United States v. Rijos-Rivera ( 2022 )

United States Court of Appeals
For the First Circuit
No. 21-1721
UNITED STATES OF AMERICA,
Appellee,
v.
JULIANIE RIJOS-RIVERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]
Before
Barron, Chief Judge,
Selya and Kayatta, Circuit Judges.
Philip R. Horowitz on brief for appellant.
W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-
Almonte, Assistant United States Attorney, Chief, Appellate
Division, and Francisco A. Besosa-Martínez, Assistant United
States Attorney, on brief for appellee.
November 21, 2022
SELYA, Circuit Judge. In this sentencing appeal,
defendant-appellant Julianie Rijos-Rivera challenges the
procedural and substantive reasonableness of her 108-month prison
sentence. Concluding, as we do, that the defendant's complaint
about the applicability of a four-level abduction enhancement
cannot withstand scrutiny and that the challenged sentence falls
within the broad universe of reasonable outcomes, 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, 560 F.3d 45, 47 (1st Cir. 2009).
In the early hours of August 24, 2019, the defendant's
live-in boyfriend, Randy Rivera-Nevarez (Rivera), called the
defendant and told her that he and an associate, Domingo Emanuel
Bruno-Cotto (Bruno), "had just made a hit on an Uber Driver." He
also boasted that "they had the individual (victim) with
them . . . withdrawing money from the victim's account." That
conversation ended with the defendant telling Rivera that she would
see him at home.
The next day, Rivera asked the defendant "to take him on
a ride." Understanding Rivera to be bent on carrying out a
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robbery, the defendant nonetheless agreed to Rivera's request.
The pair then set out in a Ford Explorer that Rivera and Bruno had
previously carjacked. After Bruno joined them, the trio made their
way to a public beach in Dorado, Puerto Rico. On their way, they
stopped at a gas station where Bruno bought condoms. According to
the defendant, Bruno stated "that he purchased the condoms because
he was desperate to make a hit on a woman and bone her."
Once they arrived at the beach's parking lot, Rivera
told the defendant to wait in the car. The defendant saw both men
exit the vehicle carrying firearms and make their way to the beach.
Once there, the two men proceeded to rob a young man and woman.
During the robbery, they sprayed mace on the man, moved the woman
to a different location on the beach, and sexually assaulted her.
At one point, the woman was taken by one of the men to her vehicle
(a Jeep Cherokee) to retrieve a debit/credit card.
Roughly thirty minutes after leaving the Ford Explorer,
Rivera returned. He told the defendant that Bruno was "'sticking
it into' the woman (referring to a sexual act)." Rivera then
returned to the beach, and the defendant continued to wait in the
car.
Later, Rivera and Bruno came back to the parking lot and
drove off in the Jeep Cherokee. The defendant took the same route,
driving the Ford Explorer. Both vehicles stopped at a gas station,
where the two men transferred items from the Jeep Cherokee to the
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Ford Explorer. Bruno then gave the defendant the debit/credit
card along with the woman's PIN number, telling the defendant "to
withdraw everything she could." The defendant went to an ATM and
withdrew money from the woman's account. Two days later, the
defendant was arrested.
In due course, a federal grand jury sitting in the
District of Puerto Rico charged the defendant with one count of
carjacking resulting in serious bodily injury. See 18 U.S.C.
§ 2119. Although the defendant initially maintained her
innocence, she subsequently entered a guilty plea. The district
court accepted her change of plea and ordered the preparation of
a PSI Report.
In the PSI Report, the probation office recommended
several sentencing enhancements, including a four-level
enhancement for abduction in order to facilitate the commission of
the offense of conviction. See USSG §2B3.1(b)(4)(A). The
defendant objected to the abduction enhancement on the ground that
her participation in the offense was "limited." The probation
office, however, held firm. Based on a total offense level of
thirty-one and a criminal history category of I, the PSI Report
recommended a guideline sentencing range of 108 to 135 months.
At the disposition hearing, the district court heard
argument from both parties. Pursuant to the plea agreement, the
government recommended a sentence of seventy months' imprisonment.
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Defense counsel joined in this recommendation, but again objected
to the abduction enhancement "in light of the evidence and in light
of the role of the defendant." The court made clear that it agreed
with the probation office on that point.
After hearing the defendant's allocution, the court
adopted the guideline calculations limned in the PSI Report. The
court noted that because "the female victim was moved multiple
times on the beach . . . taken by one of the assailants to the
Jeep Cherokee, and she was moved against her will to facilitate
the commission of the offense, a four-level increase is warranted."
The court then denied the defendant's request for a mitigating-
role adjustment, see USSG §3B1.2, because the defendant possessed
"previous knowledge of the car-jacking crimes committed by her co-
defendants, that she drove the vehicle used to commit the offense
and knew that it had also been car-jacked and [Bruno had] expressed
to her his intent of committing a rape prior to the offense."
The court proceeded to weigh the sentencing factors
adumbrated in 18 U.S.C. § 3553(a). It considered, among other
things, the defendant's age, family history, education, physical
and mental health, prior drug use, and the offense of conviction.
In the court's view, the seventy-month recommended "sentence would
fail to provide just punishment and address the harm caused."
Instead, the court imposed a 108-month term of immurement, stating
that "[t]his is the sentence the Court would have imposed,
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irrespective of the guideline, based on the facts I reviewed."
The sentence imposed was at the bottom of the guideline sentencing
range for the offense of conviction.
This timely appeal followed.
II
"Appellate review of claims of sentencing error entails
a two-step pavane." United States v. Matos-de-Jesús, 856 F.3d
174, 177 (1st Cir. 2017). Under this bifurcated methodology, we
first assess any claims of procedural error. See id. If the
sentence is procedurally sound, we then assess any claim of
substantive unreasonableness. See id. The defendant presses both
types of claims, and we treat them separately.
A
We start with the defendant's claim of procedural error.
This claim centers on the district court's imposition of a four-
level abduction enhancement under USSG §2B3.1(b)(4)(A).
Specifically, the defendant contends that this enhancement was
inapposite because the abduction was not reasonably foreseeable to
her and that, in any event, the district court did not make an
individualized determination with respect to foreseeability.
The parties clash over whether this claim of error was
sufficiently raised below. This clash affects the applicable
standard of review: preserved claims of sentencing error are
reviewed for abuse of discretion. See United States v. Vélez-
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Andino, 12 F.4th 105, 112 (1st Cir. 2021). Unpreserved claims of
sentencing error, though, are reviewed only for plain error. See
id. at 112-13; United States v. Duarte, 246 F.3d 56, 60 (1st Cir.
2001). In this instance, we need not resolve the parties' clash
over what standard of review applies. Even if we assume, favorably
to the defendant, that review is for abuse of discretion, the
defendant's claim of error founders.
"The abuse of discretion standard is not monolithic but,
rather, encompasses 'de novo review of abstract questions of law,
clear error review of findings of fact, and deferential review of
judgment calls.'" United States v. Padilla-Galarza, 990 F.3d 60,
73 (1st Cir. 2021) (quoting United States v. Lewis, 517 F.3d 20,
24 (1st Cir. 2008)). In applying this nuanced standard here, we
begin with the text of the enhancement itself.
The abduction enhancement calls for a four-level
increase in the defendant's base offense level when, as relevant
in this case, "any person was abducted to facilitate commission of
the offense." USSG §2B3.1(b)(4)(A). The offense of conviction in
this case was carjacking, but robbery was part and parcel of that
offense (indeed, its raison d'être). The background note to
section 2B3.1 makes pellucid that this guideline provision applies
"for robberies where a victim was forced to accompany the defendant
to another location. . . ." Id. cmt. background.
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The defendant does not dispute that this guideline
controls.1 Nor does she dispute that a woman was abducted by one
of her confederates: Bruno and/or Rivera forced the woman to move
to a different location (the Jeep Cherokee) to retrieve the
debit/credit card and, thus, to facilitate the commission of the
robbery. The question, then, reduces to whether her confederates'
perpetration of the abduction can reasonably be attributed to her.
In the case of jointly undertaken criminal activity, a
defendant is liable both for harm resulting from any acts or
omissions directly attributable to her and for harm resulting from
the acts or omissions of other persons acting in concert with her
that were "reasonably foreseeable in connection with th[e]
criminal activity." USSG §1B1.3(a)(1)(B)(iii). As with all upward
sentencing adjustments, the government bears the burden of proving
the applicability of this enhancement by a preponderance of the
evidence. See United States v. Soto-Villar, 40 F.4th 27, 35 (1st
We need not linger long over the defendant's suggestion that
1
she and the government "agreed" that the abduction enhancement
"did not apply." In support, she notes only that the enhancement
was not mentioned in the plea agreement. There is, however,
nothing to show either that the plea agreement was conditioned
upon the denial of the abduction enhancement or that the government
affirmatively agreed to oppose such an enhancement. The mere fact
that a plea agreement is silent concerning a possible enhancement,
without more, does not foreclose a sentencing court from exploring
and applying such an enhancement. See United States v. Trujillo,
537 F.3d 1195, 1201 (10th Cir. 2008) (stating that a "plea
agreement cannot preclude the court from considering the facts
underlying" relevant conduct when considering application of
enhancement not endorsed in plea agreement).
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Cir. 2022); United States v. Flores-De-Jesús, 569 F.3d 8, 36 (1st
Cir. 2009).
As a general matter, we deem the Sentencing Commission's
commentary to the sentencing guidelines to be authoritative. See
United States v. Rivera-Berríos, 902 F.3d 20, 24-25 (1st Cir.
2018). The commentary to section 1B1.3 outlines how a sentencing
court ought to make an individualized determination as to whether
another person's act, committed in furtherance of jointly
undertaken criminal activity, was reasonably foreseeable to the
defendant. "[T]he court must first determine the scope of the
criminal activity the particular defendant agreed to jointly
undertake." USSG §1B1.3, cmt. n.3(B). Then, "[t]he court must
determine if the conduct . . . of others was in furtherance of the
jointly undertaken criminal activity." Id. cmt. n.3(C). Finally,
"[t]he court must . . . determine if the conduct . . . was
reasonably foreseeable in connection with that criminal activity."
Id. cmt. n.3(D).
Before us, the defendant contends that the district
court abused its discretion by not employing this tripartite
framework in making an individualized determination. The
defendant's premise is borne out by the record: the district court
did not employ the tripartite framework (at least in so many
words). But the district court, in effect, covered the same
ground. We think that its findings were sufficiently explicit to
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warrant a conclusion that the court did not abuse its discretion
in imposing the enhancement. We explain briefly.
Despite the district court's eschewal of the tripartite
framework, the court's factfinding (including its adoption of the
PSI Report's account of the offense of conviction) fully supports
findings to the effect that the robbery was within the scope of
the jointly undertaken criminal activity; that the conduct of Bruno
and/or Rivera in abducting the victim was in furtherance of that
activity; and that such conduct was reasonably foreseeable to the
defendant. The defendant does not dispute that the record supports
both the "scope" and the "in furtherance of" elements of the
tripartite framework. Rather, she takes aim at the third element.
With respect to that element, the court found — and the
defendant does not contest — that the defendant agreed to go along
with Rivera and Bruno to commit a robbery. She joined in that
criminal enterprise knowing that Rivera and Bruno had carjacked a
vehicle and abducted a man to retrieve money from an ATM the night
before. In the course of committing the new carjacking and
robbery, Bruno and/or Rivera abducted a woman, forcing her to go
to her car and retrieve a debit/credit card and divulge her PIN
number. Given the defendant's knowledge of what had gone before
and the nature and circumstances of the offense of conviction, the
record strongly supports a finding that the abduction was
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reasonably foreseeable to the defendant.2 So viewed, application
of the abduction enhancement was appropriate, and the defendant
cannot succeed in showing that the district court abused its
discretion in imposing the enhancement.
We add a coda. "[W]e have consistently held that when
a sentencing court makes clear that it would have entered the same
sentence regardless of the Guidelines, any error in the court's
Guidelines calculation is harmless." United States v. Ouellette,
985 F.3d 107, 110 (1st Cir. 2021). Here, the sentencing court
explicitly stated that it would impose the same 108-month sentence
without regard to the sentencing guidelines. Given this statement,
any error in the guideline calculations would be harmless in view
of the evident basis in the record for a finding that the
defendant's relevant conduct warranted a sentence of that length
regardless of whether the abduction enhancement applied. See id.B
This leaves the defendant's challenge to the substantive
reasonableness of her sentence. Our review is for abuse of
For present purposes, it is enough that the abduction during
2
the commission of the carjacking and robbery was reasonably
foreseeable to the defendant. In the interest of completeness,
however, we add that the defendant's knowledge that Bruno wanted
to commit a rape arguably expanded the scope of the criminal
enterprise to include rape. Because the defendant knew that Bruno
wanted to rape a woman that night and that he had stopped to
purchase condoms along the way, it was also reasonably foreseeable
to her that a woman would be abducted for that purpose.
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discretion. See Holguin-Hernandez v. United States, 140 S. Ct.
762, 766-67 (2020).
In sentencing, "reasonableness is a protean concept."
United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). As
such, "[t]here is no one reasonable sentence in any given case
but, rather, a universe of reasonable sentencing outcomes."
United States v. Clogston, 662 F.3d 588, 592 (1st Cir. 2011).
When determining whether a challenged sentence is substantively
reasonable, we ask "whether the sentence falls within this broad
universe." United States v. Rivera-Morales, 961 F.3d 1, 21 (1st
Cir. 2020). In the end, a sentence will be deemed substantively
reasonable as long as it rests on "a plausible rationale
and . . . represents a defensible result." Id.The defendant's sentence was at the bottom of — but
within — the guideline sentencing range. Where, as here, a
defendant challenges a within-the-range sentence, she "faces a
steep uphill climb to show that the length of the sentence is
unreasonable." United States v. deJesús, 6 F.4th 141, 150 (1st
Cir. 2021).
In our view, the sentence here rests on a plausible
rationale. The district court mulled the section 3553(a) factors
and determined that "the facts in this case are predominantly
heinous in setting it apart from the typical car-jacking case."
The court emphasized that what stood out most to it were "the
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defendant's prior knowledge of the car-jacking being committed by
the co-defendants . . . and her knowledge of [Bruno's] intent of
committing rape on the night of the events." The court found
"chilling" the defendant's lack of reaction on the night of the
offense and found that she lacked empathy for the victims during
sentencing. This rationale easily passes the test of plausibility
for a bottom-of-the-range sentence.
So, too, the challenged sentence represents a defensible
result. The defendant was a willing participant in a
carjacking/robbery offense. She knew that her confederates
carried firearms and that Bruno wanted to rape a woman. As we
have explained, the defendant was complicit in the carjacking,
the robbery, and the rape. See supra Part II(A) & n.2. Given
the totality of the circumstances, it would strain credulity to
conclude that a 108-month sentence is indefensible.
This conclusion is not undermined by the fact that both
the government and the defendant, pursuant to the plea agreement,
urged the district court to impose a seventy-month term of
immurement. The customary rule is that the district court is not
bound by the parties' recommendations as to the length of the
sentence to be imposed, see United States v. Mulero-Vargas, 24
F.4th 754, 759 (1st Cir. 2022), and this case falls squarely
within the sweep of that customary rule.
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That ends this aspect of the matter. When — as in this
case — a sentence rests on a plausible rationale and reflects a
defensible result, that sentence is substantively reasonable. The
defendant's claim of error therefore fails.
III
We need go no further. For the reasons elucidated above,
the challenged sentence is
Affirmed.
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