United States v. Rivera-Gonzalez

             United States Court of Appeals
                        For the First Circuit


No. 08-2142

                       UNITED STATES OF AMERICA,

                               Appellee,

                                  v.

                 JOSE E. RIVERA-GONZALEZ, a/k/a Geno,

                         Defendant, Appellant.


             APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF PUERTO RICO

          [Hon. Carmen Consuelo Cerezo, U.S. District Judge]


                                Before

                      Lipez, Baldock* and Howard,
                            Circuit Judges.



     Jedrick H. Burgos-Amador for appellant.
     Germán A. Rieckehoff, Assistant United States Attorney, with
whom Rosa E. Rodríguez-Vélez, United States Attorney, and Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, were on brief, for appellee.



                           December 1, 2010




     *
         Of the Tenth Circuit, sitting by designation.
           HOWARD, Circuit Judge. Appellant José E. Rivera-Gonzalez

pled guilty to conspiring to distribute cocaine in a Coamo, Puerto

Rico, housing project.     Having three times moved unsuccessfully to

withdraw his plea, he now challenges his conviction and sentence,

contending that:       (1) his plea was not knowing and voluntary

because he relied on a contradictory and ambiguous plea agreement;

(2) he received ineffective assistance of counsel because his

attorney failed to identify and inform him of the plea agreement's

inconsistencies; (3) the district court erred in concluding that

Rivera-Gonzalez was on probation at the time of his crime and

enhancing his sentence under section 4A1.1(d) of the Sentencing

Guidelines; and (4) his sentence was unreasonable.

           Concluding that the district court did not abuse its

discretion in denying the appellant's motions to withdraw his

guilty   plea,   and   finding   no   error   in   the   court's   sentencing

calculation, we affirm Rivera-Gonzalez's conviction and sentence.

We also dismiss his ineffective assistance of counsel claim as

procedurally flawed.



I. Facts

           On November 9, 2005, Rivera-Gonzalez and fifteen co-

defendants were indicted for conspiring to traffic narcotics in

the Las Palmas Public Housing Project from around 1999 to 2005.

Rivera-Gonzalez was charged with conspiracy to possess with intent


                                      -2-
to distribute and distribution of controlled substances near a

school or public housing project in violation of 21 U.S.C. §§ 841,

846 and 860.

               Rivera-Gonzalez pled guilty on April 3, 2006, pursuant to

a written plea agreement.            The agreement stipulated a Sentencing

Guidelines base offense level of 30 and a reduction of three levels

based on Rivera-Gonzalez's acceptance of responsibility, yielding

a guidelines sentencing range of seventy to eighty-seven months.1

The agreement specified that no further enhancements or deductions

would       apply,   although   it    expressly   stated   that   it   made   no

stipulation as to the defendant's Criminal History Category.

               In exchange for Rivera-Gonzalez's plea, the government

agreed to recommend the minimum sentence of seventy months or the

lower end of the guidelines and to not seek any upward adjustments

to his sentence.          The agreement emphasized, however, that the

district court judge did not have to accept this recommendation and

could in fact sentence Rivera-Gonzalez up to the statutory maximum

of forty years.

               The plea agreement also incorporated the government's

version of the statement of facts, which, by the terms of the

agreement, Rivera-Gonzalez acknowledged were accurate and could be

used by the sentencing judge in applying the Sentencing Guidelines



        1
      The plea agreement contained a Sentencing Guidelines table
that presented this calculation.

                                        -3-
to his case.       The statement specified that Rivera-Gonzalez had

participated in at least two drug distribution transactions in the

Las Palmas Housing Project and noted that Rivera-Gonzalez had

"possessed     firearms   in   furtherance    of    the   conspiracy."      The

statement also confirmed        Rivera-Gonzalez's participation in the

conspiracy from its beginning in or around 1999.2

             The probation office relied on these details in the pre-

sentence investigation report (PSR) it prepared for the district

court.     The PSR recommended a two-level enhancement because the

offense     was   committed    in   a   protected    location,   U.S.S.G.    §

2D1.2(a)(1), and a two-level enhancement for Rivera-Gonzalez's use

of dangerous weapons in the conspiracy, U.S.S.G. § 2D1.1(b)(1).

The report also noted that Rivera-Gonzalez was on probation during

the conspiracy and thus assigned him a Criminal History of II.3


     2
         The relevant text of the stipulated facts read as follows:

                   From on or about 1999 to November 9,
                   2005, the date of this Indictment,
                   the defendant participated in the
                   distribution of narcotic controlled
                   substances,   namely,   heroin   and
                   cocaine, at the Las Palmas Public
                   Housing Project in Coamo, Puerto
                   Rico.   Specifically, the defendant
                   was present or participated in at
                   least two (2) drug distribution
                   transactions, and also possessed
                   firearms in furtherance of the
                   conspiracy.

     3
      Rivera-Gonzalez was convicted of two separate state drug
offenses in 1998 and was placed on probation until May 1, 2003, for

                                        -4-
The PSR's adjustments yielded a guidelines imprisonment range of

121 to 151 months, significantly higher than the range set forth in

Rivera-Gonzalez's plea agreement.

             Both the government and Rivera-Gonzalez objected to the

proposed sentencing enhancements.        In addition, Rivera-Gonzalez

filed three motions to withdraw his plea, the first two pro se and

the third with the help of his current counsel.            Rivera-Gonzalez

first argued that he was heavily sedated at the time of his change-

of-plea hearing and that his trial attorney, Benjamin Ortiz, had

coerced him into signing the plea agreement.         In his second pro se

motion, he contended that he did not understand the nature of the

agreement because his attorney had not read it to him or explained

its terms in Spanish. In his third motion, Rivera-Gonzalez claimed

that   the   government   deliberately   drafted    a    contradictory   and

ambiguous plea agreement to induce him to plead guilty, and his

attorney's    participation   in   negotiating     the   plea   constituted

ineffective assistance of counsel.

             The district court overruled the parties' objections to

the sentencing report, determining that the agreed-upon statement

of facts justified the enhancements.           It also denied Rivera-

Gonzalez's motions to withdraw his plea.           The court found that

Rivera-Gonzalez's     statements    at   his     change-of-plea    hearing

discredited his later allegations of ignorance, and it found no


a total term of five years.

                                   -5-
evidence that the government had acted deceitfully.    Although it

agreed that the stipulated facts were "patently irreconcilable with

the sentence [the defendant] agreed [to] with the government," the

court observed that it had no reason to suspect that Ortiz did not

warn Rivera-Gonzalez of this fact.   Moreover, the court noted that

the defendant had expressly acknowledged his awareness that it

could impose a harsher sentence and that such would not be a valid

basis for withdrawal of his plea.

          On July 31, 2008, the court adopted the PSR's findings

and sentenced Rivera-Gonzalez to 121 months' imprisonment.    This

timely appeal followed.



II. Analysis

          Rivera-Gonzalez raises four issues on appeal. We address

each in turn.4




     4
      We note that the plea agreement that Rivera-Gonzalez signed
contained a clause whereby Rivera-Gonzalez agreed to waive his
right to appeal the judgment and sentence in his case if the
district court accepted the plea and "sentence[d] him according to
its terms and conditions." Rivera-Gonzalez argues that the waiver
is unenforceable under the three-prong test enunciated in United
States v. Teeter, 257 F.3d 14, 24–25 (1st Cir. 2001).
     We need not consider the validity of the waiver, however,
because the government does not seek to enforce it. See United
States v. Carrasco-de-Jesús, 589 F.3d 22, 26 (1st Cir.
2009)("Where. . . the government's relinquishment of a known right
relates to a waiver-of-appeal provision in a plea agreement, there
is usually little reason to rescue the government from its
election.").

                               -6-
            A. Denial of Motion to Withdraw Guilty Plea

            Rivera-Gonzalez      argues     that    the    plea   agreement's

contradictory and ambiguous language led him to plead guilty

without understanding the consequences of his plea, and that he

would not have pled guilty had he known that facts included with

his plea agreement would operate to enhance his sentence.

            We review the decision to deny a motion to withdraw a

guilty plea for abuse of discretion.         United States v. Pulido, 566

F.3d 52, 57 (1st Cir. 2009).               "The trial court's subsidiary

findings of fact in connection with the plea-withdrawal motion are

reviewed only for clear error."       United States v. Martinez-Molina,

64 F.3d 719, 732 (1st Cir. 1995).

            Although "[a] defendant does not have an automatic right

to withdraw a guilty plea," United States v. Sousa, 468 F.3d 42, 46

(1st Cir. 2006), the court should permit the defendant's motion if

the   defendant    establishes   a   "fair    and   just   reason"   for   the

withdrawal.   Fed. R. Crim. P. 11(d)(2)(B).          Factors to be included

in determining whether the defendant has met this burden are

whether the plea was voluntary, intelligent, knowing, and in

compliance with Rule 11; the plausibility of the proffered reason

for withdrawing the plea; the presence or absence of a claim of

innocence; the timing of the defendant's motion; and possible

prejudice to the government if the defendant is allowed to withdraw

his plea.    Id.


                                     -7-
            We conclude that the district court did not abuse its

discretion by rejecting Rivera-Gonzalez's request to withdraw his

guilty plea. The plea agreement expressly stated that the district

court was not bound by the agreement's recommended sentencing range

and could in fact sentence the defendant to the maximum term of

forty years' imprisonment.        Rivera-Gonzalez may not withdraw his

plea merely because of the likelihood of a higher sentence.                  See

United States v. Torres-Rosa, 209 F.3d 4, 9 (1st Cir. 2000)("[T]he

fact that a defendant finds himself faced with a stiffer sentence

than   he   had   anticipated    is   not   a   fair   and   just   reason   for

abandoning a guilty plea."); United States v. Mercedes Mercedes,

428 F.3d 355, 359 (1st Cir. 2005) (observing that "[c]ases holding

to this effect are legion").

            Rivera-Gonzalez lodges two arguments that he should be

able to withdraw his plea, neither of which alters our analysis.

            First, he claims that he is innocent of the conduct that

prompted the district court to enhance his sentence.                 He argues

that he was not on probation when he joined the drug conspiracy,

that he did not traffic drugs in a protected location, and that he

did not use a weapon in connection with the offense.                   But the

statement    of   facts   that   Rivera-Gonzalez       signed   included     this

conduct, and at his change of plea hearing he explicitly confirmed

that all of the facts were true.        The district court did not err in

presuming the validity of these assurances.             See United States v.


                                      -8-
Torres-Rosario, 447 F.3d 61, 67 (1st Cir. 2006) (holding that a

court is "entitled to give weight to [the defendant's] assurances

at   his   change   of   plea   hearing"   absent   a   "good   reason   for

disregarding them"); cf. Blackledge v. Allison, 431 U.S. 63, 74

(1977)(stating that a defendant's "declarations in open court carry

a strong presumption of verity").5

            Rivera-Gonzalez also argues that the plea agreement which

he signed was internally inconsistent in that the statement of

facts supported a stiffer sentence than the agreement contemplated.

Thus, he avers, his plea was not knowing and voluntary.                   We

disagree. As we have already noted, the plea agreement put Rivera-

Gonzalez on plain notice of his sentence exposure.



            B. Ineffective Assistance of Counsel

            Rivera-Gonzalez blames his first attorney, as well as

the government, for allowing him to sign the plea agreement.6


      5
      To the extent that Rivera-Gonzalez's real source of
discontent is that the government did not engage in "fact
bargaining" to secure his plea, it fails. While the government
could have reached such an agreement with the defendant, see United
States v. Yeje-Cabrera, 430 F.3d 1, 20–30 (1st Cir. 2005), it was
not obligated to do so.
      6
      To be sure, the record suggests that the government has been
Janus-faced in some of its dealings with the defendant. On the one
hand, the government, through the plea agreement, suggested that
Rivera-Gonzalez could expect a sentence within the range of seventy
to eighty-seven months. On the other, it set forth facts in the
agreement that plainly might lead the judge to impose a harsher
sentence.   But we also note that the government stood by the
bargain that it had made and pressed for the agreed-upon lower

                                    -9-
Ortiz, Rivera-Gonzalez asserts, should have known that the details

provided in the agreement's stipulated facts section would lead the

court to sentence him to a longer term than outlined by the plea

agreement itself.         Rivera-Gonzalez claims that Ortiz's role in

advising    him    to   sign      the   agreement     constituted   ineffective

assistance of counsel.

            To    prevail    on    an   ineffective    assistance   claim,   the

appellant must show that the trial attorney's representation was

deficient   and    that     this    deficient   performance    prejudiced    the

defense.    See Strickland v. Washington, 466 U.S. 668, 687 (1984).

            We generally will not address ineffective assistance

claims on direct appeal, but rather require that they be raised

collaterally.      See United States v. Wyatt, 561 F.3d 49, 51 (1st

Cir.), cert. denied, 129 S.Ct. 1690 (2009); United States v. Ofray-

Campos, 534 F.3d 1, 34 (1st Cir. 2008); United States v. Hicks, 531

F.3d 49, 55 (1st Cir. 2008); United States v. Rodriguez, 457 F.3d

109, 117 (1st Cir. 2006).               It is usually wiser to allow the

district court to address an ineffective assistance claim in the

first instance, because "an appellate court is ill-equipped to

handle the fact-specific inquiry that such claims often require."

Ofray-Campos, 534 F.3d at 34.              Only when such scrutiny of the

factual     record      is        unnecessary    because      the    attorney's

ineffectiveness is "manifestly apparent from the record," Wyatt,


sentence.

                                        -10-
561 F.3d at 52, will we consider ineffective assistance claims on

direct appeal.   See id.

          Rivera-Gonzalez urges us to find that his claim falls

within this narrow exception, because his former attorney's advice

to sign an "obvious contradictory and ambiguous plea agreement" was

per se incompetent.        He refers us to a statement Ortiz made

regarding the plea agreement at the hearing pursuant to his motion

to withdraw as counsel:

          [I]n [Rivera's] mind when he wrote -- accepted
          the plea offer, in his mind there was level
          27, Criminal History I, 70 months, that is
          true, and that was our understanding also.

Rivera-Gonzalez asserts that this statement reveals that Ortiz's

understanding of the plea bargaining process was "simplistic and

unrealistic" and that the attorney did not understand that the

facts, as written, exposed his client to additional sentencing

enhancements.

          We cannot conclude, from this one line, that Ortiz's

performance was necessarily constitutionally deficient, nor can we

glean any further information from the record about the plea

bargaining process, such as the expectations or strategies the

parties brought to the negotiations.      Even if we could determine

from the record before us that Ortiz's performance was deficient,

we could not appropriately analyze whether the errors prejudiced

either Rivera-Gonzalez's defense or his ability to obtain a more

favorable arrangement.      See Ofray-Campos, 534 F.3d at 34 (noting

                                  -11-
that "it is the trial court, rather than the appellate court, that

is in the best position to assess whether [counsel's performance],

if it was in fact constitutionally deficient, resulted in prejudice

to   [the     appellant's]   substantial        rights,    as    required    under

Strickland").        We therefore dismiss Rivera-Gonzalez's ineffective

assistance claim without prejudice to his reasserting them in a

collateral proceeding under 28 U.S.C. § 2255.



              C. Sentencing Calculation

              Rivera-Gonzalez   next      attacks    the   calculation      of   his

sentence.       Specifically,       he   challenges    the      district    court's

enhancement of his sentence under section 4A1.1(d) based on the

court's determination that he was on probation when he joined the

conspiracy.

              Section 4A1.1(d) instructs the district court to add two

points   to    the    defendant's    Criminal       History     Category    if   the

defendant was on probation at the time of the crime.                        Rivera-

Gonzalez acknowledges that he was on probation from May 1, 1998 to

May 1, 2003.     He argues, however, that the district court could not

confirm that the drug conspiracy began before May 1, 2003 and thus

could not conclude that Rivera-Gonzalez was on probation when he

committed the offense.

              Although we review a sentencing court's interpretation

and application of the sentencing guidelines de novo, United States


                                         -12-
v. Goodhue, 486 F.3d 52, 55 (1st Cir. 2007), where the defendant

challenges the court's finding of facts, as here, our review is

only for clear error.      See United States v. Villar, 586 F.3d 76,

88 (1st Cir. 2009).

           Rivera-Gonzalez contends that the district court, in

applying section 4A1.1(d), relied on information in the PSR from a

cooperating witness that he engaged in activities in furtherance of

the conspiracy as early as March 16, 2001.        He maintains that this

information was unreliable and insists that the district court

should have held an evidentiary hearing to assess the reliability

of the witness's claim.7

           We need not consider the reliability of the witness's

account, however.      As we have noted above in dismissing his

attempts   to   withdraw   his   guilty   plea,   the   defendant   himself

admitted that his participation in the conspiracy began "from on or

around 1999."8


     7
      Rivera-Gonzalez also challenges the district court's
enhancement of his sentence for possession of a dangerous weapon
under section 2D1.1(b)(1). He argues that he did not, as the PSR
alleged, arm himself with a .38 caliber revolver in furtherance of
the conspiracy.   This argument is easily disposed of, however,
because the district court need not have relied on the PSR's
findings in determining that the sentencing enhancement was
appropriate. As we have already noted, Rivera-Gonzalez admitted in
the plea agreement's statement of facts that he "possessed firearms
in furtherance of the conspiracy," and the district court did not
abuse its discretion in relying on this admission.
     8
      We also reject the defendant's argument that the district
court abused its discretion by refusing to order the Department of
Correction to produce documentation certifying that Rivera-Gonzalez

                                   -13-
           Faced with the incontrovertible weight of his own words,

Rivera-Gonzalez seeks to lessen their import to achieve his desired

result.   He contends that the phrase "from on or about 1999" is so

vague that the district court could not rely on its accuracy.

"Based on such language," he asserts, "any effort to determine

whether [Rivera-Gonzalez's] participation began before or after the

date of May 1, 2003 would be speculative."

           We disagree. "From on or about 1999" may be approximate,

but it is not so nebulous as to suggest that the conspiracy could

have started at any time at all.      The use of the phrase "on or

about," as another circuit has noted, "merely serves to prevent any

dickering over the small technicality of an exact date."    United

States v. McCown, 711 F.2d 1441, 1450 (9th Cir. 1983).   The Ninth

Circuit, in interpreting the phrase "from on or about June 17,

1981," found the words "on or about" opened the time frame by at

most one or two days.    Id.   It would be unreasonable for us to

agree with the defendant that "on or about 1999" might mean only

"after May 1, 2003."




had finished his probation sentence satisfactorily. For 4A1.1(d)
to apply, it mattered only that Rivera-Gonzalez was on probation at
some time during the charged conspiracy.      See U.S. Sentencing
Guidelines Manual §4A1.1, cmt. n.4 (2007). ("Two points are added
if the defendant committed any part of the instant offense . . .
while under any criminal sentence.")(emphasis added).      We agree
with the district court that whether Rivera-Gonzalez in fact
satisfactorily completed his probation was not critical to
determining when he joined the charged conspiracy.

                               -14-
              D. Reasonableness of the Sentence

              Rivera-Gonzalez argues that even if the district court

correctly applied section 4A1.1(d), his 121-month sentence is

unreasonable. He claims the sentence is unfair because he received

a longer sentence than any of his co-conspirators, including, in

particular, the conspiracy's leaders.                 He also argues that the

district court did not adequately explain the reasons for his

sentence as required by 18 U.S.C. § 3553.

              Our    review   of   the     district     court's    sentence    for

reasonableness is a two-step process. We first review the sentence

for       procedural    errors,9      then      "turn   to   the     substantive

reasonableness of the sentence actually imposed and review the

sentence for abuse of discretion."              Politano, 522 F.3d at 73.

              1. Adequacy of the Explanation

              We    first   address   Rivera-Gonzalez's      procedural       claim

thatthe district court failed to adequately explain the reasons for

his sentence. Rivera-Gonzalez raises this claim for the first time

on appeal, and so our review is for plain error.             See United States

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



      9
      Such errors include "failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,
selecting a sentence based on erroneous facts, or failing to
adequately explain a chosen sentence -- including an explanation
for any deviation from the Guidelines range." United States v.
Politano, 522 F.3d 69, 72 (1st Cir. 2008) (quoting Gall v. United
States, 552 U.S. 38, 51 (2007)).

                                         -15-
           Section 3553(c) requires the sentencing judge "to state

in open court the reasons for its imposition of a particular

sentence."      Where, as here, the defendant's guideline sentencing

range exceeds twenty-four months, the judge must also state "the

reason for imposing a sentence at a particular point within the

[Guidelines Sentencing] range."             18 U.S.C. § 3553(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 link[s] that aspect to the goals of sentencing."

United States v. Vazquez-Molina, 389 F.3d 54, 58 (1st Cir. 2004),

vacated on other grounds, 544 U.S. 946 (2005).                  Although the

court's explanation must reflect "that the court considered the

relevant § 3553(a) factors, the court need not address these

factors   one    by   one,   in   some   sort   of   rote   incantation   when

explicating its sentencing decision."           United States v. Almenas,

553 F.3d 27, 36 (1st Cir. 2009) (internal quotation marks and

citations omitted).

           The district court's explanation of Rivera-Gonzalez's

sentence was sufficient to satisfy § 3553(a)'s requirements. After

making the guidelines calculations, but before pronouncing its

ultimate sentence, the district court stated the following:

           Before the Court is a 42-year-old defendant
           with a high school education, no dependents.
           He has a history of drug use and prior
           criminal record. The defendant was actively
           involved in the drug trafficking conspiracy
           charged in the indictment.

                                     -16-
              The guidelines, although advisory, adequately
              considers [sic] the nature of the offense, the
              history and characteristics of this defendant
              and his criminal record.

              Taking into consideration all of the factors
              that are set forth if [sic] 18 U.S. Code
              Section 3553, as well as the parties'
              sentencing recommendation set forth in their
              plea agreement, the Court finds that the lower
              end of the applicable guideline range is a
              sentence sufficient but not greater than
              necessary to meet the sentencing objectives of
              punishment and deterrence in this case.


The district court described the defendant's background, including

his educational history and prior drug use, and referred to his

criminal record. See 18 U.S.C. § 3553(a)(1)(directing the court to

consider the "history and characteristics of the defendant" in

imposing a sentence).      The court added that a sentence at the lower

end of the applicable guideline range would address the goals of

punishment and deterrence, two of the objectives identified in 18

U.S.C. § 3553(a)(2).        This explanation, though brief, was more

detailed than others we have upheld under a plain error standard.

See, e.g., Vasquez-Molina, 389 F.3d at 59 (upholding district

court's explanation as adequate, where district court said only

that "since the defendant is [a] second offender, a sentence in the

middle   of    the   guideline   range   will   serve   the   objectives   of

punishment and deterrence").

              Finding no procedural error, we shift our focus to the

defendant's substantive claim.

                                    -17-
               2. Substantive Reasonableness of the Sentence

               Rivera-Gonzalez claims that his sentence was unreasonable

because at least eleven of his co-defendants, including the leaders

of the drug conspiracy, were sentenced to lighter sentences than he

was, ranging from forty-six to 108 months. In particular, he notes

that Joel Moreno-Espada, the organization's leader, was sentenced

to just seventy months' imprisonment.

               We     afford    the   district    court   "wide    discretion"     in

sentencing decisions.            United States v. Marceau, 554 F.3d 24, 33

(1st    Cir.    2009).         Ultimately,   "the    linchpin     of   a   reasonable

sentence is a plausible sentencing rationale and a defensible

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

               Section 3553(a)(6) directs the district court to consider

"the    need     to    avoid    unwarranted      sentencing     disparities     among

defendants with similar records who have been found guilty of

similar conduct."          This section is "primarily aimed at national

disparities, rather than those between co-defendants," Marceau, 554

F.3d at 33, and we have observed that a sentence within the

Guidelines range, as was Rivera-Gonzalez's, "is likely to reflect

the national standard."           United States v. Mueffelman, 470 F.3d 33,

40–41    (1st       Cir.   2006).        Unless     two   "identically       situated

defendants" receive different sentences from the same judge, which

may be a reason for concern, United States v. Wallace, 573 F.3d 82,

97 (1st Cir. 2009), our general rule of thumb is that a "defendant


                                         -18-
is not entitled to a lighter sentence merely because his co-

defendants received lighter sentences." Id.

             Rivera-Gonzalez   and     his    co-defendants     were     not

identically situated, as our close review of each defendant's pre-

sentence investigation report confirms.        Some of his co-defendants

were    first-time   offenders,10    while   others   were   convicted    of

possessing a smaller quantity of drugs.           Still others received

point reductions for the minor role that they played in the

offense.11     We thus conclude with little difficulty that "the

district court properly exercised its informed discretion, while

offering a plausible rationale and reaching a defensible result."

Marceau, 554 F.3d at 34 (internal quotation marks omitted)(internal

citations omitted).       In short, we are satisfied that Rivera-

Gonzalez's sentence was reasonable.




       10
      In particular, Moreno Espada, whose sentence the defendant
highlighted, was a first-time offender.
       11
      In claiming that it was unreasonable for the district court
to sentence him to a longer sentence than those of the conspiracy's
leaders, Rivera-Gonzalez relies exclusively on a concurring opinion
in United States v. Cirilo-Muñoz, 504 F.3d 106 (1st Cir. 2007). In
that case, Judge Torruella observed that the scant evidence showed,
at most, only that the defendant was an accessory after the fact,
not an aider and abettor.         Id. at 121–22 (Torruella, J.,
concurring). Here, we have no such concerns. Rivera-Gonzalez was
not merely an accessory after the fact to the drug conspiracy, but,
by his own admission, an active participant.

                                    -19-
III. Conclusion

           For the reasons provided above, we affirm the conviction

and   sentence   and   dismiss   without   prejudice   Rivera-Gonzalez's

ineffective assistance claim.



AFFIRMED




                                   -20-