United States Court of Appeals For the First Circuit

No. 20-1988

UNITED STATES OF AMERICA,

Appellee,

v.

JOSUE CANDELARIO-RAMOS, T/N JOSUE CANDELARIA-RAMOS, A/K/A POCHO,

Defendant, Appellant.

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

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

Before

Thompson and Howard, Circuit Judges, and Woodcock, District Judge.*

Fernando O. Zambrana Avilés, with whom Colon Serrano Zambrana, LLC was on brief, for appellant. Maarja T. Luhtaru, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and David C. Bornstein, Assistant United States Attorney, were on brief, for appellee.

August 16, 2022

* Of the District of Maine, sitting by designation. HOWARD, Circuit Judge. Appellant Josue Candelaria-

Ramos1 appeals his mandatory minimum 60-month sentence. Candelaria

previously served multiple sentences for related conduct and

believes that he should have been credited for that time.

Candelaria also claims that the disparity between his sentence and

those of several co-defendants warrants a lower sentence. But

Candelaria knowingly and voluntarily agreed to an appeal waiver,

the enforcement of which does not result in a miscarriage of

justice. We therefore must dismiss his appeal.

I.

The parties do not dispute the underlying facts, which

we draw from the plea agreement, the sentencing hearing transcript,

and the uncontested portions of the presentence investigation

report ("PSR"). See United States v. Gomera-Rodríguez,

(1st Cir. 2020). In July 2017 a grand jury charged

Candelaria, alongside twenty-six co-defendants, for working as a

seller in a drug operation based out of two public housing projects

in Utuado, Puerto Rico. Candelaria was charged with one count of

conspiring to possess with intent to distribute controlled

substances and four counts of possession with intent to distribute

heroin, cocaine, cocaine base, and marijuana.

1 Although appellant's name appears on the docket as "Candelario-Ramos," the parties refer to him as "Candelaria-Ramos" and his counsel clarified at the sentencing hearing that this is his true surname.

- 2 - In February 2019, pursuant to a written agreement,

Candelaria pleaded guilty to one count of conspiracy to possess

with intent to distribute cocaine in violation of

(a)(1), 846, and 860. As part of the plea agreement

Candelaria stipulated to possessing at least 2 but less than 3.5

kilograms of cocaine, resulting in a mandatory minimum of 60

months' imprisonment. In exchange, the government agreed to

dismiss the remaining counts and recommend a sentence of up to 71

months' imprisonment. Candelaria agreed to waive his appeal rights

"if the imprisonment sentence imposed by the [district court] [was]

71 months or less."

The plea agreement also stated that three of

Candelaria's prior Puerto Rico convictions qualified as "relevant

conduct," and that his sentence would be imposed in accordance

with U.S.S.G. §§5G1.32 and 5K2.23.3 As relevant conduct, the

2U.S.S.G. §5G1.3(b) requires that: if "a term of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction under the provisions of subsections (a)(1), (a)(2), or (a)(3) of §1B1.3 (Relevant Conduct), the sentence for the instant offense shall be imposed as follows: (1) the court shall adjust the sentence for any period of imprisonment already served on the undischarged term of imprisonment if the court determines that such period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons; and (2) the sentence for the instant offense shall be imposed to run concurrently to the remainder of the undischarged term of imprisonment."

3 U.S.S.G §5K2.23 provides that: "A downward departure may be appropriate if the defendant (1) has completed serving a term of imprisonment; and (2) subsection (b) of §5G1.3 . . . would have provided an adjustment had that completed term of imprisonment been undischarged at the time of

- 3 - parties identified two violations of the Puerto Rico Controlled

Substances Act and one violation of the Puerto Rico Penal Code.

Candelaria served his sentences for those convictions concurrently

for a total term of twenty months and twenty days, which ended in

January 2017.

Candelaria's amended PSR calculated his criminal history

as Category III with a total offense level of 25, resulting in a

sentencing range of 70 to 87 months. At his sentencing hearing in

September 2020, Candelaria requested a term of 60 months'

imprisonment minus the twenty months and twenty days he had

previously served in the custody of the Commonwealth on his

relevant conduct. The government explained that it had not been

aware of "the Sentencing Commission's opinion in terms of credit

that can and cannot be provided" and had "negotiated all the pleas

under the [mistaken] understanding [that the co-defendants] were

going to receive credit for the relevant conduct cases." In

response, the court explained that "whatever credit [Candelaria]

has, [the court] cannot go under five years," and confirmed that

Candelaria's counsel understood that the court could not "go under

the statutory minimum sentence." Notwithstanding the parties'

sentencing for the instant offense. Any such departure should be fashioned to achieve a reasonable punishment for the instant offense."

- 4 - apparent misunderstanding in reaching the plea agreement,

Candelaria did not move to withdraw his guilty plea.

After reviewing the relevant sentencing factors, the

court departed downward pursuant to U.S.S.G §5K2.23 but stopped at

the mandatory minimum, sentencing Candelaria to 60 months'

imprisonment and eight years of supervised release. At the end of

the hearing Candelaria objected to his sentence "on substantive

and on procedural grounds." His timely appeal followed.

II.

We enforce an appeal waiver "if the defendant knowingly

and voluntarily agree[d] to its terms and enforcement would not

result in a miscarriage of justice." United States v. Santiago,

(1st Cir. 2020) (citing United States v. Teeter,

(1st Cir. 2001)); see United States v. Staveley,

No. 21-1842,

, at *3 (1st Cir. Aug. 2, 2022)

(describing the contours of appeal waiver doctrine). Candelaria

does not dispute that he knowingly and voluntarily agreed to the

waiver. Thus we need only consider whether the waiver creates a

miscarriage of justice.

"The miscarriage-of-justice

exception is reserved for 'egregious cases,' is used 'sparingly,'

and 'requires a strong showing of innocence, unfairness, or the

like.'"

(internal citations omitted). Examples include

"the use of 'constitutionally impermissible factors'" such as race

- 5 - or ethnicity at sentencing or "the imposition of a 'sentence

exceeding the maximum penalty permitted by law.'"

at 3 n.2

(quoting Teeter,

nn.9-10). "To successfully invoke

the miscarriage of justice exception, a 'garden-variety error will

not suffice,' rather there must be, 'at a bare minimum, an

increment of error more glaring than routine reversible error.'"

United States v. Santiago,

(1st Cir. 2014) (quoting

United States v. Chambers,

(1st Cir. 2013)).

Candelaria states only that enforcing his appeal waiver

"would work as a miscarriage of justice" because "he is launching

a serious constitutional challenge to the limitations imposed by

" and U.S.S.G. §5G1.3, which "he believes is [a

matter] of first impression."4 Candelaria also asserts that he is

"raising serious questions related to disparity in sentencing."

But Candelaria does not explain why the seriousness of either his

constitutional or disparity claim creates a miscarriage of

4Candelaria also states that "[t]his is buttressed by the fact that both the United States and the Defense worked out a plea agreement under the impression that the Court could provide Candelaria with a term of imprisonment below the mandatory minimum." But, as discussed above, Candelaria did not move to withdraw his plea agreement. Regardless, Candelaria does not further develop this argument and has thus waived it. See Acevedo- Garcia v. Monroig,

, 561 (1st Cir. 2003) ("We have steadfastly deemed waived issues raised on appeal in a perfunctory manner, not accompanied by developed argumentation." (quoting Mulvihill v. Top-Flite Golf Co.,

(1st Cir. 2003))).

- 6 - justice. Candelaria has thus waived this argument. See Acevedo-

Garcia, 351 F.3d at 561.

Even if Candelaria had not waived this argument, there

is no miscarriage of justice here. Considering first his

constitutional claim, Candelaria argues that "the distinction

between discharged and undischarged terms of imprisonment in

Guideline §5G1.3 and

, in its application to

Candelaria, who is subject to a mandatory minimum sentence and who

completed serving a discharged state sentence for relevant

conduct, is arbitrary and violates his Fifth Amendment's due

process rights."5 Because Candelaria did not raise this argument

before the district court, we review only for plain error. See

United States v. Blewitt,

(1st Cir. 2019) (citing

United States v. Duarte,

(1st Cir. 2001)).

"Plain error is a formidable standard of review, which

requires that an appellant demonstrate: '(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

gives sentencing courts discretion to determine whether sentences will run concurrently or consecutively to other sentences they impose or sentences imposed in other proceedings.

(a); see also Setser v. United States,

(2012). Aside from noting that sentencing courts' discretion in applying U.S.S.G. §5G1.3 "flows from

(a)," Candelaria does not further explain how § 3584(a) is arbitrary or violates the Constitution. He has thus waived this argument. See Acevedo-Garcia, 351 F.3d at 561.

- 7 - the fairness, integrity, or public reputation of judicial

proceedings.'" Id. (quoting Duarte,

). But

Candelaria "makes no attempt to show how his [constitutional] claim

satisfies the demanding plain-error standard--his brief fails to

even mention plain error, let alone argue for its application

here." United States v. Cruz-Ramos,

(1st Cir.

2021) (citing Fed. R. App. P. 28(a)(8)(A)) (emphasis in original).

His failure to do so "waives this claim." Id.; see United States

v. Galíndez,

(1st Cir. 2019).6

In any event, there was no plain error. There are only

two ways for a court to sentence below a statutory mandatory

minimum. First, if a defendant provides substantial assistance

the government may move for a below-minimum sentence pursuant to

(e) or Federal Rule of Criminal Procedure 35(b).

See United States v. Ramirez,

, 518 n.2 (1st Cir.

2001); U.S. Sentencing Comm'n, Overview of Mandatory Minimum

Penalties in the Federal Criminal Justice System (July 2017),

https://www.ussc.gov/sites/default/files/pdf/research-and-

publications/research-publications/2017/20170711_Mand-Min.pdf, at

6Candelaria does try to make a plain-error argument in his reply brief. But "[w]e have held, with a regularity bordering on the monotonous, that issues advanced for the first time in an appellant's reply brief are deemed waived." Waste Mgmt. Holdings, Inc. v. Mowbray,

(1st Cir. 2000) (citations omitted).

- 8 - 18-19. Second, the court may sentence below a mandatory minimum

if a defendant has been convicted of a qualifying drug trafficking

offense and meets the requirements of the "safety valve" provision

in

(f). See Ramirez,

n.2; U.S.

Sentencing Comm'n, Overview of Mandatory Minimum Penalties in the

Federal Criminal Justice System. Candelaria did not seek relief

through these avenues, nor does he now argue that they apply. Any

potential sentencing adjustment available to him thus bottomed out

at the mandatory minimum, which Candelaria received.

Some circuits have credited undischarged sentences

towards mandatory minimums, "so long as the total of the time

served and the reduced federal sentence equals or exceeds the

statutory mandatory minimum period." Ramirez,

;

see, e.g., United States v. Ojeda,

(2d Cir. 2020)

(applying this approach); United States v. Ross,

(7th Cir. 2000) (same); United States v. Drake,

(9th Cir. 1995) (same); see also United States v. Moore,

(4th Cir. 2019) (discussing this approach). Candelaria

urges us to adopt this method and extend it to his discharged

sentences. But we have previously found this approach expressly

inapplicable to discharged sentences. See Ramirez,

. "The district court hardly could have committed plain error

- 9 - by adhering to binding . . . precedent." United States v.

Gonzalez,

(1st Cir. 2020).

Candelaria's disparity claim also falls short.

Candelaria asserts that his 60-month sentence is "substantially

disparate" from those of three co-defendants who were subject to

mandatory minimums yet received credit for discharged terms of

imprisonment, resulting in sentences of time served. District

courts must consider "the need to avoid unwarranted sentence

disparities among defendants with similar records who have been

found guilty of similar conduct."

(a)(6).

Although "the statute's main concern is minimizing 'national[]'

sentencing disparities among like criminals who commit like

crimes," United States v. Romero,

(1st Cir.

2018)(quoting United States v. Martin,

(1st Cir.

2008)) (alteration in original), we have "recognize[d] that

'legitimate concerns may arise' if a judge sentences 'similarly

situated coconspirators or codefendants' to 'inexplicably

disparate' terms,"

(quoting United States v. Demers,

(1st Cir. 2016)). But a claim of sentencing disparity "must

compare apples to apples," United States v. González-Barbosa,

(1st Cir. 2019), and "material differences" between

the defendant and the proposed comparators such as "dissimilar

criminal involvement, criminal histories, or cooperation with the

- 10 - government" destroy a disparity claim, Romero,

-

12.

Candelaria points to three of his co-defendants who,

like him, worked as sellers for the drug operation and pleaded

guilty to the same count of the indictment that he did. But the

similarities end there. Two of the co-defendants--Afanador and

Benitez-Perosa--were sentenced by a different judge than

Candelaria was, "a fact that makes [their] sentence[s] . . . less

relevant." United States v. Wallace,

(1st Cir.

2009) (citing United States v. Saez,

(1st Cir.

2006)). The other co-defendant, Rivera-Rivera, stipulated to

possessing a lesser amount of cocaine than Candelaria. Candelaria

provides no information about their criminal histories, the

circumstances of their plea agreements, or the particularities of

the relevant conduct for which he claims they received credit.

Without this information we cannot determine whether these co-

defendants are relevant comparators, and Candelaria's disparity

claim fails.7

7Moreover, Candelaria concedes that he does not know why Afanador or Rivera received the sentences that they did. As for Benitez, he received an incarcerative term of eighty-seven "months minus credit for time already served . . . under USSG 5K2.23 for a total imprisonment term of TIME SERVED." It is unclear why the district court applied §5K2.23 in his case because, as discussed above, §5K2.23 cannot be used to sentence below a mandatory minimum. Regardless, an error in Benitez's sentence would not support Candelaria's disparity claim.

- 11 - In sum, Candelaria waived any argument that his appeal

waiver creates a miscarriage of justice for lack of development.

And even had he not, he cannot show that enforcement of the appeal

waiver results in a miscarriage of justice because

"[n]o . . . error--garden variety or otherwise--invaded the

proceedings here." Santiago,

.

III.

For the foregoing reasons, the appeal is dismissed.

- 12 -