United States Court of Appeals 

For the First Circuit 

No. 16-1287 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

HÉCTOR MULERO-ALGARÍN, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

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

Before 

Torruella, Lynch, and Barron, 

Circuit Judges. 

Mauricio Hernández Arroyo and Law Offices of Mauricio 

Hernández Arroyo, Esq. on brief for appellant. 

Julia M. Meconiates, Assistant U.S. Attorney, Mariana E. 

Bauzá-Almonte, Assistant U.S. Attorney, Chief, Appellate Division, 

and Rosa Emilia Rodríguez-Vélez, United States Attorney, on brief 

for appellee. 

 

July 31, 2017 
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LYNCH, Circuit Judge. While on supervised release 

following his serving a 135-month term of imprisonment for a 2002 

conviction for a federal drug felony, Héctor Mulero-Algarín 

committed a second federal drug felony in 2014. In doing so, he 

committed two offenses: violation of the conditions of his 

supervised release and the new drug offense. Mulero-Algarín pled 

guilty and was sentenced for the new drug offense by a different 

district court judge than presided over his previous conviction 

and sentence. He was newly sentenced to 120 months' imprisonment 

for that drug offense. 

In a separate proceeding, held before the district court 

judge who had presided over the original 2002 drug case, MuleroAlgarín's term of supervised release was revoked and replaced with 

a 36-month prison sentence, to be served consecutively to the 120-

month sentence imposed on him for the new drug offense. See 18 

U.S.C. §§ 3583(e)(3), 3584(a). The court also stated that it would 

not impose a further term of supervised release upon MuleroAlgarín's release from that confinement. This appeal concerns 

only the revocation sentence. 

Mulero-Algarín does not dispute that he violated the 

conditions of his supervised release by committing the second drug 

crime or that revocation of his supervised release was warranted. 

He appeals only the district court's decision to impose his 

revocation sentence consecutively to, rather than concurrently 
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with, his sentence for the second crime. He makes the factually 

incorrect argument that the court failed to consider his 

cooperation with the government as to his second drug crime as 

part of this claim. 

We hold that the district court committed no error. We 

affirm Mulero-Algarín's revocation sentence. 

I. 

On May 15, 2002, Mulero-Algarín pled guilty to 

possession of cocaine with intent to distribute, in violation of 

21 U.S.C. § 841(a)(1), after he was caught piloting a speedboat 

with 1,576 kilograms of cocaine on board. U.S. District Judge 

Carmen C. Cerezo sentenced him to 135 months' imprisonment, plus 

five years of supervised release. He served his term of 

imprisonment. 

Mulero-Algarín's supervised release term commenced on 

September 2, 2011, with an expiration date of September 1, 2016. 

On January 22, 2014, claiming he had "faithfully complied" with 

the conditions of his supervised release,1 Mulero-Algarín moved 

for its early termination. The government opposed that motion, 

and Judge Cerezo denied it. 

 1 As conditions of his original supervised release, 

Mulero-Algarín was required to not, inter alia, "commit another 

federal, state or local crime," "purchase, possess, use, 

distribute, or administer any controlled substance," or "associate 

with any person(s) engaged in criminal activity." 
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On December 10, 2014, less than a year after requesting 

early termination of his supervised release, Mulero-Algarín was 

detained on board a speedboat, along with one other passenger, 

after fleeing from a U.S. Coast Guard vessel and throwing multiple 

packages overboard, one of which was found to contain approximately 

30 kilograms of cocaine. Mulero-Algarín was charged with 

conspiring to possess cocaine with intent to distribute on board 

a vessel of the United States, see 46 U.S.C. §§ 70502(b), 

70503(a)(1), 70504(b)(1), 70506(b), and knowingly failing to obey 

an order of a federal law enforcement officer to heave to a vessel 

of the United States, see 18 U.S.C. § 2237(a)(1). This new 

criminal case was assigned to U.S. District Judge Pedro A. DelgadoHernández. 

On October 16, 2015, Mulero-Algarín pled guilty in the 

new drug case, and Judge Delgado-Hernández sentenced him to 120 

months' imprisonment -- the applicable mandatory minimum -- plus 

five years of supervised release. Mulero-Algarín's plea agreement 

stipulated that, in the event that he was to be sentenced for 

violating the conditions of his original supervised release in a 

revocation proceeding before Judge Cerezo, he could request that 

his revocation sentence run concurrently with his new sentence, 

while the government could request that the sentences run 

consecutively. 
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The U.S. Probation Office had initiated a revocation 

proceeding before Judge Cerezo on December 16, 2014, after learning 

of Mulero-Algarín's December 10 detention. On January 27, 2015, 

"consistent with the [c]ourt's usual practice . . . when the 

ground[] for revocation of supervised release is new criminal 

conduct," Judge Cerezo ordered the revocation proceeding continued 

until Mulero-Algarín's new criminal case concluded. On October 

26, 2015, with the revocation proceeding resumed, Mulero-Algarín 

filed in that proceeding a sentencing memorandum in which he 

conceded his supervised release violation based on his commission 

of a new crime, and requested that his revocation sentence run 

concurrently with his new sentence. 

At his February 17, 2016 sentencing hearing for 

violating the conditions of his supervised release, Mulero-Algarín 

renewed his request for a concurrent revocation sentence. The 

government requested that the sentences run consecutively. After 

determining that Mulero-Algarín's Guidelines Sentencing Range 

("GSR") was 24 to 30 months, Judge Cerezo noted that Mulero-Algarín 

had violated his supervised release2 by engaging in "the same [type 

of] activity and conduct" for which he had been sentenced to 135 

 2 Judge Cerezo found that Mulero-Algarín had violated the 

conditions of his supervised release by "committing and being 

convicted of another federal crime," "possessing [a] controlled 

substance[,] and associating with a person engaged in criminal 

activity." Mulero-Algarín did not contest that finding. 
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months' imprisonment in 2002. In light of "the seriousness of the 

offense, and . . . the need to provide adequate deterrence to 

[Mulero-Algarín's] future conduct," Judge Cerezo concluded that a 

sentence of 36 months' imprisonment, to be served consecutively to 

the 120-month sentence imposed on Mulero-Algarín in his new drug 

case, would be "sufficient but not greater than necessary in this 

case." See 18 U.S.C. §§ 3553(a), 3583(e)(3), 3584. This appeal 

followed. 

II. 

On appeal, Mulero-Algarín raises both procedural and 

substantive challenges to Judge Cerezo's decision to impose the 

36-month revocation sentence consecutively to, rather than 

concurrently with, the 120-month sentence for the second drug 

crime.3 Assuming in Mulero-Algarín's favor that all of his 

challenges were preserved, we review his revocation sentence for 

abuse of discretion. See United States v. Butler-Acevedo, 656 

F.3d 97, 99 (1st Cir. 2011). We hold that there was no error. 

 3 Mulero-Algarín does not challenge Judge Cerezo's 

decision to vary his revocation sentence upward to 36 months from 

the GSR of 24 to 30 months. 
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A. Mulero-Algarín's Claims of Procedural Error 

 Mulero-Algarín advances two related claims of procedural 

error regarding the consecutive nature of his revocation sentence, 

both of which rely on a misunderstanding of applicable law.4

 First, Mulero-Algarín argues that Judge Cerezo failed to 

credit him for the time that he had already served in prison as a 

result of his 2002 conviction. Mulero-Algarín notes that the 

maximum term of reimprisonment for which he was eligible upon 

revocation was capped by statute at five years. See 18 U.S.C. 

§ 3583(e)(3). He also notes that under the version of § 3583(e)(3) 

applicable here, see United States v. Tapia-Escalera, 356 F.3d 

181, 187-88 (1st Cir. 2004) (2003 amendment to § 3583(e)(3) does 

not apply when the offense of conviction predates that amendment), 

the five-year cap applies to the aggregate of all periods of 

reimprisonment that he could be required to serve for violations 

of his supervised release. From those premises, Mulero-Algarín 

argues that Judge Cerezo should have counted the 135-month prison 

sentence he received in 2002 toward the five-year aggregate 

reimprisonment cap and concludes that -- because the cap had been 

exceeded -- he could be required to serve only a nominal, 

concurrent revocation sentence. 

 4 To the extent that Mulero-Algarín's argument relies at 

all on our decision in United States v. Rodríguez-Meléndez, 828 

F.3d 35 (1st Cir. 2016), that case is inapposite. 
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 Mulero-Algarín's argument mistakenly characterizes his 

original term of imprisonment for the underlying drug offense as 

a term of reimprisonment for a supervised release violation. The 

cap in § 3583(e)(3) -- both before and after that section was 

amended in 2003 -- applies only to terms of reimprisonment imposed 

upon revocation.5 Mulero-Algarín has received no prior revocation 

sentence to credit toward the cap. Judge Cerezo correctly 

recognized this and did not credit Mulero-Algarín for any time 

that he had already served in prison. Mulero-Algarín's resulting 

36-month revocation sentence fell well within the five-year 

reimprisonment cap.6

 5 Tapia-Escalera makes this clear. See 356 F.3d 181. 

There, the defendant had previously violated his supervised 

release and been sentenced upon revocation to ten months of 

reimprisonment, plus four additional years of supervised release. 

Id. at 182. At issue was the district court's imposition of a 30-

month term of reimprisonment upon the defendant's violation of his 

additional supervised release. Id. Applying the version of 

§ 3583(e)(3) applicable here, we held that the district court had 

erred by failing to count the prior ten-month sentence toward the 

aggregate cap, which -- based on that defendant's offense of 

conviction -- was 36 months. Id. at 188. We then remanded so 

that the district court could reduce the 30-month sentence by four 

months to comport with the cap. Id. The five years in prison 

that the defendant had served for the original offense did not 

bear on the assessment of whether the cap had been exceeded. See 

id. at 182. 

6 Mulero-Algarín's citation to 18 U.S.C. § 3583(h) takes 

him no further. Section 3583(h) outlines the cap that applies 

when a district court revokes a defendant's supervised release and 

replaces it with a term of reimprisonment plus an additional term 

of supervised release. Judge Cerezo did not impose an additional 

term of supervised release on Mulero-Algarín, so § 3583(h) is 

inapposite. 
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 Mulero-Algarín also argues that Judge Cerezo failed to 

credit him for the time that he had already served under supervised 

release as a result of his 2002 conviction -- specifically, the 39 

months between the commencement of his supervised release in 

September 2011 and his arrest for the second crime in December 

2014. He argues that Judge Cerezo should have deducted these 39 

months from his 36-month revocation sentence and concludes that -

- because his credit exceeded his sentence -- he could be required 

to serve only a nominal, concurrent revocation sentence. 

 This claim is easily dispatched, as it is explicitly 

foreclosed by statute. Defendants sentenced to reimprisonment 

upon revocation do not receive "credit for time previously served 

on postrelease supervision." 18 U.S.C. § 3583(e)(3). 

 Mulero-Algarín's procedural claims both fail.7 There 

was no error. 

B. Mulero-Algarín's Claim of Substantive Unreasonableness 

Mulero-Algarín claims that Judge Cerezo's decision to 

impose his revocation sentence consecutively to his sentence for 

his second crime was substantively unreasonable, in light of 

certain factors that he argues militated in favor of concurrent 

 7 To the extent that -- as an alternative to his claim 

that his time served in prison or under supervised release entitled 

him to a concurrent revocation sentence -- Mulero-Algarín claims 

that his time served entitled him to an incremental reduction of 

his revocation sentence, that claim fails for the same reasons. 
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sentences. Specifically, he argues that (1) he cooperated with 

the government following his arrest for the second drug crime, 

(2) he was already penalized for his supervised release violation 

through his sentence for the second crime, and (3) due to his 120-

month sentence for the second crime, he will be incarcerated until 

he is nearly 60 years old, even without the addition of a 

revocation sentence. 

Defense counsel vigorously pressed these factors at 

sentencing, and there is no reason to think that Judge Cerezo did 

not consider them, so we construe Mulero-Algarín's challenge as 

directed at the weight that the factors were afforded. See United 

States v. Cortés-Medina, 819 F.3d 566, 571 (1st Cir.), cert. 

denied, 137 S. Ct. 410 (2016). How much weight to afford various 

factors at sentencing is a judgment committed to the informed 

discretion of the sentencing court. See United States v. Clogston, 

662 F.3d 588, 593 (1st Cir. 2011). 

Judge Cerezo considered the cooperation that MuleroAlgarín provided in his second drug case -- in the form of the 

names of his criminal associates -- along with the fact that he 

had already been credited for such assistance in that case. 

Indeed, Mulero-Algarín's cooperation factored prominently into 

Judge Delgado-Hernández's decision in that case to impose only the 

mandatory minimum sentence. And while Mulero-Algarín asserted in 

his revocation proceeding that he had offered to assist the 
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government further by wearing a wire around other known drug 

traffickers, Judge Cerezo was also aware that he had provided no 

such service, as he had not been released on bail. 

Similarly, Judge Cerezo considered the fact that the GSR 

in Mulero-Algarín's second drug case was increased because he had 

committed the offense while on supervised release along with the 

fact that Mulero-Algarín was not actually penalized for that 

increase, given that he received the mandatory minimum sentence 

for his offense. 

Finally, Judge Cerezo considered the fact that MuleroAlgarín will be 60 years old after serving a decade in prison for 

his new drug crime along with the fact that he committed that crime 

at age 49, after having served a decade in prison for a similar 

crime. 

After considering these factors, Judge Cerezo reasonably 

afforded overriding weight to the need to deter Mulero-Algarín 

from further recidivism and justifiably concluded that additional 

time in prison following his 120-month term for his new crime would 

be an appropriate sentence for his supervised release violation. 

See 18 U.S.C. § 3584(b). In assessing the totality of the 

circumstances as she did, and in sentencing Mulero-Algarín to a 

consecutive term of imprisonment, Judge Cerezo certainly did not 

exceed her "broad discretion" to fashion a revocation sentence 

under 18 U.S.C. § 3583(e)(3). United States v. Hernández–Ferrer, 
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599 F.3d 63, 66 (1st Cir. 2010). The fact that Judge Cerezo "chose 

not to sentence [Mulero-Algarín] according to his counsel's 

recommendation" does not establish error. Butler-Acevedo, 656 

F.3d at 101. 

III. 

 Mulero-Algarín's revocation sentence is affirmed.