Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 21-1285

UNITED STATES OF AMERICA,

Appellee,

v.

BENJAMIN MELÉNDEZ-RIVERA, a/k/a Bengie, a/k/a Ben,

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

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

Francisco J. Adams-Quesada on brief for appellant. W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá- Almonte, Assistant United States Attorney, Chief, Appellate Division, and Maarja T. Luhtaru, Assistant United States Attorney, on brief for appellee.

October 6, 2022 SELYA, Circuit Judge. Weighing the various factors made

relevant under

(a) is — in the first instance —

quintessentially a matter for the sentencing court. In this

appeal, defendant-appellant Benjamin Meléndez-Rivera challenges

the sentencing court's performance of that function. Concluding,

as we do, that the defendant's sentence is both procedurally sound

and substantively reasonable, we affirm.

I

We briefly rehearse the 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 October 14, 2016, the defendant and another

individual brandished firearms at two female employees of Banco

Popular as the employees were replenishing automatic teller

machines. The ensuing robbery yielded a haul of approximately

$80,000.

The defendant then proceeded to scout his next target:

a Ranger American armored truck. On March 30, 2017, the defendant

and a band of confederates went to a different Banco Popular branch

to lie in wait for the armored truck. When the vehicle arrived,

two of the defendant's accomplices approached the courier. As the

- 2 - courier attempted to reach for his weapon, the accomplices began

firing their guns wildly, killing two bystanders and wounding the

courier. With about $16,000 in hand, the robbers fled. Subsequent

investigation revealed that the defendant had planned the robbery,

supplied one of the weapons used in it, and facilitated the escape.

The authorities apprehended the defendant on December 8,

2017. A federal grand jury sitting in the District of Puerto Rico

later returned an indictment. Our focus, though, is on the

superseding indictment, which charged the defendant, amongst

others, with conspiracy to interfere with commerce by robbery, see

(a); interference with commerce by robbery, see

id.; two counts of possession of firearms in furtherance of a crime

of violence resulting in death, see

§ 924(j)(1); being a felon

in possession of a firearm, see id. § 922(g)(1); bank robbery, see

id. §§ 2113(a) & (d); and possession and brandishing of firearms

in furtherance of a crime of violence, see id. § 924(c)(1)(A)(ii).

The first count referred to both the armored truck robbery and the

robbery at the Banco Popular branch, the next three counts referred

only to the armored truck robbery, and the last two counts referred

only to the robbery at the Banco Popular branch. The sentencing

court appropriately regarded both robberies as part of the same

course of relevant conduct.

The defendant initially maintained his innocence but

later agreed to plead guilty to the top count: Hobbs Act

- 3 - conspiracy to interfere with commerce by robbery. The government

agreed to dismiss the remaining charges against him at the time of

sentencing. In due course, a plea agreement was executed and the

court accepted the defendant's guilty plea.

When prepared, the PSI Report recommended a guideline

sentencing range (GSR) of 292 to 365 months. Withal, the

statutorily prescribed maximum term of immurement (and, thus, the

guideline term of imprisonment) was 240 months. See

USSG §5G1.1(a).

At the disposition hearing, defense counsel recommended

a 151-month term of immurement. Counsel emphasized the defendant's

advanced age (sixty-one years old at the time of the disposition

hearing) and health-related conditions. Counsel also mentioned

the defendant's "harsh" upbringing, "educational challenges," and

role within his family. After the defendant allocuted, the

prosecutor noted that the plea agreement "took into account many

of the mitigating factors" that defense counsel presented. The

prosecutor also observed that the two bystanders who died were

relatively young and that the surviving courier was shot fifteen

times. These victims and their families suffered, the prosecutor

said, "because of the conduct that [the defendant] chose to engage

in." Consistent with the terms of the plea agreement, the

prosecutor concluded by recommending an incarcerative sentence of

188 months.

- 4 - The district court began by adopting the guideline

calculations limned in the PSI Report. It then reviewed the

sentencing factors set forth in

(a). The court

noted the defendant's age, education level, family status, and

health-related conditions (specifically mentioning arthritis,

hypertension, and high cholesterol). The court then considered

the gravity of the offense and the defendant's participation in

it. The court pointed out that the defendant had played an active

role in identifying the target of the robbery and in "planning and

providing instructions, . . . providing [a] weapon to be

used . . ., and . . . participating in the actual robbery."

Additionally, the court acknowledged that the victims were a factor

that it "ha[d] to consider."

In the end, the court found two downward departures to

be appropriate: one level for the defendant's age and three levels

because the defendant "was not the one pulling the trigger."

Taking into account "the seriousness of the offense, . . . the

statements of the victims, [and] the Plea Agreement's

recommendation," the court imposed a 200-month term of immurement.

And as provided in the plea agreement, the court dismissed all of

the remaining charges against the defendant.

This timely appeal followed.

- 5 - II

The protocol for sentencing appeals involves a two-step

pavane. See United States v. Miranda-Díaz,

(1st

Cir. 2019). We first review any claims of procedural error. See

If the sentence survives that review, we next consider any

challenge to its substantive reasonableness. See

At both

steps of this pavane, our review of preserved claims of error is

for abuse of discretion. See United States v. Rivera-Morales,

(1st Cir. 2020).

A

The defendant's claim of procedural error consists of an

assault on the district court's balancing of the section 3553(a)

factors. Before reaching the merits of this claim, we must dispose

of a threshold matter. The government asserts that this claim was

not preserved below and, thus, should be reviewed only for plain

error. See United States v. Duarte,

(1st Cir.

2001). We need not resolve this contretemps: even if we assume,

favorably to the defendant, that his claim of procedural error was

preserved, the claim fails. We proceed accordingly.

Fleshing out his claim of procedural error, the

defendant charges that the court "placed all weight on the negative

factors and disregarded the multiple mitigating factors." This

charge is belied by the record. After all, "the sentencing

inquiry . . . ideally is broad, open-ended, and significantly

- 6 - discretionary." United States v. Martin,

(1st

Cir. 2008). And although the sentencing court is obliged to

consider the factors outlined in

(a), 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). Nor need the court "address every argument

that a defendant advances in support of his preferred sentence."

Rivera-Morales,

.

Here, moreover, the district court explicitly stated

that it had considered all of the section 3553(a) factors. We

have consistently held that "[s]uch a statement 'is entitled to

some weight.'" United States v. Clogston,

(1st

Cir. 2011) (quoting United States v. Dávila-González,

(1st Cir. 2010)). And in the case at hand, the district court

acknowledged the potentially mitigating factors that defense

counsel pressed at sentencing. Nor can it be said that the court

merely paid lip service to those factors. It departed downward in

consideration of the defendant's age and made a further downward

departure based on the fact that he did not himself kill the

victims. Given the totality of the circumstances, the defendant's

claim that the court "disregarded" mitigating factors rings

hollow.

To say more would be to paint the lily. Stripped of

rhetorical flourishes, the defendant's real complaint appears not

- 7 - to be that the court failed adequately to consider the sentencing

factors but, rather, that the court did not assign certain factors

the weight that the defendant would have liked. That differential

weighing, without more, is not an abuse of discretion. And here,

there is no "more": as we repeatedly have admonished, a sentencing

court's decision not to attach to certain factors the weight that

a defendant thinks they deserve does not either signal an abuse of

discretion or render a sentence unreasonable.1 See United States

v. Ortiz-Pérez,

(1st Cir. 2022); United States

v. Vélez-Andino,

, 117 (1st Cir. 2021). Consequently,

we discern no abuse of discretion.

B

This brings us to the defendant's claim of substantive

unreasonableness. In essence, the defendant contends that his

sentence is substantively unreasonable because the court below

improperly weighed the mitigating factors brought to its

attention. Once again, our review is for abuse of discretion.

1 The defendant advances for the first time in a post-briefing letter, see Fed. R. App. P. 28(j), a new claim of procedural error. This time, he alleges that the district court failed adequately to explain its deviation from the GSR. Given that no such deviation occurred, this claim is quixotic. And in any event, in the absence of extraordinary circumstances — and none exist here — issues not raised in an appellant's opening brief are deemed waived. See United States v. López,

(1st Cir. 2020). So it is here.

- 8 - See Holguin-Hernandez v. United States,

(2020);

United States v. Bruno-Campos,

(1st Cir. 2020).

Some background is useful. In the sentencing context,

"reasonableness is a protean concept." Martin,

.

Given that the circumstances of a particular case will almost

always justify more than one reasonable sentence, a sentence will

be vacated as substantively unreasonable only if it "falls outside

the expansive boundaries" of the universe of reasonable sentences.

It follows that a defendant who seeks to challenge the

substantive reasonableness of his sentence faces an "uphill

climb." United States v. Coombs,

(1st Cir.

2017).

This climb is even steeper when — as in this instance —

the challenged sentence falls within a properly calculated GSR.

See Clogston,

. In challenging the substantive

reasonableness of such a sentence, 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)). Such a challenge cannot succeed when the district court

"has articulated a plausible rationale and reached a defensible

result." Coombs,

.

- 9 - Here, the district court provided a plausible rationale

for its sentencing decision. At the disposition hearing, the court

acknowledged the parties' arguments and the circumstances of the

offense. The court then gave weight to certain mitigating factors

but counterbalanced those factors by giving weight to an array of

aggravating factors. In that regard, the court stressed that the

defendant had an "active role" in planning and executing both the

armored truck robbery and the robbery at the bank. Moreover — "as

a direct result" of these robberies — many victims and their

families were still suffering. And the court expressed concern

that the victims who died were young. Given the thoroughness of

the court's analysis of the sentencing factors and the

circumstances attendant to the robberies, we hold that its

rationale for the sentence imposed was plausible.

So, too, we hold that the sentence represents a

defensible result. The offense of conviction was very serious,

and people were killed during its commission. Although the

defendant claims that he had instructed his confederates not to

shoot during the armored truck robbery, he plainly set the stage

for the mayhem that ensued. He identified the targets of the

robberies, planned the heists, supplied a firearm to be used, and

participated in the commission of both the armored truck robbery

and the earlier robbery. Finally, the results of the defendant's

plotting were horrific: two innocent persons were killed and the

- 10 - courier was severely wounded. Given the totality of the

circumstances, a 200-month prison sentence constitutes a

defensible result.

To recapitulate, the sentence imposed rests on a

plausible rationale and represents a defensible result. So viewed,

the reasons offered by the defendant in mitigation of that sentence

are insufficient to undermine it. We hold, therefore, that the

sentence is substantively reasonable.

III

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

the challenged sentence is

Affirmed.

- 11 -