United States Court of Appeals For the First Circuit

No. 23-1066

UNITED STATES OF AMERICA,

Appellee,

v.

MISAEL M. RIVERA-GERENA,

Defendant, Appellant.

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

[Hon. Raúl M. Arias-Marxuach, U.S. District Judge]

Before

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

Francisco Diez-Perez on brief for appellant. W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá- Almonte, Assistant United States Attorney, Chief, Appellate Division, and Gabriella S. Paglieri, Assistant United States Attorney, on brief for appellee.

August 14, 2024 SELYA, Circuit Judge. Defendant-appellant Misael M.

Rivera-Gerena challenges his downwardly variant sentence. He

contends that it is both procedurally flawed and substantively

unreasonable because, inter alia, the district court failed

adequately to evaluate and balance the relevant

(a)

sentencing factors. Concluding, as we do, that the appellant's

sentence is free of procedural error and substantively reasonable,

we affirm.

I

We briefly rehearse the relevant facts and travel of the

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

we glean the relevant facts from the change-of-plea colloquy, the

unchallenged portions of the presentence investigation report (PSI

Report), and the record of the disposition hearing." United States

v. Vargas,

(1st Cir. 2009).

On September 1, 2019, the appellant was one of two

persons aboard a vessel in waters of the United States when members

of the Coast Guard seized fifty-two packages. Those packages

proved to contain substances that tested positive for amphetamine

and cocaine. Federal agents later located an additional 448 bricks

of cocaine on board the vessel.

The appellant's arrest and indictment followed. On

September 14, 2022, the appellant pleaded guilty in the United

States District Court for the District of Puerto Rico to one count

- 2 - of conspiracy to possess with intent to distribute at least 150

kilograms but less than 450 kilograms of cocaine on board a vessel

subject to the jurisdiction of the United States. See

(c)(1), 70503(a)(1), 70506. The district court accepted

the plea and ordered the preparation of a PSI Report.

After the probation office prepared the PSI Report and

shared it with the parties, the district court convened the

disposition hearing on December 14, 2022. Following the PSI

Report's recommendation, the court set a guideline sentencing

range (GSR) of 262 to 327 months.1 Neither side objected to this

calculation, and the district court accepted it.

The statute of conviction carried a mandatory minimum

sentence of 120 months in prison. See

(a),

70506(a);

(b)(1)(B). At the disposition hearing,

the government recommended an incarcerative sentence of 135

months. The appellant countered by requesting that the court

impose the mandatory minimum sentence: 120 months. In support,

he asserted that he had "accepted responsibility since day one,"

that he had tried to exhibit "exemplary" behavior while on bond,

1This GSR was higher than the GSR forecast in the parties' plea agreement. One reason for this discrepancy was that the PSI Report based its calculation on the actual amount of cocaine seized from the vessel (548.1 kilograms) rather than the amount mentioned in the plea agreement (at least 150 but less than 450 kilograms). This difference does not affect our analysis because the appellant does not dispute the district court's selection of the GSR.

- 3 - and that his prior criminal convictions were either remote in time

or for minor violations. He also expressed remorse for his

conduct.

In pronouncing sentence, the district court stated that

it had considered the plea agreement and the

(a)

sentencing factors, including "the need to promote respect for the

law and protect the public from further crimes of the [d]efendant

as well as [to] address the issues of deterrence and punishment."

The court acknowledged, among other things, that the appellant had

two dependents; that he suffered from scoliosis and bouts of

sadness and anxiety; that he had a history of using marijuana,

fentanyl, oxycodone, and buprenorphine, including multiple

positive drug tests during his time under pretrial supervision;

and that the offense of conviction was the appellant's "12th known

arrest and ninth conviction."

When all was said and done, the district court stated

that it would "exercise leniency" and agreed with the parties that

a downward variance from the GSR of 262 to 327 months was

appropriate. Even so, it emphasized that the appellant "pled

guilty to an offense involving multiple, multiple kilograms of

narcotics" and noted the need to "avoid unwarranted sentencing

disparities" between the appellant — who had "a criminal history

involving narcotics" — and the appellant's co-defendant — who had

no criminal history and received a sentence of 135 months after

- 4 - pleading guilty to the same offense. Reasoning that a sentence

that was beneath the bottom of the GSR but "slightly

higher . . . than that recommended by the parties" would be "just

and not greater than necessary," the district court imposed a 147-

month term of immurement.

This timely appeal ensued.

II

The appellant argues that his sentence was both

procedurally flawed and substantively unreasonable. Each of these

arguments depend on his assertion that the district court did not

adequately evaluate the

(a) factors in fashioning

his sentence. This assertion gains the appellant no traction.

We begin with the basics. In a typical sentencing

appeal, "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). When making these determinations,

preserved claims of sentencing error are reviewed for abuse of

discretion. See United States v. Leach,

(1st

Cir. 2023). But when a claim has not been preserved in the district

court, our review is only for plain error. See

"The touchstone of abuse of discretion review in federal

sentencing is reasonableness." United States v. Vargas-Dávila,

(1st Cir. 2011). In reviewing for abuse of

- 5 - discretion, "we assay the district court's factfinding for clear

error and afford de novo consideration to its interpretation and

application of the sentencing guidelines." United States v.

Flores-Machicote,

(1st Cir. 2013).

Unpreserved claims of error are reviewed only for plain

error. See Leach,

. That limited review presents

an appellant with a heavier burden. To prevail under plain error

review, the appellant must show "(1) that an error occurred (2)

which was clear or obvious and which not only (3) affected the

[appellant's] substantial rights, but also (4) seriously impaired

the fairness, integrity, or public reputation of judicial

proceedings." United States v. Duarte,

(1st Cir.

2001). With these standards in place, we turn to the appellant's

asseverational array. We start with his procedural claim and then

proceed to his claim of substantive unreasonableness.

A

The appellant argues that his sentence was procedurally

flawed because the district court "failed to adequately evaluate

the [section] 3553(a) factors" and "focused all its attention" on

"the negative factors" affecting his case. Because the appellant

did not raise this claim of error at the time of sentencing, his

procedural challenge is unpreserved. See United States v. Matos-

de-Jesús,

(1st Cir. 2017). Consequently, we

review only for plain error. See Leach,

.

- 6 - The centerpiece of the appellant's argument is his

contention that the district court failed to consider several

mitigating factors. These include the following alleged facts:

that the appellant was raised in a dysfunctional family setting;

that he became involved in the offense of conviction out of

"stupidity"; that his young children depended on him financially

and emotionally; that his daughter was struggling with her father's

absence; that he was suffering from sadness and anxiety from being

separated from his children; that the "extreme pain" from his

scoliosis had caused him to self-medicate; and that he was

currently in a precarious financial situation. The appellant

submits that such mitigating factors could be gleaned from "a

simple reading" of the PSI Report and "the district court simply

chose to disregard" them. We do not agree.

It is a bedrock principle of federal sentencing law that

— in order to fulfill a sentencing court's responsibilities — the

court must "consider all relevant section 3553(a) factors."

Clogston,

. The court, though, "need not do so

mechanically." Vargas-Dávila,

. We have previously

made it clear that "we do not require an express weighing of

mitigating and aggravating factors or that each factor be

individually mentioned." United States v. Lozada-Aponte,

(1st Cir. 2012). Relatedly, the fact that a sentencing

court chooses not to discuss individually every mitigating factor

- 7 - that the appellant cites "suggests [that those unaddressed

factors] were unconvincing, not ignored" in the court's sentencing

calculus.

Here, it is nose-on-the-face plain that "the sentencing

transcript, read as a whole, evinces a sufficient weighing of the

section 3553(a) factors." United States v. Dávila-González,

(1st Cir. 2010). To begin, the district court

explicitly discussed several of the mitigating factors that the

appellant claims it ignored. For instance, the court acknowledged

that the appellant has two dependents, suffers from scoliosis and

bouts of sadness and anxiety, and has a history of drug use. Its

decision to vary downward by more than 100 months from the bottom

of the GSR, its granting of the appellant's request for voluntary

surrender so that he could spend Christmas with his family, and

its recommendation of the appellant for a residential

drug-treatment program all help to demonstrate that the court was

sensitive to these mitigating factors at the time of sentencing.

What is more, the court took pains to explain why certain

section 3553(a) factors counseled in favor of a sentence that was

"slightly higher . . . than that recommended by the parties." For

example, it highlighted the seriousness of the offense, which

involved "multiple, multiple kilograms of narcotics" and

reasonably concluded that the appellant's criminal history

militated in favor of a stiffer sentence. See 18 U.S.C.

- 8 - § 3553(a)(1)-(2)(A). And we take particular note that the court

twice stated that it had considered all the section 3553(a) factors

— statements that in themselves are "entitled to some weight."

Clogston,

(quoting Dávila-González,

).

In sum, we discern no clear or obvious procedural flaw

in the sentencing court's weighing of the section 3553(a) factors.

Plain error is plainly absent.

B

We turn next to the appellant's attack on the substantive

reasonableness of his sentence. This claim of error was preserved

below and, thus, our review is for abuse of discretion. See

Holguin-Hernandez v. United States,

(2020)

("A defendant who, by advocating for a particular sentence,

communicates to the trial judge his view that a longer sentence is

'greater than necessary' has thereby informed the court of the

legal error at issue in an appellate challenge to the substantive

reasonableness of the sentence." (quoting

(a))).

The appellant's plaint that his sentence is

substantively unreasonable relies generally on the same reasoning

that drove his claim of procedural error: that the district court

abused its discretion by failing adequately to analyze and balance

all of the pertinent section 3553(a) factors. By putting too much

emphasis on "negative" factors that weighed in favor of a harsher

- 9 - sentence, the appellant suggests, the court imposed a

substantively unreasonable term of imprisonment. This suggestion,

too, is unavailing.

A substantively reasonable sentence is one that

"reflects 'a plausible sentencing rationale and a defensible

result.'" United States v. Soto-Soto,

(1st Cir.

2017) (quoting United States v. Martin,

(1st Cir.

2008)). The sentence at issue in this case passes muster under

this standard.

Here, the district court gave a plausible rationale for

the sentence it imposed: it explained that it would exercise

leniency by varying downward from the GSR but that the appellant's

circumstances required a somewhat longer sentence than either

party proposed due to the seriousness of the crime, the appellant's

criminal history, and the need to avoid an unwarranted sentencing

disparity. Although the appellant asserts that the district court

reached this conclusion by "balancing the section 3553(a)

factors . . . improperly," the court was not obligated to "attach

to certain of the mitigating factors the significance that the

appellant thinks they deserved." Clogston,

. When

— as in this instance — a sentencing court has performed its duty

by assessing the relevant factors bearing on the case before it,

"the weighting of those factors is largely within the court's

informed discretion."

So it is here. The court, for example,

- 10 - was entitled to weigh the appellant's criminal history as

supporting a lengthier sentence. See

(a)(1); cf.

United States v. Ortiz-Pérez,

(1st Cir. 2022)

("There is no 'requirement that a district court afford each of

the section 3553(a) factors equal prominence.'" (quoting United

States v. Dixon,

(1st Cir. 2006))).

So, too, the district court reached a defensible result.

As a general rule, it is rare for a reviewing court to find a

below-the-range sentence substantively unreasonable. See, e.g.,

United States v. deJesús,

(1st Cir. 2021); United

States v. Millán-Machuca,

, 32 (1st Cir. 2021); United

States v. Rentas-Muñiz,

(1st Cir. 2018). Here, as

in United States v. King,

(1st Cir. 2014),

"[t]his case plainly falls within the general rule, not within the

long-odds exception to it." In imposing the sentence, the district

court varied downward by 115 months, resulting in a sentence that

was only slightly more than half the length of the bottom of the

GSR. Considering this substantial downward variance, we discern

nothing that suffices to support the appellant's complaint that

his sentence was inordinately harsh. We conclude — without serious

question — that the sentence in this case came within the wide

"universe of reasonable sentencing outcomes." Clogston,

. It follows that the sentence was both substantively

- 11 - reasonable and a proper exercise of the district court's

discretion.

III

We need go no further.2 For the reasons elucidated

above, the judgment of the district court is

Affirmed.

2 In his reply brief, the appellant contends that the government breached the plea agreement by defending the district court's 147-month sentence on appeal. This argument is futile. The appellant concedes that when a criminal defendant appeals his or her sentence, "the government normally should be free, on appeal, to support a ruling of the district court even though a plea agreement precluded it below from arguing the position that underpins the ruling." United States v. Jurado-Nazario,

(1st Cir. 2020) (quoting United States v. Carbajal-Váldez,

(1st Cir. 2017)). We discern no reason to disrupt this general rule here.

- 12 -