
to people who were going to be the drug point owners 0: those
different housing projects, [and] would in turn be part of his
organization." For that reason, the District Court thought there
was no way Colon de Jesus was not aware of the drug quantities
involved in the conspiracy as a whole, which were plainly much
larger than the stipulation reflected.
To be sure, other participants in the conspiracy plainly
knew more than the stipulated quantities in their plea agreements
reflected, as the District Court indicated while sentencing those
co~conspirators. And some of those co—conspirators also actually
ran particular housing project franchises. But the District Court
concluded that Colon de Jesus was different from the other drug
point leaders in his responsibility for the whole conspiracy from
its founding.
I think that distinction suffices to make Colon de Jesus
—— or No. l as he is known —— distinct from the other members of
the conspiracy, such that he could fairly‘ be charged. with a
quantity much higher than his stipulation reflected and much higher
B. Waiver or Forfeiture
The government's mozion to dismiss reflected a belief
that it may object to a late filing under Rule 4(b) at any time,
and, once it does, the court is obliged to enforce the rule. It
therefore asserted that its motion ~w filed three months after this
case was submitted for decision following oral argument —— required
us to dismiss Reyes's appeal. In so arguing, the government relied
on the statement in Gonzalez—Rodriguez that the time limits in Rule
4(b), "even if not jurisdictional, are mandatory when raised by the
government." 777 F.3d at 40 n.4. In Gonzalez—Rodriguez, however,
the government had contended in its original response brief that
the court had no jurisdiction to consider the defendant's
sentencing appeal. Here, by contrast, the government suggested in
a footnote in its original brief that Reyes's appeal was timely
because the fourteen—day clock for filing a notice of appeal did
not begin to run until after the district court denied Reyes's
motion for reconsideration. In. pertinent part, the footnote
states:
"[TJhe Supreme Court has held that the timely
filing of such a motion [for reconsideration]
in a criminal action tolls the time for filing
a notice of appeal and the time begins to run
anew following' disposition of the motion."
United States v. Vicaria, 963 F.2d 1412, I413—
14 (llth Cir. l992[)] (citing United States v}
Dieter, 429 U.S. 6, 8—9 (l976[)]; see also
United States v. Ortiz, No. 12—2190, 2014 WL
278510, at *5, n. 2 (lst Cir. Jan. 27, 2014)
("motions for reconsideration in criminal
cases are not specifically authorized either
_8_
than the stipulation reflected in his confederates' plea
agreements.36 reach that conclusion notwithstanding that these
co—conspirator stipulations were by no means accurate accounts of
what those individuals actually knew. And I reach this conclusion
notwithstanding that those stipulations likely also could have
been rejected for far higher quantities, perhaps including
quantities yielding the highest base offense level for a drug
conspiracy charge. Given the realities of fact—bargaining over
drug quantities, I would not say that a sentencing judge lacks the
discretion to ignore a stipulation for someone like Colon de Jesus,
given his different role in the conspiracy, even though it might
be hard to say that, in fact, his confederates did not also know
the conspiracy involved drug amounts sufficient to raise their
base offense level to be as high as his.
Since in my view the District Court had a basis for
holding Colon de Jesus responsible, in calculating his base offense
level under the guidelines, for a higher drug quantity than the
% Colon de Jesus's sentence is not before us in this appeal,
and I take no position on any claim_he may bring in the future. "
do note, however, that Colon de Jesus appealed his sentence to
this court and we affirmed, concluding in an unpublished judgment
that there was no abuse of discretion. See United States v. Colon
de Jesus, No. 12—1936 (lst Cir. June 23, 2014). In particular, we
rejected Colon de Jesus's argument that the District Court created
an unwarranted disparity when it looked behind his stipulated drug
amount and sentenced him using a higher drug quantity than was
used for his covconspirators. Id; And we did so because we
concluded that Colon de Jesus, as the head of the conspiracy, was
differently situated than his co—conspirators.
_ 71 -
other leaders in the conspiracy -— notwithstanding the absurdly
low quantities assigned to those other leaders —— the question
that remains is whether there is any similar rationale for treating
Reyes like Colon de Jesus with respect to his quantity stipulation.
The District Court seemed to think there was, and it is in the
lack of clarity on that point where, in my view, the error lies.
In sentencing’ Reyes, the District Court was plainly
concerned initially about Reyes's potential involvement in other
murders unrelated to this conspiracy, as he was concerned about
the involvement of Colon de Jesus in the murders as well. But the
District Court eventually made it plain in the face of objections
to considering those murders that it was not basing Reyes's
sentence on the alleged murders in any respect. Instead, the
sentence would rest in significant part on Reyes's role in this
conspiracy and his knowledge 0: the drugs involved.
In that regard, as with Colon de Jesus, the District
Court was troubled, according to the transcript, by the gap between
the stipulated drug quantity in Reyes's plea agreement and the
quantity attributed to Reyes in the presentence report. And so
the District Court dug into that issue, rejecting several times
the contention from Reyes's counsel that the District Court was,
effectively bound by the stipulation in Reyes's plea agreement due
to the District Court's prior acceptance at the sentencing of other
co—conspirators o: the low stipulations set forth in their plea
agreements}
The District Court unfortunately was less than direct in
explaining why it was rejecting this disparity—based argument for
accepting the drug—quantity stipulation that Reyes and the
government had made. The District Court seemed much more focused
on justifying its authority to reject a stipulation, contending
that it was not required to mechanically adopt a_l stipulations
and that it could base its sentence on an understanding of the
actual quantity for which Reyes was responsible and not simply the
quantity set forth in the plea agreement.
But the sentencing judge eventually did get around to
offering a reason for treating Reyes differently from others with
respect to the quantity and for finding him to be, like Colon de
Jesus, fully responsible for the full amount 0: drugs in the
conspiracy. The District Court seemed to be suggesting that Reyes
was different from these other leaders in the conspiracy because,
even though he was in some respects lower down in the conspiracy's
chain of command, he was in fact so closely tied to Colon de Jesus
that he should be treated differently from all the others save for
No. l himself.
In this regard, the District Court identified Reyes as
"like a Lieutenant" and "one of the right hands" of Colon de Jesus.
And the District Court pointed out that Reyes worked directly with
Colon de Jesus at the drug point that Colon de Jesus owned while
Colon de Jesus carried out his duties as chairman of the board for
the conspiracy as a whole. The District Court also noted that
testimony even showed that Reyes "look[ed] out for the stash that
was kept" in Colon de Jesus's housing project, though it is not
clear to me whether the testimony referred to the entire
conspiracy's central stash house or to the stash house for just
the local housing project. Finally, the District Court remarked
that Reyes was apparently involved in the conspiracy for a large
number of years, dating back all the way to 2005, and cited Reyes's
particular role in the conspiracy as the reason for holding him
responsible for the higher quantity of drugs.
But i: the District Court meant to make a finding that
Reyes was like a chief of staff or aide—de—camp to No. 1 -~ rather
than like the rest of the department heads `` he did not do enough
to make that clear. I say that while recognizing the difficult
position district judges are in, busy as they are in general and
particularly when it comes to criminal sentencing. Certainly they
are more burdened in issuing sentences than we are in reviewing
them.
In the face of the seeming disparity in how the District
Court treated the quantity stipulated by Reyes relative to other
drug point heads, it is not enough to say that Reyes should be
treated differently because Reyes is like "a" lieutenant or "one
of the" right—hand. men, to the overall leader. That
characterization does not -~ in and of itsel: —— distinguish Reyes
from other lieutenants and right—hand men whose stipulations were
accepted. Nor did the District Court explain why he thought the
conspiracy was organized in such a manner that a close aide to
Colon de Jesus was plausibly more responsible for what went on
than a drug point leader for an entire housing project.
So while the District Court's observations do point the
way to a possible rationale for distinguishing Reyes from the
others and for treating him, like Colon de Jesus, as responsible
for a higher quantity, the District Courtls explanation is too
unclear and imprecise to Suffice. And if the District Court meant
to make some other argument about why Reyes should be treated so
differently, it did not offer any such explanation.
Accordingly, I would vacate and remand for the
District Court to explain why Reyes —— and Reyes alone —— should
be treated like the conspiracy's overall leader as to a matter so
critical to determining his sentence. For while apples only need
be compared to apples, the District Court has some obligation to
explain why it treated Reyes, uniquely, like an orange, given that
no distinction may be inferred.
Perhaps the District Court on remand would determine
that no answer is possible, in which case there is no question but
that the District Court would have the discretion to impose a
sentence more in line with Reyes's co—conspirators. United States
v. Martin, 520 F.3d 87, 94 (lst Cir. 2008) ("[D]istrict courts
have discretion, in. appropriate cases, to align codefendants'
sentences somewhat in order to reflect comparable degrees of
culpability . . . ."). But were the District to do so at that
point, we would then have no need to probe further the limits of
what, substantively, constitutes an unjustified disparity and what
does not.
Perhaps, instead, the District Court would conclude that
the defendant is an aide—de—camp to Colon de Jesus, and would
.5
_urther find that that fact makes him more responsible than his
co—conspirators. Reyes could then appeal those findings to us,
which we would review for clear error. Or the District COth might
have some other explanation to offer for why this defendant's
stipulation —— like Colon de Jesus's but unlike the
others —— should be disregarded. If so, hearing it might help
illuminate just what the effect on sentencing generally would be
from denying the District Court the discretion to rely on such a
.C
reason for treating Reyes di_ferently.
Whichever course the District Court ‘might pursue on
remand, I do not believe we should cut short the process by which
we often proceed when we find a rationale for a sentence
wanting —— a process by which we point out why the explanation
~ does not suffice and then remand. for the District Court to
reconsider the sentence. See United States v. Medina, 779 F.3d
55, 64 (lst Cir. 2015); United States V. Mendez—Colon, 15 F.3d
188, 191 (lst Cir. 1994); see also United States v. Cirilo—Munoz,
504 F.3d 106, 127 (lst Cir. 2007) (Lipez, J., concurring in the
judgment).
IV.
By statute, we have discretion to limit (or not) the
issues to be addressed on remand by fashioning orders "as may be
just under the circumstances," 28 U.S.C. § 2106, a power we have
interpreted broadly "to allow appellate courts the flexibility to
adapt their mandates to the particular problem discerned on appeal
and to provide an efficient and sensible solution." United States
v. Garafano, 61 F.3d 113, 116 (1st Cir. 1995). But, because the
problem I discern here is the lack of an adequate explanation and
not the impossibility of one, and because of my concerns about
adopting an overly—rigid disparity analysis with regard to drug
quantity' calculations for guidelines purposes, :2 would. vacate
Reyes's sentence and remand for reconsideration and a more—fulsome
explanation, based on adequate findings, rather than for
imposition. of’ a sentence based, on a 376 U.S. 75, 84 (1964[)]. "A.motion for
reconsideration ill a criminal case must be
filed within the period of time allotted for
filing a notice of appeal in order to extend
the time for filing the notice of appeal."
See United States v. Russo, 760 F.2d 1229,
1230 (11th Cir. 1985).
Gov't Br. at 3 n.2.
The government attempted to characterize the footno:e as
something other than a concession of timely filing and appellate
jurisdiction. Although the passage may not be an explicit
concession, it is nearly so. The government sought to justify its
acquiescence with the fact that Gonzalez-Rodriguez was decided
after its brief was filed, insinuating that the prosecutors did not
have reason before then to raise a timeliness objection. But the
brief in Gonzalez—Rodriguez raising the jurisdictional argument was
filed by the same United States Attorney's Office responsible for
this case more than two months before it submitted the response
brief that contains the footnote. The government did not explain
why it could. not have made the same time—bar argument here.
Moreover, the panel's opinion in Gonzalez—Rodriguez simply pulled
together pre~existing authorities. See, e.g., United States v.
Dotz, 455 F.3d 644, 648 (6th Cir. 2006) ("In. the sentencing
context, there is simply no such thing as a 'motion to reconsider'
"
an otherwise final sentence (quoted in United States v.
Ortiz, 741 F.3d 288, 292 n.2 (lst Cir. 2014)). Plainly, as its
argument in Gonzalez—Rodriguez demonstrates, the government had
_9_
ample basis to challenge the jurisdiction for this appeal in its
original responSe brief. Thus, we have here a situation that is
fairly characterized as a waiver.
Moreover, even absent the jurisdictional footnote, the
government's request for dismissal would have confronted the maxim
that any issue not raised in a party's opening brief is forfeited.
See, e.g., United States v. Tum, 707 F.3d 68, 72 n.2 (1st Cir.
2013). The government cited no case in which a court has found
adequate the gov rnm nt‘s request for dismissal of an appeal, based
on Rule 4(b), when the objection was raised for the first time
after the government had filed its response brief. The forfeiture
discussion in other cases has focused on whether the government
needed to raise the issue before filing its brief. See, e.g.,
Sadler, 480 F.3d at 941 (agreeing with other circuits that "raising
the untimeliness argument in briefing, as opposed to in a motion to
dismiss, was sufficient to invoke Rule 4's protections"); see also
United States v. Gardufio, 506 F.3d 1287, 1292 n.7 (10th Cir. 2007)
(advising the government to consider filing a motion for dismissal
under Fed. R. App. P. 27 and the applicable Tenth Circuit rule
"when the government recognizes a violation of Rule 4(b)(1)(A),"
but stating that failure to do so "does not constitute a forfeiture
where, as here, the appellee seeks dismissal for failure to timely
appeal in its response brief"); 9:; Huerta v. Gonzales, 443 F.3d
753, 757 (10th Cir. 2006) (finding that the government had