United States v. Gonzalez

United States Court of Appeals
For the First Circuit

No. 19-1351

UNITED STATES OF AMERICA,

Appellee,

v.

EDWIN GONZALEZ,
a/k/a SANGRIENTO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Lynch, Selya, and Barron,
Circuit Judges.

Julia Pamela Heit for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Andrew E. Lelling, United States Attorney, was on brief, for
appellee.

November 17, 2020
 SELYA, Circuit Judge. Every time that the law draws an

age-based line to create a protected class, there are some people

who fall outside the protected class. Those persons often regard

the point at which the line is drawn as arbitrary. This appeal is

brought by a criminal defendant who argues that a particular age-

based line should be redrawn to include persons of his age within

the protected class.

Specifically, defendant-appellant Edwin Gonzalez takes

aim at a line drawn by the Supreme Court, as a matter of

constitutional interpretation, which protects juvenile offenders

(that is, offenders who are not yet eighteen years of age at the

time that the charged crime was committed) but not adult offenders

(that is, offenders who were eighteen years of age or older when

the charged crime was committed) from certain life-without-parole

sentences. See Miller v. Alabama, 567 U.S. 460, 465 (2012)

(holding mandatory life-without-parole sentences unconstitutional

for all juvenile offenders); see also Graham v. Florida, 560 U.S.

48, 82 (2010) (declaring unconstitutional life-without-parole

sentences for non-homicide juvenile offenders). Refined to bare

essence, Gonzalez (who was twenty years old at the time he

committed the charged crime) seeks to reconfigure the age-specific

line and vacate his sentence of life imprisonment without parole.

In the bargain, he asks us to blur the distinction between his

- 2 -
discretionary life-without-parole sentence and the mandatory life-

without-parole sentence examined by the Miller Court.

We conclude, for several reasons, that the defendant's

claims of constitutional error are unavailing. Similarly, we

conclude that his remaining claims of error are impuissant.

Consequently, we uphold the life-without-parole sentence imposed

by the district court.

I. BACKGROUND

Although the relevant facts are (by the defendant's own

admission) "gruesome," they are essentially undisputed. And even

though the defendant's appeal targets only his life-without-parole

sentence, a brief rehearsal of the factual background and

procedural history helps to set the stage.

The defendant is a member of La Mara Salvatrucha, a gang

colloquially known as MS-13. MS-13 has gained notoriety for the

brutality of its crimes and the relative youth of both its members

and its victims. The gang's reach spans the Western Hemisphere:

although its leadership remains in El Salvador, many of its

regional and local branches, known respectively as "programs" and

"cliques," are located throughout the United States. The web woven

by MS-13 is so pervasive that the federal government often refers

to the gang as a transnational criminal organization.

Of particular pertinence here, MS-13 is quite active in

the Boston area. Prominent MS-13 cliques exist in East Boston,

- 3 -
Chelsea, Everett, Lynn, and Revere. From time to time, the

defendant was affiliated with several of these cliques.

The core purpose of MS-13 is to kill or maim rival gang

members and collect money for MS-13's leadership. The defendant

earned himself acclaim within local MS-13 circles for fulfilling

this core purpose, and he received promotions within the hierarchy

of an East Boston clique for committing a golconda of violent acts.

These acts earned the defendant the nom de guerre "Sangriento" —

"Bloody" — in recognition of the mayhem that he inflicted.

The case at hand centers around two murders that

underscore the accuracy of the defendant's sobriquet. In 2015,

the defendant (then age twenty) spearheaded a plan to kill Wilson

Martinez, then fifteen years of age, whom the defendant suspected

of being a member of the rival 18th Street Gang. The plan was

complex: over a period of several months, MS-13 members created

a phony Facebook account that appeared to belong to a teenage girl,

sent messages to Martinez, and eventually persuaded Martinez to

rendezvous with this imaginary girl at a secluded beach. When

Martinez arrived, he was ambushed by the defendant and several MS-

13 underlings. Martinez was robbed and stabbed repeatedly. During

the course of the encounter, the defendant instructed an unarmed

MS-13 acolyte to find a weapon so that the latter could participate

in the attack. Following the defendant's instructions, the boy

grabbed a rock and struck Martinez in the head.

- 4 -
 After Martinez was killed, the defendant directed a

clean-up. Despite the clean-up, the tip of a knife was later found

next to Martinez's body. This murder gained the defendant

considerable notoriety within MS-13 and led to his promotion to a

position of great respect and authority. Many gang members

attended the promotion ceremony.

In eerily similar circumstances, the defendant (still

age twenty) orchestrated the January 2016 murder of Cristofer de

la Cruz, then sixteen years old, who was suspected of membership

in the 18th Street Gang. The defendant used the same ruse, luring

the victim to danger under the guise of a date with a teenage girl.

MS-13 members picked up de la Cruz in a nearby town, pretending to

be relatives of the imaginary girl. Another ambush occurred when

de la Cruz reached East Boston: the defendant and three other MS-

13 members stabbed de la Cruz some forty-eight times. Once again,

the defendant organized a clean-up, ordering gang members to bury

weapons and soiled clothing. A cooperating witness subsequently

directed the authorities to the burial site, leading to the

recovery of many of the weapons. Some of the items recovered

contained the DNA of both the defendant and the victim.

In due course, a federal grand jury sitting in the

District of Massachusetts returned an indictment that — as relevant

here — charged the defendant with violating the Racketeer

Influenced and Corrupt Organizations Act (RICO), see 18 U.S.C.

- 5 -
§ 1962(d). In the indictment, the grand jury charged the murders

of Martinez and de la Cruz as predicate acts of the RICO

conspiracy. A jury was empaneled, and a trial ensued.

The district court instructed the jury on second-degree

murder with respect to the predicate offenses on the theory that

first-degree and second-degree murder resulted in the same

statutory penalties under RICO. The jury found the defendant

guilty as charged.

A presentence investigation report (PSI Report) was

prepared, which calculated the defendant's base offense level at

forty-three premised on a cross-reference to the first-degree

murder guideline. See USSG §2A1.1(a). The PSI Report also

recommended various enhancements, which are of scant importance:

an offense level of forty-three, in and of itself, calls for a

life sentence regardless of the defendant's criminal history. See

USSG ch.5, pt. A. The defendant objected to the PSI Report,

contending that the base offense level should be set by cross-

reference to the second-degree murder guideline.

At the disposition hearing, the district court concluded

that it was within the court's discretion to determine, by a

preponderance of the evidence, the degree of murder that was

relevant for sentencing purposes. Finding that both murders were

premeditated, the court accepted the guideline calculation

adumbrated in the PSI Report. When offered an opportunity to

- 6 -
allocute, the defendant stood mute and chose not to express any

remorse.

The district court imposed a sentence of life

imprisonment without the possibility of parole. Even though the

court considered mitigating factors (such as the defendant's

youth, the possibility of his reformation, his challenging

upbringing, and the peer pressures associated with gang

membership), it found those factors vastly outweighed by the

heinous nature of the crime and the defendant's stolid lack of

remorse.1 This timely appeal, which is directed exclusively at

the defendant's sentence, followed.

II. ANALYSIS

We divide our analysis into three principal segments,

corresponding with the components of the defendant's

asseverational array. We start with the defendant's challenge to

the district court's first-degree murder determination, proceed to

assess the defendant's Eighth Amendment challenge, and conclude

1
Although the court did not make an explicit finding of
permanent incorrigibility, it did consider the defendant's
capacity for rehabilitation. At the disposition hearing, the court
acknowledged that youthful offenders frequently have the capacity
to change. Here, however, the court concluded that the defendant's
crimes — including multiple killings on multiple occasions —
reflected calculation, not immaturity. Taken as a whole, the
court's statements strongly suggest that it believed the defendant
was beyond hope of redemption.

- 7 -
with an appraisal of the defendant's critique of the reasonableness

of his sentence.

A. The First-Degree Murder Determination.

At sentencing, the district court determined that — for

purposes related to the application of the sentencing guidelines

— the defendant had twice committed the predicate offense of first-

degree murder, notwithstanding that the jury had been instructed

only on second-degree murder. The defendant assigns error in two

respects. First, he says that the determination violates his

constitutional rights because only a jury, not a judge, has the

responsibility of finding beyond a reasonable doubt any fact that

increases a mandatory minimum sentence. Second, he says that

because the RICO statute references state crimes as predicate

offenses, state procedural rules regarding who determines the

degree of murder should control with respect to those crimes. We

address these assignments of error separately.

1. The Alleyne Challenge. The defendant's first claim

of error is premised on his reading of the Supreme Court's decision

in Alleyne v. United States, 570 U.S. 99 (2013). Because the

defendant preserved this claim before the district court, our

review is de novo. See United States v. Batchu, 724 F.3d 1, 7

(1st Cir. 2013). The central question is whether the defendant's

constitutional rights (either his Sixth Amendment right to a jury

trial or his Fifth Amendment due process rights) were abridged

- 8 -
when the sentencing court, acting as a factfinder, determined by

a preponderance of the evidence that he had twice committed first-

degree murder. See U.S. Const. amend. VI; U.S. Const. amend V.

The Supreme Court has held that any fact (other than the

presence of a prior conviction) that requires an increase in the

statutory penalty for a crime must be submitted to the jury and

found beyond a reasonable doubt. See Apprendi v. New Jersey, 530

U.S. 466, 483 n.10, 490 (2000). Subsequently, the Court held that

any fact that necessitates an increase in the mandatory minimum

sentence for a crime constitutes the type of fact contemplated in

Apprendi and, thus, must be found by the jury beyond a reasonable

doubt. See Alleyne, 570 U.S. at 103.

The defendant hitches his claim of error to Alleyne, but

Alleyne cannot pull the weight that the defendant seeks to have it

haul. The Alleyne holding does not preclude judicial factfinding

undertaken for purposes of constructing a defendant's advisory

guideline sentencing range (GSR). See United States v. Monteiro,

871 F.3d 99, 116 (1st Cir. 2017); United States v. González, 857

F.3d 46, 60-61 (1st Cir. 2017); United States v. Cox, 851 F.3d

113, 120 (1st Cir. 2017); United States v. Ramírez-Negrón, 751

F.3d 42, 48 (1st Cir. 2014); see also Alleyne, 570 U.S. at 116

(explaining that "broad sentencing discretion, informed by

judicial factfinding, does not violate the Sixth Amendment"). We

- 9 -
hold, therefore, that the defendant's Alleyne-based challenge is

dead on arrival.

2. The Murder-Determination Challenge. Notwithstanding

the jury's antecedent finding that the defendant had committed

second-degree murder, the district court — at sentencing — made a

finding that the defendant had committed first-degree murder. The

defendant challenges this latter finding, arguing (in effect) that

the district court erred inasmuch as Massachusetts law, under which

the RICO predicate offenses arose, requires a jury rather than a

judge to determine guilt with respect to murder. Relatedly, the

defendant attempts to raise doubts about the district court's jury

instructions.

We need not linger long over the defendant's vague

references to potentially defective jury instructions. The

defendant's brief makes clear that he only contests his

"punishment," not his conviction, and the only relief that he seeks

is vacatur of his sentence. Given this singular focus, we treat

any claim of instructional error as waived.2

With respect to sentencing, the defendant's reliance on

Massachusetts law is mislaid. The Massachusetts statute regarding

murder limns the procedure for determining a defendant's guilt at

2In view of this holding, we need not address the government's
argument that the defendant's claim of instructional error is
underdeveloped and, thus, should be deemed abandoned. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

- 10 -
trial. See Mass. Gen. Laws ch. 265 § 1. It says nothing about

sentencing procedures.

The issue in this case involves the district court's

determination, at sentencing, that the defendant had committed

first-degree murder. To assess the supportability of that

determination, we look to federal sentencing law and, in

particular, the federal sentencing guidelines. To determine the

base offense level for a RICO conviction, an inquiring court must

look to the relevant conduct guideline: USSG §1B1.3. See United

States v. Carozza, 4 F.3d 70, 74-75 (1st Cir. 1993). For this

purpose, relevant conduct includes "all acts and omissions

committed . . . commanded . . . or willfully caused by the

defendant," USSG §1B1.3(a)(1)(A), in furtherance of the "jointly

undertaken criminal activity" or "enterprise," id.

§1B1.3(a)(1)(B); see Carozza, 4 F.3d at 83. A sentencing court,

faced with the question of whether a murder should be deemed

relevant conduct in a particular case, may make that determination

based upon a preponderance of the evidence. See Carozza, 4 F.3d

at 80-82.

In the case at hand, the district court made the

requisite findings, articulated its rationale, determined that the

defendant had committed two murders that comprised relevant

conduct, and correctly calculated the resultant base offense

level. See USSG §2A.1.1. The sentencing guidelines supply the

- 11 -
linchpin for these determinations; Massachusetts law was

irrelevant. Thus, we uphold the challenged determinations.

B. The Eighth Amendment Challenge.

The defendant next challenges his life-without-parole

sentence on Eighth Amendment grounds. His chief complaint is that

such a sentence — when imposed with respect to a criminal defendant

who, like himself, was only twenty years old at the time of the

offense of conviction — violates the constitutional prohibition

against cruel and unusual punishment. See U.S. Const. amend. VIII.

Alternatively, he complains that his sentence offends the Eighth

Amendment because it does not rest on an antecedent finding that

he was permanently incorrigible. We address these complaints in

turn.

1. Redrawing the Age-Specific Line. The defendant's

principal constitutional claim begins with Miller, in which the

Court held that mandatory life-without-parole sentences were

unconstitutional when imposed on juvenile offenders (that is,

defendants who were below the age of eighteen when their offenses

were committed). See 567 U.S. at 465. Building on this

foundation, the defendant argues that the Constitution requires

that all offenders below the age of twenty-one receive similar

consideration even in instances involving discretionary (rather

than mandatory) life-without-parole sentences. At sentencing, the

defendant preserved this argument for appeal and, thus, we review

- 12 -
it de novo. See United States v. Raymond, 697 F.3d 32, 40 (1st

Cir. 2012); United States v. Polk, 546 F.3d 74, 75 (1st Cir. 2008).

The first roadblock that the defendant encounters in his

effort to extend Miller is that, in Miller, the Supreme Court

invalidated only mandatory life-without-parole sentences for

juveniles. See 567 U.S. at 489. The Miller Court made no

constitutional pronouncement one way or the other with respect to

discretionary life-without-parole sentences. Miller is

distinguishable, then, because the life-without-parole sentence in

this case is a discretionary one.

Of course, in considering the retroactivity of its

decision in Miller, the Supreme Court stated that a life-without-

parole sentence — whether mandatory or discretionary — "violates

the Eighth Amendment for a child whose crime reflects 'unfortunate

yet transient immaturity.'" Montgomery v. Louisiana, 136 S. Ct.

718, 734 (2016) (quoting Miller, 567 U.S. at 479). Even so, this

statement did not prohibit discretionary life-without-parole

sentences, and it does not support the defendant's argument that

Miller should be extended to ban discretionary (as well as

mandatory) life-without-parole sentences for twenty-year-old

offenders.

The defendant nonetheless contends that we should apply

the Miller rule to all life-without-parole sentences, whether

mandatory or discretionary, imposed on youthful defendants (that

- 13 -
is, defendants who were below the age of twenty-one when they

committed their crimes of conviction). In his view, the

mandatory/discretionary dichotomy is irrelevant. Inasmuch as the

defendant argues that Miller turns principally on the age of a

defendant rather than on whether the defendant's life-without-

parole sentence is mandatory or discretionary, we proceed to

confront his argument on its own terms.

Beyond his attempt to blur the distinction between

mandatory and discretionary sentences, the driving force behind

the defendant's argument is the notion that Supreme Court precedent

treating offenders who are under the age of eighteen differently

than young adults is based on outdated science. In the defendant's

view, the modern scientific consensus demands an upward revision

of the Miller line.

With respect to the genesis of the line that it drew,

the Miller Court acknowledged that "children are constitutionally

different from adults for purposes of sentencing." 567 U.S. at

471. Acting upon this principle in other settings, the Court has

declared certain punishments unconstitutional for juveniles

without declaring them unconstitutional for adults. See, e.g.,

Graham, 560 U.S. at 82 (holding unconstitutional life-without-

parole sentences for juvenile offenders convicted of non-homicide

crimes); Roper v. Simmons, 543 U.S. 551, 568 (2005) (invalidating

death penalty for all offenders under age of eighteen). On those

- 14 -
occasions, the Court extended the relevant Eighth Amendment

protections only to those under age eighteen. See Miller, 567

U.S. at 465; Graham, 560 U.S. at 74-75; Roper, 543 U.S. at 568.

The defendant argues that the line should be redrawn as

scientific research reveals more about when the brain has matured

into adulthood. This argument assumes, though, that the raison

d'être behind the Court's age-specific decisions rests exclusively

on the science surrounding brain development. But a close reading

of the relevant decisions does not indicate that the Court based

them solely on scientific research. And although Eighth Amendment

jurisprudence requires courts to exhibit flexibility to comport

with "the evolving standards of decency that mark the progress of

a maturing society," Miller, 567 U.S. at 469 (quoting Estelle v.

Gamble, 429 U.S. 97, 102 (1976)), scientific evidence is merely

one factor, among an array of factors, that the Court has

considered when invalidating certain criminal sentences imposed on

juveniles. In this appeal, the defendant fails adequately to

explain why the multitude of factors comprising the Eighth

Amendment inquiry compel an extension of Eighth Amendment

protections to a defendant who was twenty years old when he

committed the offense of conviction. We explain briefly.

The seminal case is Roper, in which the Supreme Court

held that the Eighth Amendment prohibited the death penalty for a

defendant who was under the age of eighteen at the time of the

- 15 -
offense of conviction. See 543 U.S. at 568. The Court relied

heavily on the general consensus among states that the death

penalty should not be imposed on juveniles. See id. at 564-68.

So, too, the Court identified several other factors supporting its

conclusion that juveniles could not be considered blameworthy

enough to be subjected to capital punishment. For example, the

Court pointed to a lack of maturity and sense of responsibility

found generally among juveniles, the susceptibility of juveniles

to environmental pressures and negative external influences, and

the fact that juveniles' overall character is not yet fully formed

because of their youth. See id. at 569-70. As part of its holistic

analysis of how these factors diminish the culpability of a

juvenile, the Court referred to scholarly works, both scientific

and sociological, supporting the conclusion that reckless and

impetuous decisions are more common among juveniles because of

physiological considerations. See id. at 569.

Contrary to the defendant's importunings, the Roper

Court did not attempt to use scientific consensus surrounding brain

development as an exclusive rationale for drawing its age-specific

line at eighteen. Empirical studies were mentioned only as further

support for the proposition that juveniles — as compared to adults

— possess a diminished sense of responsibility. See id. ("[A]s

any parent knows and as the scientific and sociological studies

respondent and his amici cite tend to confirm, '[a] lack of

- 16 -
maturity and an underdeveloped sense of responsibility are found

in youth more often than in adults.'" (quoting Johnson v. Texas,

509 U.S. 350, 367 (1993))). In the same vein, Roper alluded to a

number of activities (such as voting, serving on juries, and

marrying without parental consent) that traditionally become

acceptable only for those eighteen and older — traditions that are

predicated on the notion that, by age eighteen, people usually

have developed a deeper sense of responsibility and accountability

for their actions. See id.

Nothing in Roper leads us to believe that the Justices

drew the line at age eighteen based exclusively on their perception

of a scientific certainty that an individual's brain and cognitive

functions undergo a metamorphosis at precisely that age. Instead,

the Court's cases indicate that the Justices decided to go as far

as the age of eighteen after carefully balancing a multiplicity of

environmental and societal factors. See, e.g., id. at 570

(discussing juveniles' lack of control over their "immediate

surroundings" and inability to escape "negative influences"); id.

at 564 (citing national consensus among state legislatures against

executing juvenile offenders). The Court drew the line at eighteen

not because that age marked the apotheosis of full-scale

physiological development but, rather, because it represented "the

point where society draws the line for many purposes between

childhood and adulthood." Id. at 574.

- 17 -
 Subsequent Supreme Court case law confirms this reading

of Roper. In Graham, the Court held that life-without-parole

sentences for juvenile offenders in non-homicide cases contravened

the Eighth Amendment. See 560 U.S. at 82. As in Roper, the Graham

Court identified a myriad of factors supporting the conclusion

that persons under the age of eighteen do not have sufficient

culpability to justify the harshest of sentences. See id. at 68.

Consistent with its approach in Roper, the Graham Court referenced

scientific findings as one type of evidence, among many, that

warranted distinctions between adults and juveniles. See id.

So, too, when the Miller Court held that mandatory life-

without-parole sentences for persons who committed crimes before

turning eighteen violated the Eighth Amendment, it referenced the

Roper factors to explain why juveniles, as a class, were

"constitutionally different from adults for purposes of

sentencing." 567 U.S. at 471. While the Court acknowledged that

scientific research provided support for its determination that

juveniles are generally less culpable than adults, it noted that

science did not furnish the sole basis for its rationale. See id.

Pertinently, the Court explained that a juvenile offender's youth,

including his immaturity, susceptibility to environmental

pressures, and capability for reform, undermines the penological

justifications for imposing a life-without-parole sentence. See

id. at 472-74. Along the way, the Court made pellucid that many

- 18 -
attributes of youth, including malleable personalities and

ephemeral cognitive traits, counselled in favor of applying the

Eighth Amendment's proscription to mandatory life-without-parole

sentences imposed for offenses committed by persons under the age

of eighteen.3 See id. at 473.

The defendant's argumentation ignores (or, at least,

impermissibly devalues) the Supreme Court's multifaceted approach.

That argumentation, in effect, entreats us to elevate scientific

research about brain development from one of many factors to the

sole determinant of where a line should be drawn between youthful

offenders and more mature offenders. Had the Supreme Court

articulated that its conception of youth rested exclusively on the

physiological development of the brain, this argument might have

some bite. But given the diversity of factors that the Court

considered as part of its Eighth Amendment analysis, movement in

3 We add, moreover, that the defendant over-reads Moore v.
Texas, 137 S. Ct. 1039 (2017), which did not revamp the Court's
holistic approach to the Eighth Amendment. Moore addressed only
an isthmian question concerning how courts should determine if a
defendant facing the death penalty "qualified as intellectually
disabled." Id. at 1044. Far more relevant than Moore is the
decision that extended Eighth Amendment protections to such
individuals, which — tellingly — examined not just cognitive
science but also "the judgment of legislatures that have addressed"
the issue, other indicia of a developing "national consensus," and
"the relationship between mental retardation and the penological
purposes served by the death penalty." Atkins v. Virginia, 536
U.S. 304, 313, 316-21 (2002).

- 19 -
one factor alone is not sufficient to warrant an extension of

Miller to defendants aged eighteen to twenty.

For the sake of completeness, we note, too, that the

defendant has not demonstrated that brain science has shifted

seismically in the years since the Court decided Roper, Graham,

and Miller. The scientific and sociological studies on which he

relies and that were before the Court in those cases do not stand

for the proposition that brain development ends at age eighteen.

Instead, the focus of those studies was on brain development and

maturity during adolescence, and many of them acknowledged that

brain development continues into the early twenties.4 The lack of

evidence suggesting a breakthrough confirms what is likely an

inconvenient truth from the defendant's standpoint: even though

he can point to recent scholarship about the immaturity of the

eighteen to twenty-year-old brain, he has failed to identify the

kind of scientific breakthrough that itself might compel an

4
See, e.g., Roper, 543 U.S. at 569 (citing Jeffrey Arnett,
Reckless Behavior in Adolescence: A Developmental Perspective, 12
Developmental Rev. 339 (1992)); id. (citing Laurence Steinberg &
Elizabeth S. Scott, Less Guilty by Reason of Adolescence:
Developmental Immaturity, Diminished Responsibility, and the
Juvenile Death Penalty, 58 Am. Psych. 1009 (2003)). Amicus briefs
in this trio of cases likewise cited studies documenting continued
brain development in adolescents "to at least age 22." Brief for
American Psychological Association et al. as Amici Curiae at 11
(filed in Roper); see Brief of American Medical Association et al.
as Amici Curiae at 20-21 (filed in Graham) (describing research
explaining that the prefrontal cortex continues to develop "beyond
adolescence").

- 20 -
extension of Miller, given the more holistic analysis that the

Eighth Amendment demands.

To say more about this claim would be to paint the lily.

The research available to the Justices when they decided Roper,

Graham, and Miller suggested the conclusion that individuals aged

eighteen to twenty might not possess fully developed brain

processes. Nevertheless, after considering the scientific

evidence as well as the other factors previously discussed, the

Court chose to draw its age-specific line at eighteen.

Accordingly, the defendant has not made the case for extending the

Miller ban on life-without-parole sentences to offenders — like

the defendant — who were in the eighteen-to-twenty age range when

they committed the crimes of conviction.

2. Permanent Incorrigibility. This leaves the

defendant's claim that the Eighth Amendment, at a minimum, requires

an explicit finding of permanent incorrigibility before a life-

without-parole sentence, whether mandatory or discretionary, may

be imposed on a youthful defendant (even a young adult). Because

this claim is made for the first time on appeal, our review is for

plain error. See United States v. Duarte, 246 F.3d 56, 60 (1st

Cir. 2001). To prevail under plain-error review, an appellant

must show "(1) that an error occurred (2) which was clear or

obvious and which not only (3) affected [his] substantial rights,

- 21 -
but also (4) seriously impaired the fairness, integrity, or public

reputation of judicial proceedings." Id.

"The plain error hurdle is high," United States v.

Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989), and the defendant

stumbles at the second step of the construct. At that step, the

proponent of plain error must show something more than error

simpliciter: he must show that the claimed error is "clear" or

"obvious." United States v. Olano, 507 U.S. 725, 734 (1993). And

to be "clear" or "obvious," an error must, at the very least,

contradict existing law. See United States v. Bennett, 469 F.3d

46, 50-51 (1st Cir. 2006). Put another way, an error must be

"indisputable" in light of controlling law to warrant correction

on plain-error review. United States v. Jones, 748 F.3d 64, 69-

70 (1st Cir. 2014).

The claimed error in this case does not pass through

this screen. The defendant points to no controlling case law, nor

are we aware of any, supporting a requirement under the Eighth

Amendment that a district court find a non-juvenile defendant

permanently incorrigible before imposing a life-without-parole

sentence, whether mandatory or discretionary.5 Miller itself

5 To be sure, the Supreme Court recently granted certiorari
to consider whether the Eighth Amendment requires a sentencing
court to find a juvenile defendant permanently incorrigible before
imposing a discretionary life-without-parole sentence. See Jones
v. State, No. 2015-CT-00899-SCT, 2018 WL 10700848, at *1 (Miss.
Nov. 27, 2018), cert. granted, 140 S. Ct. 1293 (2020). The Court

- 22 -
indicates the contrary: so long as the defendant's youth is

"take[n] into account" in the sentencing process, "a sentencer's

ability" to impose a life-without-parole sentence is not

"foreclose[d]." 567 U.S. at 480. In any event, ambiguous case

law does not give rise to the clear or obvious error necessary to

comport with the plain-error construct. See Bennett, 469 F.3d at

50-51. We conclude, therefore, that the claimed error — if error

at all — cannot be considered either "clear" or "obvious." It

follows that plain error is plainly absent.6

C. The Reasonableness Challenge.

The final leg of our journey brings us to the defendant's

challenge to the reasonableness of his sentence. This challenge

has three components. First, the defendant argues that the

sentencing court failed to make a finding that he was permanently

incorrigible — a finding that he envisions as indispensable to a

life-without-parole sentence. Second, he argues that a manifest

sentencing disparity renders his sentence unreasonable. Third, he

heard oral argument in that case on November 3, 2020. We need not
await a ruling in Jones, though, given our determination that
twenty-year-old defendants are not juveniles entitled to the
prophylaxis of the Miller rule.
6 Because the proponent of "plain error must carry the devoir
of persuasion as to all four" elements needed to comprise plain
error, United States v. Pinkham, 896 F.3d 133, 136-37 (1st Cir.
2018), our conclusion that the defendant has failed to satisfy the
second element renders it unnecessary to address the other three
elements.

- 23 -
argues that the sentence is so draconian as to be substantively

unreasonable. We address these arguments sequentially.

1. Permanent Incorrigibility. In a single line in his

brief, the defendant suggests that his sentence is substantively

unreasonable because the district court made no express finding

that he was incapable of rehabilitation (or put another way, that

he was permanently incorrigible). This ipse dixit is offered up

without any explication and without citation to pertinent

authority.

We do not gainsay that the likelihood of rehabilitation

is a relevant factor in the sentencing calculus. See United States

v. Martin, 520 F.3d 87, 93-94 (1st Cir. 2008). That is materially

different, though, from the proposition asserted by the defendant,

namely, that an antecedent finding of permanent incorrigibility is

essential to render a life-without-parole sentence substantively

reasonable. The defendant advances the latter proposition in

general terms, but he wholly fails to put any flesh on its bare

bones. He neither develops the argument nor accompanies it with

even a shred of authority.

We long have warned that "issues adverted to in a

perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived." United States v. Zannino, 895

F.2d 1, 17 (1st Cir. 1990). The skeletal presentation of this

argument in the defendant's brief "leav[es] the court to do

- 24 -
counsel's work" — and that is not our proper province. Id.

Consequently, we deem the defendant's claim waived.

2. Disparity. Contemporaneous with the prosecution of

the defendant, the government entered into a plea agreement with

a coconspirator, Joel Martinez. The district court sentenced

Martinez to a forty-year term of immurement. The defendant alleges

that the gulf between Martinez's sentence and his life-without-

parole sentence renders his sentence unreasonable. Assuming,

without deciding, that this claim of disparity engenders de novo

review (the most defendant-friendly of the possible alternatives),

the claim nonetheless fails.

We have held before — and today reaffirm — that when a

defendant makes a claim of sentencing disparity, he "must compare

apples to apples." United States v. González-Barbosa, 920 F.3d

125, 131 (1st Cir. 2019). Other than pointing to the obvious fact

that both men were convicted of the same crime — RICO conspiracy

— the defendant makes no real attempt to develop a match between

his circumstances and Martinez's circumstances. And in any event,

the record plainly shows that he is attempting to compare apples

to kumquats. We catalog a few of the material discrepancies that

distinguish Martinez's case from that of the defendant.

To begin, Martinez committed one murder, whereas the

defendant committed two. What is more, Martinez accepted

responsibility for his unlawful actions, whereas the defendant did

- 25 -
not. And in addition, Martinez pleaded guilty, whereas the

defendant elected to stand trial. Courts should tailor sentences

to respond to the culpability of individual defendants and to the

nature and circumstances of the crimes they have committed. See

United States v. Alexander, 958 F.3d 1, 11-12 (1st Cir. 2020);

United States v. Flores-Machicote, 706 F.3d 16, 20-21 (1st Cir.

2013). When defendants' circumstances are materially different,

a claim of sentencing disparity will not wash. See United States

v. Reyes-Santiago, 804 F.3d 453, 467 (1st Cir. 2015); cf. United

States v. Reverol-Rivera, 778 F.3d 363, 366-67 (1st Cir. 2015)

(finding no disparity when one codefendant played a leadership

role in the crime while the other was subordinate); United States

v. Dávila-González, 595 F.3d 42, 50 (1st Cir. 2010) (finding no

disparity when one codefendant pleaded guilty and the other

proceeded to trial); United States v. Mateo-Espejo, 426 F.3d 508,

514 (1st Cir. 2005) (finding no disparity when one codefendant

cooperated promptly while the other did so "belated[ly] and

grudging[ly]"). That is precisely the situation here.

In an effort to blunt the force of this reasoning, the

defendant suggests that he was coerced into going to trial and,

relatedly, that he could not accept responsibility for his crimes

because the government insisted on a life sentence during plea

negotiations. These suggestions elevate hope over reason.

- 26 -
 Generally, a criminal defendant has no right to a plea

bargain. See Lafler v. Cooper, 566 U.S. 156, 168 (2012); United

States v. Skerret-Ortega, 529 F.3d 33, 37 (1st Cir. 2008). It

defies logic, then, to argue that the government's refusal during

plea negotiations to commit to recommending a reduced sentence

constituted coercion when the government had no obligation to offer

any kind of plea deal at all. See United States v. Kenney, 756

F.3d 36, 48 (1st Cir. 2014). Nor can the lack of what a defendant

may consider a sweet deal be understood as precluding him from

accepting responsibility for his crimes. Describing such events

as amounting to coercion would drain that term of any plausible

meaning. After all, a party is not coerced simply because the

counter party pursues a course of action that is well within its

rights.

3. Substantive Reasonableness. Finally, the defendant

calumnizes his sentence as substantively unreasonable. This

assignment of error is rooted in 18 U.S.C. § 3553(a), which

rehearses the type of factors that a sentencing court ought to

consider in order to impose a sentence that is "sufficient, but

not greater than necessary" to achieve the purposes of condign

punishment. The defendant submits that because the risk of

recidivism will be miniscule once he achieves a certain age (say,

his "fifties or sixties"), a life-without-parole sentence is

unduly severe and, thus, substantively unreasonable.

- 27 -
 We review the defendant's challenge to the substantive

reasonableness of his sentence for abuse of discretion. See

Holguin-Hernandez v. United States, 140 S. Ct. 762, 766 (2020).

The key question is whether the challenged sentence is justified

by a "plausible sentencing rationale and reaches a defensible

result." United States v. Cameron, 835 F.3d 46, 52 (1st Cir. 2016)

(quoting United States v. Breton, 740 F.3d 1, 19 (1st Cir. 2014)).

In this instance, the defendant posits that these

criteria are not satisfied because a life-without-parole sentence

is disproportionate to the risk of his recidivism. Such a

characterization of the sentence, though, overlooks that

protecting the public from future crimes is only one of the goals

that a sentencing court must take into account. See 18 U.S.C.

§ 3553(a). The court also must weigh, for instance, factors such

as the nature and circumstances of the offense of conviction, the

history and characteristics of the offender, the seriousness of

the offense, and the need for deterrence. See id.

Here, the district court went to considerable length in

articulating its sentencing rationale. The court took note of the

defendant's relative youth and difficult upbringing but

nonetheless concluded that the heinous nature of the defendant's

actions and his utter lack of remorse called for a life-without-

parole sentence. The court's rationale was plausible: there can

be no doubt that the defendant played a leadership role in an

- 28 -
organization that wreaked havoc in the Boston area, that the crimes

committed by the organization were serious, and that the predicate

offenses for which he was personally responsible were both

premeditated and vicious. Nor can there be any doubt that the

defendant has never expressed the slightest remorse either for

butchering two teenagers or for his participation, more generally,

in MS-13's widespread criminal activity.

So, too, the sentence itself was defensible. Where, as

here, the substantive reasonableness of a sentence is questioned,

a reviewing court's inquiry must recognize that "[t]here is no one

reasonable sentence in any given case but, rather, a universe of

reasonable sentencing outcomes." United States v. Clogston, 662

F.3d 588, 592 (1st Cir. 2011). What is more, when — as in this

case — a defendant challenges a sentence that falls within a

properly calculated GSR, he must carry the heavy burden of

convincing us that the district court acted unreasonably in

imposing the sentence. See id. at 592-93.

Here, the defendant has failed to carry that heavy

burden. The district court concluded that the grisly nature of

the facts in this case warranted a life-without-parole sentence.

Seen in the lurid light of the totality of the circumstances, we

conclude that the district court acted within the ambit of its

discretion by imposing a life-without-parole sentence. Such a

sentence falls within the wide universe of substantively

- 29 -
reasonable sentences for the offense of conviction. Hence, the

defendant's assignment of error fails.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

the judgment of the district court is

Affirmed.

- 30 -