United States Court of Appeals For the First Circuit

No. 21-1916

UNITED STATES OF AMERICA,

Appellee,

v.

ERICK DE JESÚS-TORRES,

Defendant, Appellant.

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

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

Before

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

Raúl S. Mariani Franco 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, 2023 SELYA, Circuit Judge. Uber is a ride-hail company,

through which prospective riders summon drivers electronically (by

means of a specially designed app). Defendant-appellant Erick De

Jesús-Torres and his two accomplices devised a way to use the Uber

app as a latchkey to open the doors for serial carjackings. After

these antics came to an inglorious end, the defendant entered a

guilty plea to a number of charges and was sentenced to serve a

seventy-eight-month prison sentence. In this appeal, he

challenges both his sentence and the concomitant restitution

order. After careful consideration, we reject his claims of

sentencing error. As to the restitution order, we find merit in

one — but only one — of his claims. Consequently, we affirm the

defendant's sentence; direct modification of the restitution order

as specified herein; and affirm the modified restitution order.

I

We briefly rehearse the relevant facts and travel of the

case. Where, as here, a sentencing appeal follows a guilty plea,

"we draw the facts from the non-binding plea agreement . . . , the

change-of-plea colloquy, the undisputed portions of the [amended]

presentence investigation report (PSI Report), and the transcript

of the disposition hearing." United States v. Bermúdez-Meléndez,

(1st Cir. 2016).

- 2 - A

This case arises from a carjacking spree that occurred

during a time frame that extended from late 2019 into early 2020.

The first three carjackings (which took place on December 20,

December 23, and December 31) each followed the same pattern: the

defendant and his two accomplices requested an Uber; when the Uber

arrived, the defendant sat in the front passenger seat and the

accomplices sat in the back seat; upon reaching their designated

destination, the defendant switched off the ignition; one of the

accomplices ordered the driver out of the vehicle; and once the

driver had complied, the trio drove the vehicle away. In each

instance, one of the accomplices brandished a pellet gun. These

three carjackings went according to plan.

The carjackers, however, came a cropper on their fourth

try. During the evening of January 2, the Uber driver who had

responded to their request refused to exit the vehicle when the

defendant's accomplice pointed the pellet gun at her. She

continued to balk despite being struck several times. Exasperated,

the three miscreants robbed the driver but fled without the vehicle

once the driver began sounding the horn.

The carjackers' work on that evening was not done. They

repaired to a nearby bowling alley, where an acquaintance requested

another Uber for them. Employing their signature method, the trio

- 3 - carjacked that vehicle. Later that same evening, they carjacked

yet another Uber.

The carjackers' spree ended the next morning (around

12:30 a.m.), when an off-duty police officer — with the assistance

of the Uber driver who had refused to capitulate to the carjackers

— apprehended them. What happened next is disputed. According to

the amended PSI Report,1 the off-duty officer seized the defendant

and, during the ensuing scuffle, the defendant "grabbed [the

officer]'s firearm, which fired a round that struck [the defendant]

in his torso." The defendant, however, claimed that he had no way

of knowing that the man wielding a firearm was a police officer.

He also claimed that the man shot him in the back as he fled. In

any event, the defendant was arrested soon after the shooting.

B

As relevant here, a federal grand jury sitting in the

District of Puerto Rico returned a superseding indictment charging

the defendant with five counts of carjacking and one count of

attempted carjacking. See

. The defendant pleaded

guilty to all six counts pursuant to a plea agreement that forecast

a total offense level (TOL) of twenty-four but left open the

1 For present purposes, the amended PSI Report is the operative version of the presentence investigation report. Although the probation office later filed a second amended PSI Report, that report is identical to the amended PSI Report except for the presence of an addendum (which we have duly considered).

- 4 - defendant's criminal history category (CHC). Both sides agreed to

recommend a sentence at the lower end of the guideline sentencing

range (GSR) to be determined by the district court.

In the first iteration of the PSI Report, the probation

office calculated a TOL of thirty, noting that the plea-agreement

calculation had not taken into account, among other things,

applicable enhancements for bodily injury and the use of a

dangerous weapon. See USSG §2B3.1(b)(2)(D), (b)(3)(A). The report

also provided a restitution recommendation, which included — as

expense items incident to the carjackings — the cost of replacing

a cellphone belonging to one of the victims ($1,170.74), the cost

of auto-body work for damage to a carjacked vehicle ($4,209.77),

and the cost of transmission repairs to the same vehicle

($3,914.52). The probation office based these loss calculations

on receipts for the cellphone and transmission repairs, an estimate

for the body work, and a victim-impact statement.

The defendant interposed several objections to the PSI

Report (objections which, as we discuss below, were untimely). In

response, the probation office filed an amended PSI Report. The

probation office did not change the restitution calculations, but

the probation office sent defense counsel copies of receipts for

some cost items and a copy of the estimate for the auto-body work.

Moreover, the amended PSI Report deleted the proposed bodily injury

enhancement but retained the recommended dangerous weapon

- 5 - enhancement, resulting in a TOL of twenty-eight. That TOL, coupled

with the defendant's placement in CHC I, yielded a GSR of seventy-

eight to ninety-seven months.

The district court convened the disposition hearing on

October 18, 2021. Both sides argued for a fifty-one-month

incarcerative sentence (based on the plea agreement and the

defendant's mitigating circumstances, including the fact that he

had just turned eighteen at the time of the carjacking spree).

The district court demurred. It adopted the guideline calculations

limned in the amended PSI Report. Then, the court found that the

parties' recommended sentence did not "reflect the seriousness of

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

public from . . . additional crimes by Mr. De Jesus, [or] address

the issues of deterrence and punishment," particularly considering

the "violent nature of the six carjacking crimes in which victims

were led to believe that their life was threatened by a firearm."

Having laid this foundation, the court proceeded to impose a

within-the-range term of immurement of seventy-eight months.

Finally, the court adopted the amended PSI Report's restitution

calculations and ordered the defendant to pay $9,295.03 in

restitution (comprising the aggregate cost of a new cellphone, the

auto-body work, and the transmission repairs).

- 6 - The defendant unsuccessfully sought reconsideration of

both the sentence and the restitution award. This timely appeal

followed.

II

The defendant argues that his sentence is both

procedurally infirm and substantively unreasonable. In addition,

he argues that the restitution order is lacking in evidentiary

support.

Our "review of a criminal defendant's claims of

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

Miranda-Díaz,

(1st Cir. 2019). Under this

framework, "we first determine whether the sentence imposed is

procedurally reasonable and then determine whether it is

substantively reasonable." United States v. Clogston,

(1st Cir. 2011). At both steps of this pavane, "our

review of preserved claims of error is for abuse of discretion."

United States v. Díaz-Lugo,

(1st Cir. 2020).

Within the abuse of discretion rubric, we review findings of fact

for clear error and questions of law de novo. See United States

v. Carrasquillo-Vilches,

(1st Cir. 2022).

Against this backdrop, we turn first to the defendant's

claims of sentencing error. Restitution is a separate matter —

and we discuss it separately. See infra Part II(D). That

discussion incorporates the applicable standards of review.

- 7 - A

There is a threshold question as to the timeliness of

the defendant's objections to the amended PSI Report's version of

the relevant events. We start there.

Under Federal Rule of Criminal Procedure 32(f)(1), a

defendant has fourteen days to object to inaccuracies in a

presentence investigation report.2 Here, the defendant's

objections were not submitted until twenty-four days after the PSI

Report issued. Typically, an untimely objection would work a

forfeiture, limiting the objecting party to plain error review.

See United States v. Carbajal-Váldez,

(1st Cir.

2017). But when — as in this case — neither the government nor

the district court questioned the timeliness of belated objections

to a presentence investigation report, "a colorable argument can

be made that the objections sufficed to preserve the claim of

error."

Thus, we assume — favorably to the defendant — that

his objections to the PSI Report were preserved.

B

The defendant's claim of procedural error is bound up in

his contention that the district court erred by relying on disputed

facts within the amended PSI Report regarding his struggle with

2 This fourteen-day period is mirrored in a local rule promulgated by the United States District Court for the District of Puerto Rico. See D.P.R. Crim. R. 132(b)(3)(A).

- 8 - the off-duty police officer. When a fact in the PSI Report is

disputed, a district court must resolve the dispute so long as the

fact may affect the court's sentencing determinations. See Fed.

R. Crim. P. 32(i)(3)(B). In such an event, we ordinarily would

review the district court's finding on the disputed fact for clear

error. See Carbajal-Váldez,

.

The case at hand, though, does not fit that mold. When

the defendant objected during the disposition hearing to the

amended PSI Report's description of his interaction with the off-

duty police officer (urging that the district court "should not

give any weight to those facts"), the court responded that it had

not considered the encounter for sentencing purposes. We have no

reason to doubt that the district court meant what it said, and

its statement disposes of any need for us to resolve the

defendant's claim of error. We have held before — and today

reaffirm — that when a sentencing court determines that a disputed

fact will not be considered for sentencing purposes, a ruling on

that disputed fact becomes unnecessary. See United States v.

Pinet-Fuentes,

(1st Cir. 2018); see also Fed. R.

Crim. P. 32(i)(3)(B).

To be sure, the district court — earlier in the

disposition hearing — mentioned the defendant's encounter with the

off-duty police officer. But we conclude that the district court's

later disavowal of any reliance on the disputed encounter was

- 9 - sufficient to render the defendant's claim of procedural error

moot. When a sentencing court specifically disavows any reliance

on a particular circumstance, a reviewing court should give

credence to that disavowal absent some contradictory indication in

the record. See, e.g., United States v. García-Mojica,

(1st Cir. 2020) (rejecting claim of procedural error when

district court "expressly disavowed any reliance on facts" not

properly before it); cf. United States v. Londono-Quintero,

(1st Cir. 2002) (giving credence to district court's

disavowal of any reliance on police report when it made aggravated-

felony determination). There is no such contradictory indication

in the record here.

C

We next turn to the defendant's contention that his

sentence is substantively unreasonable. Our review is for abuse

of discretion. See Holguin-Hernandez v. United States,

(2020); Carrasquillo-Vilches,

.

When evaluating the substantive reasonableness of a

challenged sentence, "the key inquiry is whether the sentencing

court has articulated a plausible rationale and reached a

defensible result." United States v. Coombs,

(1st Cir. 2017). In undertaking this inquiry, we remain mindful

that "reasonableness is a protean concept." United States v.

Martin,

(1st Cir. 2008). "There is no one

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

reasonable sentencing outcomes." Clogston,

.

In this instance, the district court adopted the

guideline calculations recommended in the amended PSI Report

(including the recommended GSR). On appeal, the defendant has not

mounted any viable challenge to the GSR. Where, as here, a

sentence is within a properly calculated guideline range,

challenging its substantive reasonableness involves a "heavy

lift." United States v. Cortés-Medina,

(1st

Cir. 2016).

1

The defendant strives to persuade us that he can make

this heavy lift. He first suggests that, although the dangerous

weapon enhancement may literally apply, its application here — in

circumstances in which the pellet gun was neither procured by him

nor wielded by him — is not aligned with the Sentencing

Commission's intent. In support, the defendant cites the Supreme

Court's decision in Kimbrough v. United States,

(2007).

Fairly read, Kimbrough is of little help to the

defendant. We have described Kimbrough as holding that "district

courts have discretion to vary downwardly from a sentence on the

basis of a policy disagreement with the relevant guideline."

United States v. Lewis,

(1st Cir. 2020) (citing

Kimbrough,

). Taking this description into

- 11 - account, we find the defendant's Kimbrough-based contention

unconvincing. When he raised this objection below, the district

court overruled it. The court found that the facts adumbrated in

the amended PSI Report brought this case squarely within the

purport of the enhancement. It noted that although the defendant's

accomplices held the pellet gun, the guidelines for aiding and

abetting the use of a dangerous weapon made the defendant equally

responsible for its deployment. See USSG §1B1.3(a)(1)(A).

The district court's logic seems unassailable. In

determining that the dangerous weapon enhancement should apply

equally to those who aid and abet the use of a dangerous weapon,

the Sentencing Commission took aim at the precise type of conduct

that the defendant now seeks to place on the outer periphery of

the enhancement.

We add, moreover, that Kimbrough does not require a

downward variance every time a defendant can articulate a colorable

policy disagreement with a guideline provision. See Clogston,

(observing that "the discretion to vary under Kimbrough

is not tantamount to an obligation to do so"); United States v.

Rodríguez,

(1st Cir. 2008) (noting that although

sentencing court may consider a Kimbrough-related argument, it is

"not obligated to deviate from the guidelines based on" that

argument). Although the Kimbrough Court affirmed a sentencing

court's discretion to vary downward in response to policy

- 12 - arguments, "the mere fact that a sentencing court has the

discretion to disagree with the guidelines on policy

grounds . . . does not mean that it is required to do so." United

States v. Ekasala,

(1st Cir. 2010). Consequently,

we reject the defendant's suggestion that a downward variance was

necessary here.

2

The defendant also attacks the substantive

reasonableness of his sentence from a different angle. He

complains that the district court did not give adequate weight to

certain mitigating factors that, in his view, warranted a lower

sentence. He specifically notes his youth at the time of the

carjackings, the years he spent in the foster care system, his

first-time-offender status, and his lack of any involvement with

controlled substances.

Even so, the district court did not overlook these

factors. The court commented specifically that it had considered

the defendant's "age, mental health condition, mental disability,

first time offender status, and his allocution." But the court

weighed these mitigating factors against "the violent nature of

the six carjacking crimes in which victims were led to believe

that their life was threatened by a firearm." Based on its

analysis, the court struck a different balance than the parties

had reached in the plea agreement: to the court's way of thinking,

- 13 - the proposed fifty-one-month sentence failed to "reflect the

seriousness of the offenses."

When all is said and done, this aspect of the defendant's

challenge rests mainly on the district court's alleged failure to

weigh certain mitigating factors as heavily as the defendant would

have preferred. But the mere fact "[t]hat the sentencing court

chose not to attach to certain of the mitigating factors the

significance that the [defendant] thinks they deserved does not

make the sentence unreasonable." Clogston,

.

Of course, the district court's sentencing rationale is

not a textbook model. Much of it is boilerplate — and we have

twice remarked on its flaws in recent opinions. See United States

v. Flores-Nater, __ F.4th __, __ (1st Cir. 2023) [Nos. 21-1856,

21-1979, slip op. at 8] (concluding that similar, non-case-

specific language "scarcely constitutes a plausible rationale

sufficient to justify a steep upward variance"); United States v.

Muñoz-Fontanez,

(1st Cir. 2023) (concluding

that similar, non-case-specific language was inadequate to explain

upward variance). Here, however, there are two notable

differences. First, the court went beyond the boilerplate to

single out a case-specific aggravating factor: it commented

specifically on the especially violent nature of the offenses of

conviction. See Flores-Nater, __ F.4th at __ [slip op. at 9]

(explaining that "a sentencing court's rationale need not always

- 14 - be explicit" but, in some instances, that "rationale may be teased

from the sentencing record"). Second, the sentence was within the

GSR and, as such, the burden of explanation was considerably

diminished. See United States v. Montero-Montero,

(1st Cir. 2016). After all, "when a judge decides simply to apply

the Guidelines to a particular case, doing so will not necessarily

require lengthy explanation." Rita v. United States,

(2007). Given this low bar, we deem the district

court's rationale to be both plausible and sufficient to support

the defendant's sentence.

Nor is the sentencing outcome in this case an outlier.

In virtually all cases, a within-guidelines sentence will be a

defensible outcome. See United States v. Torres-Landrúa,

(1st Cir. 2015) (concluding that sentence "at the very

bottom" of applicable GSR "was within the universe of reasonable

outcomes and, thus, defensible"); cf. United States v. Turbides-

Leonardo,

(1st Cir. 2006) ("It will be the rare

case in which a within-the-range sentence can be found to

transgress the parsimony principle."). This case falls within the

sweep of that general rule, not within the long-odds exception to

it. It follows that a bottom-of-the-range sentence — such as the

sentence that the defendant challenges in this case — represents

a defensible outcome.

- 15 - We add a coda. Though advisory, the sentencing

guidelines are "the initial benchmark" from which to make an

individualized assessment. Gall v. United States,

(2007). That the court declined to vary below the guideline

range is not an abuse of discretion and does not render the

defendant's sentence substantively unreasonable. See Clogston,

.

D

This leaves the defendant's challenge to the restitution

order. Under the Mandatory Victims Restitution Act (MVRA),

defendants convicted of certain federal crimes — such as carjacking

— must make victims whole for their actual losses. See 18 U.S.C.

§ 3663A. For this purpose, the MVRA limits a victim's "actual

loss" to the "pecuniary harm that would not have occurred but for

the defendant's criminal activity." Carrasquillo-Vilches,

(quoting United States v. Simon,

(1st

Cir. 2021)); see 18 U.S.C. § 3663A(b)(1)(B).

Before us, the defendant attempts to challenge the

restitution order as to all three of its component parts (the cost

of a new cellphone, the cost of the auto-body work, and the cost

of the transmission repairs). But he has bitten off more than he

can chew. We have said that "[w]aiver typically occurs when a

party intentionally relinquishes a known right," United States v.

Alphas,

(1st Cir. 2015), and at the disposition

- 16 - hearing, the defendant expressly abandoned his previous objections

to the restitution order in so far as those objections concerned

compensation for replacement of the stolen cellphone and for the

auto-body work. His claims of error with respect to those portions

of the restitution order are, therefore, waived. See United States

v. Orsini,

(1st Cir. 2018); Alphas,

.

The issue narrows, then, to the defendant's challenge to

that part of the restitution order dealing with reimbursement for

transmission repairs (totaling $3,914.52). "We review restitution

orders for abuse of discretion, examining the court's subsidiary

factual findings for clear error and its answers to abstract legal

questions de novo." United States v. Chiaradio,

(1st Cir. 2012). The government bears "the burden of demonstrating

a proximate, but-for causal nexus between the offense of conviction

and the actual loss." United States v. Padilla-Galarza,

(1st Cir. 2021). It must carry this burden by a

preponderance of the evidence. See

(e). "This

standard is relatively modest in application, as 'a modicum of

reliable evidence' may suffice both to establish the requisite

causal connection and to justify a dollar amount." Padilla-

Galarza,

(quoting United States v. Flete-Garcia,

(1st Cir. 2019)).

- 17 - Such reliable evidence can be derived from a presentence

investigation report, which "generally bears 'sufficient indicia

of reliability to permit the district court to rely on it at

sentencing.'" United States v. Prochner,

(1st

Cir. 2005) (quoting United States v. Cyr,

(1st

Cir. 2003)). A defendant may object to the PSI Report's

restitution figure, but if the objections "are merely rhetorical

and unsupported by countervailing proof, the district court is

entitled to rely on the facts in the [PSI Report]."

at 66

(quoting Cyr,

).

In the case at hand, the defendant asserts that the

district court awarded restitution for the transmission repairs

notwithstanding the absence of any evidence showing either the

cost of the transmission repairs or a causal connection between

those repairs and the carjacking. As to the repair cost, his claim

is baseless. The repair cost ($3,914.52) was specified in the

amended PSI Report and (corroborated by a receipt furnished to

defense counsel).3 Without any contradictory factual showing, it

was within the district court's discretion to rely on the repair-

cost figure displayed in the amended PSI Report. See United States

v. Sánchez-Maldonado,

, 828 n.2 (1st Cir. 2013)

Although a copy of the receipt is not contained in the 3

sentencing record, defense counsel has not denied either that he received the receipt or that the receipt was in the amount that the sentencing court awarded.

- 18 - (explaining — in restitution context — that "an uncontradicted

loss amount does not give rise to a dispute"); Prochner,

("In the absence of rebuttal evidence beyond defendant's

self-serving words, we cannot say the court clearly erred in

accepting the [PSI Report's] calculation of the restitution

amount.").

But there is a fly in the ointment. To recover any item

of loss, the government must show a causal connection between the

offense of conviction and that item. See Padilla-Galarza,

. Here, however, the record is barren of any smidgen of

evidence indicating a causal connection between the carjacking and

the transmission damage. The amended PSI Report does not speak to

causation at all, and there is not even a statement from the victim

to that effect in the record.4 What is more, the district court

did not identify any factual basis sufficient to support a finding

of causation. Causation cannot simply be assumed and — in light

of this evidentiary void — the portion of the restitution award

4 The victim-impact statement that mentions the transmission repairs is not part of the district court record and — for aught that appears — was never reviewed by the district court. In an abundance of caution, we have tracked down that statement and have learned that it was part of the probation office's file. But it is a Spanish-language document, which was never translated into English. Reliance on it in a federal court proceeding is therefore proscribed. See

; see also United States v. Román- Huertas,

, 76 n.4 (1st Cir. 2017) ("The Jones Act applies with equal force to any material that a probation officer wants the district court to consider at sentencing.").

- 19 - relating to transmission repairs ($3,914.52) cannot stand. On

remand, therefore, the district court must modify the restitution

order by subtracting $3,914.52, resulting in a modified award of

$5,380.51.

III

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

we affirm the defendant's sentence; direct modification of the

restitution order as specified herein; and affirm the modified

restitution order.

So Ordered.

- 20 -