United States Court of Appeals For the First Circuit

No. 20-1817

UNITED STATES OF AMERICA,

Appellee,

v.

BENNY RUPERTO-RIVERA,

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

Howard, Chief Judge, Selya and Kayatta, Circuit Judges.

Rafael Anglada-López on brief for appellant. W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá- Almonte, Assistant United States Attorney, Chief, Appellate Division, and Robert P. Coleman III, Assistant United States Attorney, on brief for appellee.

October 12, 2021 SELYA, Circuit Judge. In this appeal, defendant-

appellant Benny Ruperto-Rivera strives to persuade us that the

district court overemphasized aggravating factors and overlooked

mitigating factors when fashioning his sentence. Although the

appellant is less than precise as to whether he intends to mount

a claim of procedural error or a claim of substantive

unreasonableness, that lack of precision makes no difference here:

whether viewed in terms of procedural error or in terms of

substantive reasonableness, his arguments are unconvincing.

Consequently, we affirm the challenged sentence.

I. BACKGROUND

We briefly rehearse the relevant 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. Dávila-González,

(1st Cir. 2010) (quoting

United States v. Vargas,

(1st Cir. 2009)).

On an unknown date in 2018, four individuals were

captured in a video, pointing firearms at a fifth individual and

threatening to shoot him. The firearms depicted in the video

included two handguns, a third handgun with an extended magazine,

and a rifle with a drum magazine. Following an investigation, one

of the four individuals was identified as the appellant — a

- 2 - previously convicted felon — who was shown in the video holding a

Glock pistol.

On September 20, 2018, a federal grand jury sitting in

the District of Puerto Rico returned an indictment, which — as

relevant here — charged the appellant, then age 28, with possession

of a firearm and ammunition by a convicted felon. See

(g)(1), 924(a)(2). Although the appellant initially

maintained his innocence, he reversed course on March 29, 2019 and

moved for leave to enter a guilty plea. The district court later

accepted his guilty plea, and a PSI Report was prepared. Based on

a total offense level of seventeen and a criminal history category

of IV, the appellant's guideline sentencing range (GSR) was thirty-

seven to forty-six months. Neither party objected to any portion

of the PSI Report.

At the disposition hearing, defense counsel lamented

that the appellant "ha[d] not had an exemplary upbringing." She

added that the appellant "ha[d] spent most of his young adult years

in the state penitentiaries" and argued that "long-term punishment

and incarceration [do] not necessarily rehabilitate[] young

persons." Because "more incarceration w[ould] not improve or help

anything," she advocated for the appellant's release under the

supervision of the probation office.

- 3 - The appellant allocuted. He stated that he had made a

"mistake" and asked the court for "an opportunity so that [he] can

prove that [he's] ready to move on with [his] life, to be better."

The government had a different view of the matter.

Noting that the appellant's "criminal record reflect[ed] an

escalation" in criminal activity, the prosecutor requested a term

of immurement of thirty-seven months.

The sentencing court began by addressing the appellant's

statement that he had made a "mistake." The court recounted the

appellant's criminal history, pointed out the short time lapse

between the appellant's release from prison and his involvement in

the charged offense, and described that offense. The court

observed that "[t]hese type[s] of offenses are not simply

mistakes . . . they are called crimes." It went on to say that

"making threats against the life of individuals is a very serious

offense . . . [a]nd the type of weapons is quite serious."

After determining that the GSR was properly calculated,

the court proceeded to consider the factors limned in

(a). The court discussed a wide array of subjects, including

the appellant’s age, education level, health, employment record,

substance-use history, and criminal past. Next, it confirmed its

familiarity with the facts of the offense of conviction. "And

after balancing all [the] factors," the court concluded that a

- 4 - forty-six-month term of immurement was a condign punishment and

imposed an incarcerative sentence of that length.

Defense counsel immediately requested reconsideration of

the sentence imposed due to what she deemed as the court's reliance

on dismissed criminal conduct (specifically, past arrests for

first-degree murder and a weapons violation). The court responded

that it had made clear that those charges had been dismissed and

that the appellant was a convicted felon by reason of a prior "drug

charge[]" — a charge that had ripened into a conviction. Replying

to defense counsel's comment that she "d[id]n't want to figure out

that the Court see[s the appellant] as a murderer or a person who

used to use weapons in the past," the court said that it "ha[d]

not considered the murder at all." The court added that it "ha[d]

[partly] imposed the sentence based on what is perceived to be

[the appellant's] prognosis for rehabilitation." Accordingly, the

motion for reconsideration was denied. This timely appeal

followed.

II. ANALYSIS

"Appellate review of claims of sentencing error entails

a two-step pavane." United States v. Matos-de-Jesús,

(1st Cir. 2017). Under this bifurcated framework, we

first examine any claims of procedural error. See

If the

sentence is procedurally sound, we then examine any claim of

substantive unreasonableness. See

- 5 - In the case at hand, the appellant is less than precise

as to whether he wishes to mount a claim of procedural error, a

claim of substantive unreasonableness, or both. In an abundance

of caution, we inspect his claims, where applicable, through both

lenses.

A. The Procedural Lens.

The appellant's flagship claim is that the district

court "failed to adequately balance the sentencing factors." He

identifies two ways in which the court allegedly blundered. First,

he submits that the court erred by considering dismissed criminal

conduct and "plac[ing] too much weight on" it. Second, he submits

that the court "disregarded the mitigating factors." Viewed

through the lens of procedural error, neither claim gains him any

traction.

At the disposition hearing, the appellant voiced his

objection to the sentencing court's alleged reliance on dismissed

charges. Thus, we review his first claim of error for abuse of

discretion. See United States v. Díaz-Lugo,

(1st Cir. 2020). We discern none.

The appellant's contention that the sentencing court

impermissibly "considered" dismissed criminal conduct is little

more than gaslighting. Perscrutation of the sentencing transcript

makes pellucid that the sentencing court did nothing more than

recite the appellant's arrest record (including dismissed criminal

- 6 - charges) as it narrated his criminal history. Such a reading is

consistent with the court's explicit statement that it "ha[d] not

considered the murder at all." A defendant's criminal record is

a part of his history, and a sentencing court does not abuse its

discretion simply by chronicling that record (without attaching

any weight to mere arrests or dismissed charges). See United

States v. Santa-Soler,

(1st Cir. 2021) (holding

that "sentencing court's mere mention of a defendant's arrest

record as a matter of historical fact, without more, does not

constitute an abuse of discretion"); cf. United States v. Vélez-

Andino, ___ F.4th ___, ___ (1st Cir. 2021) [No. 19-1300, slip op.

at 9] (finding no plain error in sentencing court's "unadorned

recitation of matters of historical fact," including dismissed

criminal charges).

The appellant's second claim of error fares no better.

To begin, this claim — that the sentencing court disregarded

mitigating factors — is raised for the first time on appeal and,

thus, engenders only plain-error review. See United States v.

Duarte,

(1st Cir. 2001).

"The plain error hurdle is high." United States v.

Hunnewell,

(1st Cir. 1989). The proponent of

plain error must carry the devoir of persuasion as to each of "four

showings: (1) that an error occurred (2) which was clear or

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

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

integrity, or public reputation of judicial proceedings." Duarte,

. Here, our review starts — and ends — at the first

step because the appellant cannot show that any error occurred.

"[T]he sentencing inquiry . . . ideally is broad, open-

ended, and significantly discretionary." United States v. Martin,

(1st Cir. 2008). Once a sentencing court has

properly calculated a defendant's GSR, "sentencing becomes a

judgment call."

Although the court must consider all of the

relevant factors limned in

(a), it need not give

every factor equal weight. See United States v. Dixon,

(1st Cir. 2006). And when explicating the sentence

imposed, the court "is not required to address [the sentencing]

factors, one by one, in some sort of rote incantation."

Nor

is the court required "to explain why it eschewed other suggested

sentences." United States v. Vega-Salgado,

(1st

Cir. 2014). It is enough for the "court simply to identify the

main factors driving its determination." United States v.

Sepúlveda-Hernández,

(1st Cir. 2016).

Here, the record makes manifest that the sentencing

court considered all the relevant section 3553(a) factors. Indeed

— after hearing arguments from both sides — the court expressly

acknowledged its obligation to mull those factors. It then

referred to a number of the factors and proceeded to elaborate on

- 8 - the appellant’s background, criminal history, and participation in

the offense of conviction. Summing up, the court confirmed that

it had "balanc[ed] all [the] factors" — and such a statement "is

entitled to some weight." Dávila-González,

.

The appellant's contention that the court "disregarded"

mitigating factors is not supported by the record. The point most

vigorously pressed by defense counsel at the disposition hearing

was rehabilitation. The court dealt explicitly with this point.

In fact, it stated that it had, in part, "imposed the sentence

based on what is perceived to be [the appellant's] prognosis for

rehabilitation." That the court did not explain in exquisite

detail why it chose to afford relatively little weight to the

factors that the appellant advanced in mitigation is not the sort

of stuff out of which a claim of sentencing error can be

constructed. See United States v. Sayer,

(1st

Cir.) (observing that "courts are not required to specifically

explain why they rejected a particular defense argument in favor

of a lower sentence"), cert. denied,

(2019).

Stripped of rhetorical flourishes, the appellant's

plaint that the sentencing court undervalued mitigating factors

seems to be another way of saying that the court did not share

defense counsel's view of the salience of those factors. In other

words, the plaint boils down to a lament that the court did not

weigh the aggravating and mitigating factors as counsel would have

- 9 - preferred. Seen in this light, the appellant's claim, in effect,

asks us to elevate his counsel's appraisal of the mitigating

factors over that of the sentencing court. The law does not permit

us so blithely to displace a sentencing court's exercise of its

discretion.

After all, it is "[t]he sentencing court's task [] to

sift the available information and balance the pertinent factors."

United States v. Madera-Ortiz,

(1st Cir. 2011).

The weighing of sentencing factors "represent[s] a judgment

call . . . for the sentencing court" alone to make.

Because

the court below did not abuse its discretion in balancing the

section 3553(a) factors in a manner that it reasonably deemed

appropriate, the appellant's claim cannot succeed on plain-error

review.

B. The Substantive Lens.

Next, we view the challenged sentence through a more

substantive lens. With respect to the substantive reasonableness

of a sentence, our review is for abuse of discretion. See Holguin-

Hernandez v. United States,

(2020); United

States v. Bruno-Campos,

(1st Cir. 2020).

"In the sentencing context, 'reasonableness is a protean

concept.'" United States v. Clogston,

(1st Cir.

2011) (quoting Martin,

). Consequently, "[t]here is

no one reasonable sentence in any given case but, rather, a

- 10 - universe of reasonable sentencing outcomes."

Our task, then,

is "to determine whether the [challenged] sentence falls within

this broad universe." United States v. Rivera-Morales,

(1st Cir. 2020). In making this determination, "we cannot

substitute our judgment of the appropriate sentence for that of

the sentencing court; to the contrary, we must accord significant

deference to the court’s informed determination that the section

3553(a) factors justify the sentence imposed."

When all is said and done, "a sentence is substantively

reasonable so long as the sentencing court offers a plausible

rationale and the sentence represents a defensible result."

Thus, we measure the sentence imposed on the appellant against

this benchmark.

In this instance, the sentencing court lucidly

articulated its sentencing rationale. The court addressed the

appellant’s age, education level, health, employment record,

substance-use history, and criminal past. It also addressed his

participation in the offense of conviction. The court noted that

"making threats against the life of individuals is a very serious

offense . . . [a]nd the type of weapons is quite serious." What

is more, the court found it significant that the appellant engaged

in the offense "shortly after" being released from prison. In the

court’s estimation, the appellant’s commission of the offense of

conviction could not be written off as a mere "mistake." Finally,

- 11 - the court determined that a forty-six-month prison sentence — a

sentence at the top of, but within, the GSR — was appropriate.

The sentence imposed was a logical culmination of the

sentencing court's juxtaposition and evaluation of the relevant

sentencing factors. We therefore find its sentencing rationale

plausible.

So, too, the challenged sentence constitutes a

defensible result. The district court thoroughly considered the

relevant section 3553(a) factors. The court took particular note

of the appellant's threat to kill. And as the court pointed out,

the appellant's conduct was all the more worthy of reproof because

that conduct occurred soon after his release from prison. See

Vélez-Andino, ___ 4th at ___ [No. 19-1300, slip op. at 18] (finding

sentence defensible when, among other things, defendant engaged in

offense of conviction "[l]ess than three months after being

released from prison").

We have said before — and today reaffirm — that "[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

[GSR]." United States v. Ruiz-Huertas,

(1st

Cir. 2015) (second alteration in original) (quoting Vega-Salgado,

); see Clogston,

. On the facts

of this case, the appellant cannot accomplish that heavy lift:

- 12 - the sentencing outcome is entirely defensible. Cf. Clogston,

("That the sentencing court chose not to attach to

certain of the mitigating factors the significance that the

appellant thinks they deserved does not make [his] sentence

unreasonable.").

III. CONCLUSION

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

the challenged sentence is

Affirmed.

- 13 -