United States v. Melendez-Rivera ( 2022 )


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  •                 Not for Publication in West's Federal Reporter
    United States Court of Appeals
    For the First Circuit
    No. 21-1285
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    BENJAMIN MELÉNDEZ-RIVERA, a/k/a Bengie, a/k/a Ben,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Aida M. Delgado-Colón, U.S. District Judge]
    Before
    Barron, Chief Judge,
    Selya and Kayatta, Circuit Judges.
    Francisco J. Adams-Quesada on brief for appellant.
    W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-
    Almonte, Assistant United States Attorney, Chief, Appellate
    Division, and Maarja T. Luhtaru, Assistant United States Attorney,
    on brief for appellee.
    October 6, 2022
    SELYA, Circuit Judge.         Weighing the various factors made
    relevant under 
    18 U.S.C. § 3553
    (a) is — in the first instance —
    quintessentially a matter for the sentencing court.                    In this
    appeal, defendant-appellant Benjamin Meléndez-Rivera challenges
    the sentencing court's performance of that function.             Concluding,
    as we do, that the defendant's sentence is both procedurally sound
    and substantively reasonable, we affirm.
    I
    We briefly rehearse the 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).
    On    October   14,    2016,     the    defendant   and    another
    individual brandished firearms at two female employees of Banco
    Popular    as    the   employees   were    replenishing    automatic    teller
    machines.       The ensuing robbery yielded a haul of approximately
    $80,000.
    The defendant then proceeded to scout his next target:
    a Ranger American armored truck.          On March 30, 2017, the defendant
    and a band of confederates went to a different Banco Popular branch
    to lie in wait for the armored truck.              When the vehicle arrived,
    two of the defendant's accomplices approached the courier.              As the
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    courier attempted to reach for his weapon, the accomplices began
    firing their guns wildly, killing two bystanders and wounding the
    courier. With about $16,000 in hand, the robbers fled. Subsequent
    investigation revealed that the defendant had planned the robbery,
    supplied one of the weapons used in it, and facilitated the escape.
    The authorities apprehended the defendant on December 8,
    2017.   A federal grand jury sitting in the District of Puerto Rico
    later returned an indictment.            Our focus, though, is on the
    superseding      indictment,   which    charged    the   defendant,   amongst
    others, with conspiracy to interfere with commerce by robbery, see
    
    18 U.S.C. § 1951
    (a); interference with commerce by robbery, see
    id.; two counts of possession of firearms in furtherance of a crime
    of violence resulting in death, see 
    id.
     § 924(j)(1); being a felon
    in possession of a firearm, see id. § 922(g)(1); bank robbery, see
    id. §§ 2113(a) & (d); and possession and brandishing of firearms
    in furtherance of a crime of violence, see id. § 924(c)(1)(A)(ii).
    The first count referred to both the armored truck robbery and the
    robbery at the Banco Popular branch, the next three counts referred
    only to the armored truck robbery, and the last two counts referred
    only to the robbery at the Banco Popular branch.              The sentencing
    court appropriately regarded both robberies as part of the same
    course of relevant conduct.
    The defendant initially maintained his innocence but
    later   agreed    to   plead   guilty   to   the   top   count:   Hobbs   Act
    - 3 -
    conspiracy to interfere with commerce by robbery.                    The government
    agreed to dismiss the remaining charges against him at the time of
    sentencing.    In due course, a plea agreement was executed and the
    court accepted the defendant's guilty plea.
    When prepared, the PSI Report recommended a guideline
    sentencing    range   (GSR)   of    292   to    365       months.      Withal,   the
    statutorily prescribed maximum term of immurement (and, thus, the
    guideline     term    of   imprisonment)            was    240      months.      See
    USSG §5G1.1(a).
    At the disposition hearing, defense counsel recommended
    a 151-month term of immurement. Counsel emphasized the defendant's
    advanced age (sixty-one years old at the time of the disposition
    hearing) and health-related conditions.                   Counsel also mentioned
    the defendant's "harsh" upbringing, "educational challenges," and
    role within his family.             After the defendant allocuted, the
    prosecutor noted that the plea agreement "took into account many
    of the mitigating factors" that defense counsel presented.                       The
    prosecutor also observed that the two bystanders who died were
    relatively young and that the surviving courier was shot fifteen
    times.   These victims and their families suffered, the prosecutor
    said, "because of the conduct that [the defendant] chose to engage
    in."     Consistent   with    the    terms     of    the    plea    agreement,   the
    prosecutor concluded by recommending an incarcerative sentence of
    188 months.
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    The    district    court     began   by   adopting   the     guideline
    calculations limned in the PSI Report.                 It then reviewed the
    sentencing factors set forth in 
    18 U.S.C. § 3553
    (a).                     The court
    noted the defendant's age, education level, family status, and
    health-related      conditions    (specifically        mentioning      arthritis,
    hypertension, and high cholesterol).               The court then considered
    the gravity of the offense and the defendant's participation in
    it.   The court pointed out that the defendant had played an active
    role in identifying the target of the robbery and in "planning and
    providing     instructions, . . . providing             [a]     weapon     to   be
    used . . .,       and . . . participating        in    the    actual     robbery."
    Additionally, the court acknowledged that the victims were a factor
    that it "ha[d] to consider."
    In the end, the court found two downward departures to
    be appropriate: one level for the defendant's age and three levels
    because the defendant "was not the one pulling the trigger."
    Taking into account "the seriousness of the offense, . . . the
    statements    of      the     victims,     [and]      the     Plea     Agreement's
    recommendation," the court imposed a 200-month term of immurement.
    And as provided in the plea agreement, the court dismissed all of
    the remaining charges against the defendant.
    This timely appeal followed.
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    II
    The protocol for sentencing appeals involves a two-step
    pavane.    See United States v. Miranda-Díaz, 
    942 F.3d 33
    , 39 (1st
    Cir. 2019).   We first review any claims of procedural error.             See
    
    id.
       If the sentence survives that review, we next consider any
    challenge to its substantive reasonableness.             See 
    id.
         At both
    steps of this pavane, our review of preserved claims of error is
    for abuse of discretion.      See United States v. Rivera-Morales, 
    961 F.3d 1
    , 15 (1st Cir. 2020).
    A
    The defendant's claim of procedural error consists of an
    assault on the district court's balancing of the section 3553(a)
    factors. Before reaching the merits of this claim, we must dispose
    of a threshold matter.      The government asserts that this claim was
    not preserved below and, thus, should be reviewed only for plain
    error.    See United States v. Duarte, 
    246 F.3d 56
    , 60 (1st Cir.
    2001).    We need not resolve this contretemps:          even if we assume,
    favorably to the defendant, that his claim of procedural error was
    preserved, the claim fails.         We proceed accordingly.
    Fleshing   out     his    claim    of   procedural    error,   the
    defendant charges that the court "placed all weight on the negative
    factors and disregarded the multiple mitigating factors."                 This
    charge is belied by the record.              After all, "the sentencing
    inquiry . . . ideally    is    broad,      open-ended,   and    significantly
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    discretionary."       United States v. Martin, 
    520 F.3d 87
    , 92 (1st
    Cir. 2008).      And although the sentencing court is obliged to
    consider the factors outlined in 
    18 U.S.C. § 3553
    (a), the court
    "is not required to address those factors, one by one, in some
    sort of rote incantation."       United States v. Dixon, 
    449 F.3d 194
    ,
    205 (1st Cir. 2006).       Nor need the court "address every argument
    that a defendant advances in support of his preferred sentence."
    Rivera-Morales, 961 F.3d at 19.
    Here, moreover, the district court explicitly stated
    that it had considered all of the section 3553(a) factors.                 We
    have consistently held that "[s]uch a statement 'is entitled to
    some weight.'"       United States v. Clogston, 
    662 F.3d 588
    , 592 (1st
    Cir. 2011) (quoting United States v. Dávila-González, 
    595 F.3d 42
    ,
    49 (1st Cir. 2010)).       And in the case at hand, the district court
    acknowledged    the    potentially    mitigating    factors    that   defense
    counsel pressed at sentencing.        Nor can it be said that the court
    merely paid lip service to those factors.          It departed downward in
    consideration of the defendant's age and made a further downward
    departure based on the fact that he did not himself kill the
    victims.   Given the totality of the circumstances, the defendant's
    claim   that   the    court   "disregarded"   mitigating      factors   rings
    hollow.
    To say more would be to paint the lily.              Stripped of
    rhetorical flourishes, the defendant's real complaint appears not
    - 7 -
    to be that the court failed adequately to consider the sentencing
    factors but, rather, that the court did not assign certain factors
    the weight that the defendant would have liked.      That differential
    weighing, without more, is not an abuse of discretion.         And here,
    there is no "more": as we repeatedly have admonished, a sentencing
    court's decision not to attach to certain factors the weight that
    a defendant thinks they deserve does not either signal an abuse of
    discretion or render a sentence unreasonable.1       See United States
    v. Ortiz-Pérez, 
    30 F.4th 107
    , 112-13 (1st Cir. 2022); United States
    v. Vélez-Andino, 
    12 F.4th 105
    , 117 (1st Cir. 2021).      Consequently,
    we discern no abuse of discretion.
    B
    This brings us to the defendant's claim of substantive
    unreasonableness.      In essence, the defendant contends that his
    sentence is substantively unreasonable because the court below
    improperly   weighed    the   mitigating   factors   brought    to   its
    attention.   Once again, our review is for abuse of discretion.
    1 The defendant advances for the first time in a post-briefing
    letter, see Fed. R. App. P. 28(j), a new claim of procedural error.
    This time, he alleges that the district court failed adequately to
    explain its deviation from the GSR. Given that no such deviation
    occurred, this claim is quixotic. And in any event, in the absence
    of extraordinary circumstances — and none exist here — issues not
    raised in an appellant's opening brief are deemed waived.       See
    United States v. López, 
    957 F.3d 302
    , 309 (1st Cir. 2020). So it
    is here.
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    See Holguin-Hernandez v. United States, 
    140 S. Ct. 762
    , 766 (2020);
    United States v. Bruno-Campos, 
    978 F.3d 801
    , 808 (1st Cir. 2020).
    Some background is useful.      In the sentencing context,
    "reasonableness is a protean concept."        Martin, 
    520 F.3d at 92
    .
    Given that the circumstances of a particular case will almost
    always justify more than one reasonable sentence, a sentence will
    be vacated as substantively unreasonable only if it "falls outside
    the expansive boundaries" of the universe of reasonable sentences.
    
    Id.
          It follows that a defendant who seeks to challenge the
    substantive    reasonableness   of   his   sentence   faces   an   "uphill
    climb."     United States v. Coombs, 
    857 F.3d 439
    , 452 (1st Cir.
    2017).
    This climb is even steeper when — as in this instance —
    the challenged sentence falls within a properly calculated GSR.
    See Clogston, 
    662 F.3d at 592-93
    .      In challenging the substantive
    reasonableness of such a sentence, a defendant must "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, 
    637 F.3d 26
    , 30 (1st Cir. 2011) (quoting
    United States v. Navedo-Concepción, 
    450 F.3d 54
    , 59 (1st Cir.
    2006)).    Such a challenge cannot succeed when the district court
    "has articulated a plausible rationale and reached a defensible
    result."    Coombs, 857 F.3d at 452.
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    Here, the district court provided a plausible rationale
    for its sentencing decision. At the disposition hearing, the court
    acknowledged the parties' arguments and the circumstances of the
    offense.   The court then gave weight to certain mitigating factors
    but counterbalanced those factors by giving weight to an array of
    aggravating factors.     In that regard, the court stressed that the
    defendant had an "active role" in planning and executing both the
    armored truck robbery and the robbery at the bank.            Moreover — "as
    a direct result" of these robberies — many victims and their
    families were still suffering.            And the court expressed concern
    that the victims who died were young.           Given the thoroughness of
    the   court's    analysis    of     the    sentencing   factors      and    the
    circumstances    attendant   to     the    robberies,   we    hold   that   its
    rationale for the sentence imposed was plausible.
    So,   too,   we   hold    that    the   sentence    represents     a
    defensible result.      The offense of conviction was very serious,
    and people were killed during its commission.                   Although the
    defendant claims that he had instructed his confederates not to
    shoot during the armored truck robbery, he plainly set the stage
    for the mayhem that ensued.          He identified the targets of the
    robberies, planned the heists, supplied a firearm to be used, and
    participated in the commission of both the armored truck robbery
    and the earlier robbery.      Finally, the results of the defendant's
    plotting were horrific:      two innocent persons were killed and the
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    courier   was    severely   wounded.        Given   the   totality   of    the
    circumstances,     a   200-month     prison     sentence    constitutes        a
    defensible result.
    To   recapitulate,   the   sentence      imposed   rests      on   a
    plausible rationale and represents a defensible result. So viewed,
    the reasons offered by the defendant in mitigation of that sentence
    are insufficient to undermine it.           We hold, therefore, that the
    sentence is substantively reasonable.
    III
    We need go no further. For the reasons elucidated above,
    the challenged sentence is
    Affirmed.
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