United States Court of Appeals For the First Circuit

No. 15-1234

UNITED STATES OF AMERICA,

Appellee,

v.

ENGLIS PÉREZ, t/n ENGLIS EDUARDO PÉREZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

Kayatta, Selya and Stahl, Circuit Judges.

Michael R. Hasse on brief for appellant. Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, on brief for appellee.

April 22, 2016 SELYA, Circuit Judge. This sentencing appeal embodies

four discrete claims of error. Having scrutinized these claims in

light of the record as a whole, we affirm the appellant's sentence.

I. BACKGROUND

The critical facts are largely uncontested. Defendant-

appellant Englis Pérez, a Dominican national, journeyed to

Venezuela in early 2014 to undertake a cocaine-smuggling venture.

Shortly after midnight on March 4, 2014, federal authorities

intercepted a 30-foot speedboat — operating without lights,

powered by two outsized outboard engines, and equipped with 23

extra fuel tanks — that had left port in Venezuela and was

approaching the coast of Puerto Rico. The vessel was carrying 38

bales, which contained in the aggregate approximately 1,056

kilograms of cocaine.

Only two persons were aboard the vessel when it was

intercepted: the appellant and an individual later identified as

Gregorio Rodríguez. A federal grand jury sitting in the District

of Puerto Rico returned a six-count indictment against the pair,

charging them with conspiracy to import 5 or more kilograms of

cocaine into the United States, in violation of

(a), 960, and 963 (count 1); conspiracy to possess with

intent to distribute 5 kilograms or more of cocaine, in violation

of

(a)(1) and 846 (count 2); aiding and abetting

in the possession with intent to distribute 5 kilograms or more of

- 2 - cocaine, in violation of

and

(a)(1)

(count 3); aiding and abetting in the importation of 5 kilograms

or more of cocaine, in violation of

and

and 960 (count 4); conspiracy to possess with intent to

distribute 5 or more kilograms of cocaine on board a vessel subject

to the jurisdiction of the United States, in violation of

(c)(1)(D), 70503(a)(1), 70504(b)(1) and 70506(a) and (b)

(count 5); and aiding and abetting in the possession with intent

to distribute 5 kilograms or more of cocaine on board a vessel

subject to the jurisdiction of the United States, in violation of

and

(c)(1)(D), 70503(a)(1),

70504(b)(1) and 70506(a) (count 6). Although the appellant

originally maintained his innocence, he shortly entered a straight

guilty plea to all six counts of the indictment.

Following the preparation of a presentence investigation

report and some related skirmishing, the district court convened

the disposition hearing on January 27, 2015. The November 2014

edition of the sentencing guidelines controlled. See United States

v. Harotunian,

(1st Cir. 1990). The court

calculated the appellant's guideline sentencing range (GSR) as

135-168 months and imposed a sentence at the bottom of that range:

135 months. This timely appeal ensued.

- 3 - II. ANALYSIS

In this case, the appellant challenges both the

procedural underpinnings and the substantive reasonableness of his

sentence. Overall, claims of sentencing error are reviewed for

abuse of discretion. See Gall v. United States,

(2007); United States v. Martin,

(1st Cir. 2008).

With respect to procedural claims, however, the abuse-of-

discretion standard of review is not monolithic. Within it, "we

assay the district court's factfinding for clear error and afford

de novo consideration to its interpretation and application of the

sentencing guidelines." United States v. Flores-Machicote,

(1st Cir. 2013).

Against this backdrop, we turn to the appellant's

asseverational array. Because a reviewing court, in the sentencing

context, should first address claims of procedural error, see

Martin,

, we start there.

A. Mitigating Role.

The appellant asserts that the district court committed

procedural error when it refused to reduce his GSR to compensate

for the appellant's role in the offense. This claim was preserved

below and, thus, our review is for clear error. See United States

v. Garcia,

(1st Cir. 1992).

USSG §3B1.2(b) provides for reducing a defendant's base

offense level by two levels if the defendant was a minor

- 4 - participant in the criminal activity. The appellant argues that

he was entitled to the benefit of this adjustment,1 which would

have lowered his GSR (and, presumably, his sentence). We do not

agree.

A defendant who seeks a mitigating role adjustment bears

the burden of proving, by a preponderance of the evidence, that he

is entitled to the downward adjustment. See United States v.

Vargas,

(1st Cir. 2009). "To qualify as a minor

participant, a defendant must prove that he is both less culpable

than his cohorts in the particular criminal endeavor and less

culpable than the majority of those within the universe of persons

participating in similar crimes." United States v. Torres-

Landrúa,

(1st Cir. 2015) (quoting United States v.

Santos,

(1st Cir. 2004)). Here, we need go no

further than the first prong of this two-part test.

Role-in-the-offense determinations are notoriously

fact-specific. See United States v. Meléndez-Rivera,

(1st Cir. 2015); United States v. Rosa-Carino,

(1st Cir. 2010). In this instance, the district court explicitly

found, as a matter of fact, that the two participants in the

smuggle (the appellant and Rodríguez) were "equally culpable."

1 The appellant originally sought a four-level decrease in his offense level arguing that his role in the offense was no more than minimal. See USSG §3B1.2(a). However, he abandoned that position below.

- 5 - This finding is not clearly erroneous: the two men traveled first

to Colombia and then to Venezuela, specifically to undertake the

unlawful voyage; they shared the work at sea en route to Puerto

Rico; and the appellant's special skill set as a mechanic was

essential to the success of the venture. The fact that Rodríguez

was deemed the "captain" of the craft does not undermine the

sentencing court's finding that they were equal partners in the

criminal activity. See, e.g., United States v. Bravo,

(1st Cir. 2007).

We have said before that "absent a mistake of law,

battles over a defendant's status . . . will almost always be won

or lost in the district court." United States v. Graciani,

(1st Cir. 1995). This case is no exception.

In an effort to blunt the force of this reasoning, the

appellant advances two arguments. First, he says that "the

district court summarily declined to grant the [minor role]

adjustment without outlining any reasoning for its decision." This

statement is simply wrong: the district court entertained

extensive argument on this very point and explained its reasoning

in some detail. The court mentioned the large quantity of drugs,

the trust that the drug owners obviously placed in the appellant,

and the appellant's expertise in "how to handle the boat." That

the appellant resists the district court's explanation for the

- 6 - "equal culpability" finding is not a basis for holding that the

finding is unexplained.

The appellant also makes a hierarchical argument. He

submits that he is a minor participant in the criminal activity,

broadly defined, because he played a bit part when compared to

those unidentified individuals who "owned" the drugs and those

unidentified individuals who presumably were prepared to

distribute them in the United States.

This argument is unavailing. When two persons undertake

to transport by themselves a large quantity of drugs in a long and

hazardous voyage at sea, it is not clear error for a sentencing

court to regard each as a principal and refuse to grant any

mitigating role adjustment.2 See United States v. Zakharov,

(9th Cir. 2006); United States v. Coneo-Guerrero,

(1st Cir. 1998).

That ends this aspect of the matter. Where there is

more than one plausible view of the circumstances, "the sentencing

court's choice among supportable alternatives cannot be clearly

erroneous." United States v. Ruiz,

(1st Cir.

1990).

2 Here, moreover, the district court's choice to define the criminal activity narrowly was consistent with the indictment, which focused on the voyage and the interception of the vessel. Consistent with this focus, the facts of record do not deal either with the provenance of the drugs or with the ultimate plans for their retail distribution.

- 7 - B. Failure to Explain.

Congress has directed every sentencing court to "state

in open court the reasons for its imposition of the particular

sentence."

(c). Though the court's explanation

need not "be precise to the point of pedantry," United States v.

Turbides-Leonardo,

(1st Cir. 2006), the explanation

given should "identify the [relevant] factors driving [the

sentencing] determination." United States v. Sepúlveda-Hernández,

___ F.3d ___, ___ (1st Cir. 2016) [No. 15-1293, slip op. at 5];

see United States v. Ruiz-Huertas,

(1st Cir.),

cert. denied,

-59 (2015).

The appellant argues that the court below forsook this

duty. Since the appellant did not preserve any such claim of error

in the district court, our review is for plain error. See United

States v. Montero-Montero, ___ F.3d ___, ___ (1st Cir. 2016) [No.

15-1405, slip op. at 3]. To establish plain error, an appellant

must show "(1) that an error occurred (2) which was clear or

obvious and which not only (3) affected the [appellant's]

substantial rights, but also (4) seriously impaired the fairness,

integrity, or public reputation of judicial proceedings." United

States v. Duarte,

(1st Cir. 2001).

The appellant's argument is puzzling. He alleges,

without qualification, that "the district court failed to explain

its reasons for the 135-month sentence it imposed." Yet, the

- 8 - sentencing transcript belies this allegation. The court

explicitly stated that "[t]he guideline computations

satisfactorily reflect the components of this offense by

considering its nature and circumstances. . . ." The court went

on to note that it had "considered the other sentencing factors

set forth in Title 18, U.S. Code [§] 3553." The court also referred

to the appellant's "personal history and characteristics . . . as

well as . . . the nature of the circumstances under which [he] was

hired to perform this job."

After alluding to the "elements of the offense and [the

appellant's] participation in the same," the court stated that it

was taking into account "the need to promote respect for the law,

protect the public from further crimes by defendant, the need to

address issues of deterrence and punishment, as balanced together

with the personal history and characteristics of defendant." In

the end, the court concluded "that a sentence in this case at the

lower end of the guideline range would be a sentence that is just

and not greater than necessary."

Where, as here, the court imposes a sentence that comes

within the GSR, "the burden of adequate explanation is lightened."

Montero-Montero, slip op. at 4. We hold that the court's

explanation was sufficient to satisfy this lightened burden and to

explicate its within-the-range sentence. There was no error, plain

or otherwise.

- 9 - C. National Disparity.

Citing

(a)(6), the appellant next argues

that his sentence was "disproportionate to others found guilty of

the same or similar conduct." This argument is unpersuasive.

Section 3553(a)(6) instructs a sentencing court to

consider "the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of

similar conduct." This provision is aimed, generally, at the

minimization of sentencing disparities among defendants

nationwide. See Martin,

. Because the appellant

did not raise this claim of error below, our review is for plain

error. See Duarte,

.

We see nothing resembling plain error here. The

appellant presents this argument in hortatory terms without

developing any relevant factual foundation. The lack of developed

argumentation is fatal to the claim. See United States v. Zannino,

(1st Cir. 1990) ("[I]ssues adverted to in a

perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived.").

D. Substantive Reasonableness.

The appellant's last claim of error targets the

substantive reasonableness of his sentence. The standard of review

is murky. See Ruiz-Huertas,

& n.4 (noting

uncertainty about whether a claim that a sentence is substantively

- 10 - unreasonable must be preserved below). Rather than resolving the

question, we assume — favorably to the appellant — that our review

of this claim is for abuse of discretion. Even so, the appellant's

challenge fails.

A sentence will survive a challenge to its substantive

reasonableness as long as it rests on a "plausible sentencing

rationale" and reflects a "defensible result." Martin,

. "A challenge directed at substantive reasonableness is

usually a heavy lift, and reversal is 'particularly unlikely when

. . . the sentence imposed fits within the compass of a properly

calculated [guideline sentencing range].'" Ruiz-Huertas,

-29 (quoting United States v. Vega-Salgado,

(1st Cir. 2014) (omission and alteration in original)).

So it is here: as recounted above, the district court

articulated an eminently plausible rationale for the sentence.

Moreover — given the parameters of the GSR, the large quantity of

drugs involved, and the appellant's vital role in the smuggle — a

135-month sentence is defensible.

The appellant's main argument in support of his plaint

that his sentence is substantively unreasonable is that his

coconspirator, Rodríguez, received a much lighter sentence (48

months).3 But at the time the appellant was sentenced — January

3 Although the appellant's briefs assert that Rodríguez was sentenced to 46 months' imprisonment, the court docket indicates

- 11 - 27, 2015 — Rodríguez's case was still pending. Rodríguez was not

sentenced until March 10, 2015, roughly six weeks after the

appellant was sentenced. The fact that the disparity argument, as

made to us, could not have been made to the sentencing court

creates a curious anomaly. Cf. Cahoon v. Shelton,

(1st Cir. 2011) (warning that a party cannot expect to obtain

relief from an appellate court that he never sought in the trial

court); Beaulieu v. U.S. IRS,

(1st Cir. 1989)

(same).

Here, however, we need not grapple with this anomaly.

That the appellant and Rodríguez received different sentences

tells us nothing about which of those sentences varies from the

norm; and the limited record available to us suggests that there

are reasons why a sentencing judge could have seen the two

situations as quite different.4 These uncertainties, taken

together, preclude any finding that the appellant's within-

guidelines sentence is substantively unreasonable.

that Rodríguez was sentenced to 48 months. See United States v. Rodríguez, Crim. Case No. 3:14-cr-00182 (D.P.R. Mar. 10, 2015).

4 Unlike the appellant, Rodríguez pleaded guilty to only a single count of the indictment; he did not enter a straight plea but, rather, pleaded guilty pursuant to a negotiated plea agreement (the terms of which are not summarized in the appellant's brief or elsewhere in the sentencing record); and there is some indication in the record that Rodríguez may have been experiencing medical complications that influenced the duration of his sentence.

- 12 - III. CONCLUSION

We need go no further. For the reasons elucidated above,

the appellant's sentence is

Affirmed.

- 13 -