United States v. Gonzalez

United States Court of Appeals
For the First Circuit
No. 19-1351
UNITED STATES OF AMERICA,
Appellee,
v.
EDWIN GONZALEZ,
a/k/a SANGRIENTO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Lynch, Selya, and Barron,
Circuit Judges.
Julia Pamela Heit for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Andrew E. Lelling, United States Attorney, was on brief, for
appellee.
November 17, 2020
SELYA, Circuit Judge. Every time that the law draws an
age-based line to create a protected class, there are some people
who fall outside the protected class. Those persons often regard
the point at which the line is drawn as arbitrary. This appeal is
brought by a criminal defendant who argues that a particular age-
based line should be redrawn to include persons of his age within
the protected class.
Specifically, defendant-appellant Edwin Gonzalez takes
aim at a line drawn by the Supreme Court, as a matter of
constitutional interpretation, which protects juvenile offenders
(that is, offenders who are not yet eighteen years of age at the
time that the charged crime was committed) but not adult offenders
(that is, offenders who were eighteen years of age or older when
the charged crime was committed) from certain life-without-parole
sentences. See Miller v. Alabama, 567 U.S. 460, 465 (2012)
(holding mandatory life-without-parole sentences unconstitutional
for all juvenile offenders); see also Graham v. Florida, 560 U.S.
48, 82 (2010) (declaring unconstitutional life-without-parole
sentences for non-homicide juvenile offenders). Refined to bare
essence, Gonzalez (who was twenty years old at the time he
committed the charged crime) seeks to reconfigure the age-specific
line and vacate his sentence of life imprisonment without parole.
In the bargain, he asks us to blur the distinction between his
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discretionary life-without-parole sentence and the mandatory life-
without-parole sentence examined by the Miller Court.
We conclude, for several reasons, that the defendant's
claims of constitutional error are unavailing. Similarly, we
conclude that his remaining claims of error are impuissant.
Consequently, we uphold the life-without-parole sentence imposed
by the district court.
I. BACKGROUND
Although the relevant facts are (by the defendant's own
admission) "gruesome," they are essentially undisputed. And even
though the defendant's appeal targets only his life-without-parole
sentence, a brief rehearsal of the factual background and
procedural history helps to set the stage.
The defendant is a member of La Mara Salvatrucha, a gang
colloquially known as MS-13. MS-13 has gained notoriety for the
brutality of its crimes and the relative youth of both its members
and its victims. The gang's reach spans the Western Hemisphere:
although its leadership remains in El Salvador, many of its
regional and local branches, known respectively as "programs" and
"cliques," are located throughout the United States. The web woven
by MS-13 is so pervasive that the federal government often refers
to the gang as a transnational criminal organization.
Of particular pertinence here, MS-13 is quite active in
the Boston area. Prominent MS-13 cliques exist in East Boston,
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Chelsea, Everett, Lynn, and Revere. From time to time, the
defendant was affiliated with several of these cliques.
The core purpose of MS-13 is to kill or maim rival gang
members and collect money for MS-13's leadership. The defendant
earned himself acclaim within local MS-13 circles for fulfilling
this core purpose, and he received promotions within the hierarchy
of an East Boston clique for committing a golconda of violent acts.
These acts earned the defendant the nom de guerre "Sangriento" —
"Bloody" — in recognition of the mayhem that he inflicted.
The case at hand centers around two murders that
underscore the accuracy of the defendant's sobriquet. In 2015,
the defendant (then age twenty) spearheaded a plan to kill Wilson
Martinez, then fifteen years of age, whom the defendant suspected
of being a member of the rival 18th Street Gang. The plan was
complex: over a period of several months, MS-13 members created
a phony Facebook account that appeared to belong to a teenage girl,
sent messages to Martinez, and eventually persuaded Martinez to
rendezvous with this imaginary girl at a secluded beach. When
Martinez arrived, he was ambushed by the defendant and several MS-
13 underlings. Martinez was robbed and stabbed repeatedly. During
the course of the encounter, the defendant instructed an unarmed
MS-13 acolyte to find a weapon so that the latter could participate
in the attack. Following the defendant's instructions, the boy
grabbed a rock and struck Martinez in the head.
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After Martinez was killed, the defendant directed a
clean-up. Despite the clean-up, the tip of a knife was later found
next to Martinez's body. This murder gained the defendant
considerable notoriety within MS-13 and led to his promotion to a
position of great respect and authority. Many gang members
attended the promotion ceremony.
In eerily similar circumstances, the defendant (still
age twenty) orchestrated the January 2016 murder of Cristofer de
la Cruz, then sixteen years old, who was suspected of membership
in the 18th Street Gang. The defendant used the same ruse, luring
the victim to danger under the guise of a date with a teenage girl.
MS-13 members picked up de la Cruz in a nearby town, pretending to
be relatives of the imaginary girl. Another ambush occurred when
de la Cruz reached East Boston: the defendant and three other MS-
13 members stabbed de la Cruz some forty-eight times. Once again,
the defendant organized a clean-up, ordering gang members to bury
weapons and soiled clothing. A cooperating witness subsequently
directed the authorities to the burial site, leading to the
recovery of many of the weapons. Some of the items recovered
contained the DNA of both the defendant and the victim.
In due course, a federal grand jury sitting in the
District of Massachusetts returned an indictment that — as relevant
here — charged the defendant with violating the Racketeer
Influenced and Corrupt Organizations Act (RICO), see 18 U.S.C.
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§ 1962(d). In the indictment, the grand jury charged the murders
of Martinez and de la Cruz as predicate acts of the RICO
conspiracy. A jury was empaneled, and a trial ensued.
The district court instructed the jury on second-degree
murder with respect to the predicate offenses on the theory that
first-degree and second-degree murder resulted in the same
statutory penalties under RICO. The jury found the defendant
guilty as charged.
A presentence investigation report (PSI Report) was
prepared, which calculated the defendant's base offense level at
forty-three premised on a cross-reference to the first-degree
murder guideline. See USSG §2A1.1(a). The PSI Report also
recommended various enhancements, which are of scant importance:
an offense level of forty-three, in and of itself, calls for a
life sentence regardless of the defendant's criminal history. See
USSG ch.5, pt. A. The defendant objected to the PSI Report,
contending that the base offense level should be set by cross-
reference to the second-degree murder guideline.
At the disposition hearing, the district court concluded
that it was within the court's discretion to determine, by a
preponderance of the evidence, the degree of murder that was
relevant for sentencing purposes. Finding that both murders were
premeditated, the court accepted the guideline calculation
adumbrated in the PSI Report. When offered an opportunity to
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allocute, the defendant stood mute and chose not to express any
remorse.
The district court imposed a sentence of life
imprisonment without the possibility of parole. Even though the
court considered mitigating factors (such as the defendant's
youth, the possibility of his reformation, his challenging
upbringing, and the peer pressures associated with gang
membership), it found those factors vastly outweighed by the
heinous nature of the crime and the defendant's stolid lack of
remorse.1 This timely appeal, which is directed exclusively at
the defendant's sentence, followed.
II. ANALYSIS
We divide our analysis into three principal segments,
corresponding with the components of the defendant's
asseverational array. We start with the defendant's challenge to
the district court's first-degree murder determination, proceed to
assess the defendant's Eighth Amendment challenge, and conclude
1
Although the court did not make an explicit finding of
permanent incorrigibility, it did consider the defendant's
capacity for rehabilitation. At the disposition hearing, the court
acknowledged that youthful offenders frequently have the capacity
to change. Here, however, the court concluded that the defendant's
crimes — including multiple killings on multiple occasions —
reflected calculation, not immaturity. Taken as a whole, the
court's statements strongly suggest that it believed the defendant
was beyond hope of redemption.
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with an appraisal of the defendant's critique of the reasonableness
of his sentence.
A. The First-Degree Murder Determination.
At sentencing, the district court determined that — for
purposes related to the application of the sentencing guidelines
— the defendant had twice committed the predicate offense of first-
degree murder, notwithstanding that the jury had been instructed
only on second-degree murder. The defendant assigns error in two
respects. First, he says that the determination violates his
constitutional rights because only a jury, not a judge, has the
responsibility of finding beyond a reasonable doubt any fact that
increases a mandatory minimum sentence. Second, he says that
because the RICO statute references state crimes as predicate
offenses, state procedural rules regarding who determines the
degree of murder should control with respect to those crimes. We
address these assignments of error separately.
1. The Alleyne Challenge. The defendant's first claim
of error is premised on his reading of the Supreme Court's decision
in Alleyne v. United States, 570 U.S. 99 (2013). Because the
defendant preserved this claim before the district court, our
review is de novo. See United States v. Batchu, 724 F.3d 1, 7
(1st Cir. 2013). The central question is whether the defendant's
constitutional rights (either his Sixth Amendment right to a jury
trial or his Fifth Amendment due process rights) were abridged
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when the sentencing court, acting as a factfinder, determined by
a preponderance of the evidence that he had twice committed first-
degree murder. See U.S. Const. amend. VI; U.S. Const. amend V.
The Supreme Court has held that any fact (other than the
presence of a prior conviction) that requires an increase in the
statutory penalty for a crime must be submitted to the jury and
found beyond a reasonable doubt. See Apprendi v. New Jersey, 530
U.S. 466, 483 n.10, 490 (2000). Subsequently, the Court held that
any fact that necessitates an increase in the mandatory minimum
sentence for a crime constitutes the type of fact contemplated in
Apprendi and, thus, must be found by the jury beyond a reasonable
doubt. See Alleyne, 570 U.S. at 103.
The defendant hitches his claim of error to Alleyne, but
Alleyne cannot pull the weight that the defendant seeks to have it
haul. The Alleyne holding does not preclude judicial factfinding
undertaken for purposes of constructing a defendant's advisory
guideline sentencing range (GSR). See United States v. Monteiro,
871 F.3d 99, 116 (1st Cir. 2017); United States v. González, 857
F.3d 46, 60-61 (1st Cir. 2017); United States v. Cox, 851 F.3d
113, 120 (1st Cir. 2017); United States v. Ramírez-Negrón, 751
F.3d 42, 48 (1st Cir. 2014); see also Alleyne, 570 U.S. at 116
(explaining that "broad sentencing discretion, informed by
judicial factfinding, does not violate the Sixth Amendment"). We
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hold, therefore, that the defendant's Alleyne-based challenge is
dead on arrival.
2. The Murder-Determination Challenge. Notwithstanding
the jury's antecedent finding that the defendant had committed
second-degree murder, the district court — at sentencing — made a
finding that the defendant had committed first-degree murder. The
defendant challenges this latter finding, arguing (in effect) that
the district court erred inasmuch as Massachusetts law, under which
the RICO predicate offenses arose, requires a jury rather than a
judge to determine guilt with respect to murder. Relatedly, the
defendant attempts to raise doubts about the district court's jury
instructions.
We need not linger long over the defendant's vague
references to potentially defective jury instructions. The
defendant's brief makes clear that he only contests his
"punishment," not his conviction, and the only relief that he seeks
is vacatur of his sentence. Given this singular focus, we treat
any claim of instructional error as waived.2
With respect to sentencing, the defendant's reliance on
Massachusetts law is mislaid. The Massachusetts statute regarding
murder limns the procedure for determining a defendant's guilt at
2In view of this holding, we need not address the government's
argument that the defendant's claim of instructional error is
underdeveloped and, thus, should be deemed abandoned. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
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trial. See Mass. Gen. Laws ch. 265 § 1. It says nothing about
sentencing procedures.
The issue in this case involves the district court's
determination, at sentencing, that the defendant had committed
first-degree murder. To assess the supportability of that
determination, we look to federal sentencing law and, in
particular, the federal sentencing guidelines. To determine the
base offense level for a RICO conviction, an inquiring court must
look to the relevant conduct guideline: USSG §1B1.3. See United
States v. Carozza, 4 F.3d 70, 74-75 (1st Cir. 1993). For this
purpose, relevant conduct includes "all acts and omissions
committed . . . commanded . . . or willfully caused by the
defendant," USSG §1B1.3(a)(1)(A), in furtherance of the "jointly
undertaken criminal activity" or "enterprise," id.
§1B1.3(a)(1)(B); see Carozza, 4 F.3d at 83. A sentencing court,
faced with the question of whether a murder should be deemed
relevant conduct in a particular case, may make that determination
based upon a preponderance of the evidence. See Carozza, 4 F.3d
at 80-82.
In the case at hand, the district court made the
requisite findings, articulated its rationale, determined that the
defendant had committed two murders that comprised relevant
conduct, and correctly calculated the resultant base offense
level. See USSG §2A.1.1. The sentencing guidelines supply the
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linchpin for these determinations; Massachusetts law was
irrelevant. Thus, we uphold the challenged determinations.
B. The Eighth Amendment Challenge.
The defendant next challenges his life-without-parole
sentence on Eighth Amendment grounds. His chief complaint is that
such a sentence — when imposed with respect to a criminal defendant
who, like himself, was only twenty years old at the time of the
offense of conviction — violates the constitutional prohibition
against cruel and unusual punishment. See U.S. Const. amend. VIII.
Alternatively, he complains that his sentence offends the Eighth
Amendment because it does not rest on an antecedent finding that
he was permanently incorrigible. We address these complaints in
turn.
1. Redrawing the Age-Specific Line. The defendant's
principal constitutional claim begins with Miller, in which the
Court held that mandatory life-without-parole sentences were
unconstitutional when imposed on juvenile offenders (that is,
defendants who were below the age of eighteen when their offenses
were committed). See 567 U.S. at 465. Building on this
foundation, the defendant argues that the Constitution requires
that all offenders below the age of twenty-one receive similar
consideration even in instances involving discretionary (rather
than mandatory) life-without-parole sentences. At sentencing, the
defendant preserved this argument for appeal and, thus, we review
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it de novo. See United States v. Raymond, 697 F.3d 32, 40 (1st
Cir. 2012); United States v. Polk, 546 F.3d 74, 75 (1st Cir. 2008).
The first roadblock that the defendant encounters in his
effort to extend Miller is that, in Miller, the Supreme Court
invalidated only mandatory life-without-parole sentences for
juveniles. See 567 U.S. at 489. The Miller Court made no
constitutional pronouncement one way or the other with respect to
discretionary life-without-parole sentences. Miller is
distinguishable, then, because the life-without-parole sentence in
this case is a discretionary one.
Of course, in considering the retroactivity of its
decision in Miller, the Supreme Court stated that a life-without-
parole sentence — whether mandatory or discretionary — "violates
the Eighth Amendment for a child whose crime reflects 'unfortunate
yet transient immaturity.'" Montgomery v. Louisiana, 136 S. Ct.
718, 734 (2016) (quoting Miller, 567 U.S. at 479). Even so, this
statement did not prohibit discretionary life-without-parole
sentences, and it does not support the defendant's argument that
Miller should be extended to ban discretionary (as well as
mandatory) life-without-parole sentences for twenty-year-old
offenders.
The defendant nonetheless contends that we should apply
the Miller rule to all life-without-parole sentences, whether
mandatory or discretionary, imposed on youthful defendants (that
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is, defendants who were below the age of twenty-one when they
committed their crimes of conviction). In his view, the
mandatory/discretionary dichotomy is irrelevant. Inasmuch as the
defendant argues that Miller turns principally on the age of a
defendant rather than on whether the defendant's life-without-
parole sentence is mandatory or discretionary, we proceed to
confront his argument on its own terms.
Beyond his attempt to blur the distinction between
mandatory and discretionary sentences, the driving force behind
the defendant's argument is the notion that Supreme Court precedent
treating offenders who are under the age of eighteen differently
than young adults is based on outdated science. In the defendant's
view, the modern scientific consensus demands an upward revision
of the Miller line.
With respect to the genesis of the line that it drew,
the Miller Court acknowledged that "children are constitutionally
different from adults for purposes of sentencing." 567 U.S. at
471. Acting upon this principle in other settings, the Court has
declared certain punishments unconstitutional for juveniles
without declaring them unconstitutional for adults. See, e.g.,
Graham, 560 U.S. at 82 (holding unconstitutional life-without-
parole sentences for juvenile offenders convicted of non-homicide
crimes); Roper v. Simmons, 543 U.S. 551, 568 (2005) (invalidating
death penalty for all offenders under age of eighteen). On those
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occasions, the Court extended the relevant Eighth Amendment
protections only to those under age eighteen. See Miller, 567
U.S. at 465; Graham, 560 U.S. at 74-75; Roper, 543 U.S. at 568.
The defendant argues that the line should be redrawn as
scientific research reveals more about when the brain has matured
into adulthood. This argument assumes, though, that the raison
d'être behind the Court's age-specific decisions rests exclusively
on the science surrounding brain development. But a close reading
of the relevant decisions does not indicate that the Court based
them solely on scientific research. And although Eighth Amendment
jurisprudence requires courts to exhibit flexibility to comport
with "the evolving standards of decency that mark the progress of
a maturing society," Miller, 567 U.S. at 469 (quoting Estelle v.
Gamble, 429 U.S. 97, 102 (1976)), scientific evidence is merely
one factor, among an array of factors, that the Court has
considered when invalidating certain criminal sentences imposed on
juveniles. In this appeal, the defendant fails adequately to
explain why the multitude of factors comprising the Eighth
Amendment inquiry compel an extension of Eighth Amendment
protections to a defendant who was twenty years old when he
committed the offense of conviction. We explain briefly.
The seminal case is Roper, in which the Supreme Court
held that the Eighth Amendment prohibited the death penalty for a
defendant who was under the age of eighteen at the time of the
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offense of conviction. See 543 U.S. at 568. The Court relied
heavily on the general consensus among states that the death
penalty should not be imposed on juveniles. See id. at 564-68.
So, too, the Court identified several other factors supporting its
conclusion that juveniles could not be considered blameworthy
enough to be subjected to capital punishment. For example, the
Court pointed to a lack of maturity and sense of responsibility
found generally among juveniles, the susceptibility of juveniles
to environmental pressures and negative external influences, and
the fact that juveniles' overall character is not yet fully formed
because of their youth. See id. at 569-70. As part of its holistic
analysis of how these factors diminish the culpability of a
juvenile, the Court referred to scholarly works, both scientific
and sociological, supporting the conclusion that reckless and
impetuous decisions are more common among juveniles because of
physiological considerations. See id. at 569.
Contrary to the defendant's importunings, the Roper
Court did not attempt to use scientific consensus surrounding brain
development as an exclusive rationale for drawing its age-specific
line at eighteen. Empirical studies were mentioned only as further
support for the proposition that juveniles — as compared to adults
— possess a diminished sense of responsibility. See id. ("[A]s
any parent knows and as the scientific and sociological studies
respondent and his amici cite tend to confirm, '[a] lack of
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maturity and an underdeveloped sense of responsibility are found
in youth more often than in adults.'" (quoting Johnson v. Texas,
509 U.S. 350, 367 (1993))). In the same vein, Roper alluded to a
number of activities (such as voting, serving on juries, and
marrying without parental consent) that traditionally become
acceptable only for those eighteen and older — traditions that are
predicated on the notion that, by age eighteen, people usually
have developed a deeper sense of responsibility and accountability
for their actions. See id.
Nothing in Roper leads us to believe that the Justices
drew the line at age eighteen based exclusively on their perception
of a scientific certainty that an individual's brain and cognitive
functions undergo a metamorphosis at precisely that age. Instead,
the Court's cases indicate that the Justices decided to go as far
as the age of eighteen after carefully balancing a multiplicity of
environmental and societal factors. See, e.g., id. at 570
(discussing juveniles' lack of control over their "immediate
surroundings" and inability to escape "negative influences"); id.
at 564 (citing national consensus among state legislatures against
executing juvenile offenders). The Court drew the line at eighteen
not because that age marked the apotheosis of full-scale
physiological development but, rather, because it represented "the
point where society draws the line for many purposes between
childhood and adulthood." Id. at 574.
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 Subsequent Supreme Court case law confirms this reading
of Roper. In Graham, the Court held that life-without-parole
sentences for juvenile offenders in non-homicide cases contravened
the Eighth Amendment. See 560 U.S. at 82. As in Roper, the Graham
Court identified a myriad of factors supporting the conclusion
that persons under the age of eighteen do not have sufficient
culpability to justify the harshest of sentences. See id. at 68.
Consistent with its approach in Roper, the Graham Court referenced
scientific findings as one type of evidence, among many, that
warranted distinctions between adults and juveniles. See id.
So, too, when the Miller Court held that mandatory life-
without-parole sentences for persons who committed crimes before
turning eighteen violated the Eighth Amendment, it referenced the
Roper factors to explain why juveniles, as a class, were
"constitutionally different from adults for purposes of
sentencing." 567 U.S. at 471. While the Court acknowledged that
scientific research provided support for its determination that
juveniles are generally less culpable than adults, it noted that
science did not furnish the sole basis for its rationale. See id.
Pertinently, the Court explained that a juvenile offender's youth,
including his immaturity, susceptibility to environmental
pressures, and capability for reform, undermines the penological
justifications for imposing a life-without-parole sentence. See
id. at 472-74. Along the way, the Court made pellucid that many
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attributes of youth, including malleable personalities and
ephemeral cognitive traits, counselled in favor of applying the
Eighth Amendment's proscription to mandatory life-without-parole
sentences imposed for offenses committed by persons under the age
of eighteen.3 See id. at 473.
The defendant's argumentation ignores (or, at least,
impermissibly devalues) the Supreme Court's multifaceted approach.
That argumentation, in effect, entreats us to elevate scientific
research about brain development from one of many factors to the
sole determinant of where a line should be drawn between youthful
offenders and more mature offenders. Had the Supreme Court
articulated that its conception of youth rested exclusively on the
physiological development of the brain, this argument might have
some bite. But given the diversity of factors that the Court
considered as part of its Eighth Amendment analysis, movement in
3 We add, moreover, that the defendant over-reads Moore v.
Texas, 137 S. Ct. 1039 (2017), which did not revamp the Court's
holistic approach to the Eighth Amendment. Moore addressed only
an isthmian question concerning how courts should determine if a
defendant facing the death penalty "qualified as intellectually
disabled." Id. at 1044. Far more relevant than Moore is the
decision that extended Eighth Amendment protections to such
individuals, which — tellingly — examined not just cognitive
science but also "the judgment of legislatures that have addressed"
the issue, other indicia of a developing "national consensus," and
"the relationship between mental retardation and the penological
purposes served by the death penalty." Atkins v. Virginia, 536
U.S. 304, 313, 316-21 (2002).
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one factor alone is not sufficient to warrant an extension of
Miller to defendants aged eighteen to twenty.
For the sake of completeness, we note, too, that the
defendant has not demonstrated that brain science has shifted
seismically in the years since the Court decided Roper, Graham,
and Miller. The scientific and sociological studies on which he
relies and that were before the Court in those cases do not stand
for the proposition that brain development ends at age eighteen.
Instead, the focus of those studies was on brain development and
maturity during adolescence, and many of them acknowledged that
brain development continues into the early twenties.4 The lack of
evidence suggesting a breakthrough confirms what is likely an
inconvenient truth from the defendant's standpoint: even though
he can point to recent scholarship about the immaturity of the
eighteen to twenty-year-old brain, he has failed to identify the
kind of scientific breakthrough that itself might compel an
4
See, e.g., Roper, 543 U.S. at 569 (citing Jeffrey Arnett,
Reckless Behavior in Adolescence: A Developmental Perspective, 12
Developmental Rev. 339 (1992)); id. (citing Laurence Steinberg &
Elizabeth S. Scott, Less Guilty by Reason of Adolescence:
Developmental Immaturity, Diminished Responsibility, and the
Juvenile Death Penalty, 58 Am. Psych. 1009 (2003)). Amicus briefs
in this trio of cases likewise cited studies documenting continued
brain development in adolescents "to at least age 22." Brief for
American Psychological Association et al. as Amici Curiae at 11
(filed in Roper); see Brief of American Medical Association et al.
as Amici Curiae at 20-21 (filed in Graham) (describing research
explaining that the prefrontal cortex continues to develop "beyond
adolescence").
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extension of Miller, given the more holistic analysis that the
Eighth Amendment demands.
To say more about this claim would be to paint the lily.
The research available to the Justices when they decided Roper,
Graham, and Miller suggested the conclusion that individuals aged
eighteen to twenty might not possess fully developed brain
processes. Nevertheless, after considering the scientific
evidence as well as the other factors previously discussed, the
Court chose to draw its age-specific line at eighteen.
Accordingly, the defendant has not made the case for extending the
Miller ban on life-without-parole sentences to offenders — like
the defendant — who were in the eighteen-to-twenty age range when
they committed the crimes of conviction.
2. Permanent Incorrigibility. This leaves the
defendant's claim that the Eighth Amendment, at a minimum, requires
an explicit finding of permanent incorrigibility before a life-
without-parole sentence, whether mandatory or discretionary, may
be imposed on a youthful defendant (even a young adult). Because
this claim is made for the first time on appeal, our review is for
plain error. See United States v. Duarte, 246 F.3d 56, 60 (1st
Cir. 2001). To prevail under plain-error review, an appellant
must show "(1) that an error occurred (2) which was clear or
obvious and which not only (3) affected [his] substantial rights,
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but also (4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." Id.
"The plain error hurdle is high," United States v.
Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989), and the defendant
stumbles at the second step of the construct. At that step, the
proponent of plain error must show something more than error
simpliciter: he must show that the claimed error is "clear" or
"obvious." United States v. Olano, 507 U.S. 725, 734 (1993). And
to be "clear" or "obvious," an error must, at the very least,
contradict existing law. See United States v. Bennett, 469 F.3d
46, 50-51 (1st Cir. 2006). Put another way, an error must be
"indisputable" in light of controlling law to warrant correction
on plain-error review. United States v. Jones, 748 F.3d 64, 69-
70 (1st Cir. 2014).
The claimed error in this case does not pass through
this screen. The defendant points to no controlling case law, nor
are we aware of any, supporting a requirement under the Eighth
Amendment that a district court find a non-juvenile defendant
permanently incorrigible before imposing a life-without-parole
sentence, whether mandatory or discretionary.5 Miller itself
5 To be sure, the Supreme Court recently granted certiorari
to consider whether the Eighth Amendment requires a sentencing
court to find a juvenile defendant permanently incorrigible before
imposing a discretionary life-without-parole sentence. See Jones
v. State, No. 2015-CT-00899-SCT, 2018 WL 10700848, at *1 (Miss.
Nov. 27, 2018), cert. granted, 140 S. Ct. 1293 (2020). The Court
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indicates the contrary: so long as the defendant's youth is
"take[n] into account" in the sentencing process, "a sentencer's
ability" to impose a life-without-parole sentence is not
"foreclose[d]." 567 U.S. at 480. In any event, ambiguous case
law does not give rise to the clear or obvious error necessary to
comport with the plain-error construct. See Bennett, 469 F.3d at
50-51. We conclude, therefore, that the claimed error — if error
at all — cannot be considered either "clear" or "obvious." It
follows that plain error is plainly absent.6
C. The Reasonableness Challenge.
The final leg of our journey brings us to the defendant's
challenge to the reasonableness of his sentence. This challenge
has three components. First, the defendant argues that the
sentencing court failed to make a finding that he was permanently
incorrigible — a finding that he envisions as indispensable to a
life-without-parole sentence. Second, he argues that a manifest
sentencing disparity renders his sentence unreasonable. Third, he
heard oral argument in that case on November 3, 2020. We need not
await a ruling in Jones, though, given our determination that
twenty-year-old defendants are not juveniles entitled to the
prophylaxis of the Miller rule.
6 Because the proponent of "plain error must carry the devoir
of persuasion as to all four" elements needed to comprise plain
error, United States v. Pinkham, 896 F.3d 133, 136-37 (1st Cir.
2018), our conclusion that the defendant has failed to satisfy the
second element renders it unnecessary to address the other three
elements.
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argues that the sentence is so draconian as to be substantively
unreasonable. We address these arguments sequentially.
1. Permanent Incorrigibility. In a single line in his
brief, the defendant suggests that his sentence is substantively
unreasonable because the district court made no express finding
that he was incapable of rehabilitation (or put another way, that
he was permanently incorrigible). This ipse dixit is offered up
without any explication and without citation to pertinent
authority.
We do not gainsay that the likelihood of rehabilitation
is a relevant factor in the sentencing calculus. See United States
v. Martin, 520 F.3d 87, 93-94 (1st Cir. 2008). That is materially
different, though, from the proposition asserted by the defendant,
namely, that an antecedent finding of permanent incorrigibility is
essential to render a life-without-parole sentence substantively
reasonable. The defendant advances the latter proposition in
general terms, but he wholly fails to put any flesh on its bare
bones. He neither develops the argument nor accompanies it with
even a shred of authority.
We long have warned that "issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived." United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990). The skeletal presentation of this
argument in the defendant's brief "leav[es] the court to do
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counsel's work" — and that is not our proper province. Id.
Consequently, we deem the defendant's claim waived.
2. Disparity. Contemporaneous with the prosecution of
the defendant, the government entered into a plea agreement with
a coconspirator, Joel Martinez. The district court sentenced
Martinez to a forty-year term of immurement. The defendant alleges
that the gulf between Martinez's sentence and his life-without-
parole sentence renders his sentence unreasonable. Assuming,
without deciding, that this claim of disparity engenders de novo
review (the most defendant-friendly of the possible alternatives),
the claim nonetheless fails.
We have held before — and today reaffirm — that when a
defendant makes a claim of sentencing disparity, he "must compare
apples to apples." United States v. González-Barbosa, 920 F.3d
125, 131 (1st Cir. 2019). Other than pointing to the obvious fact
that both men were convicted of the same crime — RICO conspiracy
— the defendant makes no real attempt to develop a match between
his circumstances and Martinez's circumstances. And in any event,
the record plainly shows that he is attempting to compare apples
to kumquats. We catalog a few of the material discrepancies that
distinguish Martinez's case from that of the defendant.
To begin, Martinez committed one murder, whereas the
defendant committed two. What is more, Martinez accepted
responsibility for his unlawful actions, whereas the defendant did
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not. And in addition, Martinez pleaded guilty, whereas the
defendant elected to stand trial. Courts should tailor sentences
to respond to the culpability of individual defendants and to the
nature and circumstances of the crimes they have committed. See
United States v. Alexander, 958 F.3d 1, 11-12 (1st Cir. 2020);
United States v. Flores-Machicote, 706 F.3d 16, 20-21 (1st Cir.
2013). When defendants' circumstances are materially different,
a claim of sentencing disparity will not wash. See United States
v. Reyes-Santiago, 804 F.3d 453, 467 (1st Cir. 2015); cf. United
States v. Reverol-Rivera, 778 F.3d 363, 366-67 (1st Cir. 2015)
(finding no disparity when one codefendant played a leadership
role in the crime while the other was subordinate); United States
v. Dávila-González, 595 F.3d 42, 50 (1st Cir. 2010) (finding no
disparity when one codefendant pleaded guilty and the other
proceeded to trial); United States v. Mateo-Espejo, 426 F.3d 508,
514 (1st Cir. 2005) (finding no disparity when one codefendant
cooperated promptly while the other did so "belated[ly] and
grudging[ly]"). That is precisely the situation here.
In an effort to blunt the force of this reasoning, the
defendant suggests that he was coerced into going to trial and,
relatedly, that he could not accept responsibility for his crimes
because the government insisted on a life sentence during plea
negotiations. These suggestions elevate hope over reason.
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Generally, a criminal defendant has no right to a plea
bargain. See Lafler v. Cooper, 566 U.S. 156, 168 (2012); United
States v. Skerret-Ortega, 529 F.3d 33, 37 (1st Cir. 2008). It
defies logic, then, to argue that the government's refusal during
plea negotiations to commit to recommending a reduced sentence
constituted coercion when the government had no obligation to offer
any kind of plea deal at all. See United States v. Kenney, 756
F.3d 36, 48 (1st Cir. 2014). Nor can the lack of what a defendant
may consider a sweet deal be understood as precluding him from
accepting responsibility for his crimes. Describing such events
as amounting to coercion would drain that term of any plausible
meaning. After all, a party is not coerced simply because the
counter party pursues a course of action that is well within its
rights.
3. Substantive Reasonableness. Finally, the defendant
calumnizes his sentence as substantively unreasonable. This
assignment of error is rooted in 18 U.S.C. § 3553(a), which
rehearses the type of factors that a sentencing court ought to
consider in order to impose a sentence that is "sufficient, but
not greater than necessary" to achieve the purposes of condign
punishment. The defendant submits that because the risk of
recidivism will be miniscule once he achieves a certain age (say,
his "fifties or sixties"), a life-without-parole sentence is
unduly severe and, thus, substantively unreasonable.
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We review the defendant's challenge to the substantive
reasonableness of his sentence for abuse of discretion. See
Holguin-Hernandez v. United States, 140 S. Ct. 762, 766 (2020).
The key question is whether the challenged sentence is justified
by a "plausible sentencing rationale and reaches a defensible
result." United States v. Cameron, 835 F.3d 46, 52 (1st Cir. 2016)
(quoting United States v. Breton, 740 F.3d 1, 19 (1st Cir. 2014)).
In this instance, the defendant posits that these
criteria are not satisfied because a life-without-parole sentence
is disproportionate to the risk of his recidivism. Such a
characterization of the sentence, though, overlooks that
protecting the public from future crimes is only one of the goals
that a sentencing court must take into account. See 18 U.S.C.
§ 3553(a). The court also must weigh, for instance, factors such
as the nature and circumstances of the offense of conviction, the
history and characteristics of the offender, the seriousness of
the offense, and the need for deterrence. See id.
Here, the district court went to considerable length in
articulating its sentencing rationale. The court took note of the
defendant's relative youth and difficult upbringing but
nonetheless concluded that the heinous nature of the defendant's
actions and his utter lack of remorse called for a life-without-
parole sentence. The court's rationale was plausible: there can
be no doubt that the defendant played a leadership role in an
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organization that wreaked havoc in the Boston area, that the crimes
committed by the organization were serious, and that the predicate
offenses for which he was personally responsible were both
premeditated and vicious. Nor can there be any doubt that the
defendant has never expressed the slightest remorse either for
butchering two teenagers or for his participation, more generally,
in MS-13's widespread criminal activity.
So, too, the sentence itself was defensible. Where, as
here, the substantive reasonableness of a sentence is questioned,
a reviewing court's inquiry must recognize that "[t]here is no one
reasonable sentence in any given case but, rather, a universe of
reasonable sentencing outcomes." United States v. Clogston, 662
F.3d 588, 592 (1st Cir. 2011). What is more, when — as in this
case — a defendant challenges a sentence that falls within a
properly calculated GSR, he must carry the heavy burden of
convincing us that the district court acted unreasonably in
imposing the sentence. See id. at 592-93.
Here, the defendant has failed to carry that heavy
burden. The district court concluded that the grisly nature of
the facts in this case warranted a life-without-parole sentence.
Seen in the lurid light of the totality of the circumstances, we
conclude that the district court acted within the ambit of its
discretion by imposing a life-without-parole sentence. Such a
sentence falls within the wide universe of substantively
- 29 -
reasonable sentences for the offense of conviction. Hence, the
defendant's assignment of error fails.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the judgment of the district court is
Affirmed.
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