United States Court of Appeals For the First Circuit

No. 23-1329

UNITED STATES OF AMERICA,

Appellee,

v.

JASON CANDELARIO,

Defendant, Appellant.

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

[Hon. Jon D. Levy, U.S. District Judge]

Before

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

Edward S. MacColl and Thompson, Bull, Bass & MacColl, LLC, P.A. on brief for appellant. Darcie N. McElwee, United States Attorney, and Brian S. Kleinbord, Assistant United States Attorney, on brief for appellee.

June 24, 2024 SELYA, Circuit Judge. Defendant-appellant Jason

Candelario challenges his top-of-the-range sentence, arguing that

it is substantively unreasonable and creates an unwarranted

disparity with the sentences imposed on his codefendants.

Concluding, as we do, that the appellant's sentence was both

reasonable and proportionate, 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).

In 2019, the appellant and three codefendants conspired

to rob a Maine resident of drugs and money. On the day of the

planned robbery, the appellant and three of his codefendants drove

to the victim's residence. The appellant and another member of

his crew, masked and armed, waited nearby for the victim to return

home. Shortly thereafter, the victim, accompanied by his

girlfriend and a female acquaintance,1 arrived in a truck and

parked in the garage. The appellant and his companion then entered

the garage. The appellant's confederate approached the vehicle,

1This acquaintance was later implicated in the robbery. She cooperated with the authorities, however, and was not charged.

- 2 - struck the passenger-side truck window with the butt of his gun,

and told the victim's girlfriend (who was in the passenger seat)

not to make eye contact with him or call 911.

Meanwhile, the appellant approached the victim, who

wrestled the appellant to the ground. The appellant's confederate

then shot the victim in the abdomen. The two attackers

subsequently fled, and the victim (who ultimately survived) was

rushed to the hospital.

About two years later, a federal grand jury sitting in

the District of Maine returned an indictment against four

defendants — the appellant, the second attacker, a third defendant

who drove the getaway vehicle, and a fourth defendant who

participated in organizing the robbery and provided the firearms

used. In November of 2022, the appellant entered a guilty plea to

counts charging conspiracy to commit a Hobbs Act robbery, see

(a); interference with commerce by violence, and

aiding and abetting, see id.;

; and illegally

possessing a firearm, see

(a)(2). His three

codefendants also entered guilty pleas to various counts.

The district court convened the appellant's disposition

hearing on March 27, 2023. At the outset, the court addressed the

disputed fact of whether the appellant or another defendant was

the assailant who, during the robbery, tried to break the truck's

passenger seat window and then fired the shot that injured the

- 3 - victim. The court concluded, for the purposes of sentencing, that

the appellant's confederate was the perpetrator. Even so, the

court deemed both men "equally culpable" for the events that

transpired in the victim's garage; after all, those events were "a

foreseeable consequence of [the two malefactors'] joint effort to

commit a robbery."

The district court calculated a guideline sentencing

range of 140 to 175 months, to which all parties acceded.

Emphasizing the violent nature of the crimes of conviction, the

appellant's role as one of the two physical assailants, and his

four prior felony convictions (which placed him in criminal history

category V), the government urged the district court to "depart or

vary its sentence upward." For his part, the appellant urged the

court to impose a sentence of 120 months, citing mitigating factors

such as his difficult childhood and genuine remorse. The district

court also heard statements from the victim's girlfriend, who spoke

about the crime's impact on her and the victim. And the court

heard from two friends of the appellant, who spoke about his

challenges growing up without a father and with a mother who was

incarcerated, as well as recent improvements he had made in his

life.

In the end, the district court imposed a 175-month term

of immurement. In the process, the district court accepted the

appellant's expressions of remorse and acceptance of

- 4 - responsibility as sincere. It also declined to impose an upward

departure and, giving weight to the appellant's difficult

childhood, declined to vary his sentence upward. All things

considered, the district court found that a sentence at the top of

the guidelines range was appropriate due to the seriousness of the

harm committed, the appellant's criminal history, the "serious

risk of recidivism," and the need to provide both specific

deterrence and "general deterrence to the public at large, which

needs to understand that the [c]ourt will impose lengthy sentences

for conduct this despicable."

This timely appeal followed.

II

In this venue, the appellant argues that his sentence

was substantively unreasonable. He emphasizes that it was the

highest of all of his codefendants' sentences. We agree with the

government that the appellant's sentence was substantively

reasonable and did not create an unwarranted disparity when

compared to his codefendants' sentences. Although the parties

dispute whether the appellant's challenges to his sentence were

preserved below, we bypass that dispute because — under either

plain error review or abuse of discretion review — his sentence

passes muster.

When faced with a sentencing appeal in a criminal case,

"[w]e first determine whether the sentence imposed is procedurally

- 5 - reasonable (that is, free from reversible error in its procedural

aspects) and then determine whether it is substantively

reasonable." United States v. Demers,

(1st Cir.

2016). Within this bifurcated structure, we review a sentencing

court's factual findings for clear error and its interpretation

and application of the guidelines de novo. See United States v.

Walker,

(1st Cir. 2011).

As a preliminary matter, we note that although the

appellant's opening brief states that his sentence was both

"substantively and procedurally unreasonable," none of his

briefing indicates what procedural aspect of his sentence was

erroneously imposed. The only potential argument that we can

identify as to procedural reasonableness is the appellant's

statement that the district court "provided no explanation" for

why the length of the appellant's sentence "was appropriate or

necessary." Cf. United States v. Crespo-Ríos,

, 37 n.3

(1st Cir. 2015) ("The lack of an adequate explanation can be

characterized as either a procedural error or a challenge to the

substantive reasonableness of the sentence."). The appellant,

though, has not developed this argument separately from his

argument that, in the context of substantive reasonableness, his

sentence lacked a "plausible sentencing rationale." United States

v. Gonzalez,

(1st Cir. 2020) (quoting United States

v. Cameron,

(1st Cir. 2016)). Thus, we consider

- 6 - any claim of procedural error waived for lack of development.2

United States v. Zannino,

(1st Cir. 1990)

(explaining "settled appellate rule that issues adverted to in a

perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived").

We proceed, then, directly to the issue of substantive

reasonableness. The appellant's primary contention is that his

sentence was disproportionately harsh when compared to those of

his codefendants. See United States v. Reverol-Rivera,

(1st Cir. 2015) (considering argument that "sentence was

substantively unreasonable because of the disparity with the

sentence given to a co-defendant"). And it is common ground that

a district court, when imposing a sentence, "must consider 'the

need to avoid unwarranted sentence disparities among defendants

with similar records who have been found guilty of similar

conduct.'"

(quoting

(a)(6)). Even so, a

genuine sentence disparity can only exist "between 'two

identically situated defendants.'" United States v. De La Cruz,

(1st Cir. 2024) (quoting United States v.

In all events, we have commented before "that an adequate 2

explanation for an upwardly variant sentence and the 'plausible rationale' element of the test for substantive reasonableness 'are almost always two sides of the same coin.'" United States v. Ortiz-Pérez,

(1st Cir. 2022) (quoting United States v. Valle-Colón,

(1st Cir. 2021)). The same principle may apply even when the sentence is not a variant sentence but, rather, a within-the-range sentence.

- 7 - Grullon,

, 35 (1st Cir. 2021)). "Where 'material

differences between the defendant and the proposed comparator

suffice to explain the divergence,' a sentencing disparity claim

is unlikely to prevail." United States v. Coplin-Benjamin,

(1st Cir. 2023) (quoting Demers,

).

In this instance, there were several material

differences between the appellant and the codefendants to whom he

points. Those discrepancies were more than sufficient to explain

the differences in their sentences. For example, the proposed

comparator codefendants were subject to lower guideline sentencing

ranges than was the appellant, and the appellant does not dispute

the accuracy of the guideline calculations. This is a critical

datum in a disparity analysis. See United States v. Bedini,

(1st Cir. 2017) (rejecting defendant's sentencing

disparity claims in part because other defendants were "subject to

lower applicable Guidelines ranges").

Moreover, the codefendant who received the lowest

sentence of ninety-six months was supportably found to be the

"least culpable" of the four coconspirators because he only

participated as the drop-off and getaway driver for the robbery.

The appellant, in contrast, was one of the two main physical

aggressors in the robbery. So, too, this codefendant warranted

leniency because he cooperated with the government — but the

appellant turned a deaf ear. Lack of cooperation is a powerful

- 8 - reason for holding a defendant to the rigors of the guidelines.

Cf. United States v. La Guardia,

(1st Cir.

1990) ("[T]he government has a strong interest in encouraging

defendants to cooperate.").

Similarly, another codefendant, who received a sentence

of 144 months (later reduced to 128 months), played a significantly

different role in the robbery because he was not a physical

aggressor. His case thus differentiated itself from that of the

appellant. And in addition, this codefendant started with a

cleaner slate than the appellant. All these differences — and

others like them — are factors that we have held are reasonable

for imposing a lower sentence on one codefendant than on another.

See, e.g., United States v. Oquendo-Garcia,

(1st

Cir. 2015) (finding no disparity when codefendant who received

lower sentence had fewer weapons-based and overall convictions and

arrests); United States v. Mateo-Espejo,

(1st

Cir. 2005) (finding no disparity when coconspirator who received

lower sentence cooperated more promptly and fully); De La Cruz,

(finding no disparity when codefendant who received

lower sentence played different role in conspiracy).

The appellant trains his heaviest fire on the disparity

between his 175-month sentence and the 120-month sentence given to

the second physical aggressor in the robbery (the codefendant who

apparently shot the victim). The justification for this

- 9 - codefendant's lower sentence, though, is evident: Unlike the

appellant, he cooperated in the government's investigation and

thus received a downward departure for substantial assistance

under USSG §5K1.1. Our caselaw provides unambiguously that

"dissimilar . . . cooperation with the government" is a sufficient

material difference between defendants to defeat a disparity

claim. United States v. Romero,

(1st Cir. 2018);

see United States v. Flores-Machicote,

(1st Cir.

2013).

The appellant argues that rewarding his codefendant's

cooperation with a lower sentence is "fundamentally unfair"

because his codefendant at one point lied to investigators about

being the shooter whereas the appellant "never sought to shift

blame to others." We see nothing unfair about this outcome. Even

assuming that the codefendant lied about being the shooter, his

testimony on this fact was not the primary source of his

cooperation with the government. As the government explained to

the district court, the codefendant's testimony corroborated both

physical evidence and other witnesses' testimony and played a major

role in securing the conviction against another codefendant for

whom the government did not have DNA evidence. Nothing in the

record suggests that these grounds for the codefendant's

cooperation would have been diminished by his alleged dishonesty

about who shot the victim.

- 10 - Nor are we convinced by the appellant's argument that,

"[e]ven apart from the question of disparity," his sentence lacked

a "plausible sentencing rationale" and a "defensible result."

(Quoting Gonzalez,

). Generally, we will consider

a sentence substantively reasonable as long as it falls within the

"universe of reasonable sentencing outcomes." United States v.

Clogston,

(1st Cir. 2011). Where, as here, the

challenged sentence was within a properly calculated guideline

range, the appellant carries a particularly heavy burden to "adduce

fairly powerful mitigating reasons and persuade us that the

district judge was unreasonable in balancing pros and cons despite

the latitude implicit in saying that a sentence must be

'reasonable.'" United States v. Madera-Ortiz,

(1st Cir. 2011) (quoting United States v. Navedo-Concepción,

(1st Cir. 2006)).

In the case at hand, the district court clearly stated

its reasons for imposing a top-of-the-range sentence: the violent

nature of the crime, the appellant's extensive criminal history,

and the need for both specific and general deterrence. There is

nothing implausible or indefensible about this rationale,

especially with respect to a within-range sentence. Each of these

reasons is supported by undisputed facts in the record.3 What is

Although the appellant disputes certain details related to 3

his criminal history, he does not dispute the fact that he has

- 11 - more, the appellant is incorrect that the district court failed to

"explain[] . . . how such a sentence considered the extraordinary

mitigating factors the court acknowledged and found were present."

The district court stated that because the appellant's difficult

childhood served as a mitigating factor, it would not impose an

upward variance as the government requested. The court was not

obligated to give this and other mitigating circumstances more

weight. See Clogston,

("That the sentencing court

chose not to attach to certain of the mitigating factors the

significance that the appellant thinks they deserved does not make

the sentence unreasonable.").

That ends this aspect of the matter. We find no

meaningful sentencing disparity. Nor do we find anything

substantively unreasonable about the appellant's within-the-range

sentence, which is both defensible on the record and plausibly

explained by the district court in ample detail. See Gonzalez,

. Although the appellant may have preferred that

the district court weighed his circumstances differently and

focused on a lower point in the guideline sentencing range, we

cannot say that his sentence — as imposed — falls outside the "wide

universe of supportable sentencing outcomes." United States v.

Del Valle-Rodríguez,

(1st Cir. 2014).

multiple felony convictions or that he participated in physically ambushing the victim, even if he did not fire the gun.

- 12 - III

We need go no further. For the reasons elucidated above,

the district court's sentence is

Affirmed.

- 13 -