United States Court of Appeals
                       For the First Circuit


No. 22-1157

                     UNITED STATES OF AMERICA,

                             Appellee,

                                 v.

                     HENRI SALVADOR GUTIERREZ,

                       Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Mark L. Wolf, U.S. District Judge]


                               Before

                       Barron, Chief Judge,
              Howard and Montecalvo, Circuit Judges.


     Stephen Super, with whom George F. Gormley was on brief, for
appellant.
     Mark T. Quinlivan, Assistant United States Attorney, with
whom Joshua S. Levy, United States Attorney, was on brief, for
appellee.


                          August 29, 2023
            MONTECALVO, Circuit Judge.   In this sentencing appeal,

Henri Salvador Gutierrez asserts that the United States District

Court for the District of Massachusetts erred in imposing a

sentencing enhancement for the use or attempted use of a minor in

the commission of the offense under the United States Sentencing

Guidelines ("Guidelines"). See U.S.S.G. § 3B1.4 ("If the defendant

used or attempted to use a person less than eighteen years of age

to commit the offense or assist in avoiding detection of, or

apprehension for, the offense, increase by 2 levels."). On appeal,

Salvador Gutierrez argues that the district court erred (1) in

applying the enhancement based on the reasonably foreseeable use

of minors by coconspirators; (2) in applying the enhancement based

on Salvador Gutierrez's affirmative actions to use and involve

minors in the commission of the offense; and (3) in creating an

unwarranted sentencing disparity when it applied the minor-use

enhancement    to   him.   Because   Salvador   Gutierrez's   argument

relative to the first issue is foreclosed by the law of the circuit

doctrine, he waived his argument relative to the second issue, and

his remaining argument is without merit, we affirm the challenged

sentence.

                            I. Background

            The parties do not dispute the underlying facts. "Where,

as here, a sentencing appeal follows a guilty plea, we glean the

relevant facts from the change-of-plea colloquy, the unchallenged


                                - 2 -
portions of the presentence investigation report . . . , and the

record of the disposition hearing." United States v. Rijos-Rivera,

 (1st Cir. 2022) (quoting United States v. Vargas,

 (1st Cir. 2009)).

          In October 2019, a federal grand jury returned a first

superseding indictment charging Salvador Gutierrez, alongside five

codefendants, with participation in a Racketeer Influenced and

Corrupt Organizations Act ("RICO") conspiracy.                The indictment

alleged that Salvador Gutierrez was "employed by and associated

with" MS-131 and that on or about July 30, 2018, he and others

deliberately    murdered   Herson    Rivas.      On   May    20,    2021,   the

government filed a superseding information, adding the allegation

that Salvador Gutierrez, with others, deliberately murdered Luis

Orellano Ruano on or about December 24, 2016.

          On June 4, 2021, Salvador Gutierrez pled guilty to one

count of RICO conspiracy in violation of 

(d).                In

doing so, he admitted to murdering Rivas and Ruano.

          The     probation     office        prepared       a     presentence

investigation    report    ("PSR")    for     Salvador      Gutierrez.       In

calculating the base offense level for the RICO conspiracy, the

PSR treated the Rivas murder and the Ruano murder as if they were




     1  La Mara Salvatrucha, also known as MS-13, "is a
transnational criminal organization based in El Salvador." United
States v. Sandoval, 

 (1st Cir. 2021).


                                    - 3 -
separate counts of conviction.         See U.S.S.G. § 2E1.1, Application

Note 1 ("Where there is more than one underlying offense [to a

RICO conviction], treat each underlying offense as if contained in

a separate count of conviction for the purposes of" determining

the base offense level.).          The PSR assigned a base offense level

of 43 for each count of conspiracy to murder.                       However, for

conspiracy to murder Rivas, the PSR added a two-level enhancement,

pursuant to U.S.S.G. § 3B1.4, for using a minor "to commit the

offense or assist in avoiding detection of, or apprehension for,

the offense."     Application of the minor-use enhancement resulted

in an adjusted offense level of 45 for conspiracy to murder Rivas.

          Applying a multi-count adjustment, the PSR calculated a

combined adjusted offense level of 47. See U.S.S.G. § 3D1.4. That

number   was    reduced       by   three     levels    for        "acceptance   of

responsibility,"    for   a    total   offense   level       of    44.   See    id.

§ 3E1.1(a), (b).    The total offense level of 44 was treated as an

offense level of 43.      See id. ch. 5, pt. A, Application Note 2

("An offense level of more than 43 is to be treated as an offense

level of 43.").     The total offense level, combined with Salvador

Gutierrez's     criminal-history           category,     resulted         in    an

advisory-sentencing range of life imprisonment.

          Salvador Gutierrez raised several objections to the PSR.

As is relevant here, he objected to the PSR's recommended two-level

increase for minor use, maintaining that he did not "use" a minor


                                     - 4 -
in the murder of Rivas because he did not direct or lead a minor

during the commission of the crime.               Probation responded that as

an older and higher-ranking member of MS-13, Salvador Gutierrez

likely had influence over juveniles such that he encouraged and

used them in his criminal activities.             Relying on United States v.

Patrick, 

 (1st Cir. 2001), probation also noted that

the   minor-use        enhancement     can   be   based     on     the   reasonably

foreseeable use of a minor by a codefendant.                       Thus, probation

contended, even if Salvador Gutierrez did not personally use a

minor, it was reasonably foreseeable that his codefendants would

use minors to further MS-13's activities.

               Salvador Gutierrez also filed a sentencing memorandum

which, among other things, argued that the minor-use enhancement

was inapplicable and therefore his total offense level should be

42.       A    total     offense     level   of    42     would    result       in    an

advisory-sentencing range of 360 months to life imprisonment.                        See

U.S.S.G. ch. 5, pt. A.          Ultimately, Salvador Gutierrez asked the

district court to impose a sentence of 400 months.

               For   its     part,     the   government          asked    for        life

imprisonment.          The government argued that a life sentence was

appropriate under the 

(a) sentencing factors

because       Salvador     Gutierrez   "brutally        killed    two    teenagers,"

"showed little remorse for his crimes," and exhibited "deplorable

conduct while in pretrial custody."                 In response to Salvador


                                       - 5 -
Gutierrez's sentencing memorandum, the government argued that the

minor-use    enhancement      applied   because   "Salvador     [Gutierrez]

personally associated with multiple minors as part of the charged

racketeering conspiracy."       In support, the government argued that

Salvador Gutierrez recruited a juvenile to the gang and "committed

the July 2018 murder [of Rivas] with a juvenile."                 Relying on

Patrick,    the   government    also    maintained   that   the     minor-use

enhancement could be based on the reasonably foreseeable use of

juveniles by coconspirators and that Salvador Gutierrez "knew that

the gang would use a minor to further the gang's activities."

            In    preparing    to   schedule   sentencing     for   Salvador

Gutierrez and his codefendants, the district court indicated that

its first task was to correctly calculate the guidelines range and

then to impose a sentence based on the sentencing factors described

in 

(a).         Salvador Gutierrez continued to argue

that the minor-use enhancement was not applicable to him because

he did not affirmatively involve a minor in the commission of the

Rivas murder.       Salvador Gutierrez also directly attacked the

validity of Patrick, arguing that several other circuits have

rejected Patrick's reasonably foreseeable approach in favor of

applying the minor-use enhancement only when a defendant, by some

affirmative act, uses a minor participant in the crime.

            The district court subdivided the sentencing hearing

into two parts.     It began with hearings on February 7 and 8, 2022,


                                    - 6 -
as to the contested portions of the PSR that impacted calculation

of the guidelines range.           At sentencing, the district court

overruled Salvador Gutierrez's objection regarding the minor-use

enhancement and found that the enhancement applied to Salvador

Gutierrez and his codefendants because "each defendant used a

person under 18 to commit the offense."

            The district court also found that Salvador Gutierrez

directed a minor during the Rivas murder by telling the minor to

"move over."2       The district court then turned to whether the

minor-use   enhancement    could    also   be   properly   applied    under

Patrick's   reasonably    foreseeable      test.     The   district    court

concluded that each defendant "knew . . . and foresaw that minors

would be used in the ongoing commission" of the RICO conspiracy

and that, therefore, application of the minor-use enhancement was

also proper under Patrick.

            Despite concluding that the minor-use enhancement was

applicable,   the    district   court   reiterated    that   the     court's

application of the enhancement would not affect the ultimate




     2 The district court also found that Salvador Gutierrez
personally used a minor by recruiting the minor to MS-13.
Specifically, the court found that Salvador Gutierrez participated
in the recruitment process of the minor by (1) talking to them
about MS-13's mode of operating; (2) showing them a video of MS-13
activity; and (3) beating them as part of the gang-training
process.


                                   - 7 -
sentence imposed, which would be driven by the § 3553(a) factors.3

However, the court recognized the government's position that the

application of the enhancement should factor into the ultimate

sentence and reserved on deciding the question until sentencing.

A few days later, on February 11, 2022, the district court entered

an order directing the parties to be prepared to address at

sentencing "whether the use of a minor as part of the RICO

conspiracy to which each defendant pled guilty is material to what




     3 We pause here to dispel one additional argument advanced by
Salvador Gutierrez: that the district court impermissibly believed
itself bound to apply the minor-use enhancement. This argument
misunderstands the law and misconstrues the district court's
ruling regarding its obligation to correctly calculate the
guidelines range versus its discretion to fashion a sentence that
is no more than necessary to serve the statutory purposes of
sentencing.
     Indeed, it is incumbent upon the district court to begin by
determining what the advisory guidelines range is by calculating
the   offense   level   and   the   criminal   history   category.
Rosales-Mireles v. United States, 

 (2018)
("[D]istrict courts must begin their analysis with the Guidelines
and remain cognizant of them throughout the sentencing process."
(quoting Peugh v. United States, 

 (2013))). The
offense level includes adjustments that "account for circumstances
specific to the defendant's case," 

 such as the minor-use
enhancement.   Once the advisory-sentencing range is determined,
the district court must then consider the § 3553(a) factors in
selecting   the   appropriate   sentence.     United   States   v.
Flores-Machicote, 

 (1st Cir. 2013) ("[O]nce the
[guidelines range] is properly calculated, 'sentencing becomes a
judgment call' involving an intricate array of factors." (quoting
United States v. Martin, 

 (1st Cir. 2008))).
     The record before us clearly indicates that this is exactly
what the district court did by first calculating the guidelines
range and then selecting a sentence in consideration of the
§ 3553(a) factors.


                              - 8 -
sentence is sufficient and no more than necessary . . . in order

to serve the statutory purposes of sentencing."

           On February 16, 2022, the court convened a sentencing

hearing.     The district court confirmed that application of the

minor-use enhancement raised Salvador Gutierrez's guidelines range

to life imprisonment, and Salvador Gutierrez again objected to

application of the enhancement.

           After hearing the arguments of counsel and Salvador

Gutierrez's allocution, the district court imposed a sentence of

life imprisonment.      The court considered the § 3553(a) sentencing

factors    and,     while     recognizing     the    hardships    of     Salvador

Gutierrez's upbringing in El Salvador, concluded that Salvador

Gutierrez willingly joined MS-13 and participated in two murders.

The court gave detailed descriptions of its reasoning with respect

to several of the § 3553(a) factors, including the seriousness of

the crime: two murders committed two years apart.                       The court

recognized    the    need     for   the   sentence       to   "afford    adequate

deterrence" by sending a message "to members and prospective

members of MS-13 [that] it's not worth it to kill people, to kill

several people." The court acknowledged that the "primary purpose"

of the sentence was to protect the public from further crimes that

Salvador   Gutierrez        might   commit,   as    it   found   that    Salvador

Gutierrez was still an "extremely dangerous person."




                                      - 9 -
              The    district      court    further    explained      that     it   had

"searched to see whether there [was] really anything in view of

all the factors that weigh in favor of a life sentence that weighed

sufficiently in favor of a lower sentence, and [it] couldn't find

them."   This timely appeal followed.

                                   II. Discussion

              Salvador Gutierrez contends that his sentence must be

vacated because the district court erred in applying a guideline

enhancement under U.S.S.G. § 3B1.4 for Salvador Gutierrez's use or

attempted use of a minor.               Salvador Gutierrez first argues that

the district court erred in applying the minor-use enhancement

based on his coconspirators' reasonably foreseeable use of minors

to engage in violent crimes in furtherance of MS-13's activities.

He also challenges the finding that directing a minor to "move

over" during the Rivas murder constituted "use" of a minor.

Lastly, Salvador Gutierrez contends that the district court's

application     of    the    minor-use      enhancement      was    "arbitrary      and

capricious," thereby resulting in a disparity between his sentence

and   those    of    other   MS-13      members.      We    address    these    claims

seriatim.

               A. Challenge to the Correctness of Patrick

              Salvador      Gutierrez      first   argues    that     the   minor-use

enhancement     should       not   be    applied    based     on    coconspirators'

reasonably foreseeable use of minors to further the conspiracy's


                                         - 10 -
activities.         Because Salvador Gutierrez preserved this claim of

procedural        error,     we    review    de     novo      the    sentencing     court's

interpretation and application of the Guidelines.4                               See United

States v. Brown, 

 (1st Cir. 2022).

                 Salvador        Gutierrez     contends         that     the      minor-use

enhancement should be read as "an individual role-in-the-offense

enhancement" that requires the defendant to take an affirmative

act to involve a minor in the commission of criminal activity.                           In

the same breath, however, Salvador Gutierrez acknowledges that

reading the Guidelines as he invites us to would require us to

overturn         Patrick.          Patrick's        holding     that      the     minor-use

enhancement may be applied based on coconspirators' reasonably

foreseeable         use     of     juveniles      to    further        the   conspiracy's

activities is the law of this circuit.                     See Patrick, 

.           This     circuit     precedent         thus        forecloses     Salvador

Gutierrez's argument.

                 "The law of the circuit doctrine requires this court

(and, by extension, all lower courts within this circuit) to

respect, in the absence of supervening authority, the decisions of

prior panels on the same issue."                    Nevor v. Moneypenny Holdings,

LLC,       

     (1st      Cir.     2016).          There   are



       Salvador Gutierrez challenges the correctness of Patrick,
       4

but he does not challenge the district court's factual finding
that it was reasonably foreseeable that coconspirators would use
or attempt to use a minor in the commission of the RICO conspiracy.


                                           - 11 -
"hen's-teeth-rare"     exceptions       to   this   rule,   United   States   v.

Barbosa, 

 (1st Cir. 2018) (quoting San Juan Cable

LLC v. P.R. Tel. Co., 

 (1st Cir. 2010)), but no

exception applies here.

          The exception to the law of the circuit doctrine that

Salvador Gutierrez rests his argument on is when a defendant shows

that subsequent authority, "although not directly controlling,

nevertheless offers a sound reason for believing that the former

panel, in light of fresh developments, would change its collective

mind."   

    Salvador Gutierrez presents us with the opinions of

certain of our sister circuits, which have held that the minor-use

enhancement     can   be    applied     only   against      a   defendant   who,

themselves, took affirmative actions to involve minors in the

criminal activity.         See e.g., United States v. Acosta, 

 (7th Cir. 2007) (adopting the view of the Third, Tenth,

Ninth, and Sixth Circuits that "the enhancement applies only when

the defendant by some affirmative act helps to involve the minor

in the criminal enterprise").

          Fatal to Salvador Gutierrez's contention is that this

exception to the law of the circuit doctrine "applies when Supreme

Court precedent . . . provides a clear and convincing basis to

believe that the earlier panel would have decided the issue

differently."     United State v. Guerrero, 

 (1st

Cir. 2021) (emphasis added).          Salvador Gutierrez has not presented


                                      - 12 -
us with any Supreme Court precedent that would provide a basis for

overturning Patrick and free this panel from the constraints of

the law of the circuit doctrine.

            Yet again, we recognize the divergent views of our sister

circuits "on whether the enhancement must be based on a defendant's

own affirmative actions or whether it can be applied based on a

coconspirator's reasonably foreseeable use of a minor, and that

this court has already weighed in on this debate."         United States

v. Corbett, 

, 34 n.16 (1st Cir. 2017) (internal citation

omitted).    However, adhering to our precedent, we find that the

district court did not err in ruling that the minor-use enhancement

may be applied based on coconspirators' reasonably foreseeable use

of juveniles.

            B. Challenge to the Affirmative Use of a Minor

            For the first time in his reply brief, Salvador Gutierrez

argues that the district court erroneously found that telling a

minor to "move over" during the commission of the Rivas murder

constitutes "use" of a minor for purposes of U.S.S.G. § 3B1.4.

Indeed,   Salvador   Gutierrez   made   no   such   argument   before   the

district court, and, on appeal, he declined to place it in his

opening brief (which instead focuses on Patrick).              Only in his

reply brief does he attempt to argue that the "move over" directive

does not qualify for application of the minor-use enhancement.




                                 - 13 -
                 "Our precedent is clear: we do not consider arguments

for reversing a decision of a district court when the argument is

not raised in a party's opening brief."                  Sparkle Hill, Inc. v.

Interstate Mat Corp., 

 (1st Cir. 2015).                           Any

argument about whether telling a minor to move over during the

commission of the Rivas murder qualifies as an affirmative action

to   involve       minors    in   the   offense   was   available     to   Salvador

Gutierrez "at the outset but raised for the first time in [his]

reply brief."         United States v. Tosi, 

 (1st Cir.

2018).       Because this issue was not properly preserved, we do not

address it.         United States v. Cascella, 

 (1st Cir.

2019).5

                        C. Sentencing Disparity Claim

                 We end on Salvador Gutierrez's final claim, which is

that       the    district    court     created   an    unwarranted    sentencing

disparity when it applied the minor-use enhancement to him.                       He

argues that the minor-use enhancement is applied arbitrarily and

capriciously        across    MS-13     defendants,     often   applied     to   one

defendant but not another.              In support, Salvador Gutierrez points


       Another argument making its first appearance before us in
       5

the reply brief is Salvador Gutierrez's objection to the district
court's use of hearsay statements from confidential witnesses. He
made no such argument before the district court, and, on appeal,
only in his reply brief does he raise this argument. As we have
already stated, we need not consider arguments raised for the first
time in a reply brief. United States v. Cascella, 

(1st Cir. 2019).


                                         - 14 -
to numerous MS-13 members who, apparently, did not have the

minor-use enhancement applied against them.

           This sentencing-disparity claim fails from the outset

because   Salvador    Gutierrez    has   failed   to    present      appropriate

comparators.   See United States v. Bishoff, 

(1st Cir. 2023).        Congress has directed sentencing courts to

consider "the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of

similar conduct."       

(a)(6).               "To present '[a]

well-founded claim of disparity,' a defendant must compare apples

to apples."    United States v. Reyes-Santiago, 

(1st Cir. 2015) (alteration in original) (quoting United States v.

Mateo-Espejo, 

 (1st Cir. 2005)).

           Here, Salvador Gutierrez has done nothing more than

present us with a list of defendants that he argues the minor-use

enhancement was not applied to.           He has not in the least shown

that these defendants are relevant comparators.               See United States

v. Nuñez, 

 (1st Cir. 2016) ("Merely pointing to a

[codefendant]'s      sentence,    without   more,      does    not   prove   the

existence of an impermissible sentencing disparity.").                 There is

nothing to show that any of these defendants are "identically

situated" to Salvador Gutierrez.         Reyes-Santiago, 

.

           Perhaps recognizing that weakness, Salvador Gutierrez

pivots from arguing that the minor-use enhancement is applied


                                   - 15 -
arbitrarily   and   capriciously    across    all   MS-13   defendants,   to

arguing that one of his confederates did not receive the minor-use

enhancement when he did.     Specifically, Salvador Gutierrez points

to Maynor Maltez Romero, an MS-13 member who was indicted in the

first   superseding    indictment    for    murdering    Rivas.    Salvador

Gutierrez contends that Maltez Romero did not receive the minor-use

enhancement despite his affirmative use of minors. Glaringly fatal

to Salvador Gutierrez's claim is the fact that Maltez Romero was

a juvenile at the time of the Rivas murder.              As such, Salvador

Gutierrez's claim is not comparing "apples to apples," Brown, 

, because there is a material difference between him

and Maltez Romero that "suffice[s] to explain the divergence."

Romero, 906 F.3d at 211 (quoting United States v. Demers, 

 (1st Cir. 2016)).

                            III. Conclusion

           For   the    foregoing     reasons,      we    affirm   Salvador

Gutierrez's sentence.




                                   - 16 -