United States Court of Appeals
For the First Circuit
No. 15-1234
UNITED STATES OF AMERICA,
Appellee,
v.
ENGLIS PÉREZ, t/n ENGLIS EDUARDO PÉREZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Kayatta, Selya and Stahl,
Circuit Judges.
Michael R. Hasse on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Thomas F. Klumper, Assistant United States Attorney,
Senior Appellate Counsel, on brief for appellee.
April 22, 2016
SELYA, Circuit Judge. This sentencing appeal embodies
four discrete claims of error. Having scrutinized these claims in
light of the record as a whole, we affirm the appellant's sentence.
I. BACKGROUND
The critical facts are largely uncontested. Defendant-
appellant Englis Pérez, a Dominican national, journeyed to
Venezuela in early 2014 to undertake a cocaine-smuggling venture.
Shortly after midnight on March 4, 2014, federal authorities
intercepted a 30-foot speedboat — operating without lights,
powered by two outsized outboard engines, and equipped with 23
extra fuel tanks — that had left port in Venezuela and was
approaching the coast of Puerto Rico. The vessel was carrying 38
bales, which contained in the aggregate approximately 1,056
kilograms of cocaine.
Only two persons were aboard the vessel when it was
intercepted: the appellant and an individual later identified as
Gregorio Rodríguez. A federal grand jury sitting in the District
of Puerto Rico returned a six-count indictment against the pair,
charging them with conspiracy to import 5 or more kilograms of
cocaine into the United States, in violation of 21 U.S.C.
§§ 952(a), 960, and 963 (count 1); conspiracy to possess with
intent to distribute 5 kilograms or more of cocaine, in violation
of 21 U.S.C. §§ 841(a)(1) and 846 (count 2); aiding and abetting
in the possession with intent to distribute 5 kilograms or more of
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cocaine, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1)
(count 3); aiding and abetting in the importation of 5 kilograms
or more of cocaine, in violation of 18 U.S.C. § 2 and 21 U.S.C.
§§ 952 and 960 (count 4); conspiracy to possess with intent to
distribute 5 or more kilograms of cocaine on board a vessel subject
to the jurisdiction of the United States, in violation of 46 U.S.C.
§§ 70502(c)(1)(D), 70503(a)(1), 70504(b)(1) and 70506(a) and (b)
(count 5); and aiding and abetting in the possession with intent
to distribute 5 kilograms or more of cocaine on board a vessel
subject to the jurisdiction of the United States, in violation of
18 U.S.C. § 2 and 46 U.S.C. §§ 70502(c)(1)(D), 70503(a)(1),
70504(b)(1) and 70506(a) (count 6). Although the appellant
originally maintained his innocence, he shortly entered a straight
guilty plea to all six counts of the indictment.
Following the preparation of a presentence investigation
report and some related skirmishing, the district court convened
the disposition hearing on January 27, 2015. The November 2014
edition of the sentencing guidelines controlled. See United States
v. Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. 1990). The court
calculated the appellant's guideline sentencing range (GSR) as
135-168 months and imposed a sentence at the bottom of that range:
135 months. This timely appeal ensued.
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II. ANALYSIS
In this case, the appellant challenges both the
procedural underpinnings and the substantive reasonableness of his
sentence. Overall, claims of sentencing error are reviewed for
abuse of discretion. See Gall v. United States, 552 U.S. 38, 51
(2007); United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008).
With respect to procedural claims, however, the abuse-of-
discretion standard of review is not monolithic. Within it, "we
assay the district court's factfinding for clear error and afford
de novo consideration to its interpretation and application of the
sentencing guidelines." United States v. Flores-Machicote, 706
F.3d 16, 20 (1st Cir. 2013).
Against this backdrop, we turn to the appellant's
asseverational array. Because a reviewing court, in the sentencing
context, should first address claims of procedural error, see
Martin, 520 F.3d at 92, we start there.
A. Mitigating Role.
The appellant asserts that the district court committed
procedural error when it refused to reduce his GSR to compensate
for the appellant's role in the offense. This claim was preserved
below and, thus, our review is for clear error. See United States
v. Garcia, 954 F.2d 12, 16 (1st Cir. 1992).
USSG §3B1.2(b) provides for reducing a defendant's base
offense level by two levels if the defendant was a minor
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participant in the criminal activity. The appellant argues that
he was entitled to the benefit of this adjustment,1 which would
have lowered his GSR (and, presumably, his sentence). We do not
agree.
A defendant who seeks a mitigating role adjustment bears
the burden of proving, by a preponderance of the evidence, that he
is entitled to the downward adjustment. See United States v.
Vargas, 560 F.3d 45, 50 (1st Cir. 2009). "To qualify as a minor
participant, a defendant must prove that he is both less culpable
than his cohorts in the particular criminal endeavor and less
culpable than the majority of those within the universe of persons
participating in similar crimes." United States v. Torres-
Landrúa, 783 F.3d 58, 65 (1st Cir. 2015) (quoting United States v.
Santos, 357 F.3d 136, 142 (1st Cir. 2004)). Here, we need go no
further than the first prong of this two-part test.
Role-in-the-offense determinations are notoriously
fact-specific. See United States v. Meléndez-Rivera, 782 F.3d 26,
28 (1st Cir. 2015); United States v. Rosa-Carino, 615 F.3d 75, 81
(1st Cir. 2010). In this instance, the district court explicitly
found, as a matter of fact, that the two participants in the
smuggle (the appellant and Rodríguez) were "equally culpable."
1 The appellant originally sought a four-level decrease in his
offense level arguing that his role in the offense was no more
than minimal. See USSG §3B1.2(a). However, he abandoned that
position below.
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This finding is not clearly erroneous: the two men traveled first
to Colombia and then to Venezuela, specifically to undertake the
unlawful voyage; they shared the work at sea en route to Puerto
Rico; and the appellant's special skill set as a mechanic was
essential to the success of the venture. The fact that Rodríguez
was deemed the "captain" of the craft does not undermine the
sentencing court's finding that they were equal partners in the
criminal activity. See, e.g., United States v. Bravo, 489 F.3d 1,
11 (1st Cir. 2007).
We have said before that "absent a mistake of law,
battles over a defendant's status . . . will almost always be won
or lost in the district court." United States v. Graciani, 61
F.3d 70, 75 (1st Cir. 1995). This case is no exception.
In an effort to blunt the force of this reasoning, the
appellant advances two arguments. First, he says that "the
district court summarily declined to grant the [minor role]
adjustment without outlining any reasoning for its decision." This
statement is simply wrong: the district court entertained
extensive argument on this very point and explained its reasoning
in some detail. The court mentioned the large quantity of drugs,
the trust that the drug owners obviously placed in the appellant,
and the appellant's expertise in "how to handle the boat." That
the appellant resists the district court's explanation for the
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"equal culpability" finding is not a basis for holding that the
finding is unexplained.
The appellant also makes a hierarchical argument. He
submits that he is a minor participant in the criminal activity,
broadly defined, because he played a bit part when compared to
those unidentified individuals who "owned" the drugs and those
unidentified individuals who presumably were prepared to
distribute them in the United States.
This argument is unavailing. When two persons undertake
to transport by themselves a large quantity of drugs in a long and
hazardous voyage at sea, it is not clear error for a sentencing
court to regard each as a principal and refuse to grant any
mitigating role adjustment.2 See United States v. Zakharov, 468
F.3d 1171, 1181 (9th Cir. 2006); United States v. Coneo-Guerrero,
148 F.3d 44, 50-51 (1st Cir. 1998).
That ends this aspect of the matter. Where there is
more than one plausible view of the circumstances, "the sentencing
court's choice among supportable alternatives cannot be clearly
erroneous." United States v. Ruiz, 905 F.2d 499, 508 (1st Cir.
1990).
2 Here, moreover, the district court's choice to define the
criminal activity narrowly was consistent with the indictment,
which focused on the voyage and the interception of the vessel.
Consistent with this focus, the facts of record do not deal either
with the provenance of the drugs or with the ultimate plans for
their retail distribution.
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B. Failure to Explain.
Congress has directed every sentencing court to "state
in open court the reasons for its imposition of the particular
sentence." 18 U.S.C. § 3553(c). Though the court's explanation
need not "be precise to the point of pedantry," United States v.
Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 2006), the explanation
given should "identify the [relevant] factors driving [the
sentencing] determination." United States v. Sepúlveda-Hernández,
___ F.3d ___, ___ (1st Cir. 2016) [No. 15-1293, slip op. at 5];
see United States v. Ruiz-Huertas, 792 F.3d 223, 226-27 (1st Cir.),
cert. denied, 136 S. Ct. 258-59 (2015).
The appellant argues that the court below forsook this
duty. Since the appellant did not preserve any such claim of error
in the district court, our review is for plain error. See United
States v. Montero-Montero, ___ F.3d ___, ___ (1st Cir. 2016) [No.
15-1405, slip op. at 3]. To establish plain error, an appellant
must show "(1) that an error occurred (2) which was clear or
obvious and which not only (3) affected the [appellant's]
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings." United
States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).
The appellant's argument is puzzling. He alleges,
without qualification, that "the district court failed to explain
its reasons for the 135-month sentence it imposed." Yet, the
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sentencing transcript belies this allegation. The court
explicitly stated that "[t]he guideline computations
satisfactorily reflect the components of this offense by
considering its nature and circumstances. . . ." The court went
on to note that it had "considered the other sentencing factors
set forth in Title 18, U.S. Code [§] 3553." The court also referred
to the appellant's "personal history and characteristics . . . as
well as . . . the nature of the circumstances under which [he] was
hired to perform this job."
After alluding to the "elements of the offense and [the
appellant's] participation in the same," the court stated that it
was taking into account "the need to promote respect for the law,
protect the public from further crimes by defendant, the need to
address issues of deterrence and punishment, as balanced together
with the personal history and characteristics of defendant." In
the end, the court concluded "that a sentence in this case at the
lower end of the guideline range would be a sentence that is just
and not greater than necessary."
Where, as here, the court imposes a sentence that comes
within the GSR, "the burden of adequate explanation is lightened."
Montero-Montero, slip op. at 4. We hold that the court's
explanation was sufficient to satisfy this lightened burden and to
explicate its within-the-range sentence. There was no error, plain
or otherwise.
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C. National Disparity.
Citing 18 U.S.C. § 3553(a)(6), the appellant next argues
that his sentence was "disproportionate to others found guilty of
the same or similar conduct." This argument is unpersuasive.
Section 3553(a)(6) instructs a sentencing court to
consider "the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct." This provision is aimed, generally, at the
minimization of sentencing disparities among defendants
nationwide. See Martin, 520 F.3d at 94. Because the appellant
did not raise this claim of error below, our review is for plain
error. See Duarte, 246 F.3d at 60.
We see nothing resembling plain error here. The
appellant presents this argument in hortatory terms without
developing any relevant factual foundation. The lack of developed
argumentation is fatal to the claim. See United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.").
D. Substantive Reasonableness.
The appellant's last claim of error targets the
substantive reasonableness of his sentence. The standard of review
is murky. See Ruiz-Huertas, 792 F.3d at 228 & n.4 (noting
uncertainty about whether a claim that a sentence is substantively
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unreasonable must be preserved below). Rather than resolving the
question, we assume — favorably to the appellant — that our review
of this claim is for abuse of discretion. Even so, the appellant's
challenge fails.
A sentence will survive a challenge to its substantive
reasonableness as long as it rests on a "plausible sentencing
rationale" and reflects a "defensible result." Martin, 520 F.3d
at 96. "A challenge directed at substantive reasonableness is
usually a heavy lift, and reversal is 'particularly unlikely when
. . . the sentence imposed fits within the compass of a properly
calculated [guideline sentencing range].'" Ruiz-Huertas, 792 F.3d
at 228-29 (quoting United States v. Vega-Salgado, 769 F.3d 100,
105 (1st Cir. 2014) (omission and alteration in original)).
So it is here: as recounted above, the district court
articulated an eminently plausible rationale for the sentence.
Moreover — given the parameters of the GSR, the large quantity of
drugs involved, and the appellant's vital role in the smuggle — a
135-month sentence is defensible.
The appellant's main argument in support of his plaint
that his sentence is substantively unreasonable is that his
coconspirator, Rodríguez, received a much lighter sentence (48
months).3 But at the time the appellant was sentenced — January
3
Although the appellant's briefs assert that Rodríguez was
sentenced to 46 months' imprisonment, the court docket indicates
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27, 2015 — Rodríguez's case was still pending. Rodríguez was not
sentenced until March 10, 2015, roughly six weeks after the
appellant was sentenced. The fact that the disparity argument, as
made to us, could not have been made to the sentencing court
creates a curious anomaly. Cf. Cahoon v. Shelton, 647 F.3d 18, 29
(1st Cir. 2011) (warning that a party cannot expect to obtain
relief from an appellate court that he never sought in the trial
court); Beaulieu v. U.S. IRS, 865 F.2d 1351, 1352 (1st Cir. 1989)
(same).
Here, however, we need not grapple with this anomaly.
That the appellant and Rodríguez received different sentences
tells us nothing about which of those sentences varies from the
norm; and the limited record available to us suggests that there
are reasons why a sentencing judge could have seen the two
situations as quite different.4 These uncertainties, taken
together, preclude any finding that the appellant's within-
guidelines sentence is substantively unreasonable.
that Rodríguez was sentenced to 48 months. See United States v.
Rodríguez, Crim. Case No. 3:14-cr-00182 (D.P.R. Mar. 10, 2015).
4
Unlike the appellant, Rodríguez pleaded guilty to only a
single count of the indictment; he did not enter a straight plea
but, rather, pleaded guilty pursuant to a negotiated plea agreement
(the terms of which are not summarized in the appellant's brief or
elsewhere in the sentencing record); and there is some indication
in the record that Rodríguez may have been experiencing medical
complications that influenced the duration of his sentence.
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III. CONCLUSION
We need go no further. For the reasons elucidated above,
the appellant's sentence is
Affirmed.
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