United States Court of Appeals For the First Circuit

No. 21-1884

UNITED STATES OF AMERICA,

Appellee,

v.

BRIAN ALEXIS DIAZ-SERRANO, A/K/A "RETRO",

Defendant, Appellant.

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

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

Before

Montecalvo and Lipez, Circuit Judges. Burroughs,* District Judge.

Christopher DeMayo, with whom Law Office of Christopher DeMayo was on brief, for appellant.

David C. Bornstein, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, were on brief, for appellee.

August 10, 2023

* Of the District of Massachusetts, sitting by designation. MONTECALVO, Circuit Judge. Defendant-appellant Brian

Diaz-Serrano ("Diaz") pleaded guilty to one count of knowingly

carrying, brandishing, or discharging one or more firearms during

and in relation to a kidnapping resulting in a crime of violence

pursuant to

(c)(1)(A)(iii), a conviction that

carries a statutory minimum sentence of 120 months. At sentencing,

and pursuant to his plea agreement, Diaz joined the government in

recommending a sentence of 210 months. The court rejected the

recommendation on the grounds that it "d[id] not reflect the

seriousness of the offense, d[id] not promote respect for the law,

d[id] not protect the public from further crimes by Mr. Diaz and

d[id] not address the issues of deterrence and punishment."

Instead, the court sentenced Diaz to 240 months' -- double the

statutory minimum. This timely appeal followed.

On appeal, Diaz contends that the district court's

upwardly variant sentence was procedurally and substantively

unreasonable because the court (i) relied on judicially found facts

to justify an otherwise substantively unreasonable sentence; (ii)

relied on prior arrests to justify the upward variance; and (iii)

imposed a sentence that created an unwarranted sentencing

disparity between Diaz and a similarly situated co-defendant.

Having discerned no error, we affirm.

- 2 - I. Background

Because this sentencing appeal follows a guilty plea, we

draw the relevant facts from the plea agreement, the undisputed

portions of the change-of-plea colloquy, the presentence

investigation report ("PSR"), and the sentencing record.1 United

States v. Melendez-Rosado,

(1st Cir. 2023) (quoting

United States v. Vargas,

(1st Cir. 2009)).

On June 8, 2018, Diaz participated in the kidnapping and

murder of a rival gang member, referred to by the parties as WGE.

That day, Diaz traveled with members of his gang to the public

housing complex where WGE lived. Armed with guns, they forced WGE

out of his home and into a Toyota Camry, in which he was transported

to Barrazas Ward. Diaz also traveled to Barrazas Ward, but in a

different vehicle. While he remained in the car, Diaz witnessed

members of his gang shoot and kill WGE. Diaz and a co-defendant,

Jadnel Flores-Nater, then "burnt the Toyota Camry under a bridge."2

A witness later reported that before Diaz "met with other

codefendants to pick up the victim," he "received a phone call

ordering the murder of victim WGE." WGE was targeted because he

had been threatening members of Diaz's gang.

1 Diaz raised no objections to the PSR. 2 According to the PSR, "[a]s verified with federal agents, Mr. Diaz's participation in the offense was taking the victim from his home to commit the murder. At the moment of the murder, he remained in the vehicle and he possessed a firearm."

- 3 - On August 19, 2020, Diaz and his four co-defendants were

charged in a three-count superseding indictment (the "indictment")

with the kidnapping and murder of WGE. The indictment charged

Diaz with (i) kidnapping resulting in death in violation of

(a)(1) and (2); (ii) using, carrying, brandishing,

and discharging a firearm during and in relation to a crime of

violence in violation of

(c)(1)(A)(iii) and (2);

and (iii) using, carrying, and discharging a firearm during and in

relation to a crime of violence causing murder in violation of

(j)(1) and (2).

On June 18, 2021, Diaz entered into a plea agreement

whereby he pleaded guilty to count two of the indictment -- using,

carrying, brandishing, and discharging a firearm during and in

relation to a crime of violence in violation of

(c) -- and in exchange, the government agreed to dismiss the

two remaining counts.3 Although the parties acknowledged that the

guidelines recommendation for the single count was 120 months'

imprisonment (the statutory minimum under § 924(c)(1)(A)(iii)),

the parties agreed "upon considering the dismissal of the remaining

counts" to jointly recommend an above-guidelines sentence of 210

months. Finally, Diaz stipulated to the statement of facts that

had been incorporated into the plea agreement and recited by the

3 Diaz preserved his right to appeal any sentence exceeding 210 months' imprisonment.

- 4 - government at his change-of-plea hearing. The court accepted

Diaz's change of plea.

Ahead of sentencing, Probation prepared a PSR, which

Diaz reviewed and to which he raised no objections. The PSR noted

that Diaz had four prior arrests but no prior convictions. It

therefore indicated that Diaz had a criminal history score of zero,

placing him in criminal history category I. Given that Diaz's

conviction carried a mandatory minimum sentence, the PSR

noted -- consistent with the joint calculation in the plea

agreement -- that the guideline sentence was the minimum term of

imprisonment governed by statute, here 120 months'.

At sentencing, Diaz and the government jointly

recommended an upwardly variant sentence of 210 months. Diaz

defended the recommendation before the court. He argued that the

ninety-month increase over the guidelines recommendation of 120

months adequately accounted for the gravity of the offense conduct.

Diaz also sought to reinforce the reasonableness of his

recommendation by comparing it to the 194 months' sentence the

court imposed on his co-defendant, Roberto Melendez-Hiraldo

("Melendez"). Diaz told the court that Melendez had admitted to

identical facts, but that Melendez's prior convictions placed him

in a higher criminal history category.

Still, the court rejected the joint recommendation,

concluding that it "d[id] not reflect the seriousness of the

- 5 - offense, d[id] not promote respect for the law, d[id] not protect

the public from further crimes by Mr. Diaz and d[id] not address

the issues of deterrence and punishment." Instead, the court

sentenced Diaz to 240 months' incarceration to be followed by five

years of supervised release. The court explained:

The Court will sentence Mr. Diaz concerning his participation in the offense by receiving the order to kill the victim, whose initials are WGE, transporting the victim from his home to the location where he would commit the murder and as part of . . . what Mr. Diaz and the other defendants did. He, along with another of the defendants, burned a Toyota Camry, one of the vehicles used in the offense.

The court also described the factual details of the

kidnapping and murder. Diaz objected to the reasonableness of the

sentence, noting that the jointly recommended 210 months'

imprisonment already represented a 42.85% increase over the

statutory minimum, and that the 240 months' sentence imposed by

the court reflected another 12.5% increase. He argued that this

was unreasonable, particularly where Melendez had received a 194

months' sentence. This discrepancy, Diaz suggested, represented

an unwarranted sentencing disparity. But the court rejected this

notion by identifying factual differences in the two cases. It

noted that unlike Melendez, Diaz (i) received a call ordering the

murder of the victim and (ii) "participated in the burning of the

Camry in which . . . the victim had been placed when they went to

- 6 - Barrazas, and it appears to be an attempt to get rid of any

[evidence of the] participation of any of the members in the Camry

in the murder of the victim." Diaz sought reconsideration on the

grounds that these factual differences were already accounted for

in the recommended 210 months' sentence, which exceeded Melendez's

actual sentence by sixteen months. The court declined to

reconsider, and this appeal followed.

II. Discussion

On appeal, Diaz challenges the procedural and

substantive reasonableness of his sentence. We begin by reviewing

for procedural error. Only if the sentence is procedurally sound

do we review it for substantive reasonableness. United States v.

Rossignol,

(1st Cir. 2015).

A. Procedural Reasonableness

Because Diaz did not preserve his procedural

reasonableness claims below, we review them for plain error.

United States v. Duarte,

(1st Cir. 2001).

1. Judicial Fact Finding

Diaz argues that the court erred by imposing an upwardly

variant sentence based on judicially found facts.4 He contends

that the facts established by his guilty plea cannot alone justify

4 The court relied on two facts from the unobjected to PSR: that (i) Diaz received a call ordering the murder of WGE, and (ii) after the murder occurred, Diaz participated in burning the Camry that had transported WGE to the park where he was killed.

- 7 - the 120 months' variance and that absent the court's reliance on

unobjected to facts contained in the PSR, the 240 months' sentence

would have been substantively unreasonable and thus unable to

stand.

Diaz roots his argument in the Sixth Amendment

requirement, articulated in United States v. Booker, that "[a]ny

fact (other than a prior conviction) which is necessary to support

a sentence exceeding the maximum authorized by the facts

established by a plea of guilty or a jury verdict must be admitted

by the defendant or proved to a jury beyond a reasonable doubt."

(2005). Diaz contends that the court violated

this principle by relying on judicially found facts to impose a

sentence that would otherwise have been substantively

unreasonable. See Dillon v. United States,

(2010).

But this misapprehends the constitutional limits on

judicial fact finding set out in Booker. At sentencing, a court's

reliance on judicially found facts presents Sixth Amendment

concerns only when those facts bind the court to a particular

sentencing outcome, such as triggering a mandatory minimum, or

increase a defendant's sentencing exposure beyond the legal

maximum for the offense. Rita v. United States,

(2007) ("The Sixth Amendment question [addressed in Booker] is

whether the law forbids a judge to increase a defendant's sentence

- 8 - unless the judge finds facts that the jury did not find (and the

offender did not concede)."); Booker,

. These

concerns are not implicated, however, when a court relies on

judicially found facts to guide its exercise of "broad discretion

in imposing a sentence within a statutory range." Booker,

. Because Diaz's sentence is within the statutorily

authorized range, the court's reliance on judicially found facts

does not present a Sixth Amendment issue here. We therefore

discern no error.

2. Arrests

Next, Diaz argues that his sentence was procedurally

flawed for the independent reason that the court erroneously relied

on his prior arrests to justify the upward variance.5 To be sure,

5 The government argues that Diaz forfeited his prior arrests-based claim because his opening brief failed to analyze the fourth prong of plain-error review. In this case, we disagree and find plain-error review applies. While failure to make a sufficient argument as to one plain-error prong may constitute waiver of the claim of error, the Supreme Court, in Rosales-Mireles v. United States,

(2018), held that an appellant's failure to satisfy the fourth prong is ordinarily not fatal when appealing a sentencing error.

Indeed, in Rosales-Mireles, the Supreme Court recognized that "[i]n the ordinary case, proof of a plain [g]uidelines error that affects the defendant's substantial rights is sufficient to meet [the defendant's] burden" on the fourth prong of the plain-error standard,

at 1909 n.4, because "what reasonable citizen wouldn't bear a rightly diminished view of the judicial process and its integrity if courts refused to correct obvious errors of their own devise that threaten to require individuals to linger longer in federal prison than the law demands?"

at 1908 (quoting United States v. Sabillon-Umana,

(10th

- 9 - in formulating an appropriate sentence, the district court cannot

give "'weight' to arrests not backed 'by convictions or independent

proof of conduct.'" United States v. Torres-Meléndez,

(1st Cir. 2022) (quoting United States v. Marrero-Pérez,

(1st Cir. 2019)). Although treating an arrest not

resulting in a conviction as an aggravating factor at sentencing

constitutes plain error, "sentencing courts are not prohibited

from simply recounting a defendant's arrest history" at

sentencing. United States v. Santa-Soler,

(1st

Cir. 2021). Simply put, if the record shows the court considered

Diaz's arrests when formulating its sentence, then the "sentence

cannot stand." See Torres-Meléndez,

. But the

record is not so clear here where the court mentioned the arrests

in discussing the guidelines sentence but not in weighing

the § 3553(a) factors nor in explaining its decision. Indeed,

even Diaz concedes that "it is not certain from the transcript

whether the judge relied on the arrests or not." Nevertheless,

Diaz argues that we should treat the court's decision to read the

arrests into the record as de facto evidence of reliance. Although

we do not find such an inference implausible, we see no way it can

Cir. 2014)) . Because Diaz argued the first three prongs of plain error, we find no basis for concluding that his failure to discuss the fourth prong should mean he has forfeited his challenge to the procedural reasonableness of the sentence here.

- 10 - support a finding here that the court plainly erred. Accordingly,

the constraints of plain-error review leave us no choice but to

reject Diaz's claim of procedural error.

B. Substantive Reasonableness

Having found Diaz's sentence procedurally sound, we now

turn to its substantive reasonableness. Diaz claims that his

sentence is substantively unreasonable, and thus must be vacated,

because it far exceeds the sentence imposed on his equivalently

culpable and similarly situated co-defendant, Melendez, without an

adequate rationale for the disparate sentences. Because Diaz

preserved this challenge, we review the court's sentencing

decision for abuse of discretion, we review its findings of fact

for clear error, and we review its conclusions of law de novo.

United States v. Reverol-Rivera,

(1st Cir. 2015).

When crafting a sentence, the court must consider "the

need to avoid unwarranted sentence disparities among defendants

with similar records who have been found guilty of similar

conduct."

(a)(6). While "this provision is

primarily aimed at national disparities," a sentence may be

substantively unreasonable if "two identically situated defendants

receive different sentences from the same judge." United States

v. Reyes-Santiago,

(1st Cir. 2015) (quoting

United States v. Rivera-Gonzalez,

(1st Cir.

2010)). This is because such an arbitrary disparity undermines

- 11 - "the linchpin of a reasonable sentence," that is, a "plausible

sentencing rationale" that produces a "defensible result."

Rivera-Gonzalez,

(quoting United States v. Martin,

(1st Cir. 2008)).

For a disparity to be arbitrary and thus unwarranted,

however, the defendant-appellant and the more leniently sentenced

co-defendant cannot be materially different in any respect that

could influence the court's sentencing decision. United States v.

Gonzalez,

(1st Cir. 2020) ("When defendants'

circumstances are materially different, a claim of sentencing

disparity will not wash."). Establishing a co-defendant as an

appropriate comparator may be a challenge given "the myriad factors

that come into play at sentencing." Reyes-Santiago,

.

For example, we have rejected disparity-based claims

where one co-defendant pleaded guilty and the other went to trial,

United States v. Rodríguez-Lozada,

(1st Cir. 2009),

where one co-defendant had a leadership role in the criminal

conduct and the other did not, González-Barbosa, 920 F.3d at

130-31, and where the frequency of offense conduct varied among

co-defendants, Gonzalez,

. We have also noted that

factual differences based on information revealed in a

co-defendant's PSR can undermine an assertion of unwarranted

disparity where the facts support varying degrees of culpability.

- 12 - See, e.g., Reverol-Rivera,

; Rivera-Gonzalez,

.

To be sure, Diaz and Melendez shared many similarities

at sentencing. Both were charged with the same conduct and pleaded

guilty to the same offense. They also stipulated to identical

facts and were sentenced by the same judge.

Citing this overlap, Diaz contends that nothing in the

record explains the additional forty-six months on his sentence as

compared to Melendez. In fact, Diaz argues that Melendez's higher

criminal history score, if anything, would justify Melendez

receiving a harsher relative sentence. Given that the same court

sentenced Melendez to 194 months' incarceration, Diaz argues that

the highest defensible sentence the court could have imposed here

was 210 months' -- the sentence the parties jointly

recommended -- and that anything exceeding the joint

recommendation was therefore substantively unreasonable given the

unwarranted sentencing disparity.

But this ignores that the court offered a plausible and

supported rationale for giving Diaz a harsher sentence. In Diaz's

case, the court identified two aggravating facts unique to Diaz's

involvement in the kidnapping and murder of WGE as the factual

basis for the higher relative sentence. First, the court noted

that "[Diaz] was called and given the order to murder the victim."

And second, the court noted Diaz's participation in burning the

- 13 - Camry after the murder, which it concluded "appears to be an

attempt to . . . eliminate any determination that the victim was

inside the Camry." Together, these unobjected to facts, which

weigh on Diaz's relative culpability, "provide[] a plausible

explanation" for the perceived disparity resulting in an "overall

result" that is "defensible." United States v. Torres-Landrúa,

(1st Cir. 2015) (quoting United States v.

Trinidad-Acosta,

(1st Cir. 2014)). Because the

district court had a supportable basis for the perceived

inconsistency in sentencing, Diaz's claim that his sentence was

substantively unreasonable based on an unwarranted sentencing

disparity fails. Accordingly, we conclude that the district court

did not abuse its discretion in sentencing Diaz to 240 months'.

III. Conclusion

For the foregoing reasons, we affirm the sentence

imposed by the district court.

- 14 -