United States v. Melendez-Rivera

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 21-1285
UNITED STATES OF AMERICA,
Appellee,
v.
BENJAMIN MELÉNDEZ-RIVERA, a/k/a Bengie, a/k/a Ben,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Barron, Chief Judge,
Selya and Kayatta, Circuit Judges.
Francisco J. Adams-Quesada on brief for appellant.
W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-
Almonte, Assistant United States Attorney, Chief, Appellate
Division, and Maarja T. Luhtaru, Assistant United States Attorney,
on brief for appellee.
October 6, 2022
SELYA, Circuit Judge. Weighing the various factors made
relevant under 18 U.S.C. § 3553(a) is — in the first instance —
quintessentially a matter for the sentencing court. In this
appeal, defendant-appellant Benjamin Meléndez-Rivera challenges
the sentencing court's performance of that function. Concluding,
as we do, that the defendant's sentence is both procedurally sound
and substantively reasonable, we affirm.
I
We briefly rehearse the facts and travel of the case.
"Where, as here, a sentencing appeal follows a guilty plea, we
glean the relevant facts from the change-of-plea colloquy, the
unchallenged portions of the presentence investigation report (PSI
Report), and the record of the disposition hearing." United States
v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009).
On October 14, 2016, the defendant and another
individual brandished firearms at two female employees of Banco
Popular as the employees were replenishing automatic teller
machines. The ensuing robbery yielded a haul of approximately
$80,000.
The defendant then proceeded to scout his next target:
a Ranger American armored truck. On March 30, 2017, the defendant
and a band of confederates went to a different Banco Popular branch
to lie in wait for the armored truck. When the vehicle arrived,
two of the defendant's accomplices approached the courier. As the
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courier attempted to reach for his weapon, the accomplices began
firing their guns wildly, killing two bystanders and wounding the
courier. With about $16,000 in hand, the robbers fled. Subsequent
investigation revealed that the defendant had planned the robbery,
supplied one of the weapons used in it, and facilitated the escape.
The authorities apprehended the defendant on December 8,
2017. A federal grand jury sitting in the District of Puerto Rico
later returned an indictment. Our focus, though, is on the
superseding indictment, which charged the defendant, amongst
others, with conspiracy to interfere with commerce by robbery, see
18 U.S.C. § 1951(a); interference with commerce by robbery, see
id.; two counts of possession of firearms in furtherance of a crime
of violence resulting in death, see id. § 924(j)(1); being a felon
in possession of a firearm, see id. § 922(g)(1); bank robbery, see
id. §§ 2113(a) & (d); and possession and brandishing of firearms
in furtherance of a crime of violence, see id. § 924(c)(1)(A)(ii).
The first count referred to both the armored truck robbery and the
robbery at the Banco Popular branch, the next three counts referred
only to the armored truck robbery, and the last two counts referred
only to the robbery at the Banco Popular branch. The sentencing
court appropriately regarded both robberies as part of the same
course of relevant conduct.
The defendant initially maintained his innocence but
later agreed to plead guilty to the top count: Hobbs Act
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conspiracy to interfere with commerce by robbery. The government
agreed to dismiss the remaining charges against him at the time of
sentencing. In due course, a plea agreement was executed and the
court accepted the defendant's guilty plea.
When prepared, the PSI Report recommended a guideline
sentencing range (GSR) of 292 to 365 months. Withal, the
statutorily prescribed maximum term of immurement (and, thus, the
guideline term of imprisonment) was 240 months. See
USSG §5G1.1(a).
At the disposition hearing, defense counsel recommended
a 151-month term of immurement. Counsel emphasized the defendant's
advanced age (sixty-one years old at the time of the disposition
hearing) and health-related conditions. Counsel also mentioned
the defendant's "harsh" upbringing, "educational challenges," and
role within his family. After the defendant allocuted, the
prosecutor noted that the plea agreement "took into account many
of the mitigating factors" that defense counsel presented. The
prosecutor also observed that the two bystanders who died were
relatively young and that the surviving courier was shot fifteen
times. These victims and their families suffered, the prosecutor
said, "because of the conduct that [the defendant] chose to engage
in." Consistent with the terms of the plea agreement, the
prosecutor concluded by recommending an incarcerative sentence of
188 months.
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The district court began by adopting the guideline
calculations limned in the PSI Report. It then reviewed the
sentencing factors set forth in 18 U.S.C. § 3553(a). The court
noted the defendant's age, education level, family status, and
health-related conditions (specifically mentioning arthritis,
hypertension, and high cholesterol). The court then considered
the gravity of the offense and the defendant's participation in
it. The court pointed out that the defendant had played an active
role in identifying the target of the robbery and in "planning and
providing instructions, . . . providing [a] weapon to be
used . . ., and . . . participating in the actual robbery."
Additionally, the court acknowledged that the victims were a factor
that it "ha[d] to consider."
In the end, the court found two downward departures to
be appropriate: one level for the defendant's age and three levels
because the defendant "was not the one pulling the trigger."
Taking into account "the seriousness of the offense, . . . the
statements of the victims, [and] the Plea Agreement's
recommendation," the court imposed a 200-month term of immurement.
And as provided in the plea agreement, the court dismissed all of
the remaining charges against the defendant.
This timely appeal followed.
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II
The protocol for sentencing appeals involves a two-step
pavane. See United States v. Miranda-Díaz, 942 F.3d 33, 39 (1st
Cir. 2019). We first review any claims of procedural error. See
id. If the sentence survives that review, we next consider any
challenge to its substantive reasonableness. See id. At both
steps of this pavane, our review of preserved claims of error is
for abuse of discretion. See United States v. Rivera-Morales, 961
F.3d 1, 15 (1st Cir. 2020).
A
The defendant's claim of procedural error consists of an
assault on the district court's balancing of the section 3553(a)
factors. Before reaching the merits of this claim, we must dispose
of a threshold matter. The government asserts that this claim was
not preserved below and, thus, should be reviewed only for plain
error. See United States v. Duarte, 246 F.3d 56, 60 (1st Cir.
2001). We need not resolve this contretemps: even if we assume,
favorably to the defendant, that his claim of procedural error was
preserved, the claim fails. We proceed accordingly.
Fleshing out his claim of procedural error, the
defendant charges that the court "placed all weight on the negative
factors and disregarded the multiple mitigating factors." This
charge is belied by the record. After all, "the sentencing
inquiry . . . ideally is broad, open-ended, and significantly
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discretionary." United States v. Martin, 520 F.3d 87, 92 (1st
Cir. 2008). And although the sentencing court is obliged to
consider the factors outlined in 18 U.S.C. § 3553(a), the court
"is not required to address those factors, one by one, in some
sort of rote incantation." United States v. Dixon, 449 F.3d 194,
205 (1st Cir. 2006). Nor need the court "address every argument
that a defendant advances in support of his preferred sentence."
Rivera-Morales, 961 F.3d at 19.
Here, moreover, the district court explicitly stated
that it had considered all of the section 3553(a) factors. We
have consistently held that "[s]uch a statement 'is entitled to
some weight.'" United States v. Clogston, 662 F.3d 588, 592 (1st
Cir. 2011) (quoting United States v. Dávila-González, 595 F.3d 42,
49 (1st Cir. 2010)). And in the case at hand, the district court
acknowledged the potentially mitigating factors that defense
counsel pressed at sentencing. Nor can it be said that the court
merely paid lip service to those factors. It departed downward in
consideration of the defendant's age and made a further downward
departure based on the fact that he did not himself kill the
victims. Given the totality of the circumstances, the defendant's
claim that the court "disregarded" mitigating factors rings
hollow.
To say more would be to paint the lily. Stripped of
rhetorical flourishes, the defendant's real complaint appears not
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to be that the court failed adequately to consider the sentencing
factors but, rather, that the court did not assign certain factors
the weight that the defendant would have liked. That differential
weighing, without more, is not an abuse of discretion. And here,
there is no "more": as we repeatedly have admonished, a sentencing
court's decision not to attach to certain factors the weight that
a defendant thinks they deserve does not either signal an abuse of
discretion or render a sentence unreasonable.1 See United States
v. Ortiz-Pérez, 30 F.4th 107, 112-13 (1st Cir. 2022); United States
v. Vélez-Andino, 12 F.4th 105, 117 (1st Cir. 2021). Consequently,
we discern no abuse of discretion.
B
This brings us to the defendant's claim of substantive
unreasonableness. In essence, the defendant contends that his
sentence is substantively unreasonable because the court below
improperly weighed the mitigating factors brought to its
attention. Once again, our review is for abuse of discretion.
1 The defendant advances for the first time in a post-briefing
letter, see Fed. R. App. P. 28(j), a new claim of procedural error.
This time, he alleges that the district court failed adequately to
explain its deviation from the GSR. Given that no such deviation
occurred, this claim is quixotic. And in any event, in the absence
of extraordinary circumstances — and none exist here — issues not
raised in an appellant's opening brief are deemed waived. See
United States v. López, 957 F.3d 302, 309 (1st Cir. 2020). So it
is here.
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See Holguin-Hernandez v. United States, 140 S. Ct. 762, 766 (2020);
United States v. Bruno-Campos, 978 F.3d 801, 808 (1st Cir. 2020).
Some background is useful. In the sentencing context,
"reasonableness is a protean concept." Martin, 520 F.3d at 92.
Given that the circumstances of a particular case will almost
always justify more than one reasonable sentence, a sentence will
be vacated as substantively unreasonable only if it "falls outside
the expansive boundaries" of the universe of reasonable sentences.
Id. It follows that a defendant who seeks to challenge the
substantive reasonableness of his sentence faces an "uphill
climb." United States v. Coombs, 857 F.3d 439, 452 (1st Cir.
2017).
This climb is even steeper when — as in this instance —
the challenged sentence falls within a properly calculated GSR.
See Clogston, 662 F.3d at 592-93. In challenging the substantive
reasonableness of such a sentence, a defendant must "adduce fairly
powerful mitigating reasons and persuade us that the district judge
was unreasonable in balancing pros and cons despite the latitude
implicit in saying that a sentence must be 'reasonable.'" United
States v. Madera-Ortiz, 637 F.3d 26, 30 (1st Cir. 2011) (quoting
United States v. Navedo-Concepción, 450 F.3d 54, 59 (1st Cir.
2006)). Such a challenge cannot succeed when the district court
"has articulated a plausible rationale and reached a defensible
result." Coombs, 857 F.3d at 452.
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Here, the district court provided a plausible rationale
for its sentencing decision. At the disposition hearing, the court
acknowledged the parties' arguments and the circumstances of the
offense. The court then gave weight to certain mitigating factors
but counterbalanced those factors by giving weight to an array of
aggravating factors. In that regard, the court stressed that the
defendant had an "active role" in planning and executing both the
armored truck robbery and the robbery at the bank. Moreover — "as
a direct result" of these robberies — many victims and their
families were still suffering. And the court expressed concern
that the victims who died were young. Given the thoroughness of
the court's analysis of the sentencing factors and the
circumstances attendant to the robberies, we hold that its
rationale for the sentence imposed was plausible.
So, too, we hold that the sentence represents a
defensible result. The offense of conviction was very serious,
and people were killed during its commission. Although the
defendant claims that he had instructed his confederates not to
shoot during the armored truck robbery, he plainly set the stage
for the mayhem that ensued. He identified the targets of the
robberies, planned the heists, supplied a firearm to be used, and
participated in the commission of both the armored truck robbery
and the earlier robbery. Finally, the results of the defendant's
plotting were horrific: two innocent persons were killed and the
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courier was severely wounded. Given the totality of the
circumstances, a 200-month prison sentence constitutes a
defensible result.
To recapitulate, the sentence imposed rests on a
plausible rationale and represents a defensible result. So viewed,
the reasons offered by the defendant in mitigation of that sentence
are insufficient to undermine it. We hold, therefore, that the
sentence is substantively reasonable.
III
We need go no further. For the reasons elucidated above,
the challenged sentence is
Affirmed.
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