United States v. Rivera-Clemente

United States Court of Appeals
For the First Circuit

No. 13-2275

UNITED STATES OF AMERICA,

Appellee,

v.

JOEL MANUEL RIVERA-CLEMENTE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. José A. Fusté, U.S. District Judge]

Before

Barron and Stahl, Circuit Judges,
and Sorokin, District Judge.

Joseph M. Bethony, with whom Gross, Minsky, Mogul, P.A. was
on brief, for appellant.
Francisco A. Besosa-Martínez, Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney,
were on brief, for appellee.

February 10, 2016


Of the District of Massachusetts, sitting by designation.
 SOROKIN, District Judge. The defendant Joel Manuel

Rivera-Clemente pleaded guilty to two offenses in connection with

the killing of a security guard at the Sabana Seca Navy Base in

Puerto Rico. The district court sentenced him to 322 months in

prison. On appeal, the defendant argues error in the district

court’s failure to apprise him of the consequences of his guilty

plea, as required by Federal Rule of Criminal Procedure

11(c)(3)(B), and in the district court’s alleged failure to comply

with the requirements of 18 U.S.C. § 3553 during the imposition of

his sentence. Finding no error warranting reversal, we affirm.

I. Background. We recite the basic facts of the case,

which are not in dispute, and reserve some facts for later

discussion. Because the defendant pleaded guilty, we draw from

the stipulated version of the facts accompanying the plea

agreement, United States v. Jones, 551 F.3d 19, 21 (1st Cir. 2008),

as well as from “the plea colloquy, the unchallenged portions of

the pre-sentence investigation report (PSR), and the sentencing

hearing transcript.” United States v. Ortiz-García, 665 F.3d 279,

281 (1st Cir. 2011). On October 19, 2011, the defendant and a

minor, denoted E.R.P., entered the Sabana Seca base to steal

copper.1 Immediately thereafter, Frankie Rondon-Rosario, a base

1
The parties stipulated that the Sabana Seca Navy Base is
within the special maritime and territorial jurisdiction of the
United States.

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security guard, escorted the defendant and E.R.P. from the base.

In the course of this interaction, Rondon-Rosario displayed a

weapon.

Later that night, the defendant and E.R.P. returned to

the base intending to steal what they believed to be Rondon-

Rosario’s gun. With them were Josean Clemente and another minor,

denoted K.T.S., both of whom carried a firearm. Once Rondon-

Rosario was identified as the guard who had escorted the defendant

from the base earlier that night, Josean Clemente and K.T.S.

approached Rondon-Rosario, told him they intended to rob him, and

then shot Rondon-Rosario dead. The two shooters then searched the

victim and found only a fake firearm.

As is relevant to this appeal, Count One of the

superseding indictment charged the defendant with aiding and

abetting murder, in violation of 18 U.S.C. §§ 1111, 7(3) & 2, and

Count Two charged him with aiding and abetting in the carrying and

use of a firearm during and in relation to a crime of violence

causing death, in violation of 18 U.S.C. §§ 924(c)(1)(A), 924(j)(1)

& 2. Prior to trial, the defendant pleaded guilty to these

offenses in a plea agreement entered into under Fed. R. Crim. P.

11(c)(1)(A) & (B).2 In the plea agreement, the parties calculated

2
Pursuant to the plea agreement, the government agreed to
dismiss Count Three of the superseding indictment, which charged
the defendant with interfering with commerce by robbery in
violation of 18 U.S.C. § 1951(a).

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the guideline sentencing range (GSR) for both counts as 270-322

months in prison. The government and the defendant then

recommended in the plea agreement a sentence of 276 months in

prison. The district court accepted the defendant’s guilty plea

at the change-of-plea hearing and ordered preparation of a PSR.

At sentencing, the government and the defendant

requested the 276-month sentence in accordance with the

recommendation in the plea agreement. The district court concurred

with the parties' GSR calculations but, contrary to the

recommendation of the parties, imposed a high-end guideline

sentence of 322 months. The 322-month sentence is forty-six months

longer than the term of imprisonment recommended by the parties in

the plea agreement.3

II. Discussion. This appeal followed, in which the

defendant challenges both the district court’s failure to warn him

of the consequences of his guilty plea, and its imposition of his

sentence. We consider these contentions in turn.

A. Plea Hearing. The defendant contends that the

district court violated Fed. R. Crim. P. 11(c)(3)(B) by failing to

3
Because the district court did not adopt the recommendation
of the parties, the defendant is not precluded from bringing this
appeal by the plea agreement's appeal-waiver provision. Neither
party disputes this point. The district court appeared to believe
that any within-guidelines sentence would preclude appeal under
the waiver provision. We have previously rejected just such a
reading of an identical waiver provision. See United States v.
Ocasio-Cancel, 727 F.3d 85, 88-89 (1st Cir. 2013).

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inform him, at the change-of-plea hearing, that he could not

withdraw his guilty plea in the event that the court did not follow

the sentencing recommendation in the plea agreement. Because the

defendant entered into a plea agreement with the government under

Fed. R. Crim. P. 11(c)(1)(B), in which the government recommended

a particular sentence, Rule 11 required the court to inform the

defendant that he had “no right to withdraw the plea if the court

[did] not follow the recommendation . . . .” Fed. R. Crim. P.

11(c)(3)(B). The court did not give this warning at the change-

of-plea hearing.

However, at no point prior to the appeal did the

defendant seek to withdraw his plea or object to the district

court’s failure to provide the required warning, so we review only

for plain error. Ortiz-García, 665 F.3d at 285. “Plain error

review is not appellant-friendly.” United States v. Cortés-

Medina, No. 14-1101, 2016 WL 67358, at *2 (1st Cir. Jan. 6, 2016).

It requires the defendant to “show that: (1) an error occurred;

(2) the error was plain; (3) the error affected the defendant’s

substantial rights; and (4) the error ‘seriously affect[ed] the

fairness, integrity or public reputation of judicial

proceedings.’” Ortiz-García, 665 F.3d at 285 (quoting United

States v. Rivera-Maldonado, 560 F.3d 16, 19 (1st Cir. 2009)).

The district court’s failure to give the warning

required by Fed. R. Crim. P. 11(c)(3)(B) is an error that is plain

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on the record. See United States v. Hernández-Maldonado, 793 F.3d

223, 226 (1st Cir. 2015). Moreover, it relates to a “core concern”

of Rule 11, namely the defendant’s “knowledge of the consequences

of the guilty plea.” See United States v. Noriega-Millán, 110

F.3d 162, 166-67 (1st Cir. 1997).

Whether the error affected the defendant’s substantial

rights is another matter. “To meet [this] third prong of the plain

error test, ‘a defendant who seeks reversal of his conviction after

a guilty plea, on the ground that the district court committed

plain error under Rule 11, must show a reasonable probability that,

but for the error, he would not have entered the plea.’”

Hernández-Maldonado, 793 F.3d at 226 (quoting United States v.

Dominguez Benitez, 542 U.S. 74, 83 (2004)). This the defendant

has failed to do.

To reach this conclusion, we consider a number of

factors, including whether “the court made statements at the

change-of-plea hearing that put the defendant on plain notice that

it was not bound by the plea agreement.” United States v. Saxena,

229 F.3d 1, 8 (1st Cir. 2000); accord Noriega-Millán, 110 F.3d at

168.4 We also consider “the defendant’s statements at the

4
Saxena and Noriega-Millán each considered an earlier version
of Fed. R. Crim. P. 11, in which Rule 11(e)(2) required a court to
inform a defendant who entered a non-binding plea agreement that
the defendant could not withdraw his or her plea if the court did
not follow the plea-bargained sentencing recommendation. See
Saxena, 229 F.3d at 8; Noriega-Millán, 110 F.3d at 165. Although

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colloquy, ‘the overall strength of the Government’s case and any

possible defenses that appear from the record,’ and the inclusion

of the warning in the plea agreement.” Hernández-Maldonado, 793

F.3d at 226 (quoting Dominguez Benitez, 542 U.S. at 84-85).

Here, despite failing to offer the defendant the Rule

11(c)(3)(B) warning at the plea hearing, the district court advised

the defendant that each count carried a maximum punishment of life

imprisonment (with the sentence on Count Two running consecutively

as a matter of law), and confirmed the defendant understood. On

the heels of this warning, the Court explained that it had “the

discretion to sentence [the defendant] above the guidelines.” Next

the Court told the defendant that it was not bound by the

sentencing recommendation in his plea agreement.5 The defendant

then confirmed that he understood. All of these warnings came

after the court had unequivocally told the defendant that, as a

result of his plea, “[t]here will be no trial.”

this provision now appears as Rule 11(c)(3)(B), the requirement
“has not changed in substance.” Dominguez Benitez, 542 U.S. at 78
n.3.
5 Specifically, the court said to the defendant (and to his

co-defendant who also changed his plea at the hearing) that “[y]ou
should know that any sentencing recommendation that may come before
me is just a recommendation. I have an obligation to look at them,
and if I can follow them, because I understand that they are
appropriate for your cases, I will. If I understand for some
reason that the recommendations are not appropriate for your case,
of course I will not follow them.”

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 Moreover, the defendant’s plea agreement delineated that

“the defendant may not withdraw [his] plea solely as a result of

the sentence imposed and the Court is not bound by this plea

agreement.” See Saxena, 229 F.3d at 8-9 (where the defendant’s

plea agreement stated that he “may not withdraw his plea of guilty

regardless of what sentence is imposed,” and where “the court made

statements at the change-of-plea hearing that put the defendant on

plain notice that it was not bound by the plea agreement,” there

was no reversible error in the district court’s failure to warn

the defendant that he could not withdraw his non-binding plea if

the court did not follow the plea agreement’s sentencing

recommendation).

The defendant argues that he did not read or understand

the portions of his plea agreement concerning the non-binding

nature of the sentencing recommendation or his inability to

withdraw his plea. This argument fails. The defendant, who

required an interpreter at the change-of-plea hearing, certified

in the plea agreement that he read the agreement, that he

“carefully reviewed every part of it” with his attorney, and that

his lawyer translated the plea agreement into Spanish which left

the defendant with “no doubts as to the contents of the agreement.”

The defendant’s attorney confirmed these statements in his

separate certification in the plea agreement in which he certified

both that he “translated the plea agreement” and that he “explained

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it in the Spanish language” to the defendant. Moreover, the

defendant stated at the plea colloquy that he discussed his guilty

plea with his attorney and was satisfied with his lawyer’s

services. See Dominguez Benitez, 542 U.S. at 85 (where the

defendant’s plea agreement was translated into his native language

and it “specifically warned that he could not withdraw his plea if

the court refused to accept the Government’s recommendations,” the

court concluded that these facts tend “to show that the Rule

11[(c)(3)(B)] error made no difference to the outcome . . . .”);

Hernández-Maldonado, 793 F.3d at 226 (finding no plain error in

the court’s failure to give the Rule 11(c)(3)(B) warning where the

warning appeared in the plea agreement and the defendant “stated

that he had time to consult with his attorney and was satisfied

with the attorney’s services”). And, at sentencing, defense

counsel represented that the PSR also was translated for the

defendant. Nothing affirmative in the record suggests that these

translations did not occur (as the defendant now contends in his

brief without record citation) or that the defendant failed to

appreciate the terms of his plea.

To be sure, “this court has repeatedly stated that the

defendant’s acknowledgement of a signed plea agreement or other

written document will not substitute for Rule 11’s requirement of

personal examination by the district court.” Noriega-Millán, 110

F.3d at 164. Here, however, there is more than just the plea

- 9 -
agreement. To summarize, the “court’s admonitions, the

[defendant’s] statements, and the contents of the plea agreement

combined to put the [defendant] on ample notice of the consequences

of his plea.” Saxena, 229 F.3d at 9. This is to say that “had

the court told the [defendant] explicitly that he would not be

allowed to retract his plea if the court rejected the recommended

sentence, the sum total of the [defendant’s] knowledge would not

have been increased and his willingness to plead would, in all

probability, have been unaffected.” Id. Consequently, the

district court’s violation of Rule 11(c)(3)(B) does not rise to

the level of plain error.6

B. Sentencing. Turning to the defendant’s challenges

to his sentence, we bifurcate our review and first decide whether

the sentence is procedurally reasonable and then consider whether

it is substantively reasonable. See United States v. Clogston,

662 F.3d 588, 590 (1st Cir. 2011).

Before addressing the defendant’s arguments, however, we

review the relevant facts. At sentencing, the district court heard

6 The defendant also argues error in the court’s failure to
put his interpreter under oath during the change-of-plea and
sentencing hearings. It is true that the court failed to swear
the interpreter at each hearing, but the defendant did not object
below and we therefore conclude that these omissions do not rise
to the level of plain error because there is nothing in the record
to suggest that the defendant did not understand the proceedings
or that his substantial rights were affected otherwise.

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from defense counsel who urged the court to follow the sentencing

recommendation in the plea agreement, particularly in light of the

defendant’s youth, his lack of a criminal record, and the fact

that he did not intend for the victim to be killed. The prosecutor

likewise recommended the sentence in the plea agreement. The court

also heard briefly from the defendant, and then –- at length –-

from the mother of the victim. The court spoke with the victim’s

mother about the victim’s qualities and her grief. She told the

court that she viewed the parties’ sentencing recommendation as

too lenient, and the court then discussed with her the difficulties

inherent in arriving at a just sentence. When the court finished

speaking with the victim’s mother, he calculated the GSR, expressly

surmised from the record that the defendant had engaged in previous

undetected criminal conduct,7 and immediately thereafter imposed

the defendant’s sentence of 322 months in prison. With the arc of

the sentencing hearing in mind, we turn to the issues presented.

1. Procedural Reasonableness. First, the defendant

argues that the district court failed to consider at sentencing

the factors set forth in 18 U.S.C. § 3553(a). Specifically, the

defendant contends that the court violated § 3553(a) by overlooking

the defendant’s history and characteristics, his supposedly

7Both defense counsel’s oral confirmation at the sentencing
hearing and the unchallenged facts set forth in the PSR amply
support the district court’s conclusion.

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limited involvement in the underlying crime, and whether the

sentence imposed was greater than necessary to achieve the goals

of sentencing. We are not persuaded.

The defendant concedes that plain error review is

appropriate here because he did not object at sentencing. “A

violation of § 3553’s mandates will warrant reversal under plain

error review only if the defendant demonstrates ‘a reasonable

probability that, but for the error, the district court would have

imposed a different, more favorable sentence.’” United States v.

Rodríguez, 731 F.3d 20, 25 (1st Cir. 2013) (quoting United States

v. Mangual-Garcia, 505 F.3d 1, 15 (1st Cir. 2007)). The

defendant’s uphill battle is only intensified by the fact that he

was sentenced to 262 months’ imprisonment for the murder

conviction, a sentence at the high end of – but within – the

guideline sentencing range.8 “As the Supreme Court has explained,

the guideline range itself bears a direct relation to the

compendium of considerations listed in section 3553(a) and, thus,

8
As for the count against the defendant for aiding and
abetting in the carrying and use of a firearm during and in
relation to a crime of violence causing death, the PSR noted,
validly, that this count is “precluded from Guideline computations
as it mandates a fixed consecutive term of at least five (5) years
imprisonment.” See United States v. Vargas- García, 794 F.3d 162,
166 (1st Cir. 2015). In any event, the court imposed the lowest
legally authorized sentence on this count, the sixty month
mandatory minimum required by statute, which was below the parties’
sixty-six month recommendation.

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a within-the-range sentence ‘likely reflects the section 3553(a)

factors.’” Cortés-Medina, 2016 WL 67358 at *4 n.4 (quoting Rita

v. United States, 551 U.S. 338, 355 (2007)).

Although the court here did not state explicitly the

factors set forth in § 3553(a), we “have never required that

sentencing courts undertake ‘an express weighing of mitigating and

aggravating factors.’” United States v. Ocasio-Cancel, 727 F.3d

85, 91 (1st Cir. 2013) (quoting United States v. Lozada-Aponte,

689 F.3d 791, 793 (1st Cir. 2012)). “Instead, we have taken a

pragmatic approach and recognized that ‘a court’s reasoning can

often be inferred by comparing what was argued by the parties or

contained in the pre-sentence report with what the judge did.’”

Id. (quoting United States v. Jiménez-Beltre, 440 F.3d 514, 519

(1st Cir. 2006) (en banc)). The record establishes the district

court considered the § 3553(a) factors.

With regard to the defendant’s history and

characteristics, the district court heard argument on, or

expressly considered, the defendant’s youth and lack of criminal

history or trouble with substance abuse. The court indicated an

understanding that the defendant had no criminal record or history

of drug abuse, and heard from defense counsel that the defendant

was only eighteen at the time of the offense. Based on the gravity

of the murder for which the defendant was convicted, however, the

court expressed skepticism that this incident was, in fact, the

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defendant’s first foray into criminal activity, and defense

counsel agreed that the court’s perspective was valid.

The defendant is correct, however, that the district

court did not discuss his upbringing, but such an omission is not

fatal where, as here, the defendant did not raise this particular

issue at sentencing. See Gall v. United States, 552 U.S. 38, 54

(2007) (“[I]t was not incumbent on the District Judge to raise

every conceivably relevant issue on his own initiative”). Although

defense counsel did mention briefly that the defendant did not

complete high school, and the court did not discuss it further,

the court was “not required to address frontally every argument

advanced by the parties, nor need it dissect every factor made

relevant by 18 U.S.C. § 3553 ‘one by one, in some sort of rote

incantation, when explicating its sentencing decision.’” See

United States v. Turbides-Leonardo, 468 F.3d 34, 40-41 (1st Cir.

2006) (quoting United States v. Dixon, 449 F.3d 194, 205 (1st Cir.

2006)).

Furthermore, the district court’s reasoning from the

bench at sentencing indicates its consideration of certain factors

relevant to whether the sentence was no greater than necessary to

effectuate the goals of sentencing. See 18 U.S.C. § 3553(a)(2).

The court took into account the rights of the victim, which speaks

to the need for just punishment. The court also highlighted the

seriousness of the offense in at least two instances: it noted

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that the “death of a human being is a very serious matter,” and it

pointed out, plausibly, that even though the defendant was being

sentenced for second-degree murder, the facts of the case supported

the more severe charge of murder in the first degree.9 The court’s

colloquy at sentencing demonstrates a consideration and weighing

of these factors against and in light of the defendant’s youth and

lack of a criminal record, as well as in the context of the

difficulty of fashioning sentences.

Finally, the defendant’s argument that the district

court misjudged his involvement in the offense is without merit.

The defendant contends that he was less culpable than his

compatriots because he sought only to rob the victim and did not

fire the fatal shots. The district court disagreed. It cogently

explained its view that on the facts of this case, which the record

establishes it knew intimately, the defendant bore equal

9The defendant is correct that the district court did not
expressly consider factors relating to deterrence of other
criminal conduct, protecting the public from the defendant, or the
treatment needed by the defendant, see 18 U.S.C. § 3553(a)(2), but
this does not rise to the level of reversible error. See Cortés-
Medina, 2016 WL 67358, at *4 (“This court has not required
sentencing courts to walk, line by line, through the section
3553(a) factors.”); United States v. Ramos, 763 F.3d 45, 57 (1st
Cir. 2014) (“A sentencing court is required to consider relevant
§ 3553(a) factors, but need not address each one.”). In any event,
the court’s discussion of the seriousness of the offense, the
effect on the victim’s family, and the existence of other uncharged
responsible persons makes manifest the court’s consideration of
these factors.

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responsibility.10 In all, we discern no plain error in the court’s

consideration of the § 3553(a) factors. See United States v.

Lucena-Rivera, 750 F.3d 43, 54 (1st Cir. 2014) (noting that a

court’s failure to consider expressly the § 3553(a) factors does

not constitute plain error where the record indicates that the

court in fact considered relevant § 3553(a) factors at sentencing);

United States v. Ramos, 763 F.3d 45, 57-58 (1st Cir. 2014); Ocasio-

Cancel, 727 F.3d at 90-91.

The district court’s sufficient consideration of the §

3553(a) factors leads also to our rejection of the defendant’s

second procedural challenge to his sentence – that the court failed

to explain the sentence under 18 U.S.C. § 3553(c). Section 3553(c)

provides that “the court ‘at the time of sentencing, shall state

in open court the reasons for its imposition of the particular

sentence’ and, if the GSR spans more than 24 months, shall also

state ‘the reason for imposing a sentence at a particular point

within the range.’” Cortés-Medina, 2016 WL 67358, at *4 (quoting

18 U.S.C. § 3553(c) & (c)(1)). “The court’s explanation is

adequate for purposes of § 3553(c)(1) if it ‘specifically

identif[ies] some discrete aspect of the defendant’s behavior and

10 The court reasoned that “when you go into a property at
night to do something like this, and you are armed, or the – or
your colleagues are armed, don’t you think that it’s reasonable to
assume that something can go really wrong and that a death can
result, a murder can result?”

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link[s] that aspect to the goals of sentencing.’” United States

v. Rivera-Gonzalez, 626 F.3d 639, 646-47 (1st Cir. 2010)

(alteration in original) (quoting United States v. Vazquez-Molina,

389 F.3d 54, 58 (1st Cir. 2004), vacated on other grounds, 544

U.S. 946 (2005)). Accordingly, “the sentencing court need only

identify the main factors behind its decision,” and “need not ‘be

precise to the point of pedantry.’” United States v. Vargas-

García, 794 F.3d 162, 166 (1st Cir. 2015) (quoting Turbides-

Leonardo, 468 F.3d at 40). Because the defendant did not object

below, we adhere to the familiar plain error standard.

Given that the court took into account relevant § 3553(a)

factors – such as the defendant’s history and characteristics, the

seriousness of the offense, and the need for just punishment – in

explaining and arriving at the sentence, we find no plain error

here. See Rivera-Gonzalez, 626 F.3d at 647 (concluding that the

court did not plainly err in explaining its sentence where the

court considered the substance underlying relevant § 3553(a)

factors in justifying the sentence). The transcript makes clear

that the court weighed the relevant sentencing factors differently

than the parties, giving greater weight to the seriousness of the

offense, and discounting the significance of the defendant’s

status as a first time offender and very young man in light of his

history of prior uncharged misconduct and the nature of the

offense. As a result, the court imposed a high-end, rather than

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low-end, guideline sentence tempered, slightly, by imposing a

consecutive sentence of sixty rather sixty-six months on Count

Two. In all, we conclude that the defendant’s sentence is

procedurally sound.11

2. Substantive Reasonableness. Finally, the defendant

contends that his sentence is substantively unreasonable. We

disagree.

“Challenging a sentence as substantively unreasonable

is a burdensome task in any case, and one that is even more

burdensome where, as here, the challenged sentence is within a

properly calculated GSR.” Clogston, 662 F.3d at 592-93. Although

the “linchpin of a [substantively] reasonable sentence is a

plausible sentencing rationale and a defensible result[,]” United

States v. Pol-Flores, 644 F.3d 1, 4-5 (1st Cir. 2011) (quoting

United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)), a

“defendant who protests his within-the-range sentence” as

substantively unreasonable “‘must adduce fairly powerful

11
In any event, even if we were to conclude that the district
court failed to explain why a sentence at a particular point within
the GSR was appropriate, as required by § 18 U.S.C. § 3553(c)(1),
such an error would not warrant reversal here because it did not
affect the defendant’s substantial rights. See United States v.
Gilman, 478 F.3d 440, 447-48 (1st Cir. 2007) (noting that a
violation of § 3553(c)(1) did not affect the defendant’s
substantive rights where the court’s reasoning “tie[d] the
defendant’s specific conduct to Section 3553(a) considerations and
to specific relevant goals of sentencing,” and thus the defendant
had failed to show “that the court would be persuaded to alter its
course on a resentencing”).

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mitigating reasons and persuade us that the district court was

unreasonable in balancing pros and cons despite the latitude

implicit in saying that a sentence must be reasonable.’” Clogston,

662 F.3d at 593 (quoting United States v. Madera-Ortiz, 637 F.3d

26, 30 (1st Cir. 2011)). Although the defendant did not object

below on the ground of substantive unreasonableness, it is unclear

whether we are to review for abuse of discretion or plain error.

See United States v. Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir.

2015). We need not resolve this issue here, however, because even

under the abuse of discretion standard -- which is more favorable

to the defendant -- his claim fails.

This is so because the defendant puts forth no “powerful

mitigating reasons” to support a finding of substantive

unreasonableness here. He stands convicted of murder, a most

serious offense. The district court heard from the victim’s mother

how the murder devastated her family and, in doing so, considered

the need for punishment; it also considered the defendant’s

significant role in this grave offense and his previous criminal

activity. In the end, it arrived at a sentence that we cannot

conclude is erroneous. See United States v. Colón-Rodríguez, 696

F.3d 102, 108 (1st Cir. 2012) (determining that the defendant’s

sentence was not substantively unreasonable where the court based

it on consideration of the § 3553(a) factors, and “articulate[d]

a plausible rationale and arrive[d] at a sensible result”

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(alteration in original) (quoting United States v. Carrasco-De-

Jesús, 589 F.3d 22, 30 (1st Cir. 2009))).

Despite the defendant’s protestations on appeal, the

district court did in fact account for the defendant’s purported

limited involvement in the offense, his youth, and his lack of a

criminal record or history of substance abuse, but found these

considerations carried less weight than the defendant thought they

should. Likewise, the district court gave more weight to the

seriousness of the offense.12 The sentencing court has “the

latitude to ‘emphasize the nature of the crime over the mitigating

factors,’ and such a ‘choice of emphasis . . . is not a basis for

a founded claim of sentencing error.’” Ramos, 763 F.3d at 58

(quoting United States v. Zapata, 589 F.3d 475, 488 (1st Cir.

2009)).13

12 The defendant fares no better in arguing that his sentence
is unreasonable because it is identical to that imposed upon Josean
Clemente, the shooter in this case who, in the eyes of the
defendant, played a larger role in the murder. In support, the
defendant relies on United States v. Cirilo-Muñoz, 504 F.3d 106,
125-26 (1st Cir. 2007), in which Judge Torruella denounced
sentencing an aider and abettor defendant to the same or greater
sentence than that imposed on the principal. Judge Torruella’s
separate opinion in Cirilo-Muñoz is not controlling. See Cirilo-
Muñoz, 504 F.3d at 107. And, in any event, Cirilo-Muñoz is of no
help to the defendant because in that case the aider and abettor’s
sentence was particularly egregious in light of the district
court’s description of him as a “minor” participant in the offense.
Id. at 125. That type of disparity in culpability is not present
on the facts of this case.
13 The defendant contends also that the district court
thwarted appellate review of his sentence by failing to disclose
to defense counsel a Statement of Reasons form. Because we affirm

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 III. Conclusion. For the foregoing reasons, we affirm

the sentence imposed by the district court.

the defendant’s sentence on the basis of the sentencing transcript,
the defendant’s contention is unavailing. To the extent the
defendant argues that the court committed reversible error simply
by failing to disclose to him the Statement of Reasons form, such
an argument fails for the same reason: because the court
adequately explained the defendant’s sentence, he cannot show
prejudice resulting from the form’s absence. See United States v.
Vázquez-Martínez, No. 14-1648, 2016 WL 324971, at *5 (1st Cir.
Jan. 27, 2016).

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