United States Court of Appeals For the First Circuit

No. 20-1838

UNITED STATES OF AMERICA,

Appellee,

v.

JEAN PAUL ORTIZ-PÉREZ,

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, Selya and Barron, Circuit Judges.

Eric Alexander Vos, Federal Public Defender, Franco L. Pérez- Redondo, Assistant Federal Public Defender, Supervisor, Appeals Division, and Liza L. Rosado-Rodríguez and Kevin E. Lerman, Research & Writing Specialists, on brief for appellant. W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá- Almonte, Assistant United States Attorney, Chief, Appellate Division, and Gregory B. Conner, Assistant United States Attorney, on brief for appellee.

March 31, 2022 SELYA, Circuit Judge. Defendant-appellant Jean Paul

Ortiz-Pérez pleaded guilty to two carjacking counts and one

firearm-possession count. On appeal, he challenges his aggregate

150-month prison sentence as procedurally flawed and substantively

unreasonable. Concluding, as we do, that the defendant's arguments

lack merit, we affirm.

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. Vargas,

(1st Cir. 2009).

On April 14, 2019, the defendant (then eighteen years of

age) pointed a firearm at a man who was retrieving a suitcase from

the trunk of his car and ordered him to give the defendant the

keys to the car. The man tossed him the keys, and the defendant

drove the car away.

The next month, the defendant followed the same script:

he pointed a firearm at a woman who was entering her car, ordered

her out, and demanded the keys. When she complied, the defendant

drove the car away.

Roughly a week later, the defendant was arrested. Both

victims identified him as the carjacker. In due course, a federal

- 2 - grand jury sitting in the District of Puerto Rico returned a four-

count indictment, which charged the defendant with two counts of

carjacking (counts 1 and 3), see

(1), and two

counts of brandishing a firearm in furtherance of a crime of

violence (counts 2 and 4), see

§ 924(c)(1)(A)(ii). Although

the defendant initially maintained his innocence, he later entered

into a plea agreement (the Agreement) with the government. Under

the terms of the Agreement, count 2 was to be reduced to a charge

of possession of a firearm in furtherance of a crime of violence,

see id. § 924(c)(1)(A)(i), and count 4 was to be dismissed. The

defendant would then plead guilty to the two remaining counts and

the revised version of count 2.

The district court accepted the defendant's change of

plea to the three specified counts and ordered the preparation of

a PSI Report. When received, the PSI Report recommended a

guideline sentencing range of seventy to eighty-seven months for

counts 1 and 3. With respect to count 2, as revised, the PSI

Report recommended a guideline range of sixty months (the mandatory

minimum under the statute of conviction, see id.). It also noted

that the sentence on count 2 had to be imposed consecutively to

any sentences imposed on the other counts. See id.

§ 924(c)(1)(D)(ii).

- 3 - The defendant filed objections to the PSI Report, which

the district court overruled.1 The defendant also filed a

sentencing memorandum. As relevant here, he argued that "[h]is

young age, lack of parental guidance, lack of proper mental health

treatment and poor background certainly contributed to the

commission of the offense." He provided extensive research about

the role of the "developing juvenile brain" in juvenile criminal

offenses. Arguing that he was "a young man with room to

rehabilitate," he implored the court to impose sentences "at the

lower end" of the applicable guideline ranges adumbrated in the

Agreement.2

At the disposition hearing, defense counsel urged the

court to impose an aggregate prison sentence of 117 months — a

sentence which fell below the sum of the applicable guideline

ranges recommended in the PSI Report. Counsel reiterated the

arguments made in the sentencing memorandum, focusing on the

defendant's poor upbringing, mental health problems, youth, and

potential for rehabilitation. For its part, the government argued

for an aggregate prison sentence of 131 months. The prosecutor

1Those objections are not pursued on appeal, and we need not discuss them in any detail. 2The guideline sentencing ranges (as to counts 1 and 3) delineated in the Agreement differed from that in the PSI Report. The range in the Agreement was fifty-seven to seventy-one months' imprisonment.

- 4 - commented that although the defendant was young, he had "a bit of

history" and that "[t]his [wa]sn't his first brush with the law."

After the defendant allocuted, the district court

adopted the guideline calculations limned in the PSI Report. It

then reviewed the sentencing factors listed in

(a)

and discussed characteristics of the defendant and of the offenses

of conviction. It stressed that on two occasions the defendant

had "pointed firearms at the victims to take their vehicles by

force, violence, and intimidation."

In the end, the court observed that defense counsel's

sentencing recommendation fell below the sum of the applicable

guideline ranges. Nor did either party's sentencing

recommendation "reflect the seriousness of the

offenses, . . . promote respect for the law, . . . protect the

public from further crimes by" the defendant, or "address the

issues of deterrence and punishment." With this in mind, the court

proceeded to impose an aggregate sentence of 150-months'

imprisonment — concurrent terms of seventy-eight months on counts

1 and 3, followed by a consecutive term of seventy-two months on

count 2.3 Finally, the court dismissed count 4 as called for by

the Agreement. This timely appeal ensued.

3 At the time of the disposition hearing, the defendant was awaiting sentence in a Puerto Rico court for selling a firearm to an undercover agent. See

. When imposing sentence, the district court ordered that the sentence in

- 5 - II. ANALYSIS

"Appellate review of a criminal defendant's claims of

sentencing error involves a two-step pavane." United States v.

Miranda-Díaz,

(1st Cir. 2019). We first examine

any claims of procedural error. See

If the sentence is

procedurally sound, we then examine any claim of substantive

unreasonableness. See

In the case at hand, the defendant advances both types

of claims. We address them separately.

A. The Procedural Claims.

The defendant makes four claims of procedural error. As

we explain below, we find none of them persuasive.

1. We start with the defendant's claim that, in

explicating its sentence, the district court considered factors

already accounted for in the guideline range without explaining

why those factors were worthy of extra weight. We give this claim

short shrift: because it was raised for the first time in the

defendant's reply brief, it is waived. See United States v. López,

(1st Cir. 2020) ("[I]t is settled beyond hope of

contradiction that arguments not made in an appellant's opening

brief are deemed abandoned.").

the federal case be served consecutive to any sentence to be imposed in the Puerto Rico case.

- 6 - 2. We next consider the defendant's claim that the

sentencing "court committed procedural error by failing to address

youth-related mitigation arguments." Because this claim was

raised below, our review is for abuse of discretion. See United

States v. Díaz-Lugo,

(1st Cir. 2020). We discern

none.

When imposing a sentence, a district court is obliged to

consider the factors outlined in

(a). In

explicating its sentencing determination, though, the court "is

not required to address those factors, one by one, in some sort of

rote incantation." United States v. Dixon,

(1st

Cir. 2006); see United States v. Pupo,

(1st Cir.

2021). "[I]t is sufficient for the sentencing court simply to

identify the main factors driving its determination." United

States v. Sepúlveda-Hernández,

(1st Cir. 2016).

Here, the defendant does not contend that the sentencing

court overlooked his youth-related argument. Nor could he: the

defendant made this argument at considerable length in his

sentencing memorandum and at the disposition hearing, and the

government directly countered it. In addition, the court mentioned

the defendant's age as a relevant sentencing factor.

Even so, the defendant complains that, when pronouncing

sentence, the court failed to "address" the argument. But the

court was not required to do so. See United States v. Rivera-

- 7 - Morales,

(1st Cir. 2020) (noting that "a sentencing

court is under no obligation [] to address every argument that a

defendant advances in support of his preferred sentence"). "When

a defendant has identified potentially mitigating sentencing

factors and those factors are thoroughly debated at sentencing,

the fact that the court 'did not explicitly mention them during

the sentencing hearing suggests they were unconvincing, not

ignored.'" Díaz-Lugo,

(quoting United States v.

Lozada-Aponte,

(1st Cir. 2012)). We hold,

therefore, that the sentencing court acted within the ambit of its

discretion in electing not explicitly to address the defendant's

youth-related argument when pronouncing sentence.

3. Shifting gears, the defendant posits that the

sentencing court abused its discretion by "neglect[ing] to

adequately consider [his] need for mental-health treatment."

Inasmuch as this claim was raised below, our review is for abuse

of discretion. See Díaz-Lugo,

. Once again, we

discern none.

"Appellate review of federal criminal sentences is

characterized by a frank recognition of the substantial discretion

vested in a sentencing court." United States v. Flores-Machicote,

(1st Cir. 2013). It is the sentencing court's

prerogative — indeed, its duty — to "draw upon [its] familiarity

with a case, weigh the factors enumerated in [section] 3553(a),

- 8 - and custom-tailor an appropriate sentence." Id.; see Gall v.

United States,

(2007). And "[w]e will not

disturb a sentencing court's reasoned decision to weigh some

factors more heavily than others." United States v. Vélez-Andino,

, 117 (1st Cir. 2021).

To be sure, the PSI Report revealed that the defendant

had received mental health treatment while held in a residential

program for juvenile offenders. Moreover, defense counsel stated

at sentencing (albeit in conclusory fashion) that — at the time

the defendant committed the offenses of conviction — the defendant

"did not have the treatment that he needed in order to cope" with

his mental health. Thus, the court clearly was aware of the

defendant's past mental health treatment. It also was aware that

mental health care was available during incarceration, and it

specifically decreed that, upon the commencement of supervised

release, the defendant "shall participate in an approved mental

health treatment program for evaluation and to . . . determine if

treatment is necessary. If necessary, the treatment will be

arranged by the probation officer in consultation with the

treatment provider."

Viewing the record as a whole, the defendant's

contention that the sentencing court failed to "adequately

consider [his] need for mental-health treatment" cannot withstand

scrutiny. The evidence regarding a specific mental health

- 9 - diagnosis was sparse and, stripped of rhetorical flourishes,

defense counsel's argument boils down to a contention that the

court did not weigh that elusive factor as heavily as the defendant

would have liked. In the circumstances of this case, the fact

that the court did not attach more weight to that factor does not

require vacation of the sentence it imposed. See

(explaining

that "a sentencing court's decision 'not to attach to

certain . . . mitigating factors the significance that [a

defendant] thinks they deserved does not make [a] sentence

unreasonable'" (first and third alterations in original) (quoting

United States v. Clogston,

(1st Cir. 2011))).

The lesson to be learned is basic. There is no

"requirement that a district court afford each of the section

3553(a) factors equal prominence. The relative weight of each

factor will vary with the idiosyncratic circumstances of each

case . . . ." Dixon,

. And in this area, the

sentencing court's exercise of its discretion is accorded great

latitude. See United States v. Santiago-Rivera,

(1st Cir. 2014). We hold, therefore, that the sentencing court

did not abuse its discretion by weighing this factor as it did.

4. We need not linger long over the defendant's final

claim of error. He says that the district court failed adequately

to explicate the sentences imposed. The aggregate sentence is

upwardly variant, and we have explained before that an adequate

- 10 - explanation for an upwardly variant sentence and the "plausible

rationale" element of the test for substantive reasonableness "are

almost always two sides of the same coin." United States v. Valle-

Colón,

(1st Cir. 2021); see United States v.

Merced-García,

, 82 n.3 (1st Cir. 2022). This is such

a case. And because we find the district court's sentencing

rationale plausible, see infra Part II(B), we find its explanation

adequate for the same reasons.

B. The Substantive Reasonableness Claim.

This brings us to the defendant's contention that his

150-month aggregate sentence is substantively unreasonable. Our

review is for abuse of discretion. See Holguin-Hernandez v. United

States,

(2020); United States v. Bruno-Campos,

(1st Cir. 2020).

We start with first principles. In sentencing,

"reasonableness is a protean concept." United States v. Martin,

(1st Cir. 2008). As such, "[t]here is no one

reasonable sentence in any given case but, rather, a universe of

reasonable sentencing outcomes." Clogston,

. Our

task, then, is "to determine whether the [challenged] sentence

falls within this broad universe." Rivera-Morales,

.

In mounting his claim of substantive unreasonableness,

the defendant's chief complaint is that "the district court did

- 11 - not properly balance the § 3553(a) factors." As we already have

explained, though, the balancing of the sentencing factors is

largely within the district court's discretion. See supra Part

II(A)(3). And "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." Rivera-Morales,

. When all

is said and done, a sentence will be deemed substantively

reasonable as long as it rests on "a plausible rationale

and . . . represents a defensible result."

Where, as here, an aggregate sentence is the product of

two or more distinct sentences, we sometimes have found it useful

to analyze the substantive reasonableness of the aggregate

sentence by analyzing the substantive reasonableness of each of

its constituent parts. See, e.g., United States v. Padilla-

Galarza,

(1st Cir. 2021). We follow that praxis

here.

The aggregate sentence in this case is composed of three

separate sentences (two of which are to run concurrently). Those

concurrent sentences — seventy-eight months' imprisonment on

counts 1 and 3 — are within the guideline ranges for those counts,

and they are impervious to the defendant's attack. As we

previously have pointed out, "a defendant who attempts to brand a

- 12 - within-the-range sentence as unreasonable must carry a heavy

burden." United States v. Pelletier,

(1st Cir.

2006).

The defendant cannot lift that "heavy burden" here. To

undermine the reasonableness of a sentence that falls within the

guideline range, "a defendant must 'adduce fairly powerful

mitigating reasons and persuade us that the district judge was

unreasonable in balancing pros and cons despite the latitude

implicit in saying that a sentence must be reasonable.'" United

States v. Madera-Ortiz,

(1st Cir. 2011) (quoting

United States v. Navedo-Concepción,

(1st Cir.

2006)). No such powerful mitigating reasons are apparent here.

At sentencing, the court made pellucid that it reached

its determination as to the length of these sentences after

considering the PSI Report, the defendant's objections to the PSI

Report, the section 3553(a) factors, the parties' arguments, and

the defendant's allocution. Ultimately, the court deemed

sentences within the applicable guideline ranges appropriate. It

noted that the defendant had carjacked two persons at gunpoint,

and in fashioning the sentences for those counts, it sought to

impose sentences that reflected the seriousness of the offenses.

Especially given the defendant's repetition of the offense (twice

within the span of approximately one month), we cannot say that

- 13 - the court's balancing of the relevant factors was unreasonable or

that its rationale was implausible.

The remaining sentence — the seventy-two-month sentence

on count 2 — was upwardly variant (twelve months over the guideline

range). Unlike a within-the-range sentence, an upwardly variant

sentence requires a "heightened" degree of explanation. Padilla-

Galarza,

. When — as in this case — "a sentencing

court imposes a variant sentence, that sentence must be explained,

either explicitly or by fair inference from the sentencing record."

United States v. Montero-Montero,

(1st Cir. 2016).

Here, the sentencing court offered an undifferentiated

explanation for its imposition of the aggregate sentence, and it

did not explicitly state what factors contributed most directly to

the imposition of each of the component sentences. Nevertheless,

we can fairly infer from the record the factor that drove the

court's decision to impose the upwardly variant sentence. When

describing the offense of conviction — unlawful possession of a

firearm — the court noted the defendant's inappropriate use of

that firearm. It expressed concern that the defendant had "pointed

firearms at the victims to take their vehicles by force, violence,

and intimidation." Given the defendant's repeated use of a firearm

in this dangerous manner and the court's expressed concern, we can

infer that — as to the firearm-possession charge — the court gave

particular weight to the brandishing of a firearm on two occasions

- 14 - and the consequent threats to life.4 These aggravating factors,

along with the remainder of the court's explanation for the

sentences, formed a solid foundation for its sentencing rationale.

Hence, we find that rationale plausible.

Finally, the aggregate sentence fell comfortably within

the wide universe of reasonable sentencing outcomes. The

defendant, who had a prior weapons violation in his criminal

history, carjacked two persons at gunpoint on two separate

occasions. For these crimes and for the additional crime of

unlawfully possessing a firearm, the court sentenced him to an

aggregate term of immurement of 150 months. In our view, this

aggregate term of immurement represents a defensible result. Thus,

the claim of substantive unreasonableness falters.

III. CONCLUSION

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

the judgment of the district court is

Affirmed.

4Although the defendant was initially charged with two counts of "brandish[ing]" a firearm,

(c)(1)(A)(ii), he ultimately pleaded to a single, lesser count of "possess[ing]" a firearm,

§ 924(c)(1)(A)(i). Even so, "[a] sentencing court may take into account relevant conduct underlying counts dismissed as part of a plea negotiation as long as that conduct was not used in constructing the defendant's guideline range." United States v. Fernández-Garay,

(1st Cir. 2015).

- 15 -