United States Court of Appeals For the First Circuit

No. 19-1652

UNITED STATES OF AMERICA,

Appellee,

v.

CRISTIAN SERRANO-DELGADO,

Defendant, Appellant.

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

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

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

Victor Gonzalez-Bothwell, Assistant Federal Public Defender, with Eric Alexander Vos, Federal Public Defender, Franco L. Pérez- Redondo, Assistant Federal Public Defender, and Liza L. Rosado- Rodríguez, Research and Writing Specialist, on brief, for appellant. David C. Bornstein, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Chief, Appellate Division, were on brief, for appellee.

March 22, 2022 KAYATTA, Circuit Judge. Cristian Serrano-Delgado drove

a car that transported two passengers to and from a robbery of a

bar, during which one of his passengers killed an off-duty police

officer. The government charged all three men with conspiracy to

commit a robbery, committing the robbery, and discharging a firearm

in relation to a crime of violence resulting in death. The two

men who held up the bar negotiated guilty pleas, but Serrano opted

to go to trial. After a jury found him guilty on all counts, the

district court sentenced him to thirty years in prison. Serrano

now challenges several aspects of his trial and sentence. Finding

none of his challenges availing, we affirm.

I.

A.

The events of this case occurred on a single night in

2017, during which Herol Café -- a bar and restaurant in Ponce,

Puerto Rico -- was robbed and a patron was killed. Before the

robbery, Serrano had been driving two other men (Jonathan Valentín-

Santiago and Rubén Miró-Cruz) through the streets of Ponce.

Security cameras recorded his car as he drove past Herol Café three

times in five minutes. After the third pass-by, Serrano parked

the car up the block and pointing away from the bar, even though

there was plenty of parking much closer to the bar on both sides

of the street.

- 2 - Valentín and Miró got out of the car and headed toward

Herol Café. Serrano waited near the trunk of the vehicle, where

(as he later admitted to an FBI agent) he "made as though he was

looking for something." He testified at trial, however, that he

was innocently tying down boxes of sneakers he had in the trunk

because Valentín had been complaining of the noise while they were

driving.

Outside the bar, a group of men were playing dominoes.

With his face covered by a bandana, Valentín announced to the group

that he was holding them up and that he and his partner would kill

anyone who moved. The men put their jewelry and money on the

table. Valentín then entered the bar while Miró, also masked and

armed with a knife, stood watch over the men outside. Inside,

Valentín pulled out a gun and ordered the patrons to give him

money. One of the patrons, an off-duty police officer, took out

his gun and fired at the robber, hitting Valentín in the abdomen

three times. Valentín returned fire, killing the officer.

Upon hearing the shots, Miró raced back to the car.

Seconds later, Valentín exited and began to hobble toward the car.

There was cross-fire in the street as Valentín shot behind his

back at the bar while the owner, using the officer's gun, returned

fire. Serrano waited for Valentín to get into the car before he

drove off. An eyewitness in a nearby building saw Valentín, with

his face still masked, firing his pistol while he limped toward

- 3 - the car. She testified that the car "left fast" as soon as Valentín

got in. Serrano claimed at trial that, upon returning to the car,

Valentín threatened to kill him unless he drove to a hospital. A

tire blew out on the way, so Serrano parked on a nearby street and

took a bleeding Valentín out of the car. He then called his mother

to pick him up because he didn't have a spare tire.

A police officer who responded to the scene -- and who

had already watched security footage of the incident -- heard a

radio report of an injured person in a nearby subdivision. He

went to investigate and "immediately recognized . . . the person

who shot" the off-duty officer because he was wearing "the same

clothes" and bandana. He radioed a medical emergency, and Valentín

was quickly transported to the hospital.

Serrano, meanwhile, had been picked up by his mother.

Once home, he gathered his brother and girlfriend to return to his

car to fix the tire. Back at the car, Serrano started to clean

Valentín's blood off the seats. He found a shirt, a cap, a

kerchief, and a small rag, some of which were soaked in blood, and

threw it all onto the property of an abandoned house nearby.

Serrano's brother was changing the tire when a police officer

arrived, recognized the car from the description of the one that

sped away from the robbery, and arrested Serrano, his girlfriend,

and his brother.

- 4 - After being Mirandized, Serrano spoke to an FBI agent.

During the interview, he told the agent that Miró lived in the

Dr. Pila Housing Project. The next day, the police arrested Miró

at that address. Serrano later testified at trial that he had

never met Miró before that night.

B.

Serrano, Valentín, and Miró were charged with conspiracy

to commit a robbery affecting interstate commerce in violation of

the Hobbs Act (

(a)) and committing the Herol Café

robbery (

(a)), plus two added counts related to

Valentín's gun: first, for discharging a firearm "during and in

relation to crimes of violence" (

(c)(1)(A)(iii)),

and second, for causing the death that resulted (

(j)).1 Valentín and Miró each pleaded guilty to a reduced

version of the charges, but Serrano chose to go to trial. After

a 7-day trial, a jury convicted Serrano on all counts.

II.

For purposes of this appeal, there is no dispute that

Valentín and Miró committed an armed robbery at a bar during which

Valentín shot a patron to death. The principal question in this

case is whether the jury properly found Serrano also liable for

those acts. To establish that vicarious liability, the government

1 A superseding indictment added a fifth charge solely against Valentín for being a felon in possession of a firearm.

- 5 - took a two-step approach. First, it charged him with both aiding

and abetting the robbery (by serving as the driver) and with

conspiring to commit the robbery; second, it secured a so-called

Pinkerton instruction, which informed the jury that -- if it found

Serrano guilty of the charged conspiracy -- it could also find him

guilty of the firearm discharge and resulting death if those acts

were both in furtherance of the conspiracy and reasonably

foreseeable to Serrano. See Pinkerton v. United States,

, 647–48 (1946). The jury so found.

Challenging his conviction in toto, Serrano argues that

no rational jury could have found that he knew that Valentín and

Miró were planning on robbing the bar, hence he could not be liable

for aiding and abetting the robbery or for conspiring to commit

the robbery. In short, he was an unwitting dupe, not a witting

participant. Relatedly, he contends that the Pinkerton

instruction should not have been given and that the Pinkerton

instruction as given was too imprecise and confusing. Serrano

also challenges two evidentiary rulings by the trial court

rejecting his effort to introduce exculpatory testimony from

Valentín, and he argues that his convictions under sections 924(c)

and (j) must be reversed because they may have been premised on

acts that are not crimes of violence (as required by statute).

Finally, he contends that his 30-year sentence is disproportionate

- 6 - to his co-conspirators' sentences and that, regardless, it is

otherwise substantively unreasonable.

A.

We consider first Serrano's contention that there was

insufficient evidence to find beyond a reasonable doubt that he

was aware of what Valentín and Miró planned to do, much less that

he agreed to participate and help them as the driver. "The test

is whether, taken as a whole and viewed in the light most favorable

to the government, the evidence, and all legitimate inferences to

be drawn therefrom, would support a rational trier of fact's

finding of guilt beyond a reasonable doubt." United States v.

Martinez,

(1st Cir. 1991) (citing Jackson v.

Virginia,

(1979)). Our review is de novo.

United States v. Portalla,

(1st Cir. 2007).

Certainly Serrano behaved exactly as he would have had

he been part of a three-person group set on committing a robbery.

He was with Miró and Valentín before the robbery. He provided the

transportation to take them to the bar. He drove by the bar three

times. He let his two passengers out of the car up the block --

even though there was plenty of parking closer -- pointing away

from the bar. He waited for the masked robbers to return, even

after the shooting began. He then served as a get-away driver,

speeding off from the scene. And, finally, he tried to cover up

evidence of his involvement.

- 7 - Serrano offered the jury an innocent interpretation of

this evidence: Valentín just introduced him to Miró that night,

and Serrano took them on a joy ride with no idea that he was

assisting them in a robbery, at least until they returned to the

car, at which point he claims that he was compelled at gunpoint to

drive his passengers away.

While a reasonable juror might have believed Serrano's

story, after hearing him testify these jurors did not. And we

cannot say that the jurors lacked a basis for finding the

government's version of events correct beyond a reasonable doubt.

A juror could reasonably have thought it unlikely that Valentín

and Miró would depend on an unwitting get-away driver who might

act quite unpredictably when the robbery ensued. Plus, why would

Serrano stand waiting outside at the trunk of the car while they

went to the bar unless he was serving as a lookout and expecting

them to return quite quickly? And what did he think the repeated

drive-bys were all about? Perhaps most damning is Serrano's

contemporaneous statement to an FBI agent that he felt a need to

feign looking in his trunk, followed by a different explanation at

trial. The discrepancy and the sense of guilt it suggests could

have led a reasonable juror to be skeptical of his whole story.

Cf. United States v. Marchena-Silvestre,

(1st

Cir. 2015). Similarly, Serrano's knowledge of Miró's address did

- 8 - not fit easily with his claim that he had just met Miró that

evening.

Viewing all of this in the light most favorable to the

verdict, there was sufficient evidence for a jury to find beyond

a reasonable doubt that Serrano knew from the outset what Valentín

and Miró were up to. And if he did what he did with such advance

knowledge, he was clearly guilty of both robbery as an aider and

abettor, see United States v. Palmer,

(1st Cir.

2000), and of conspiring (i.e., agreeing) to assist in that

robbery, see United States v. McDonough,

(1st

Cir. 2013) (explaining that proof of conspiracy "may include the

defendants' acts that furthered the conspiracy's purposes").

B.

We turn next to Serrano's challenges to the use of a

Pinkerton instruction, which allows a jury to find a defendant

liable for the substantive crimes his co-conspirators committed in

furtherance of the conspiracy if it were reasonably foreseeable

that those crimes would occur. United States v. Bucci,

(1st Cir. 2008).

The instruction gets its name from a 1946 Supreme Court

opinion arising out of an appeal by two brothers who conspired to

defraud the United States of tax revenue. Pinkerton,

. Although they agreed to commit fraud, only one of the

brothers actually committed the particular fraud on which the

- 9 - convictions were sustained.

. Indeed, the other brother

was incarcerated during the relevant time period.

(Rutledge, J., dissenting in part). Nevertheless, the Court held

that "acts in furtherance of the conspiracy are . . . attributable

to the other[] [co-conspirators] for the purpose of holding them

responsible for the substantive offense."

(majority

op.). The Court then put limits on the breadth of its holding,

explaining that a co-conspirator could not be liable if the

substantive offense "was not in fact done in furtherance of the

conspiracy, did not fall within the scope of the unlawful project,

or was merely a part of the ramifications of the plan which could

not be reasonably foreseen as a necessary or natural consequence

of the unlawful agreement."

at 647–48.

We have applied Pinkerton's formulation consistently

since then. See, e.g., United States v. Vázquez-Botet,

(1st Cir. 2008) ("[U]nder the Pinkerton doctrine, a

defendant can be found liable for the substantive crime of a

coconspirator provided the crime was reasonably foreseeable and

committed in furtherance of the conspiracy."). We have also

cautioned, however, that "a Pinkerton charge 'should not be given

as a matter of course.'" United States v. Sanchez,

,

612 n.4 (1st Cir. 1990) (quoting United States v. Sperling,

(2d Cir. 1974)). In some complex cases, the charge

can cause confusion. See United States v. Manzella,

,

- 10 - 1267 (7th Cir. 1986). As an example, we have said that concern

can arise "particularly where the jury is being asked . . . to

infer, on the basis of a series of disparate criminal acts, that

a conspiracy existed." United States v. Vázquez-Castro,

(1st Cir. 2011) (quoting Sanchez, 917 F.3d at 612 n.4); see

also Sperling,

(disapproving of Pinkerton

instruction where evidence of substantive acts was great, but the

evidence of a conspiracy linking them together was weak, because

those "circumstances [are] quite different from those that gave

[Pinkerton] birth"). At the same time, we have acknowledged that

"some interplay between the jury's assessment of guilt on the

substantive counts and the conspiracy charge is both natural and

appropriate." See United States v. Wester,

(1st

Cir. 1996).

Here, Serrano argues that this is a case in which it was

error to give the charge at all due to the caution expressed in

Sanchez and Sperling. He also argues on appeal that the

instruction as given was deficient in form because it was

"compressed," "overcomplicated the jury's task," and left "complex

analytical tasks totally unexplained." The government responds

that Serrano failed to preserve these objections and that, in any

event, the district court did not err in giving the charge. As we

next explain, we find the objection to the decision to give a

Pinkerton instruction preserved, but unconvincing; however, we

- 11 - conclude that Serrano failed to preserve any objection to the form

of the instruction as given.

1.

The government contends that Serrano failed to preserve

either of his objections to the Pinkerton charge.

As to his objection that a Pinkerton charge should not

have been given at all, the government contends that his post-

charge objection did not meet the specificity requirement of

Federal Rule of Criminal Procedure 30(d). We disagree. Our

circuit is an outlier in that we deem objections to jury

instructions automatically unpreserved unless made after the

instructions are given and before the jury retires. See United

States v. Roberson,

(1st Cir. 2006) (explaining

that, in this circuit, "a litigant must lodge a specific objection

and state the grounds for the objection after the court has charged

the jury and before the jury begins deliberations" (emphasis in

original)). This outlier rule has recently elicited significant

criticism from several members of this court. See United States

v. Pérez-Rodríguez,

(1st Cir. 2021) (Lipez, J.,

concurring) (explaining that our idiosyncratic requirement that

defendants re-raise their jury instruction challenges after the

charge is a-textual and out of step with modern trial practice);

at 35–36 (Barron, J., concurring) (same);

at 37 n.19

(Kayatta, J., dissenting) (same). Our panel nevertheless has no

- 12 - power to ignore it as circuit precedent. We also, though, have no

reason to expand upon it or to construe it broadly.

The relevant sequence here was as follows: The district

court entertained proposals and objections as to jury instructions

before instructing the jurors. Serrano submitted a written

objection to the proposed Pinkerton instruction. Quoting Sanchez,

he explained that this circuit has cautioned that "a Pinkerton

charge should not be given as a matter of course," "particularly

where the jury is being asked to make the converse inference; that

is, to infer, on the basis of a series of disparate criminal acts,

that a conspiracy existed."

n.4 (internal

quotation marks omitted). He argued that this case presents that

precise concern because "the jury must infer from different acts,

all based on circumstantial evidence, that a conspiracy existed."

The court overruled the objection and gave the Pinkerton

instruction. After giving all the instructions, the district court

again invited objections. Serrano's counsel once more objected to

the decision to give the Pinkerton instruction, stating:

It is an instruction that should not have been included because of its broad application. This case in the indictment and the evidence presented talked about aiding and abetting, and the Pinkerton doctrine gives the jury another option, a broader option that, without knowingly, it can find the Defendant guilty. And we cite United States v. Sanchez,

, from the First Circuit, 1990.

- 13 - The government questions whether the objection was

nevertheless too cryptic because counsel simply referred to

Sanchez without explaining why he was citing the case. See Fed.

R. Crim. P. 30(d) (requiring counsel to "inform the court of the

specific objection" to a jury instruction and "the grounds for the

objection"). But "Sanchez" by that point was already shorthand

for the concern being conveyed. Certainly if counsel objected to

admitting a defendant's confession by saying "no Miranda warning,"

she would not need to explain what Miranda is. Sanchez, of course,

is not so well known generally, but in that courtroom at that time,

everyone knew what Sanchez was and of its relevance precisely

because of the pre-charge communications.

So while a pre-charge objection by itself preserves

nothing under our precedent, there is no reason why we need to

ignore it in deciding whether a post-charge objection was

sufficiently detailed to preserve a specific objection. In this

manner, we retain any benefit sought to be attained by our post-

charge requirement (i.e., that the judge knows that a specific

objection has not been dropped or satisfied by the instructions as

given), while avoiding any necessity to belabor a point well

understood by the judge.

That leaves the matter of the form of the Pinkerton

instruction as given. On this, we agree with the government that

Serrano preserved no objection. Indeed, his capable counsel in

- 14 - raising numerous objections to various instructions voiced no

concern at all that the form of the Pinkerton instruction was

flawed in any way.

2.

Turning first to the merits of Serrano's preserved

objection to the Pinkerton charge, we begin with an examination of

the work done by the charge. The substantive crimes here are the

robbery, the discharge of a firearm in relation to a robbery, and

the resulting death.

The Pinkerton charge performed no work for the robbery

conviction; rather, the case for finding Serrano to have aided and

abetted the robbery turned entirely on whether Serrano's conduct

as driver was unwitting. As we have explained, the evidence

supported a negative answer beyond a reasonable doubt. Nor was

there any reason to rely on the Pinkerton charge to reach that

conclusion. To the contrary, in this case it was Serrano's own

participation in the robbery that provided the basis for inferring

an agreement to commit the robbery, not vice versa. Thus, the

jurors could not have found him guilty of conspiring to aid and

abet the robbery without first concluding that he did in fact aid

and abet the robbery.

The work done by the Pinkerton charge concerned,

instead, the latter two crimes (the discharge of the gun and the

resulting death). Without the Pinkerton charge, the jurors could

- 15 - have found Serrano guilty on those counts only under an aiding-

and-abetting theory, which would have required the government to

prove beyond a reasonable doubt that Serrano had actual advance

knowledge that Valentín possessed the gun. See Rosemond v. United

States,

, 77–80 (2014). Pinkerton, by contrast, allowed

a finding of liability if the use of the gun and resulting death

were merely "reasonably foreseeable" (and in furtherance of a

conspiracy).

Given that aiding and abetting a crime could often

support an inference of conspiracy to commit the crime, one might

ask why Pinkerton is not more frequently employed. The answer, we

suspect, is that prosecutors and district courts prudently pay

heed to our warnings regarding its use when the evidence of a

separate agreement is not strong and the case is complex.

In any event, Pinkerton is the law in federal court, and

there was nothing confusing about its application in this easy-

to-understand case centered on a single robbery in which all three

suspects substantially participated in their respective roles.

Nor is this a case in which the crimes to which the Pinkerton

charge was relevant (the discharge and the resulting death) were

themselves the basis for inferring a conspiracy in the first

instance. Rather, what we have here is what one academic has

dubbed "[t]he classic example" of someone liable under Pinkerton,

namely "[t]he lookout who stays behind in the car." Jens David

- 16 - Ohlin, Group Think: The Law of Conspiracy and Collective Reason,

, 147–48 (2007). The lookout "is

just as guilty as" the bank robber who shoots a security guard,

"as long as it was reasonably foreseeable that the plan might go

awry and result in physical violence."

. Accordingly,

the district court did not abuse its discretion in deciding to

give a Pinkerton instruction.

3.

As for Serrano's unpreserved argument that the Pinkerton

instruction was confusing as given, Serrano can only succeed if he

meets the stringent requirements of plain error review, under

which:

a reviewing court may set aside a challenged portion of a criminal sentence if, and only if, the appellant succeeds in showing (1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant's substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.

United States v. Padilla,

(1st Cir. 2005) (en

banc) (cleaned up).

Serrano on appeal makes no effort to show that he can

satisfy the plain error standard in seeking review of the

particular form of the instruction. Even after the government

waved the plain error flag in its brief, Serrano failed to argue

in reply either that this argument was preserved or that he meets

- 17 - the plain error standard. See United States v. Pabon,

, 33–34 (1st Cir. 2016) (holding that plain error review is

waived if its four-part test is not argued at least in reply).

The instruction given by the district court2 largely

tracks the circuit's model Pinkerton instruction. See Pattern

Jury Instructions for the District Courts of the First Circuit

§ 4.18.371(2). Arguably that instruction could be criticized for

permitting liability if it is foreseeable a co-conspirator "might

commit" the charged substantive crime, rather than Pinkerton's

formulation, which discussed whether the offense could be

"reasonably foreseen as a necessary or natural consequence of the

unlawful agreement." Pinkerton,

. And it would

have been better had the district court separated out each of the

counts rather than linking them disjunctively in a single

instruction. But there is nothing here that comes close to the

type of miscarriage of justice that might arguably have allowed us

to overlook Serrano's waiver and also find plain error.

C.

We turn next to the gun charges.

Section 924(c)(1)(A)(iii) has two elements: The government has to

prove beyond a reasonable doubt that, (1) "during and in relation

to" a "crime of violence," (2) the defendant "discharged" a

2 We have attached as an appendix to this opinion the jury instruction given in this case.

- 18 - firearm. The 924(j) count only "requires proof of one additional

fact: the death." United States v. García-Ortiz,

(1st Cir. 2011).

Serrano does not argue that the government failed to

prove a discharge of the gun or the resulting death. He argues

instead that he did not actually know that a gun would be used.

But actual knowledge is not required under Pinkerton. United

States v. Carter,

(1st Cir. 2021). And,

presumably because few robbers enter a busy bar to commit a robbery

without a means of deterring resistance, he does not claim that

the use of a gun would not have been reasonably foreseeable to one

who knew of the intended robbery.

Serrano's argument trains instead on the statutory

requirement that the discharge and death need to have occurred

during and in relation to a crime of violence. While Hobbs Act

robbery is a crime of violence, see United States v. García-Ortiz,

(1st Cir. 2018), the government concedes that

conspiring to commit such a robbery no longer counts as one, see,

e.g., United States v. Lara,

(1st Cir. 2020)

(accepting the government's concession on this precise point).

Serrano therefore reasons that the jurors might have found that

the discharge and death occurred only during and in relation to

the conspiracy, not the robbery. And pointing to the "categorical

approach" employed in other contexts, see, e.g., Descamps v. United

- 19 - States,

, 260–61 (2013) (explaining the categorical

approach used to determine whether a past conviction qualifies as

a crime of violence under the Armed Career Criminal Act), he

concludes that we must assume that the jurors so found, see In re

Gomez,

(11th Cir. 2016) (concluding that a

"crime of violence" finding cannot be upheld where a general

verdict makes it impossible to tell whether the jury "reach[ed] a

unanimous agreement on during which crime it was that [the

defendant] possessed the firearm"). Finally, he contends that the

Pinkerton instruction "provided a theory of guilt that would leave

no viable crime of violence predicate whatsoever" because "it is

[e]minently possible that [his] substantive convictions rested on

the jury's conspiracy finding."

Whatever one may think of this line of reasoning in the

abstract, it entirely fails on this record. Simply put, it is not

possible for the jurors to have found that the discharge and death

occurred during and in relation to the conspiracy, but not during

and in relation to the robbery. No party suggested to the jury

otherwise. Nor did the jurors need to decide whether robbery is

a crime of violence, which is a matter of law; they only needed to

have decided beyond a reasonable doubt that the discharge and death

occurred during and in relation to the robbery. And there is no

way to read the general verdict as not resting on such a finding

because, as we have explained above, on these facts the jury could

- 20 - have found Serrano guilty of conspiracy only by first concluding

that he knowingly joined the robbery as the get-away driver.

D.

Serrano's evidentiary challenges arise out of his

attempt to secure the benefit of helpful testimony from Valentín,

the shooter. At his change-of-plea hearing, Valentín agreed that

he had conspired with both Miró and Serrano to commit the robbery

at Herol Café. However, once Valentín was convicted, but before

he was sentenced, he turned his attention to trying to get Serrano

off the hook. He did this by telling his attorney that Serrano

actually had no prior knowledge that Valentín and Miró were

planning a robbery. Valentín's attorney then conveyed this

information to Serrano's counsel, and to the government and the

judge hearing Serrano's case.

Serrano asked first that the court compel Valentín to

testify. In response, Valentín invoked his right not to testify

under the Fifth Amendment, citing the fact that if he testified as

forecast he could be admitting that he committed perjury at his

change of plea hearing when he agreed that Serrano was in on the

planned robbery. After having Valentín confirm under oath and

outside the presence of the jury his refusal to testify, the trial

court rejected Serrano's request.

Serrano's counsel then moved to call Valentín's attorney

to tell the jury what Valentín had told her. In that manner,

- 21 - Serrano sought to get the benefit of Valentín's assistance without

Valentín having to swear under oath to any statement contrary to

his testimony at his change of plea hearing, and Valentín would

also be insulated from cross-examination by the government. The

trial court declined this gambit. It refused to allow Serrano to

call Valentín's attorney as a witness. Serrano now argues that

the district court twice erred: first, by conducting an inadequate

voir dire of Valentín; and second, by rejecting Serrano's back-up

plan to call Valentín's attorney to testify as to what Valentín

told her.

1.

When Valentín was called and the Fifth Amendment issue

was raised, Serrano's counsel told the court, "[A]ll I need is

[Valentín] to take the stand and say if he is going to take the

Fifth or not." Government counsel agreed, noting that while the

government would normally insist on a question-by-question

assertion of the Fifth Amendment privilege, here it agreed with

Serrano's proposed general inquiry because his counsel had already

provided the questions to the court. The court then did precisely

as Serrano's counsel proposed: It called Valentín to the stand in

a voir dire hearing outside the presence of the jury and asked him

if he would "take the Fifth Amendment" if called to testify. When

Valentín answered "[y]es," the court denied Serrano's request to

call Valentín. Not surprisingly, Serrano's counsel did not object

- 22 - to the court having done precisely what Serrano's counsel asked

the court to do. Rather, Serrano's counsel moved immediately for

leave to call Valentín's attorney as a witness.

In view of the foregoing, any objection to the procedure

employed by the district court in determining whether Valentín

should be called as a witness was waived. Absent extreme

circumstances not present here, a defendant cannot ask a trial

court to follow a certain procedure and then be heard to complain

only later on appeal that the trial court did as requested. See

United States v. Chen,

(1st Cir. 2021) ("An issue

may also be waived if counsel's own conduct invited the trial

judge's ruling."); see also United States v. Kakley,

(1st Cir. 1984) (rejecting a claim of error because counsel

requested the challenged instruction).

2.

By contrast, Serrano preserved his challenge to the

denial of his request to call Valentín's attorney to testify that

Valentín told her that Serrano had no advance notice of the

robbery. We review this preserved objection to the district

court's evidentiary ruling for abuse of discretion and will reverse

"only if [we are] 'left with a definite and firm conviction that

the court made a clear error of judgment.'" United States v.

Sweeney,

(1st Cir. 2018) (quoting United States

v. Joubert,

(1st Cir. 2015)).

- 23 - As the sole basis for proffering the out-of-court

statement attributed to Valentín, Serrano relies on

Rule 804(b)(3). To be admissible under Federal Rule of

Evidence 804(b)(3), the out-of-court statement must be, inter

alia, "supported by corroborating circumstances that clearly

indicate its trustworthiness." Not having been born yesterday,

the district court was not persuaded that the circumstances here

clearly indicated trustworthiness. Valentín had already testified

under oath precisely to the contrary of the proffered statement.

Nor did Valentín or Serrano proffer any additional evidence

corroborating his new version of events. We also share the

government's concern that this sort of gambit poses a risk of abuse

by facilitating efforts of defendants to secure pleas with one

story while assisting a co-conspirator with another, all while

avoiding telling the exculpatory story under oath. All in all,

there is plenty in these circumstances to support the trial court's

evidentiary ruling under Rule 804(b)(3); it was not an abuse of

discretion.

E.

We arrive at Serrano's final contention: Even accepting

all of the above, he maintains that his lengthy thirty-year

sentence was substantively unreasonable. The district court

calculated his United States Sentencing Guidelines range for

counts 1 through 3 separately from count 4 (the discharge) because

- 24 - that count carried a mandatory consecutive minimum sentence of ten

years. See

(c)(1)(A)(iii), (D)(ii). For the first

three counts, Serrano's initial Guidelines sentencing range was

life imprisonment (due primarily to the death), but the district

court downwardly departed sua sponte for his base offense level --

from 43 to 38 -- because Serrano was unarmed and did not himself

discharge a weapon. As adjusted, the range for those three counts

became 235 to 293 months, rather than life. (Serrano concedes

that the district court's Guidelines calculations were correct.)

For those counts, the district court sentenced him to the low end

of the downwardly adjusted range (240 months), which means that

sentence is presumptively reasonable. United States v. Calderón-

Lozano,

, 648–49 (1st Cir. 2019). As required by

statute,

(c)(1)(D)(ii), the court then added a

consecutive sentence of 120 months for count 4, which resulted in

a total sentence of 360 months. Serrano contends that his sentence

is nevertheless unreasonable for two reasons.

First, Serrano claims his sentence is not proportional

to the sentences received by his co-defendants because his sentence

is almost equal to Valentín's 408-month sentence and higher than

Miró's 294-month sentence. Valentín and Miró, however, each only

pleaded to two of the four counts and each received credit for

accepting responsibility. In addition, Miró only pleaded guilty

to the lesser-included, section 924(c)(1)(A)(i) offense of aiding

- 25 - and abetting the carrying of a firearm (rather than the discharge

and resulting death), which relieved him of a consecutive

mandatory-minimum sentence of ten years. Thus, Serrano's

proportionality plaint fails for lack of an apt comparator. See

United States v. González,

(1st Cir. 2020).

Second, he maintains that the district court did not

fully consider mitigating evidence and the fact that he played a

minor role in the offense. This argument is equally unavailing.

"[A] sentence is not substantively unreasonable simply because

th[e] court 'chose not to attach to certain of the mitigating

factors the significance that [the defendant] thinks they

deserved.'" United States v. González-Rodríguez,

(1st Cir. 2017) (quoting United States v. Clogston,

(1st Cir. 2011)). Here, the district court already

considered Serrano's role in the offense when it downwardly

departed in calculating Serrano's base offense level. The court

also expressly noted other mitigating circumstances, such as

Serrano's "documented history of learning disabilities," the fact

that this was his "first known offense," and that he did not

approach any victims in the commission of the crime. Serrano on

appeal, in essence, takes issue with how the court weighed these

factors, but that weighing "is left largely within a sentencing

court's discretion."

We are left, therefore, with a sentence

driven by a decision not to plead guilty and a statutory minimum

- 26 - consecutive sentence added onto a low-end guideline sentence

determined after a downward departure. While undoubtedly still

very long, it does not exceed the boundaries of the sentencing

court's wide discretion in giving within-guideline sentences.

Hence, we must affirm.

III.

For the foregoing reasons, we affirm.

- 27 - Appendix to Opinion

The district court gave the Pinkerton instruction as

follows:

There is another method by which you may evaluate whether to find defendant Cristian Serrano-Delgado guilty of the charge in Count TWO or Count THREE or Count FOUR of the superseding indictment. If, in light of my instructions, you find beyond a reasonable doubt that defendant Cristian Serrano-Delgado was guilty on the conspiracy count (Count ONE), then you may also, but you are not required to, find him guilty of the crime charged in Count TWO or Count THREE or Count FOUR, provided you find beyond a reasonable doubt each of the following elements: First, that someone committed the crimes charged in Count TWO or Count THREE or Count FOUR; Second, that the person you find actually committed the crimes charged in Count TWO or Count THREE or Count FOUR was a member of the conspiracy of which you found defendant Cristian Serrano-Delgado was a member; Third, that this co-conspirator committed the crimes charged in Count TWO or Count THREE or Count FOUR in furtherance of the conspiracy; Fourth, that defendant Cristian Serrano-Delgado was a member of this conspiracy at the time the crimes charged in Count TWO or Count THREE or Count FOUR was committed and had not withdrawn from it; and Fifth, that defendant Cristian Serrano-Delgado could reasonably have foreseen that one or more of

- 28 - his co-conspirators might commit one or more of the crimes charged in Count TWO or Count THREE or Count FOUR. If you find all five of these elements to exist beyond a reasonable doubt, then you may find defendant Cristian Serrano Delgado guilty of the crimes charged in Count TWO or Count THREE or Count FOUR, even though he did not personally participate in the acts constituting the crimes charged in Count TWO or Count THREE or Count FOUR, or did not have actual knowledge of them. If, however, you are not satisfied as to the existence of any one of these five elements, then you may not find defendant Cristian Serrano-Delgado guilty of the crimes charged in Count TWO or Count THREE or Count FOUR, unless the government proves beyond a reasonable doubt that he personally committed one of the substantive crimes charged in Count TWO or Count THREE or Count FOUR or aided and abetted their commission.

- 29 -