United States Court of Appeals For the First Circuit

No. 22-1202

UNITED STATES OF AMERICA,

Appellee,

v.

ELISEO VAQUERANO CANAS, A/K/A PELIGROSO,

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.

Jessica Hedges, with whom Hedges & Tumposky, LLP was on brief, for appellant. Mark T. Quinlivan, Assistant United States Attorney, with whom Joshua S. Levy, Acting United States Attorney, was on brief, for appellee.

August 30, 2023 MONTECALVO, Circuit Judge. In this sentencing appeal,

Eliseo Vaquerano Canas ("Vaquerano") appeals a 516-month sentence

imposed by the district court upon his guilty plea to one count of

conspiracy to conduct enterprise affairs through a pattern of

racketeering activity ("RICO"), in violation of

(d). Vaquerano asserts that the district court erred in

(1) 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") and (2) imposing a

substantively unreasonable sentence. Because we conclude that the

minor-use enhancement was properly applied in this case and that

the sentence imposed was substantively reasonable, we affirm the

challenged sentence.

I. Background

Where, as here, a "sentencing appeal follows a guilty

plea, 'we glean the following relevant facts from the plea

agreement, the undisputed sections of the presentence

investigation report, and the transcripts of the change-of-plea

and sentencing hearings.'" United States v. Spinks,

(1st Cir. 2023) (cleaned up) (quoting United States v.

Ubiles-Rosario,

, 280 n.2 (1st Cir. 2017)).

In October 2019, a federal grand jury returned a first

superseding indictment charging Vaquerano, alongside five

codefendants, with participation in a RICO conspiracy. The

- 2 - indictment alleged that Vaquerano was a "leader[], member[], or

associate[] of MS-13," a Salvadoran criminal organization.1 In

furtherance of the RICO conspiracy, the indictment alleged that

Vaquerano, with others, deliberately murdered Herson Rivas on July

30, 2018. In February 2021, Vaquerano pled guilty to the one-count

indictment and, in so doing, admitted to murdering Rivas.

Ahead of sentencing, the Probation Office prepared the

presentence investigation report ("PSR"), which stated that

Vaquerano's base offense level was 43 and that he was subject to

a two-level minor-use enhancement, pursuant to U.S.S.G. § 3B1.4,

for using or attempting to use 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. That number was reduced by three levels for

"acceptance of responsibility," for a total offense level of 42.

See U.S.S.G. § 3E1.1(a), (b). This total offense level combined

with Vaquerano's criminal history category resulted in an

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

The indictment alleged that MS-13, also known as La Mara 1

Salvatrucha, is "a national and international criminal organization" and "one of the largest criminal organizations in the United States." The indictment also alleged that "[t]he leadership of MS-13 is based in El Salvador, with local leaders in the United States," and that the organization "is composed primarily of immigrants or descendants of immigrants from Central America, with members operating throughout Massachusetts."

- 3 - Vaquerano objected to the minor-use enhancement. He

filed a sentencing memorandum arguing for a below-guidelines

sentence of 264 months' imprisonment, which was well below the 600

months' imprisonment requested by the government. Vaquerano

argued a shorter sentence was warranted because he was only 18

years old when he murdered Rivas and, he maintained, "there is a

growing scientific consensus" that youthful offenders are less

blameworthy and more capable of rehabilitation. With his

sentencing memorandum Vaquerano submitted a forensic evaluation

and a psychological evaluation, both of which detailed his exposure

to violence in El Salvador, his regular use of marijuana and

alcohol, and his "overwhelming sense of displacement and

dislocation" resulting from his move to Massachusetts from El

Salvador at age 17.

For its part, the government supported its recommended

600-month sentence by describing Vaquerano as "someone who had

deeply committed himself to MS-13 and the gang's quest for extreme

and senseless violence." The government described how Vaquerano

"had lured [Rivas] out" to the murder site and "started hacking

and stabbing Rivas to death." At Vaquerano's last known address,

the government discovered two large knives, believed to be two of

the murder weapons, along with Vaquerano's personal effects. The

knife that Vaquerano allegedly used during the murder was damaged

- 4 - and was missing pieces of metal, corroborating a codefendant's

account that Vaquerano repeatedly stabbed Rivas in the skull.

The district court began the sentencing hearing by

considering the contested application of the minor-use

enhancement. As is relevant to the present appeal, Vaquerano urged

the district court to find that the Sentencing Commission exceeded

its authority in promulgating the minor-use enhancement to apply

to offenders under 21 years old. In support of this argument,

Vaquerano relied on the Sixth Circuit's holding in United States

v. Butler,

(6th Cir. 2000), that the minor-use

enhancement is inapplicable to defendants who have not reached the

age of 21. Thus, he maintained, because he was 18 years old when

the offense conduct occurred, the minor-use enhancement could not

be applied to him.

The district court rejected this argument, finding that

the Sentencing Commission did not exceed its authority in drafting

the minor-use enhancement to apply to all defendants, regardless

of age. The district court overruled Vaquerano's objection and

then found that the minor-use enhancement applied because

Vaquerano "personally recruited and trained minors" in furtherance

of MS-13's activities, including recruiting a minor from his high

school to join the gang, training a minor on how to patrol the

streets, talking to a minor "about MS-13's mode of operating,

particularly killing rivals," showing a minor a recruitment video,

- 5 - and beating a minor as part of MS-13's training and teaching

process.

After ruling that the minor-use enhancement would

apply, the district court permitted Vaquerano to present evidence

about adolescent neural development as it relates to sentencing.

Vaquerano argued that "the character of a juvenile is not as

well-formed as that of an adult" and, therefore, young people are

"deeply mutable" and more capable of rehabilitation. He maintained

that 18- to 21-year-olds "share[] many characteristics that are

similar to the 16 to 17 group," and those characteristics should

be considered in sentencing.

On March 17, 2022, the district court convened a

sentencing hearing. The court confirmed that application of the

minor-use enhancement raised Vaquerano's guidelines range to 360

months' to life imprisonment. After hearing the arguments of

counsel and Vaquerano's allocution, the district court imposed a

sentence of 516 months' imprisonment. The court considered the

(a) sentencing factors and concluded that Vaquerano

"was an enthusiastic part of an . . . organization [] dedicated to

violence" and "played a leading role in luring [Rivas] to that

park in Lynn where [Vaquerano] knew [Rivas] would be killed."

The district court gave its reasoning with respect to

several of the § 3553(a) factors, including the nature of the

- 6 - crime: "a particularly barbaric murder." The court described how

Vaquerano participated in the murder of Rivas with

stunning brutality, with a long knife called a machete . . . that [Vaquerano] brought for that purpose, that [Vaquerano] hacked at Herson Rivas'[s] head while others were stabbing him and while he cried out to [Vaquerano] particularly . . . because he thought [Vaquerano] w[as] his special friend. [Vaquerano] should have been his protector. And afterwards, [Vaquerano] laughed about it.

The court recognized Vaquerano's history in that he "came from a

difficult country and had an abusive father," but pointed out that

while Vaquerano's sister went to college, he turned to MS-13 and

drugs.

The district court also recognized the need "to give a

sentence that affords adequate deterrence to criminal conduct,"

both to Vaquerano and "to other people." Finally, the court stated

that the sentence imposed would "protect the public" because

Vaquerano would not "be a threat to anybody in the United States

for about 43 years." Throughout its reasoning, the district court

"t[ook] into account the fact that [Vaquerano] committed the crime

when [he] w[as] 18." The court recognized that "people who commit

crimes at that age can change," and that Vaquerano had changed and

was not "hopeless." This timely appeal followed.

II. Standard of Review

"Appellate review of claims of sentencing error entails

a two-step pavane." United States v. Melendez-Rosado, 57 F.4th

- 7 - 32, 37 (1st Cir. 2023) (quoting United States v. Matos-de-Jesús,

(1st Cir. 2017)). We first assess any claims of

procedural error, including any claims that implicate the accuracy

of the district court's guidelines sentencing range. See United

States v. Ilarraza,

(1st Cir. 2020). "If the sentence

is procedurally sound, we then assess any claim of substantive

unreasonableness." United States v. Rijos-Rivera,

(1st Cir. 2022).

Throughout, our review is for abuse of discretion. See

United States v. Díaz-Lugo,

(1st Cir. 2020).

Under this standard, "we review the district court's factual

findings for clear error and examine its answers to questions of

law (including questions involving the 'interpretation and

application of the sentencing guidelines') de novo."

(quoting

Ilarraza,

).

A. Validity of Section 3B1.4

We begin with Vaquerano's claim of procedural error.

This claim centers on the district court's imposition of a

two-level minor-use enhancement under U.S.S.G. § 3B1.4.

Specifically, Vaquerano contends that Congress intended "to

enhance sentences only for defendants at least 21 years of age who

use minors to commit federal offenses" and that "the Sentencing

Commission exceeded its authority by . . . ignoring Congress's

focus on age."

- 8 - The Sentencing Commission is a non-elected body created

by Congress whose purpose is to "establish sentencing policies and

practices for the Federal criminal justice system."

; see Mistretta v. United States,

(1989).

The Sentencing Commission "enjoys significant discretion in

formulating guidelines," Mistretta,

, but

ultimately "must bow to the specific directives of Congress,"

United States v. LaBonte,

(1997).

The relevant directive of Congress at issue in this case

comes from the Violent Crime Control and Law Enforcement Act of

1994, which directed the Sentencing Commission to "promulgate

guidelines or amend existing guidelines to provide that a defendant

21 years of age or older who has been convicted of an offense shall

receive an appropriate sentence enhancement if the defendant

involved a minor in the commission of the offense."

(a),

, 2033 (1994). The resulting

guideline promulgated by the Sentencing Commission calls for a

two-level increase in the offense level "[i]f the defendant used

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

commit the offense." U.S.S.G. § 3B1.4. The guideline enhancement

for use of a minor is generally applicable to all defendants, and

it also dropped the 21-year age restriction set forth in the

Congressional directive.

- 9 - Rejecting Vaquerano's contention that the Sentencing

Commission exceeded its authority, we conclude that the Sentencing

Commission properly invoked its general statutory powers to

promulgate the minor-use enhancement without an age restriction.

That is so because the Sentencing Commission submitted a statement

of reasons to Congress accompanying the proposed minor-use

enhancement guideline. The statement of reasons limned that

"[t]his amendment implements the directive in Section 140008 of

the Violent Crime Control and Law Enforcement Act of 1994

(pertaining to the use of a minor in the commission of an offense)

in a slightly broader form." Amendments to the Sentencing

Guidelines for the United States Courts,

, 25086

(May 10, 1995) (emphasis added).

A specific statement that the Sentencing Commission is

implementing a directive in broader form constitutes an invocation

of the Commission's "broad authority to promulgate guidelines for

sentences." See United States v. Dale,

(5th

Cir. 2004), cert. granted, judgment vacated on other grounds,

(2005). This "broad authority" emanates from Congress's

delegation of power to the Sentencing Commission to "promulgate

and distribute . . . guidelines . . . for use of a sentencing court

in determining the sentence to be imposed in a criminal case."

(a)(1); LaBonte,

("Congress has

delegated to the [Sentencing] Commission 'significant discretion

- 10 - in formulating guidelines' for sentencing convicted federal

offenders." (quoting Mistretta,

)). The guidelines

that the Sentencing Commission are empowered to promulgate include

those which assist a sentencing court in determining "the

appropriate length of a term of . . . imprisonment."

(a)(1)(B). When promulgating these guidelines, the

Sentencing Commission is required to "submit to Congress

amendments to the guidelines . . . accompanied by a statement of

the reasons therefor."

§ 994(p).

This statutorily mandated process is exactly what the

Sentencing Commission undertook in promulgating the minor-use

enhancement. The minor-use enhancement is aimed at protecting

minors by enhancing, when appropriate, a defendant's term of

imprisonment when they use a minor to commit the offense, see

United States v. Corbett,

(1st Cir. 2017), thus

falling within the Sentencing Commission's enumerated powers. See

(a)(1)(B);

§ 994(c)(2) (directing the Sentencing

Commission to account for "the circumstances under which the

offense was committed which . . . aggravate the seriousness of the

offense"). The statement of reasons submitted to Congress invoked

the Sentencing Commission's authority to promulgate the guideline

by specifically stating that the Sentencing Commission was

implementing the Congressional directive in broader form. See

United States v. Soileau,

(5th Cir. 2002) (noting

- 11 - that the words "in a broader form" were "noticeably missing," and

thus the Sentencing Commission was not exercising its general

statutory authority to promulgate a guideline with broader

definitions than the Congressional directive (emphasis omitted)).

Accordingly, it is clear to us that the Sentencing Commission

properly promulgated the minor-use enhancement without the 21-year

age restriction even though its authority to do so came not from

the Congressional directive, but from the Sentencing Commission's

general statutory powers. See United States v. Ferrarini,

(2d Cir. 2000) (concluding that the Sentencing

Commission's "legal authority to adopt" a guideline can come from

both a Congressional directive or the Sentencing Commission's

general statutory authority "to develop guidelines . . . that

reflect the seriousness of the offense at issue").

Having established that the Sentencing Commission was

authorized to promulgate the minor-use enhancement without an age

restriction, the guideline is valid so long as it is not "'at odds'

with the [C]ongressional directive." United States v. Ramsey,

(7th Cir. 2001) (citing LaBonte,

).

Indeed, broad as the Sentencing Commission's authority may be to

promulgate guidelines, that discretion "must bow to the specific

directives of Congress." LaBonte,

.

Congress directed that an enhancement for involving a

minor in the commission of the offense be provided to "a defendant

- 12 - 21 years of age or older." § 140008(a), 108 Stat. at 2033. We do

not view this directive as a requirement that the defendant must

be at least 21 years old to be subject to the enhancement, contra

Butler,

(Jones, J., concurring and writing for the

court in adopting this interpretation), but rather as a requirement

that any defendant over 21 years old must be subject to the

enhancement. The guideline promulgated by the Sentencing

Commission accomplishes this Congressional directive because

"defendants age twenty-one or older will receive a sentence

enhancement if the defendant used a minor in the commission of the

offense." Ramsey,

. And, the Sentencing

Commission, in its discretion, additionally provided that

defendants ages 18 to 20 are subject to the enhancement. See

U.S.S.G. § 3B1.4. We discern no conflict between the Congressional

directive and the guideline.

Moreover, Congress's actions in response to the proposal

of the guideline accord with our conclusion. The Sentencing

Commission submitted its proposed amendment to Congress, and

Congress had 180 days to review the proposal. See United States

v. Kravchuk,

(10th Cir. 2003). Congress

considered and rejected some of the other amendments proposed at

the same time as the minor-use enhancement but did not modify or

disapprove of this particular guideline. Ramsey,

& n.6 (pointing out that "Congress disapproved of a proposed

- 13 - amendment that would have eliminated the 100:1 sentencing ratio

that treats one who deals in a given quantity of crack cocaine the

same as it treats one who deals in 100 times as much powder cocaine"

(quoting Butler,

n.1 (Clay, J., dissenting

regarding the opinion of the court that U.S.S.G. § 3B1.4 is not

applicable to defendants under the age of 21))). As such, "by not

taking action with respect to section 3B1.4," id. at 858, Congress

did nothing to indicate that it understood that guideline to be

"at odds" with its prior directive.

We thus join many of our sister circuits in holding that

the minor-use enhancement is valid as applied to defendants ages

18 to 21. See, e.g., United States v. Murphy,

(4th Cir. 2001); Ramsey,

; Kravchuk,

; United States v. Ramirez,

(8th Cir.

2004). We uphold the district court's application of the

enhancement to Vaquerano.2

2 We also find unavailing Vaquerano's argument that the rule of lenity requires that we overturn the application of the minor-use enhancement. The rule of lenity applies "in the context of the sentencing guidelines . . . when 'substantial ambiguity as to the guideline's meaning persists even after a court looks to its text, structure, context, and purposes.'" United States v. Pinkham,

(1st Cir. 2018) (quoting United States v. Suárez-González,

(1st Cir. 2014)). For the reasons already explained, the minor-use enhancement is valid as applied to defendants ages 18 to 21, and the rule of lenity does not apply.

- 14 - B. The Length of the Sentence

We next turn to Vaquerano's claim that the sentence

imposed is substantively unreasonable. We review that claim for

abuse of discretion, see Gall v. United States,

(2007), and bear in mind that "[w]hen mulling a challenge to the

substantive reasonableness of a sentence, considerable deference

is due to the district court's judgment," United States v.

de Jesús,

(1st Cir. 2016).

Vaquerano contends that the district court fashioned the

516-month sentence without due consideration of the fact that he

"was only 18 years old when he participated in the Rivas murder."

Specifically, Vaquerano complains that the district court focused

too much on the "gruesome nature of the Rivas murder" and did not

give enough weight to "what it means for an emerging adult to

engage in such conduct, as distinguished from a typical offender."

In light of what Vaquerano perceives as the district court's

failure "to contend meaningfully with legal and scientific

developments regarding adolescent offenders," he says that the

sentence is indefensible.

In the sentencing context "reasonableness is a protean

concept." United States v. Martin,

(1st Cir.

2008). Indeed, "[t]here is no one reasonable sentence in any given

case but, rather, a universe of reasonable sentencing outcomes."

United States v. Clogston,

(1st Cir. 2011). As

- 15 - such, "[c]hallenging a sentence as substantively unreasonable is

a burdensome task in any case, and one that is even more burdensome

where, as here, the challenged sentence is within a properly

calculated [guidelines sentencing range]."

. "A

sentence is substantively reasonable if the district court

provided a 'plausible sentencing rationale and reached a

defensible result.'" United States v. Ouellette,

(1st Cir. 2021) (quoting United States v. Gomera-Rodríguez,

(1st Cir. 2020)).

Here, the district court provided a plausible rationale

for its sentencing decision. The court appraised Vaquerano's role

in the Rivas murder and the RICO conspiracy, stressing that

Vaquerano "played a leading role in luring [Rivas]" to the murder

site and "participated in that murder with stunning brutality."

The court also thought it significant that the Rivas murder was

not "an isolated aberrant act," given that Vaquerano had twice

previously attempted to murder other individuals. So, too, the

court attached significance to Vaquerano's participation in the

conspiracy by "energetically recruit[ing] other teenagers to join

the gang."

The court then extended its rationale to take account of

mitigating factors. It noted Vaquerano's traumatic childhood and

addiction to drugs. The court specifically "t[ook] into account

the fact that [Vaquerano] committed the crime when [he was] 18,

- 16 - and people who commit crimes at that age can change." The court

observed that Vaquerano was not "hopeless" and had "shown evidence

of changing" while in pretrial detention by "seeking to work."

The court noted that this evidence persuaded it to give Vaquerano

"a seven-year lower sentence" than it was initially inclined to

impose.

It is clear to us that the district court's rationale is

plausible. The district court expressly acknowledged Vaquerano's

age, the factor that Vaquerano now attempts to persuade us the

court failed to give due consideration to. Simply because the

court did not weigh Vaquerano's age as he would have liked "does

not undermine the plausibility of th[e sentencing] rationale."

United States v. Coombs,

(1st Cir. 2017).

The length of the sentence is also defensible. The

district court thoroughly considered the § 3553(a) factors and

determined that, notwithstanding Vaquerano's youth, "anything less

than a 43-year sentence . . . would not adequately serve" the

purposes of sentencing. It is clear to us that "the sentence in

this case is responsive to the nature and circumstances of the

offense, the characteristics of the offender, the importance of

deterrence, and the need for [just] punishment." Matos-de-Jesús,

.

Lastly, Vaquerano entreats us to extend certain Supreme

Court precedents declaring life without the possibility of parole

- 17 - sentences on juvenile offenders as cruel and unusual punishment

into our substantive reasonableness assessment of a sentence

imposed upon a young adult offender. First, the 516-month sentence

imposed upon Vaquerano was a discretionary sentence, not a

mandatory one. Even in the context of homicide juvenile offenders,

the Supreme Court has never held that discretionary life without

parole sentences are impermissible. See Miller v. Alabama,

(2012) (holding mandatory life without parole

sentences unconstitutional for all juvenile offenders); see also

Graham v. Florida,

(2010) (holding life without

parole sentences unconstitutional for non-homicide juvenile

offenders). Beyond that, we are obligated to follow our First

Circuit precedent rebuffing the notion that the Supreme Court's

decision to draw the line between juvenile and adult offenders at

age 18 merits extension to offenders "in the

eighteen-to-twenty-age range when they committed the crimes of

conviction." United States v. Gonzalez,

(1st Cir.

2020); see also United States v. Guerrero,

(1st

Cir. 2021) ("[T]he 'law of the circuit' rule . . . forces us -- and

the district courts under us -- to follow the holdings of earlier

panel decisions regardless of how anyone might feel about them.").

More importantly, however, we continue to bear in mind

that Vaquerano's challenge to his sentence is premised on its

substantive reasonableness. In this context, "[t]here is rarely,

- 18 - if ever, a single correct sentence in any specific case. Instead,

there is almost always a 'range of reasonable sentences' for any

given offense." United States v. Santiago-Rivera,

(1st Cir. 2014) (quoting Martin,

). As already

detailed, the district court did account for Vaquerano's age and

capacity for change in choosing the sentence. We find no abuse of

the district court's broad sentencing discretion in this case and

conclude that the sentence imposed by the district court is

substantively reasonable.

III. Conclusion

For the foregoing reasons, we affirm Vaquerano's

sentence.

- 19 -