United States Court of Appeals

For the First Circuit

No. 23-1446

UNITED STATES,

Appellant,

v.

AGUSTIN VINAS, a/k/a Amigo,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. John J. McConnell, Jr., U.S. District Judge]

Before

Barron, Chief Judge,

Selya and Howard, Circuit Judges.

Lauren S. Zurier, Assistant United States Attorney, with whom 

Zachary A. Cunha, United States Attorney, was on brief, for 

appellant.

Miriam Conrad for appellee.

July 1, 2024
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BARRON, Chief Judge. In this appeal, the government 

challenges Agustin Vinas's time-served prison sentence for his 

murder-for-hire-related conviction under 18 U.S.C. § 1958. We 

affirm.

I.

On April 19, 2021, the FBI received a tip from a 

confidential source ("CS-1") that Vinas, who was then living in 

Rhode Island, was attempting to hire an individual to commit a 

murder.1 CS-1 informed the FBI that Vinas, whom CS-1 had known 

socially for several years, had told CS-1 about his desire to 

arrange the murder of a contractor ("Victim 1"). 

Vinas, who worked as a subcontractor, told CS-1 that he 

was owed $8,500 by Victim 1 for construction work. Vinas explained 

to CS-1 that his attempts to collect the debt had been unsuccessful 

and that Victim 1 had threatened to harm Vinas and his family if 

he continued to pursue the money he was owed. As a result, Vinas 

said he wanted to hire someone to kill Victim 1. CS-1 told Vinas 

that CS-1 would be in touch with the contact for someone who could 

carry out the murder. 

1 We draw the facts from the presentence investigation report 

("PSR"), the factual findings of which neither side contested, and 

the transcript of the sentencing hearing. See United States v. 

Edwards, 857 F.3d 420, 421 n.1 (1st Cir. 2017).
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After verifying some of the information CS-1 provided, 

an FBI agent instructed CS-1 to call Vinas and set up a meeting on 

the evening of April 20 to discuss the prospective murder. During 

this second meeting -- which took place in Providence, Rhode Island 

and which CS-1 surreptitiously recorded -- Vinas provided CS-1 

with the cellphone number, address, and business name of Victim 1. 

Vinas also informed CS-1 that he wanted to have a second 

person -- the business partner of the contractor ("Victim 

2") -- killed as well. Vinas further stated that he wanted the 

victims to be tortured before they were killed and that he would 

be willing to pay a total of $3,000 for the two murders, with an 

additional $500 bonus if the hitman could make the bodies 

"disappear." Finally, Vinas revealed that he had been surveilling 

the intended victims and that he had already been in contact with 

another potential hitman. 

The FBI verified that the phone number, business name,

and address that Vinas had provided all belonged to Victim 1. On 

April 22, CS-1 arranged another meeting with Vinas, this time in 

Pawtucket, Rhode Island. CS-1 brought an undercover law 

enforcement officer who posed as a hitman. Vinas provided the 

undercover officer with information that identified Victim 1 and 

repeated his offer to pay $3,500 for the murders. The undercover 

officer told Vinas that he would be in touch after making the 

necessary arrangements for the murders. 
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On April 26, Vinas met with the undercover officer and 

CS-1 in the parking lot of a Home Depot in Attleboro, 

Massachusetts. Vinas gave the undercover officer a $100 cash 

deposit for the killing and showed him proof that he had $3,500 

available to pay upon completion of the murders. Vinas also agreed 

to provide another $300 deposit to the undercover officer upon 

their next meeting. 

The undercover officer and Vinas met one final time on 

April 29. At this meeting, which also took place at the Attleboro 

Home Depot parking lot, Vinas provided the officer with an 

additional $200 as well as Victim 1's license plate number and the 

address of a home where Vinas believed Victim 1 was working on a 

construction job. At the end of the meeting, the undercover 

officer asked Vinas whether Vinas was sure that he wanted to go 

through with the plot and emphasized that, if they proceeded past 

this point, the "job" could not be stopped. Vinas replied, "I 

want you to make that guy disappear." 

The following day, the FBI arrested Vinas. On May 14, 

2021, a federal grand jury in the District of Rhode Island handed 

up an indictment charging Vinas with two counts, both under 18 

U.S.C. § 1958, relating to his conduct in the commission of a 

murder-for-hire plot. 

Vinas entered into a plea agreement with the government 

on October 13, 2022, under the terms of which he pleaded guilty to 
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the indictment's first count, using facilities of interstate 

commerce in the commission of murder-for-hire, and the government 

agreed to dismiss the second count, related to interstate travel 

in the commission of murder-for-hire. The parties stipulated to 

a total offense level of 37 under the United States Sentencing 

Guidelines ("Guidelines") -- subject to adjustments for acceptance 

of responsibility -- and the government agreed to recommend a 

sentence within the Guidelines sentencing range: the statutory 

maximum of ten years. 

Prior to sentencing, the government submitted a two-page 

sentencing memorandum in which it sought a sentence of ten years' 

imprisonment. The government argued in its memorandum that 

"[a]mong the most significant factors" underlying its recommended 

sentence were "specific deterrence of [Vinas] and general 

deterrence of those who might consider similar conduct." 

The defense submitted a six-page sentencing memorandum, 

accompanied by numerous exhibits. The memorandum argued for a 

sentence of time served -- the nearly two years that Vinas had 

already spent in pretrial detention. 

The sentencing memorandum described the background of 

the dispute between Vinas and Victim 1 and informed the District 

Court that Vinas made several attempts to peacefully collect the 

money that he was owed from Victim 1 but that Victim 1 had responded 

by assaulting Vinas and threatening Vinas and his family. The 
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sentencing memorandum also noted that Vinas reported the assault 

and threats to the local police on two different occasions but 

that these reports were never acted upon. Attached to the 

memorandum were corroborating police reports and a transcript of 

a recorded telephone call in which Victim 1 threatened to kill 

Vinas and told Vinas that he and his family "are going to have to 

move out of the country." While the memorandum acknowledged that 

Vinas "made the terrible decision to take matters into his own 

hands," it argued that the evidence of these threats and Vinas's 

efforts to get assistance from the authorities mitigated his 

culpability to some extent. 

Vinas's sentencing memorandum also highlighted that, 

while in pretrial custody, Vinas had been diagnosed with a 

depressive disorder with paranoid features including auditory 

hallucinations, and that he had been placed on antidepressant and 

antipsychotic medications. Alongside the sentencing memorandum, 

the defense submitted forty-nine letters of support written by 

Vinas's family, friends, clergy, and contracting clients. 

The government submitted a one-page response to the 

sentencing memorandum. It emphasized that the undercover officer 

posing as a hitman had given Vinas a final opportunity to stop the 

plot but that Vinas had not taken it. 

Vinas was sentenced on April 18, 2023. At the outset of 

the sentencing hearing, the District Court confirmed that neither 
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side had any objections to the PSR that had been prepared by the 

U.S. Office of Probation and its calculation of a 120-month 

Guidelines prison sentence based on a total offense level of 

34 -- reduced 3 levels from 37 based on Vinas's acceptance of 

responsibility -- and Vinas's criminal history category, which was

I. The Court then offered each side an opportunity to be heard 

before pronouncing Vinas's sentence. 

The government did not request any specific length of 

sentence during the sentencing hearing but advocated for "a 

substantial sentence to deter [Vinas], [and] to deter others as 

well who might think about doing something similar in the future." 

The government acknowledged that "the Court certainly has a 

challenge here as to what's the appropriate sentence [to] . . . 

provide just punishment in these circumstances" and that "clearly 

there's a lot of people in the Defendant's corner." Indeed, 

cataloging the letters in support of Vinas, the government noted 

that "at least 24 of them refer to the fact that he was hard 

working, 15 of them or so said that he was respectful, and another 

16 or so said that he was honorable." The government also noted 

that the letters made clear that Vinas had "shown kindness to his 

family and to his friends and to members of his community." The 

government emphasized, however, that the letters just highlighted 

"a big gap" between the person described in the letters, "who so 
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many are willing to say is a good person[,] . . . and the same 

person who did everything he could to end another person's life." 

The government also acknowledged that Vinas "had some 

mental health issues" that were untreated at the time of the 

offense conduct. The government nevertheless argued that the 

mitigating circumstances presented by the defense did not explain 

the "gap" between how Vinas was presented by the defense and his 

"contracting to go out and have individuals killed," which the 

government argued was "not that type of conduct that we can address 

with supervised release and counsel[]ing and close supervision." 

Vinas's defense counsel reaffirmed the request for a 

time-served sentence. Responding to the government's argument 

about the "gap" between the version of Vinas described in the 

letters and his criminal conduct, defense counsel emphasized the 

interaction between Victim 1's threats and Vinas's then-untreated 

mental illness. Defense counsel emphasized the evidence of Vinas's 

rehabilitation including his undergoing mental health treatment 

and his completion of several personal growth programs while he 

was in pre-trial detention. Defense counsel argued that, given 

Vinas's age of fifty-three and lack of a prior criminal history,

a time-served sentence would appropriately account for not only 

"retribution and deterrence but also rehabilitation and . . . 

[Vinas's] personal characteristics as well as the characteristics 

of what led to the crime." 
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Vinas also spoke on his own behalf. Vinas asked 

forgiveness "from the deepest and most profound parts of my heart" 

from Victim 1 and his family. Addressing the District Court, Vinas 

said, "I cannot change the past; but as far as the present and the 

future, I do have very lofty goals and purposes that would help 

not only my family but the community in general." 

The District Court then explained that it would be 

imposing a prison sentence of time served. The District Court 

began by noting that Vinas's crime "is one of the most serious, if 

not the most serious, that I've seen come before me in my 12 years 

on the bench." Addressing Vinas directly, the District Court 

stated that it continued to struggle to understand "how you, the 

person that I feel like I've gotten to know through the 49 letters 

. . . and the information that I read about you and know about 

you, could have been of the mindset to have commissioned someone 

to murder someone." 

The District Court then identified the sentencing 

factors set forth in 18 U.S.C. § 3553(a): specific and general 

deterrence, rehabilitation, retribution, and promoting respect for 

the law. As to specific deterrence, the District Court stated 

that it had "little to no doubt . . . after getting to know [Vinas]

that [he] will never commit a crime like this or any crime again." 

Then, turning to general deterrence, the District Court stated:
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I don't believe that the sentence I give you

will deter people one way or the other in the 

public on whether to commit a crime or not. 

And the reason for that is . . . people don't 

commit crimes based on the level of 

punishment. Science and sociology tell us 

they do it more likely on whether they're 

going to get caught or not, not on what the 

punishment will be. I always tell the story 

that when I speed, I don't think about, oh, I 

could get a $100 ticket or a $200 ticket. I 

think, hmm, is there a cop around the corner?

Right? It's the likelihood of getting caught.

Concluding the discussion of this factor, the District Court 

explained that "when you look at the second factor of deterring 

the public, I think any substantial sentence will accomplish that." 

As for rehabilitation, the District Court determined 

that Vinas was "on the road already to that with the intervention 

that [he'd] gotten," including the treatment he was receiving for 

his mental illness. And, as for the final two § 3553(a) factors, 

the District Court stated there was "no question in [its] mind" 

that Vinas "deserve[d] just punishment and . . . a substantial 

sentence" given the seriousness of his crime. 

The District Court emphasized that it had struggled 

weighing each of these factors in coming to an individualized 

sentence that was "sufficient but not more than necessary to 

accomplish" them in Vinas's case. The District Court also 

highlighted letters supporting Vinas, stating to the letter 

writers who were present at sentencing that the District Court had 

"never read such a consistently honest portrait, a singular 
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portrait of a human being as I did in reading your letters." The 

District Court specifically addressed Vinas's daughter whose 

letter gave "great insight into who your father is" and "moved me 

more than any letter that I've ever received, the way you described 

your upbringing and the meaning, how your dad showed his love for 

you."

Then, addressing Vinas once more, the District Court 

explained its reasoning for, given these factors, making the "very 

difficult decision" to render a sentence of "two years, the time 

you served." 

You've lived 50-some-odd years as a solid 

member of the community, as an outstanding 

spouse and parent to five wonderful children. 

You've contributed to the community. You've 

lived the life that we want people to come 

here and work and live. You built a successful 

business. You gave back to your community.

You've been removed from your job. You 

can't provide -- you haven't provided for your 

family for the last two years. You spent two 

years incarcerated in a pretrial facility, and 

you've been removed from this family that 

clearly adores you and you adore.

And being away from them for two years is 

a substantial sentence and imposes just 

punishment consistent with and commensurate 

with the nature of -- and the seriousness of 

the crime.

That wouldn't be true of many people. It 

wouldn't be. But for someone like you who's 

lived the life that you had and was forced to

leave it and lose your liberty for two years,

the Court in its requirement that it build an 

individual sentence looking . . . when you dig 

really down and you do it, two years for you 

is a substantial sentence that factors in all 
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of the aims of sentencing that I’m required to 

consider.

The District Court also imposed three years of 

supervised release and required Vinas to participate in mental 

health and substance abuse treatment programs and to refrain from 

the consumption of alcohol. Neither side voiced any objections to 

the sentence. The government timely appealed.

II.

A sentence can be challenged on both procedural and 

substantive grounds. "The procedural dimension includes errors 

such as failing to consider appropriate sentencing factors, 

predicating a sentence on clearly erroneous facts, or neglecting 

to explain the rationale for a variant sentence adequately. The 

substantive dimension focuses on the duration of the sentence in 

light of the totality of the circumstances." United States v. Del 

Valle-Rodríguez, 761 F.3d 171, 176 (1st Cir. 2014) (internal 

citation omitted) (citing Gall v. United States, 552 U.S. 38, 51

(2007)). The government frames its challenge to Vinas's sentence 

as pertaining only to the substantive reasonableness of the 

sentence's length.

A.

The government is most fairly read -- in asking for a 

"substantial sentence" -- to have argued below for a sentence 

greater than the time-served sentence that Vinas had sought. Thus, 
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because the government argued below for a longer sentence than 

Vinas received, the government preserved its contention that 

Vinas's time-served sentence is unreasonably short in light of the 

sentencing factors enumerated in 18 U.S.C. § 3553.2 Cf. HolguinHernandez v. United States, 589 U.S. 169, 173–74 (2020) ("Judges, 

having in mind their 'overarching duty' under § 3553(a), would 

ordinarily understand that a defendant [in arguing for a shorter 

sentence] was making the argument (to put it in statutory terms) 

that the shorter sentence would be 'sufficient' and a longer 

sentence 'greater than necessary' to achieve the purposes of 

sentencing. Nothing more is needed to preserve the claim that a 

longer sentence is unreasonable." (internal citation omitted)). 

But, even when such a challenge to a sentence's length is 

preserved, our review remains deferential, as our review "is 

limited to determining whether [the] sentence, 'in light of the 

totality of the circumstances, resides within the expansive 

universe of reasonable sentences.'" United States v. Rossignol, 

2 Vinas briefly suggests that, by failing to expressly request 

any specific length of sentence during the sentencing hearing, the 

government may have forfeited even its substantive reasonableness 

challenge to the length of Vinas's sentence. However, the 

government made clear its position during the sentencing hearing 

that, in its view, a sentence of time served would not be adequate. 

It did not need to do more than that to preserve a challenge to 

the reasonableness of the sentence's length. See United States v. 

Colón-De Jesús, 85 F.4th 15, 24-25 (1st Cir. 2023).
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780 F.3d 475, 477 (1st Cir. 2015) (quoting United States v. King, 

741 F.3d 305, 308 (1st Cir. 2014)). 

"[T]he hallmarks of a substantively reasonable sentence 

are a plausible sentencing rationale and a defensible result." 

United States v. Rodríguez-Cruz, 997 F.3d 362, 366 (1st Cir. 2021). 

We are "obliged to consider the extent of the variance" whenever 

a "sentence is outside the" Guidelines range. United States v. 

Martin, 520 F.3d 87, 92 (1st Cir. 2008). But "even in that posture 

[we] 'must give due deference to the district court's decision

that the § 3553(a) factors, on a whole, justify the extent of the 

variance.'" Id. (quoting Gall, 552 U.S. at 51).

Insofar as the government's substantive reasonableness 

challenge rests on the contention that the seriousness of Vinas's

crime precludes "a mere two years' imprisonment" from constituting 

a defensible result, we cannot agree.3 The government provides no 

basis for our concluding that, given the unquestionably serious 

nature of the crime, only a longer sentence would be defensible, 

regardless of the mitigating evidence in the record.

It is not as if the District Court held that this offense 

warranted no period of incarceration. Rather, the District Court 

3 Vinas points out in his brief, and the government does not 

dispute, that, accounting for good-time credits, the length of 

time Vinas was incarcerated is approximately the amount of time 

that a defendant sentenced to twenty-eight months would serve.

See 18 U.S.C. § 3624(b). 
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determined merely that Vinas's two years of separation from family, 

friends, and society due to his pre-trial detention and three years 

of supervised released was itself a substantial sentence when 

considered in relation to the mitigating evidence. We do not see 

how that conclusion is necessarily so outside "the expansive 

universe of defensible sentences," Rossignol, 780 F.3d at 477 

(quoting King, 741 F.3d at 308), that it is an indefensible one, 

see Rosales-Mireles v. United States, 585 U.S. 129, 139 (2018)

("'To a prisoner,' th[e] prospect of additional 'time behind bars 

is not some theoretical or mathematical concept.' '[A]ny amount 

of actual jail time' is significant . . . ." (second alteration in 

original) (internal citations omitted) (first quoting Barber v.

Thomas, 560 U.S. 474, 504 (2010) (Kennedy, J., dissenting), then 

quoting Glover v. United States, 531 U.S. 198, 203 (2001))). Nor 

does the government identify any authority compelling a different 

conclusion. 

Relatedly, the government argues that the District Court 

put too much weight on mitigating factors including Vinas's 

community ties, family circumstances, and steps towards 

rehabilitation. We have more than once affirmed, however, a belowGuidelines sentence that was justified in part on these same sorts 

of mitigating factors where the sentencing court explained how the 

particular defendant "stood out from the mine-run of criminal 

defendants and why he, as an individual, deserved mitigation." 
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Martin, 520 F.3d at 95; see also United States v. Prosperi, 686 

F.3d 32, 48 (1st Cir. 2012) ("[T]he circumstances of Prosperi's 

family are atypical and powerful, both in justifying a variance 

and in the home confinement actually chosen."). For example, in 

Martin, we affirmed a below-Guidelines sentence that, similar to 

the sentence here, was driven, in part, by "letters from family 

and friends attesting to the defendant's virtues as a father." 

520 F.3d at 93. 

The government does argue that the mitigating factors

that the District Court relied upon are not "'atypical,' 

'idiosyncratic,' or 'powerful' enough to justify . . . the extreme 

lenience of the sentence ultimately imposed." Sentencing courts

are not required, however, to "afford each of the section 3553(a) 

factors equal prominence. The relative weight of each factor will 

vary with the idiosyncratic circumstances of each case, and the 

sentencing court is free to adapt the calculus accordingly." 

United States v. Rivera-Rodríguez, 75 F.4th 1, 30 (1st Cir. 2023) 

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

2006)); see also United States v. Clogston, 662 F.3d 588, 593 (1st 

Cir. 2011) ("That the sentencing court chose not to attach to 

certain of the mitigating factors the significance that the 

appellant thinks they deserved does not make the sentence 

unreasonable."). Here, the District Court explained that the 

letters submitted in support of Vinas painted the most 
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"consistently honest portrait" of a defendant the Court had ever 

seen and gave the Court confidence that Vinas would not commit 

future crimes, would return to being a productive member of 

society, and was deserving of a below-Guidelines sentence. Thus, 

notwithstanding the concerning nature of the criminal conduct,

"[n]o more was [required] to blunt the government's charge that 

the sentence imposed is insupportable because the district court 

mistook the commonplace for the unique." Martin, 520 F.3d at 95.

B.

The government does also advance two more narrow-gauged 

arguments in challenging the sentence: that the District Court

categorically refused to consider general deterrence, and that it

created a disparity with defendants in other cases who were given 

longer sentences for the same statutory violation. Although the 

government did not expressly raise either of these arguments below, 

the government contends that each is necessarily subsumed under 

its challenge to the substantive reasonableness of the sentence's 

length that it did unquestionably preserve, in part because of the 

well-recognized ways in which challenges to a sentence's 

substantive reasonableness and procedural reasonableness can 

overlap. United States v. Melendez-Hiraldo, 82 F.4th 48, 57 (1st 

Cir. 2023) ("An adequate explanation for an upward variance and a 

plausible rationale for that variance are almost always two sides 

of the same coin." (cleaned up)). The government thus argues that
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we must treat as preserved all of the arguments it advances "to 

the extent that [they] bear[] on the reasonableness of [Vinas's] 

sentence." United States v. McDonough, 727 F.3d 143, 165 n.15

(1st Cir. 2013). 

But "substantive" and "procedural" labels aside, the 

important question in assessing whether a ground for challenging 

a sentence has been preserved is whether the district court was 

apprised of the ground for the challenge, even if only by 

implication. See United States v. Colón-Cordero, 91 F.4th 41, 50 

(1st Cir. 2024). Vinas argues that the government did not apprise

the District Court of the contentions that it now presses on 

appeal. Specifically, Vinas asserts that the government did not 

raise below either the claim that the District Court erred by 

categorically refusing to consider general deterrence or the 

argument that it erred by failing to account for the disparity in 

Vinas's sentence relative to the sentences that others convicted 

of the same offense have received. We agree with Vinas.

The government did not say a word below that raised any 

concerns about the District Court categorically ignoring general 

deterrence or creating a disparity. We thus conclude that our 

review of each of these grounds for challenging the sentence is 

for plain error. See United States v. Vargas-Martinez, 15 F.4th 

91, 98 (1st Cir. 2021) ("Under the plain error standard, the 

[appellant] must show: '(1) that an error occurred (2) which was 
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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.'" 

(quoting United States v. Medina-Villegas, 700 F.3d 580, 583 (1st 

Cir. 2012)). 

Vinas appears to be correct that the government has 

waived any argument that it can satisfy the demanding plain error 

standard. Even "after [Vinas] asserted in [his] opening brief 

that plain error review applied to [the government's] specific 

substantive claims, [the government] made no effort in [its] reply 

brief to argue plain error." Colón-De Jesús, 85 F.4th at 25 n.14.

But even if we were to look past this waiver, we do not 

see how the government has met the plain error standard as to 

either of its unpreserved claimed errors. To be sure, some of the 

statements the District Court made at sentencing could be 

interpreted, in isolation, to reflect the view that general 

deterrence is categorically entitled to no weight in sentencing. 

In particular, the District Court's statement that a person 

considering speeding would be equally deterred by the possibility 

of a $100 or $200 speeding ticket does not provide an adequate 

explanation for why a prison sentence could not function as a 

general deterrent. Given that § 3553 requires courts to consider 

general deterrence in imposing a sentence, there would be a concern 

that the District Court's sentencing rationale fell short if this 
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statement were all the District Court had said in regard to general 

deterrence. But it is not "clear or obvious" that, when the 

sentencing transcript is read as a whole, Vargas-Martinez, 15 F.4th 

at 98, the District Court categorically rejected general 

deterrence as a factor. Instead, the District Court explained 

that, in considering the need for general deterrence, it concluded 

that this factor did not provide a reason for imposing a longer 

sentence than the -- to use the District Court's own 

description -- "substantial" sentence that was imposed. 

As for the potential sentencing disparity between 

Vinas's sentence and the sentences that had been imposed on other 

defendants who had committed similar offenses, the government 

raised this disparity argument only in a footnote in its opening 

brief. Moreover, in doing so, the government relied solely on 

United States v. Daoud, 980 F.3d 581 (7th Cir. 2020). 

In that case, however, the government had asked the 

district court at sentencing to consider the sentences imposed on 

similar offenders, but the district court refused to do so. See

id. at 591. Here, by contrast, the government made no similar 

request of the District Court at sentencing, and so we have no 

basis for concluding that the District Court refused to consider 

relevant comparable sentences that the government had presented.

We thus do not see how Daoud supports the government's 

disparity-based challenge, let alone how that precedent clearly or 
- 21 -

obviously does so. So, this aspect of the government's challenge 

to the sentence fails as well.

III.

For the foregoing reasons, the judgment of the District 

Court is affirmed.