Not for Publication in West's Federal Reporter 

United States Court of Appeals 

For the First Circuit 

No. 15–2126 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

RICARDO TORRES-RIVERA, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

Hon. Aida M. Delgado-Colón, U.S. District Judge 

Before 

Torruella, Selya, and Kayatta, 

Circuit Judges. 

Darla J. Mondou and Mondou Law Office on brief for appellant. 

Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana 

E. Bauzá-Almonte, Assistant United States Attorney, Chief, 

Appellate Division, and Nelson Pérez-Sosa, Assistant United States 

Attorney, on brief for appellee. 

September 21, 2016 
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KAYATTA, Circuit Judge. In August 2013, Ricardo TorresRivera and eighteen others were indicted and charged with violating 

federal law by participating in a broad conspiracy to import heroin 

into Puerto Rico. Torres-Rivera agreed to plead guilty, and the 

parties recommended a sentence to the district court on the low 

end of the applicable guidelines range of 87 to 108 months' 

imprisonment. The government also certified to the district court 

that Torres-Rivera met the requirements for safety-valve relief 

under 18 U.S.C. § 3553(f), and because the district court accepted 

the government's certification, Torres-Rivera was exempt from the 

otherwise-applicable statutory 120-month minimum sentence. The 

district court nonetheless sentenced Torres-Rivera to 120 months 

in prison, twelve months more than the top of the guidelines range. 

Torres-Rivera now appeals, arguing that the sentence the 

district court imposed was both procedurally and substantively 

unreasonable. It was neither, so we affirm. 

I. Background

In May 2015, Torres-Rivera agreed to plead guilty to two 

criminal counts. The first, count two of the indictment, charged 

him with violating 21 U.S.C. §§ 952(a) and 963 by conspiring to 

import drugs into the United States. The second, count three of 

the indictment, charged him with violating 18 U.S.C. § 1956 by 

participating in a conspiracy to launder the proceeds of the 

criminal enterprise. 
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In the plea agreement, the parties agreed to recommend 

a term of imprisonment on the lower end of the applicable 

guidelines sentencing range, which they determined was 108 to 135 

months' imprisonment. The agreement warned Torres-Rivera, 

however, that count two carried a statutory ten-year (120-month) 

mandatory minimum sentence. The agreement also stipulated that 

the district court was neither party to nor bound by the agreement, 

and that the sentencing decision was ultimately within the district 

court's discretion.1

During the change of plea hearing, the government 

described the evidence it would present against Torres-Rivera were 

the case to proceed to trial: 

As to Count 2 as to [TorresRivera], . . . to begin with Your Honor this 

case commenced with a Title 3 that started in 

Col[o]mbia. So basically the evidence that 

we have here, among other evidence is wire 

recordings. In this case all of the three 

defendants [pleading guilty at the change of 

plea hearing] were recorded . . . . 

 The participation of Mr. Torres in this 

conspiracy was basically he worked for 

[defendant] number 1, for Mr. Hernando Mar[í]n 

Echeverri. He was recorded communicating 

with Mr. Mar[í]n and other codefendants trying 

to coordinate the smuggling, the importation, 

transportation and distribution of the heroin 

into Puerto Rico. There is also evidence that 

Mr. Torres coordinated also the transfer of 

 1 The plea agreement additionally included an appellate 

waiver. The parties agree, however, that the waiver does not bar 

this appeal because Torres-Rivera's sentence exceeded the parties' 

jointly stipulated range. 
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drug proceeds from Puerto Rico into 

Col[o]mbia. 

At sentencing, the district court accepted the 

government's certification that Torres-Rivera qualified for 

sentencing relief under 18 U.S.C. § 3553(f). This "safety valve" 

provision requires a court to disregard an applicable statutory 

minimum sentence if the court finds at sentencing that the 

defendant meets five specified criteria, one being that the 

defendant "was not an organizer, leader, manager, or supervisor of 

others in the offense." 18 U.S.C. § 3553(f)(4). In accepting the 

government's certification, the district court so found. This 

resulted in a reduction in Torres-Rivera's final offense level, 

making his guidelines sentencing range 87 to 108 months. 

The district court nevertheless imposed a sentence of 

120 months' imprisonment, explaining that although the statutory 

minimum did not apply, Torres-Rivera's high-level involvement in 

the conspiracy and his position as the direct link between its 

participants and its leader justified an upward departure from the 

guidelines range. Curiously, the district court justified its 

decision to impose an above-guidelines sentence in part by 

explaining that it believed Torres-Rivera "could have received a 

two level enhancement under section 3B1.1." This enhancement, 

known as the "aggravating role" enhancement, calls for an upward 

adjustment to a defendant's offense level where the defendant is 
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an "organizer, leader, manager, or supervisor" of others in the 

offense. U.S.S.G. § 3B1.1(c). An application note accompanying 

this enhancement provides: 

To qualify for an adjustment under this 

section, the defendant must have been the 

organizer, leader, manager, or supervisor of 

one or more other participants. An upward 

departure may be warranted, however, in the 

case of a defendant who did not organize, 

lead, manage, or supervise another 

participant, but who nevertheless exercised 

management responsibility over the property, 

assets, or activities of a criminal 

organization. 

U.S.S.G. § 3B1.1 cmt. n.2. 

Citing this application note, the court found that 

Torres-Rivera's role in the offense justified an upward departure. 

The court explained that Torres-Rivera's participation in the 

conspiracy was "extensive [as] to all five drug trafficking events 

upon which this case is based," and that he appeared "to have safe 

kept money to be sent to Col[o]mbia[,] and those monies of course 

were the illegal proceeds of the narcotics that were being moved." 

Accordingly, Torres-Rivera was sentenced to 120 months in prison, 

the "12 extra months from the 108" being "granted as an upward 

departure for the reasons [the district court] mentioned 

concerning his managerial role and the significance of the same in 

terms of the equation and the five drug trafficking events to which 

the conspiracy is extended." 
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Torres-Rivera objected to his sentence and made an oral 

motion for reconsideration, challenging the court's finding that 

he served in a managerial role in the conspiracy. The district 

court reiterated that it "didn't assign the adjustment as manager," 

but rather was "alluding to his responsibility within the entire 

scheme and the conspiracy." Reconsideration was denied, and this 

appeal followed. 

II. Discussion

Because Torres-Rivera objected to his sentence in the 

district court, we review the sentence's reasonableness for abuse 

of discretion. United States v. King, 741 F.3d 305, 307–08 (1st 

Cir. 2014) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). 

Under this standard, we first consider whether the court committed 

any procedural error "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." United States v. Del Valle-Rodríguez, 761 

F.3d 171, 176 (1st Cir. 2014) (citing United States v. Martin, 520 

F.3d 87, 92 (1st Cir. 2008)). If no procedural error occurred, 

we review to ensure that the district court imposed a 

"substantively reasonable sentence," the "hallmarks" of which "are 

a plausible sentencing rationale and a defensible result." United 

States v. Díaz-Bermúdez, 778 F.3d 309, 313 (1st Cir. 2015) (quoting 

Martin, 520 F.3d at 96). 
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Torres-Rivera contends that the district court committed 

procedural error by relying on the application note to § 3B1.1 in 

handing down an above-guidelines sentence. He argues that the 

note implies that a court may apply the § 3B1.1 enhancement even 

where the government concededly lacks evidence to demonstrate the 

defendant is eligible for it, undermining this court's 

longstanding rule that to apply the aggravating role enhancement, 

"[i]t is not enough . . . that the defendant merely controlled, 

organized, or managed criminal activities; rather, he must instead 

control, organize, or manage criminal actors." United States v. 

Flores-de-Jesús, 569 F.3d 8, 34 (1st Cir. 2009) (quoting United 

States v. Ofray-Campos, 534 F.3d 1, 40 (1st Cir. 2008)). TorresRivera thus essentially argues that it is procedural error to 

increase a defendant's sentence based on his mere management of 

assets or activities, especially where such increase results in 

the same sentence the court might have imposed by applying a 

§ 3B1.1 enhancement. 

To be sure, had the district court applied the § 3B1.1 

enhancement in this case, it would quite clearly have erred. Only 

moments before finding that Torres-Rivera "could have received a 

two level enhancement" for being the organizer, leader, manager, 

or supervisor of the conspiracy, the court accepted the 

government's certification that he was eligible for safety-valve 

relief in part due to his being none of these things. And, to the 
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extent the district court's finding was that Torres-Rivera 

exercised management responsibilities over the "property, assets, 

or activities" of the criminal enterprise, this court has 

repeatedly held that such finding "is not a valid basis for an 

offense level enhancement under § 3B1.1." United States v. 

Prange, 771 F.3d 17, 35 (1st Cir. 2014); see, e.g., United States 

v. Ramos-Paulino, 488 F.3d 459, 464 (1st Cir. 2007) (noting that 

the application note itself "makes it pellucid that the management 

of criminal activities (as opposed to the management of criminal 

actors) may ground an upward departure but not an upward role-inthe-offense adjustment"). 

But the district court opted for a departure, not an 

enhancement. Accordingly, the question before us is not whether, 

applying de novo review, "the sentencing court erred in 

interpreting or applying the guidelines," but rather whether its 

factual findings were clearly erroneous or its judgment calls were 

the result of an abuse of discretion. United States v. SantiagoGonzález, 825 F.3d 41, 48 (1st Cir. 2016). Torres-Rivera insists 

his sentence is procedurally unreasonable on both of these bases. 

For the following reasons, we disagree. 

First, the record provides ample support for the 

district court's factual findings as to both Torres-Rivera's role 

in the conspiracy and the extent of his involvement. TorresRivera contends that the district court erroneously found he was 
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an "employer," a role which has no definition in the guidelines or 

statute and which the court did not explain. But the court did 

not so find; rather, it acknowledged the government's distinction 

between Marín-Echeverri, the leader of the conspiracy, and TorresRivera and Armando Rivera-Ortiz, the two participants whom the 

government called "employers" due to their roles as non-leaders 

overseeing the activities of other members of the criminal 

enterprise. The court found that Torres-Rivera "acted as a 

manager on behalf of [Marín-Echeverri, the leader of the 

conspiracy,] making sure that his instructions were executed." 

More importantly, the district court observed that 

receipts concerning checks used to launder the proceeds of the 

drug smuggling operation were seized from Torres-Rivera. The 

district court also observed that Torres-Rivera managed or 

controlled the proceeds of the conspiracy by virtue of the nature 

of his role as the local overseer in charge of safekeeping the 

money and facilitating its transfer to Colombia. In response to 

Torres-Rivera's oral motion for reconsideration, the district 

court noted that Torres-Rivera "safe kept proceeds" for the leader 

of the conspiracy, Marín-Echeverri, and "safe kept evidence of the 

money orders of Western Union of the payments being transferred." 

Torres-Rivera does not dispute that he exercised this control, and 

no countervailing evidence in the record suggests that the district 

court's finding was clearly erroneous. 
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Torres-Rivera also contends that the district court's 

finding that he "extensive[ly]" participated in all five of the 

drug trafficking events at issue was erroneous because "the 

government stated it had no proof that [he] was involved in all 

five events." This, too, is a misrepresentation of the record. 

At sentencing, the government told the district court that it could 

not say precisely how involved Torres-Rivera was in each of the 

five individual drug trafficking events, but it had evidence that 

Torres-Rivera and Marín-Echeverri communicated with one another 

"on numerous occasions throughout the conspiracy." In other 

words, the government stated not that it lacked any proof of 

Torres-Rivera's involvement, but that its proof consisted of 

circumstantial rather than direct evidence. That circumstantial 

evidence showed that Torres-Rivera was charged with overseeing 

criminal activities in Puerto Rico and, contemporaneous with all 

five drug trafficking events, was in continuous and frequent 

contact with the conspiracy's leader. In light of this evidence, 

it was not clearly erroneous to find that Torres-Rivera was 

significantly involved in all of the trafficking at issue. 

Second, it is not an abuse of discretion to depart from 

the sentencing guidelines range where the record suggests that the 

defendant managed property, assets, or activities. This court has 

long recognized the continuing vitality of the application note's 

directive that an "upward departure may be warranted" where a 
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person who does not qualify for a § 3B1.1 enhancement "nevertheless 

exercised management responsibility over the property, assets, or 

activities of a criminal organization." See, e.g., Prange, 771 

F.3d at 35 (noting that a court's finding that a defendant 

"exercised management responsibilities over the property, assets 

or activities" of the enterprise "may warrant an upward departure" 

(emphasis omitted)); Ofray-Campos, 534 F.3d at 41 n.11; RamosPaulino, 488 F.3d at 464; see also United States v. Cali, 87 F.3d 

571, 580 (1st Cir. 1996) ("Section 3B1.1 departures are clearly 

encouraged by the Commission. The language of Application 

Note 2 . . . endorses management of assets as a permissible basis 

for upward departure."). The district court did not procedurally 

err. 

Finally, Torres-Rivera argues that even if the district 

court committed no procedural error, his sentence is substantively 

unreasonable. The substantive reasonableness inquiry "focuses on 

the duration of the sentence in light of the totality of the 

circumstances." Del Valle-Rodríguez, 761 F.3d at 176. TorresRivera contends that the district court committed reversible error 

because in the end, its impetus for imposing an above-guidelines 

sentence was the "moral conflict" it felt about giving the same 

sentence to Torres-Rivera as to lower-level participants in the 

conspiracy. 
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This argument fails as well. "[T]he linchpin of a 

reasonable sentence is a plausible sentencing rationale and a 

defensible result," United States v. Flores-Machicote, 706 F.3d 

16, 25 (1st Cir. 2013) (quoting Martin, 520 F.3d at 92) (alteration 

in original) (citation omitted), both of which are present here. 

First, the district court provided ample justification for its 

decision to impose an upward departure. See Del Valle-Rodríguez, 

761 F.3d at 176 ("Where . . . a court imposes a sentence above the 

GSR, it must justify the upward variance."). It considered the 

seriousness of the criminal conduct, the defendant's personal 

characteristics, and the nature, scope, and structure of the 

conspiracy, and it ultimately based its decision on uncontroverted 

evidence that Torres-Rivera managed assets and activities of the 

criminal enterprise. Observing that the guidelines contemplate 

departures based on such evidence, the district court provided a 

plausible explanation for the sentence it chose to impose. 

That explanation and the resulting sentence are 

defensible in light of the totality of the circumstances. TorresRivera's principal complaint with the sentence he received is that 

it was based not only on his conduct and personal characteristics, 

but also on the district court's desire to impose a harsher 

sentence on him than less involved members of the conspiracy. But 

"judges are directed by statute to consider 'the need to avoid 

unwarranted sentencing disparities among defendants with similar 
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records who have been found guilty of similar conduct.'" United 

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

(quoting 18 U.S.C. § 3553(a)(6)). Conversely, "district courts 

have discretion, in appropriate cases, to align codefendants' 

sentences somewhat in order to reflect comparable degrees of 

culpability -- at least in those cases where disparities are 

conspicuous and threaten to undermine confidence in the criminal 

justice system." Martin, 520 F.3d at 94. 

At sentencing, the district court noted that it 

sentenced a low-level participant in the conspiracy to 108 months' 

imprisonment. The court then explained that it had a "problem 

with this type of plea agreement where everyone ends up in the 

same category" because it failed to properly assess each member's 

role in the criminal enterprise, creating a "moral conflict" in 

the court's sentencing process. Justifying its decision to impose 

a 120-month sentence on Torres-Rivera in this way was not error; 

indeed, it reflected the court's concern for consistency and 

fairness in sentencing. 

Because Torres-Rivera's sentence was neither 

procedurally nor substantively unreasonable, we affirm.