Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 23-1203

UNITED STATES OF AMERICA,

Appellee,

v.

LENY ENCARNACIÓN-BÁEZ,

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, Montecalvo and Aframe, Circuit Judges.

Miguel A. Rodríguez-Robles on brief for appellant. Maarja T. Luhtaru, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

September 13, 2024 PER CURIAM. Defendant Leny Encarnación-Báez appeals

from his sentence of 108 months of imprisonment for six drug-

related crimes. We affirm.

We draw the facts from the presentence report and the

transcript of the defendant's sentencing hearing. United States

v. Fuentes-Moreno,

, 386 n.1 (1st Cir. 2020) (quoting

United States v. Ubiles-Rosario,

, 280 n.2 (1st Cir.

2017)). On August 27, 2020, the defendant and three other men

were interdicted off the west coast of Puerto Rico by Puerto Rico

law enforcement. When the agents activated their emergency lights,

the four men did not stop their vessel; instead, they began to

throw overboard packages resembling those used for transporting

drugs. The officers detained the men and recovered nineteen

packages containing, in total, approximately 500 kilograms of

cocaine.

In September 2020, a grand jury indicted the defendant

and his confederates with (1) conspiracy to possess with intent to

distribute five kilograms or more of a mixture or substance

containing a detectable amount of cocaine,

(a) and

846; (2) aiding and abetting each other's violation of

(a),

and 841(a); (3) conspiracy to import five

kilograms or more of a mixture or substance containing a detectable

amount of cocaine,

(a) and 963; (4) aiding and

abetting each other's violation of

(a), 18 U.S.C.

- 2 - § 2 and

(a); (5) conspiracy to jettison narcotics

subject to forfeiture under

(a),

(a)(2); and (6) aiding and abetting each other's violation

of

(a)(2),

and

(a)(2). In due course, the defendant pleaded guilty to all

six counts.

At the defendant's sentencing hearing, defense counsel

related that the defendant was raised in a poor family, worked

since he was a child, and had no prior drug use or criminal history.

In his allocution, the defendant added that he worked previously

as a tour guide to support his family but encountered financial

troubles because of the COVID-19 pandemic.

The parties agreed that the defendant met the

requirements of the safety valve,

(f), rendering

inapplicable the mandatory ten-year minimum sentence that

otherwise applied for counts one through four. See

(b)(1), 960(b). The defendant, no longer bound by the

mandatory minimum sentence, requested that the district court

impose an 87-month term of imprisonment. The government sought a

sentence of 108 months' imprisonment. Both requests were below

the 135 to 168-month advisory sentencing guidelines range.

Before imposing sentence, the district court stated that

the presentence report "satisfactorily reflects the components of

[the defendant's] offenses by considering their nature and

- 3 - circumstances." The court further stated that it had "considered

the other sentencing factors set forth in Title

(a), the presentence investigation report,

arguments by counsel and the prosecutor, and [the defendant's]

allocution." The district court then sentenced the defendant to

108-month concurrent sentences on each count.

On appeal, the defendant contends that the district

court committed procedural error when explaining the sentence by

"not explicitly addressing some mitigating factors" that he had

raised at the sentencing hearing, including "his background, the

way he was raised, . . . the fact that he had to work since he was

a child," and the fact that he was out of work at the time in

question and had a family to support. Based on these alleged

omissions, the defendant says that the court failed to give those

factors adequate weight in the sentencing determination. The

government responds that the defendant forfeited this sentencing

argument by not raising it in the district court and waived it in

this Court by not addressing the plain error factors in his brief.

On the merits, the government says that the sentence imposed was

procedurally and substantively reasonable.

We agree that the defendant failed to raise below the

procedural challenge to his sentence that he pursues here and,

therefore, that argument is forfeited. See United States v.

Ríos-Rivera,

(1st Cir. 2019) (holding that

- 4 - defendant, by failing to object below, "forfeited any possible

procedural objection"). While we will consider forfeited

arguments under a plain error standard, the defendant's brief does

not "even attempt to map [his] argument onto plain error's four

prongs." Universitas Educ., LLC v. Granderson,

(1st Cir. 2024) (citing Nat'l Fed'n of the Blind v. The Container

Store, Inc.,

(1st Cir. 2018)). Consequently, we

again agree with the government that "in addition to forfeiting

the argument below, [the defendant] has waived it on appeal."

(citing United States v. Colón-De Jesús,

, 25 (1st Cir.

2023)).1

In any event, even if the defendant had preserved his

procedural claim, it would make no difference because there was no

error, plain or otherwise. In explaining a sentence, district

judges are not required to undertake "an express weighing of

mitigating and aggravating factors" or "individually mention[]"

each factor. United States v. Lozada-Aponte,

, 793

1 The same is true for an additional argument that the defendant makes about the safety valve,

(f). He says on appeal that the district court, having found that he met the safety-valve requirements, nevertheless "failed to disregard the minimum mandatory sentence of 108 months." But even looking past the forfeiture and waiver, the argument is incorrect. The otherwise mandatory minimum sentence was 120 months, not 108 months. Thus, the defendant did receive the benefit of the safety valve. The defendant also makes a passing objection to an alleged increase to his base offense level that the record reflects did not occur.

- 5 - (1st Cir. 2012) (citing United States v. Arango,

(1st Cir. 2007)). And we have cautioned against "read[ing] too

much into a district court's failure to respond explicitly to

particular sentencing arguments." United States v. Clogston,

(1st Cir. 2011).

Here, the district court stated that it had considered

the remarks by the defendant's counsel and the defendant's

allocution, both of which described the mitigating factors at

issue. The court then imposed a below-guidelines sentence.

"[A]ssay[ed] . . . as a whole," the record reflects that the

mitigating factors identified by the defendant were not overlooked

or ignored.

at 592 (citing United States v. Stone,

(1st Cir. 2009) and United States v. DeCologero,

(1st Cir. 2008)). The court simply did not give those

factors as much weight as the defendant had hoped. See United

States v. Rodriguez-Monserrate,

(1st Cir. 2021)

(citing Lozada-Aponte,

). That the district court

did not share the defendant's "view of the salience" of the

mitigating factors does not amount to procedural error. United

States v. Ruperto-Rivera,

(1st Cir. 2021).

To the extent the defendant contests the substantive

reasonableness of the sentence based on its length, this claim is

preserved based on the defendant arguing for a lower sentence than

the district court imposed. See United States v. Rand, 93 F.4th

- 6 - 571, 579 (1st Cir. 2024). We therefore review for abuse of

discretion.

On these facts, which involved significant cocaine

smuggling, the defendant cannot show that his below-guidelines

sentence was substantively unreasonable. See United States v.

King,

(1st Cir. 2014) (citing United States v.

Floyd,

, (1st Cir. 2014)). The court afforded

the defendant some leniency based on the mitigating factors

presented, but, given the circumstances of the offense, the court

was reasonable in imposing a 108-month sentence. There was no

abuse of discretion.

Affirmed.

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