United States v. Rodriguez-Rosado , 909 F.3d 472 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1530
UNITED STATES OF AMERICA,
Appellee,
v.
WILFREDO RODRÍGUEZ-ROSADO, a/k/a La Gorda, a/k/a Mogoyo, a/k/a
Pitin, a/k/a Mogo,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Thompson, Circuit Judges.
Vivianne M. Marrero, Assistant Federal Public Defender
Supervisor, Appeals Section, and Eric Alexander Vos, Federal
Public Defender, on brief, for appellant.
Thomas F. Klumper, Assistant United States Attorney Senior
Appellate Counsel, Mariana E. Bauzá-Almonte, Assistant United
States Attorney Chief, Appellate Division, and Rosa Emilia
Rodríguez-Vélez, United States Attorney, on brief, for appellee.
November 28, 2018
THOMPSON, Circuit Judge.
Conducting the Performance
Like the conductor of a grand symphony orchestra who
sets tempos, cues ensemble members, and modulates sounds, Wilfredo
Rodríguez-Rosado led his coworkers at American Airlines (and
others) in a decade-long, Puerto Rico-based, drug-smuggling
conspiracy. Performing as Rodríguez's instruments of crime, the
band of dope peddlers each played different, though no less
necessary, roles. Some jam-packed suitcases with cocaine; others
drove the cases to airports. Some weaseled the cocaine-stuffed
suitcases aboard airplanes; others tiptoed them out for
distribution. With drugs and cash zipping up and down the United
States, Rodríguez and his squad of oh-so-sneaky smugglers
trafficked ultimately more than 9,000 kilograms of cocaine.
Breaking Up the Band
But drug-smuggling isn't music to everyone's ears, least
of all law enforcement. In early 2009, after seizing six
suitcases, chockfull of cocaine, a combined federal and state
taskforce busted Rodríguez and his group. And later that year, a
grand jury charged them with various drug offenses. These crimes
carried serious time. Eventually, Rodríguez owned up to the
wrongdoings; he pleaded guilty to participating in a conspiracy to
possess with intent to distribute between 15 to 50 kilograms of
cocaine. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), 846.
- 3 -
Because Rodríguez accepted some responsibility for the offense,
the government in turn recommended a sentence of 14 to 17.5 years
— a substantial sentence, yes — but a fraction of the time he
could've served otherwise.1 The judge, consistent with the
government's proposed sentence range, gave Rodríguez 15 years'
incarceration.
Auditioning for a Better Deal
A few years later, Rodríguez got a shot at nabbing an
even lower sentence. In 2014, the U.S. Sentencing Commission
adopted Amendment 782.2 See United States Sentencing Commission,
Guidelines Manual, App. C Supp., Amend. 782 (reduction), 788
(retroactivity) (Nov. 2018). That change, which applies
retroactively, reduced by two levels the base offense level for
most drug offenses, including the crime to which Rodríguez pleaded
guilty. See id. Days after Amendment 782 took effect, little
wonder Rodríguez filed a motion seeking a reduced sentence.3
1 According to the plea agreement, the mandatory-minimum for
Rodríguez's crime was "a term of imprisonment of at least ten (10)
years, but no more than life; and a term of supervised release of
at least five (5) years." In addition, the sentencing court also
could have imposed a fine up to, but no more than, $4,000,000.00.
2 The U.S. Sentencing Commission is an agency that issues and
updates the federal sentencing guidelines. See 28 U.S.C. § 994.
3As both parties observe, applying Amendment 782 to Rodríguez
would reduce his guideline sentence range from 168-210 months to
135-168 months. See USSG § 2D1.1(c)(4) (2016); see also Rodríguez
I, 854 F.3d at 123.
- 4 -
But Rodríguez was not alone. Indeed, in the wake of
Amendment 782's ratification, thousands of prisoners nationwide,
jailed for drug crimes, suddenly became eligible for reduced
sentences. See United States v. Rodríguez-Rosado ("Rodríguez I"),
854 F.3d 122, 123 (1st Cir. 2017)(noting that "Amendment 782, as
expected, generated thousands of sentence reduction motions").
That the possible early release of tens of thousands of
incarcerated people would strain the criminal justice system was
not lost on the Sentencing Commission. See USSG App. C, Amend.
788 at 80–82 (imposing a one-year delay on the filing of Amendment-
782 motions to "permit courts and probation offices to effectively
supervise the increased number of defendants," ensure released
offenders' successful reentry to society, and promote public
safety). Nor was it lost on the Puerto Rico federal court. See
Rodríguez I, 854 F.3d at 123 (indicating that "the Puerto Rico
District Court" had to brainstorm how to "handl[e] the impending
onslaught of motions"). Indeed, just five days after Amendment
782's adoption, the Puerto Rico federal court devised a way to
keep pace with the motions — a formal, multi-step procedure called
Administrative Directive 14-426 ("AD 14-426"). See In Re: USSG
Amend. 782, Misc. No. 14-426 (ADC)(D.P.R. Nov. 6, 2014).
The procedure went something like this: After a
defendant files a motion seeking a reduced sentence under Amendment
782, the clerk of the court automatically refers the case to a
- 5 -
magistrate judge for "initial screening." The magistrate judge is
tasked with figuring out whether the defendant is eligible for a
lower sentence, and nothing more. Should the magistrate judge
find the defendant ineligible for less prison time, the motion
fails.4 But if the magistrate judge finds the defendant possibly
eligible for an earlier release date, the motion advances. At
stage two, the government, defense counsel and probation must "meet
to discuss the case" and attempt to "reach a stipulat[ed]"
agreement. And if that falls short, the district court, based on
the parties' memoranda, is charged with resolving the motion.
Marching To A Different Tune
The AD 14-426 process seems as clear as a bell. And
yet, after Rodríguez filed his motion, the district court — for
whatever reason — ignored the process: It leaped ahead of the
magistrate judge before he could chime in with an eligibility
determination, sua sponte denying the motion. As grounds for
rejecting the motion, the district court emphasized Rodríguez's
"maximum leader[ship]" role in "an elaborate drug trafficking
organization that operated for many years packaging and
transporting over 9,000 kilos of cocaine."
4A dissatisfied defendant may object to the magistrate
judge's eligibility determination to the presiding district judge
within 14 days.
- 6 -
Even so, about a month after the district court denied
Rodríguez's motion, the magistrate judge reviewed Rodríguez's
motion all the same. And he determined Rodríguez may be eligible
for a lower sentence.5 So as AD 14-426 contemplates, the magistrate
judge handed the motion back to the district court for the next
stage of the process.
Rodríguez I
The district court in a text order referencing its
initial denial again tossed Rodríguez's motion, rejecting the
magistrate judge's report and recommendation. Twice spurned in
his quest for a sentence reduction, Rodríguez appealed his case to
us. There, in Rodríguez I, we faced the question, among others,
of whether the district court had struck the wrong note by not
following its own internal, administrative rules, AD 14-426, when
it denied Rodríguez's motion. See Rodríguez I, 854 F.3d 122. And
we said yes. Against the case's backdrop of "unique
circumstances," we determined that "the prudent course" was to
vacate and remand, so the district court could comply with its own
administrative order in resolving Rodríguez's motion. Id. at 126.
In explaining our reasoning, we noted that since Amendment 782 had
taken effect, the Puerto Rico district court had gained a good
5The record does not reflect whether the magistrate judge
was aware of the district court's earlier rejection of Rodríguez's
motion.
- 7 -
deal of experience handling sentence-reduction motions under AD
14-426. Id. at 126. Therefore we reasoned remand would permit
the district court to apply "the wealth of experience that it ha[d]
gained adjudicating motions to reduce sentences" under AD 14-426.
Id. And finally, because the ultimate issue of whether to grant
a sentence reduction is a question Congress "committed to the
sentencing court's sound discretion," United States v. Zayas-
Ortiz, 808 F.3d 520, 523 (1st Cir. 2015), we uttered not a word on
"the proper outcome on remand." Rodríguez I, 854 F.3d at 126.
On the very same day we handed down our judgment in
Rodríguez I, the district court, seemingly on cue, swiftly heeded
the guidance we spelled out. The district court ordered the
parties to "file their positions and recommendations as to whether
[Rodríguez's] sentence may be reduced pursuant to Amendment 782."
As AD 14-426 provides, the parties met a few days later to discuss
the case, hoping to reach a stipulated agreement. But to no avail.
So, consistent with the district court's administrative order, the
parties filed memoranda hewing to the court's deadline.
Still Marching To A Different Tune
Having now dotted the "i's" and crossed the "t's," the
district court at last got its rightful turn to act under AD 14-
426. And it missed nary a beat. On the same day the parties filed
their briefs, the district court denied the motion, sending
Rodríguez away empty-handed for a third time. As justification
- 8 -
for the denial, the district court pointed yet again to its
original text order rejecting Rodríguez's motion. Regrettably,
when the district court denied Rodríguez's motion this last time,
the matter was still alive and well in our hands; we hadn't yet
issued our mandate returning the case to the district court. Of
course, the mandate did eventually issue – yet that happened
several days after the district court had already lowered the
baton.
Taking It From The Top Again
That brings us to today's crescendo, marking round two
of this case before this court. Rodríguez now appeals, advancing
three basic arguments. Rodríguez first charges the district court
lacked jurisdiction. Next, even if the district court had
jurisdiction despite our unissued mandate, he claims the district
court abused its discretion in denying his motion. And to that
end, assuming we find an abuse of discretion, he lastly presses us
to remand his case to a different district court judge. The
government, for its part, disagrees in toto. We assess each
contention in turn, and along the way, note more facts as necessary
to our analysis. But when all is said and done, because
Rodríguez's assertions fall flat, we affirm.
The Divestiture Rule
Because the district court denied Rodríguez's motion
before this court had issued its Rodríguez I mandate, both
- 9 -
Rodríguez and the government, singing from the same songsheet,
rightly agree that the court violated the divestiture rule. This
rule provides that filing a notice of appeal, for the most part,
shifts "jurisdiction" from the district court to the court of
appeals. Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58
(1982). But whether the district court order may all the same
stand is a bone of contention between the parties.
To hear Rodríguez tell it, because the district court
lacked "jurisdiction" under the divestiture rule, the court's
denial order is a legal nullity, with no operative effect. Pushing
back, the government counters that the divestiture rule is not a
per se jurisdictional rule and so, because applying the rule here
would defeat its purpose of judicial economy, we shouldn't do so.
Reviewing de novo, see Fafel v. DiPaola, 399 F.3d 403, 410 (1st
Cir. 2005), we discern no reversible error.
Guiding Principles
When a party files an appeal in a case, as mentioned
earlier, the divestiture rule ordinarily transfers the district
court's "jurisdiction" to the court of appeals. United States v.
Maldonado-Rios, 790 F.3d 62, 64 (1st Cir. 2015)(citation omitted);
United States v. Distasio, 820 F.2d 20, 23 (1st Cir.
1987)(observing that "[a] docketed notice of appeal suspends the
sentencing court's power" to act). And "until this court issue[s]
its mandate" for a decision, finalizing it, the district court
- 10 -
does not reacquire "jurisdiction" over the case. United States v.
Wells, 766 F.2d 12, 19 (1st Cir. 1985); United States v. Rush, 738
F.2d 497, 509 (1st Cir. 1984).
But because the judge-made divestiture rule isn't based
on a statute, it's not a hard-and-fast jurisdictional rule. See
Kontrick v. Ryan, 540 U.S. 443, 452-53 (2004)(observing that rules
of practice and procedure "do not create or withdraw federal
jurisdiction" because only Congress has the power to determine
subject-matter jurisdiction); United States v. Claiborne, 727 F.2d
842, 850 (9th Cir. 1984)(concluding that the divestiture rule isn't
jurisdictional because it's not based on a statute). The rule,
rather, is rooted in concerns of judicial economy, crafted by
courts to avoid the confusion and inefficiency that would
inevitably result if two courts at the same time handled the same
issues in the same case. See In re Padilla, 222 F.3d 1184, 1190
(9th Cir. 2000); United States v. Rodgers, 101 F.3d 247, 251 (2d
Cir. 1996). Hence its application turns on concerns of efficiency
and isn't mandatory. See, e.g., United States v. Leppo, 634 F.2d
101, 104 (3d Cir. 1980)(rejecting a "ritualistic application of
the divestiture rule"); 16A C. Wright, A. Miller, E. Cooper & C.
Struve, Federal Practice and Procedure, § 3949.1 n.53 (4th ed.
2018).
We think applying the bench-made divestiture rule today
would surely short-circuit its aim of judicial efficiency, and
- 11 -
here's why. For one thing, as in Rodríguez I, we again wouldn't
be reaching the merits of the district court's denial order,
notwithstanding our otherwise "compelling interest in the finality
of litigation" and judgments. Aybar v. Crispin-Reyes, 118 F.3d
10, 16 (1st Cir. 1997). For another thing, with jurisdiction back
in its hands, the district court, undoubtedly, would again deny
Rodríguez's motion, like every other time it has confronted — and
denied — the motion. And then, chances are that Rodríguez would
once more appeal his case to us. Which would present to us the
third variation on the original theme of this case, like an encore,
featuring the very same parties, the very same motion, the very
same denial order, and the very same arguments on the merits. That
seems to us too much to ask of a rule fashioned to ferret imprudence
out of the courts. See 20 Moore's Federal Practice - Civil §
303.32 (2018)(reasoning that courts ought not apply the
divestiture rule when doing so results only in "needless paper
shuffling"); see, e.g., United States v. Hickey, 580 F.3d 922, 927
(9th Cir. 2009)(opting against application of the divestiture rule
when "no useful purpose would be served by requiring" the district
court "to redecide the . . . motions")(citation omitted). And so,
- 12 -
we decline to apply the divestiture rule to Rodríguez's claim and
thus proceed to our merits review.6
The Motion on its Merits
Even if the district court had jurisdiction over the
motion, Rodríguez posits the district court abused its discretion
by denying it. He advances four broad arguments. Rodríguez's
lead contention faults the district court for improperly balancing
the 18 U.S.C. § 3553(a) factors, particularly those favoring a
reduction.7 Next he blasts the district court for coldshouldering
6 Let us be crystal-clear: Nothing in our opinion today
should be taken as giving district courts the green light to ignore
the divestiture rule. The district court in this case rushed the
process; it should've awaited our mandate before acting.
Ordinarily, our practice in such cases is to vacate the early entry
of a district court's order and remand "so that the district court,
once its jurisdiction has reattached, may consider the
issue . . . anew." United States v. George, 841 F.3d 55, 72 (1st
Cir. 2016). But because the district court here has clearly
demonstrated no interest in lowering the defendant's sentence, as
explained above, following our usual protocol today would be a
waste of time. This opinion is therefore confined wholly to the
narrow facts animating the case before us, and in no way diminishes
the importance of compliance with the divestiture rule.
7 The § 3553(a) factors include: (1) the nature and
circumstances of the offense and the history and characteristics
of the defendant; (2) the need for the sentence imposed to reflect
the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense; (3) the need for
the sentence imposed to afford adequate deterrence; (4) the need
to protect the public; (5) the need to provide the defendant with
educational or vocational training or medical care; (6) the kinds
of sentences available; (7) the Sentencing Guidelines range; (8)
the pertinent policy statements of the Sentencing Commission; (9)
the need to avoid unwanted sentencing disparities; and (10) the
need to provide restitution to victims. See 18 U.S.C. § 3553(a).
- 13 -
his post-sentencing conduct. Then he assails the district court
for grounding its denial order on "factors that had already been
accounted for." And lastly, he contends the denial of his motion
resulted in an unwarranted sentencing disparity between him and a
codefendant.8 The government sees it otherwise. Reviewing the
denial of Rodríguez's 18 U.S.C. § 3582(c)(2) motion for abuse of
discretion, see United States v. Vaughn, 806 F.3d 640, 642 (1st
Cir. 2015), we perceive no error.9
Guiding Principles
A federal court by and large "may not modify a term of
imprisonment once it has been imposed." 18 U.S.C. § 3582(c). But
8 Rodríguez also maintains that the district court failed to
properly follow AD 14-426 because the court failed to use "Form AO
247 in his denial." That contention is a non-starter.
Unfortunately for Rodríguez, because he advances this argument for
the first time in his reply brief – and nowhere else – we deem it
waived. See Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st
Cir. 1990)(holding that an argument "not made to the district court
or in appellant's opening brief, [but] surfacing only in his reply
brief" is waived).
9In the "Summary of the Argument" part of his brief, Rodríguez
asserts, among other things, that the district court failed to
"consider[] the guiding principles and policy statement in USSG §
1B1.10." Yet Rodríguez never fleshes out this argument. To the
extent Rodríguez is referring to the district court's failure to
either (1) assess any danger his early release may pose or (2)
consider evidence of his post-sentencing conduct, we address both
those issues above. But if Rodríguez is making different
arguments, because he fails to develop these contentions later in
his brief, we need not address them. See, e.g., United States v.
Trinidad–Acosta, 773 F.3d 298, 310 n.5 (1st Cir. 2014) (deeming
waived arguments alluded to in the brief's summary-of-the-argument
section but not developed elsewhere).
- 14 -
if the Sentencing Commission reduces a defendant's sentencing
guidelines range, Congress permits a federal court to reduce the
defendant's term of imprisonment, "after considering the factors
set forth in [§] 3553(a) . . . if such a reduction is consistent
with applicable policy statements" issued by the Commission. 18
U.S.C. § 3582(c)(2). Section 3582, however, in no way creates a
right to a sentence reduction. See USSG § 1B1.10 comment.
(backg'd.) (mentioning that a reduction under § 1B1.10 is
discretionary and "does not entitle a defendant to a reduced term
of imprisonment as a matter of right").
In determining whether a defendant should receive a
sentence reduction, the district court must engage in a two-step
inquiry. It first must determine "'the amended guideline range
that would have been applicable to the defendant' had the relevant
amendment been in effect at the time of the initial sentencing."
Dillon v. United States, 560 U.S. 817, 827 (2010)(quoting USSG §
1B1.10(b)(1)). The court then must weigh the § 3553(a) factors
"and determine whether, in its discretion, the reduction" is
"warranted in whole or in part under the particular circumstances
of the case." Id. In addition to the § 3553(a) factors, the
district court "shall consider the nature and seriousness of the
danger to any person or the community that may be posed by a
reduction in the defendant's term of imprisonment." USSG § 1B1.10,
comment. (n.1(B)(i-iii)). And the court "may consider post-
- 15 -
sentencing conduct of the defendant." Id. "[P]roceedings under
18 U.S.C. [§] 3582(c)(2) and [§ 1B1.10]," however, "do not
constitute a full resentencing of the defendant." § 1B1.10(a)(3).
The Pertinent Factors
Before deciding Rodríguez's motion, the district court
had before it Rodríguez's original and reduced guidelines ranges.
And the court had at its disposal the parties' "positions and
recommendations as to whether defendant's sentence may be reduced
pursuant to Amendment 782." The parties, including Rodríguez, in
their briefs addressed the § 3553(a) factors; what, if any, danger
Rodríguez's early release posed; his mitigating post-sentencing
conduct; his educational efforts, his completion of a drug abuse
program; and a letter of good behavior from his prison counselor.
And in a similar vein, pointing to § 1B1.10, the government's brief
expressly advised the district court it had to consider all the §
3553(a) factors. In declining to reduce Rodríguez's sentence, the
district court explicitly stated that it had made its decision
with "the benefit of the positions of the defendant (Docket No.
1533), the probation officer (Docket No. 1534) and the government
(Docket No. 1535)."10
We see no basis for reversal. So long as the district
court's order and the record as a whole reflects that it considered
10
Rodríguez laments that "[t]he district court's line order"
denying his motion was "terse[]," and therefore, insufficient.
- 16 -
all the pertinent factors — as here — we can safely assume it did
so. See, e.g., United States v. Vargas–Dávila, 649 F.3d 129, 130
(1st Cir. 2011); United States v. Dávila–González, 595 F.3d 42,
48–49 (1st Cir. 2010); United States v. Turbides–Leonardo, 468
F.3d 34, 40–41 (1st Cir. 2006). Thus contrary to Rodríguez's
suggestion, that the district court highlighted some factors but
not others in its denial order doesn't mean the court closed its
eyes to them. What that suggests, on the contrary, is that the
district court may have been unimpressed or unpersuaded by the
relevant factors it didn't reference. See United States v.
Morrisette, 429 F.3d 318, 325 (1st Cir. 2005)(citing United States
v. Martins, 413 F.3d 139, 154 (1st Cir. 2005)). Our caselaw
doesn't require district courts to "mention every § 3553(a) factor
nor intone any particular magic words." United States v. Denson
689 F.3d 21, 28 (1st Cir. 2012)(citation omitted). Most plausible
is that the district court found particularly glaring Rodríguez's
This is not reversible error. We have held numerous times that
"brevity must not be mistaken for inattention — especially so when,
as here, the sentence falls within guideline range." United States
v. Garay-Sierra, 832 F.3d 64, 68 (1st Cir. 2016) (internal
quotation marks and citation omitted); see also United States v.
Turbides–Leonardo, 468 F.3d 34, 40 (1st Cir. 2006) ("While the
court ordinarily should identify the main factors upon which it
relies, its statement need not be either lengthy or detailed.")
(citing United States v. Navedo-Concepción, 450 F.3d 54, 58 (1st
Cir. 2006)). So too here.
- 17 -
"maximum" leadership role, the ginormous amount of drugs he and
his group trafficked, the many years the organization operated,
and the intricacy of the conspiracy.
Enough said on this; on to the post-sentencing issue.
Post-Sentencing Rehabilitation Evidence
For his next fanfare, hanging his hat on Pepper v. United
States, 562 U.S. 476 (2011), Rodríguez takes the district court to
task for failing to consider his post-sentencing rehabilitation
evidence. He points to a "detailed letter [from his counselor at
the detention center] that one does not ordinarily see was provided
to the district court," arguing the district court should have,
but failed to, consider it. Multiple errors plague this line of
reasoning. As a preliminary matter, as we said earlier, simply
because the district court didn't expressly mention Rodríguez's
rehabilitative evidence doesn't mean it didn't consider it; the
record shows the district court adequately reviewed all the
evidence before it, which included Rodríguez's post-sentencing
conduct and the letter from his detention center counselor. See
Morrisette, 429 F.3d at 325.
Regardless, even if the district court had not
considered any of Rodríguez's rehabilitative evidence, Pepper is
inapt. In that case, the Supreme Court clarified that a district
court confronted with a "resentencing" motion "may consider
evidence of the defendant's post-sentence rehabilitation." Id. at
- 18 -
490. Pepper is a case about resentencing, so it does not
necessarily follow it holds sway in this case — a case about
reducing a sentence under § 3582(c)(2).11 See § 1B1.10(a)(3);
Dillon, 560 U.S. at 825-28 (holding that United States v. Booker,
543 U.S. 220 (2005), has no bearing on § 3582(c) proceedings);
see, e.g., United States v. Meridyth, 701 F. App'x 722, 725 (10th
Cir. 2017), cert. denied, 138 S. Ct. 2002 (2018)(concluding that
Pepper has no bearing on § 3582(c)(2) sentence-reduction motions).
But in any event, even if Pepper was apt, it is a given
that it would not get Rodríguez far: No one — not even Rodríguez
himself — contests that Pepper plainly says that a district court
"may," not must, consider post-sentencing conduct.12 Pepper, 562
11
Throughout Dillon, the Supreme Court numerous times
explains that § 3582(c)(2) sentence-reduction proceedings are
different from the "resentencing" proceedings at issue in Pepper.
560 U.S. at 825 ("The language of § 3582(c)(2) belies Dillon's
characterization of proceedings under that section. By its terms,
§ 3582(c)(2) does not authorize a sentencing or resentencing
proceeding."); id. at 826 ("Section 3582(c)(2)'s text, together
with its narrow scope, shows that Congress intended to authorize
only a limited adjustment to an otherwise final sentence and not
a plenary resentencing proceeding."); id. at 827 ("Because
reference to § 3553(a) is appropriate only at the second step of
this circumscribed inquiry, it cannot serve to transform the
proceedings under § 3582(c)(2) into plenary resentencing
proceedings."); id. at 831 ("As noted, § 3582(c)(2) does not
authorize a resentencing. Instead, it permits a sentence reduction
within the narrow bounds established by the Commission."); see
also Pepper, 562 U.S. at 490 (pointing to the part of Dillon
distinguishing between § 3582(c)(2) "sentence-modification
proceedings" and "plenary resentencing proceedings").
12
Section 1B1.10's commentary further proves the point. It
requires the district court only to weigh public safety factors,
- 19 -
U.S. at 490; see, e.g., United States v. Navarro, 693 F. App'x
459, 460 (7th Cir. 2017)("A district court may take into account
post-sentencing efforts at rehabilitation in deciding whether a
lower sentence is appropriate under § 3582(c)(2), but the court is
not required to do so.")(emphasis added); United States v. Parker,
762 F.3d 801, 812 (8th Cir. 2014)(explaining that Pepper does not
oblige a district court faced with a resentencing to give lower
sentences in light of rehabilitation evidence); see also Black's
Law Dictionary (10th ed. 2014)(defining the term "may" as "to be
permitted to" do something). Therefore despite Rodríguez's "44
pages of documentation" detailing his post-sentencing
rehabilitative conduct, although we might applaud his efforts,
unfortunately for him, because nothing required the district court
to weigh such mitigating evidence, we detect no error here.
Davila-Gonzalez, 595 F.3d at 49 ("Merely raising potentially
mitigating factors does not guarantee a lesser sentence."); see
also United States v. Anonymous Defendant, 629 F.3d 68, 78 (1st
Cir. 2010)(remarking that a district court's failure to assign
while it merely "permits," not mandates, the district court to
consider post-sentencing conduct when reviewing a sentence-
reduction motion under § 3582(c)(2).
- 20 -
particular significance to a specific mitigating factor is not of
reversible magnitude).
Counting Accounted-For Factors
Rodríguez next seems to contend the district court
couldn't base its denial of his motion on his "participation and
leadership role in the conspiracy," because those "were explicitly
taken into account not only in the plea agreement, but also in the
PSR calculation of the sentencing guidelines, and by the district
court at the time of sentencing." He relies on United States v.
Rosa-Martínez, a non-binding district court opinion. 108 F. Supp.
3d 15, 16 (D.P.R. 2015). This reliance is misplaced. Nowhere in
Rosa-Martínez does the district court say, let alone imply, that
in deciding whether to grant a § 3582(c)(2) reduction, a district
court cannot consider the circumstances of a defendant's crime.
And we decline to do so here. Accepting Rodríguez's argument would
certainly run smack up against the plain and unambiguous language
of § 3582's directive to consider "the factors set forth in section
3553(a) to the extent that they are applicable," which includes
(relevant here) "the nature of circumstances of the offense." See,
e.g., United States v. Monday, 390 F. App'x 550, 554-55 (6th Cir.
2010)(rejecting the argument that "a defendant's post-sentencing
conduct may not be considered in determining whether to grant
a . . . § 3582(c)(2)" motion, because that would "fly in the face"
of clear congressional directives). The bottom line is, because
- 21 -
Rodríguez has failed to show how the district court's consideration
of his "participation and leadership role in the conspiracy" was
an abuse of discretion, we spot no error on this basis.
Sentencing Disparity
For his final argument, when the district court denied
his sentence-reduction motion but granted Luis Padilla-Pérez's, a
coconspirator's, sentence-reduction motion, Rodríguez frets that
the court created an unwarranted disparity and so erred. But
Rodríguez's concern doesn't sing to us. Rodríguez first sketches
this argument in a barebones way, in the "Statement of the Case"
section of his brief. But he fails later in his brief to put meat
on the bones of his skeletal disparity contention. For instance,
although Rodríguez tells us he and Padilla-Pérez pleaded guilty to
trafficking the same amount of drugs as well as that they both
received a leadership role enhancement, he says nothing about "this
coconspirator's specific criminal involvement, his criminal
history, his career offender status, or his cooperation (if any)
with the government." United States v. Rodríguez-Adorno, 852 F.3d
168, 177 (1st Cir. 2017). And he mentions zippo about what sort
of leadership role enhancement Padilla-Pérez received. He doesn't
even furnish us with Padilla-Pérez's sentence.
On this scant record, we cannot reach a "determination
that he and his proposed comparator[] are similarly situated."
Id. (citing United States v. Reyes-Santiago, 804 F.3d 453, 467
- 22 -
(1st Cir. 2015)). A charge that the district court erred — pressed
singularly in the "Statement of the Case" section of an appellant's
brief yet not later renewed and developed in the "Argument" section
— hardly offers us enough to review on appeal. See Fed. R. App.
P. 28(a) (commenting that an appellant's brief must contain both
a statement of the case and appellant's argument — "under
appropriate headings" — and that the argument must spell out the
"appellant's contentions and the reasons for them"). Judges, after
all, "are not expected to be mindreaders." United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990). And so, because Rodríguez
makes his sentencing-disparity assertion "in a perfunctory manner,
unaccompanied by some effort at developed argumentation," it is
"waived." Id.
Even if Rodríguez hadn't waived his sentencing-disparity
argument, it still would be unavailing. For starters, a district
court's consideration of sentencing disparity is aimed primarily
at the "minimization of disparities among defendants nationally,"
not disparities among codefendants, and yet Rodríguez advances no
such comparator argument. United States v. Floyd, 740 F.3d 22, 39
(1st Cir. 2014) (quoting United States v. Vargas, 560 F.3d 45, 52
(1st Cir. 2009)). Putting that aside — as to his argument that he
suffered disparate treatment compared with Padilla-Pérez — the
record evidence belies this contention. The district court ably
found Rodríguez to be more blameworthy than all his fellow
- 23 -
confederates, including Padilla-Pérez. It found, in particular,
that Rodríguez was "the maximum leader" of the conspiracy. See
USSG § 3B1.1(a) (directing four-level enhancement for organizer or
leader). Even Rodríguez's plea agreement dubs him as "the Leader"
of "the Wilfredo Rodríguez-Rosado drug trafficking organization."
In short, "it is too obvious to warrant citation of authority that
an offender who sits at the top of a criminal hierarchy is not
similarly situated to his underlings." Floyd, 740 F.3d at 39.
Thus even on the merits, we find no abuse of discretion.
Finale
Having carefully worked our way through all the issues,
with the stage curtain lowering, we affirm the district court's
order denying Rodríguez's sentence-reduction motion.13
13Because we detected no abuse of discretion, and thus aren't
vacating and remanding, we don't reach the question of whether a
different district judge should resolve the motion.
- 24 -