United States Court of Appeals

For the First Circuit

No. 23-1329

UNITED STATES OF AMERICA,

Appellee,

v.

JASON CANDELARIO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Jon D. Levy, U.S. District Judge]

Before

Barron, Chief Judge,

Selya and Gelpí, Circuit Judges.

Edward S. MacColl and Thompson, Bull, Bass & MacColl, LLC, 

P.A. on brief for appellant.

Darcie N. McElwee, United States Attorney, and Brian S. 

Kleinbord, Assistant United States Attorney, on brief for 

appellee.

June 24, 2024
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SELYA, Circuit Judge. Defendant-appellant Jason 

Candelario challenges his top-of-the-range sentence, arguing that 

it is substantively unreasonable and creates an unwarranted 

disparity with the sentences imposed on his codefendants. 

Concluding, as we do, that the appellant's sentence was both

reasonable and proportionate, we affirm. 

I

We briefly rehearse the relevant facts and travel of the

case. "Where, as here, a sentencing appeal follows a guilty plea, 

we glean the relevant facts from the change-of-plea colloquy, the 

unchallenged portions of the presentence investigation report (PSI 

Report), and the record of the disposition hearing." United States

v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009).

In 2019, the appellant and three codefendants conspired 

to rob a Maine resident of drugs and money. On the day of the 

planned robbery, the appellant and three of his codefendants drove 

to the victim's residence. The appellant and another member of 

his crew, masked and armed, waited nearby for the victim to return 

home. Shortly thereafter, the victim, accompanied by his 

girlfriend and a female acquaintance,1 arrived in a truck and 

parked in the garage. The appellant and his companion then entered 

the garage. The appellant's confederate approached the vehicle, 

1 This acquaintance was later implicated in the robbery. She 

cooperated with the authorities, however, and was not charged. 
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struck the passenger-side truck window with the butt of his gun,

and told the victim's girlfriend (who was in the passenger seat)

not to make eye contact with him or call 911.

Meanwhile, the appellant approached the victim, who 

wrestled the appellant to the ground. The appellant's confederate 

then shot the victim in the abdomen. The two attackers 

subsequently fled, and the victim (who ultimately survived) was 

rushed to the hospital.

About two years later, a federal grand jury sitting in 

the District of Maine returned an indictment against four 

defendants — the appellant, the second attacker, a third defendant 

who drove the getaway vehicle, and a fourth defendant who 

participated in organizing the robbery and provided the firearms 

used. In November of 2022, the appellant entered a guilty plea to 

counts charging conspiracy to commit a Hobbs Act robbery, see 18 

U.S.C. § 1951(a); interference with commerce by violence, and 

aiding and abetting, see id.; 18 U.S.C. § 2; and illegally 

possessing a firearm, see 18 U.S.C. § 924(a)(2). His three 

codefendants also entered guilty pleas to various counts.

The district court convened the appellant's disposition 

hearing on March 27, 2023. At the outset, the court addressed the 

disputed fact of whether the appellant or another defendant was 

the assailant who, during the robbery, tried to break the truck's 

passenger seat window and then fired the shot that injured the 
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victim. The court concluded, for the purposes of sentencing, that

the appellant's confederate was the perpetrator. Even so, the 

court deemed both men "equally culpable" for the events that 

transpired in the victim's garage; after all, those events were "a 

foreseeable consequence of [the two malefactors'] joint effort to 

commit a robbery." 

The district court calculated a guideline sentencing 

range of 140 to 175 months, to which all parties acceded. 

Emphasizing the violent nature of the crimes of conviction, the 

appellant's role as one of the two physical assailants, and his 

four prior felony convictions (which placed him in criminal history 

category V), the government urged the district court to "depart or 

vary its sentence upward." For his part, the appellant urged the 

court to impose a sentence of 120 months, citing mitigating factors 

such as his difficult childhood and genuine remorse. The district 

court also heard statements from the victim's girlfriend, who spoke 

about the crime's impact on her and the victim. And the court 

heard from two friends of the appellant, who spoke about his 

challenges growing up without a father and with a mother who was 

incarcerated, as well as recent improvements he had made in his 

life. 

In the end, the district court imposed a 175-month term 

of immurement. In the process, the district court accepted the 

appellant's expressions of remorse and acceptance of 
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responsibility as sincere. It also declined to impose an upward 

departure and, giving weight to the appellant's difficult 

childhood, declined to vary his sentence upward. All things 

considered, the district court found that a sentence at the top of 

the guidelines range was appropriate due to the seriousness of the 

harm committed, the appellant's criminal history, the "serious 

risk of recidivism," and the need to provide both specific 

deterrence and "general deterrence to the public at large, which 

needs to understand that the [c]ourt will impose lengthy sentences 

for conduct this despicable."

This timely appeal followed. 

II

In this venue, the appellant argues that his sentence 

was substantively unreasonable. He emphasizes that it was the 

highest of all of his codefendants' sentences. We agree with the 

government that the appellant's sentence was substantively 

reasonable and did not create an unwarranted disparity when 

compared to his codefendants' sentences. Although the parties 

dispute whether the appellant's challenges to his sentence were 

preserved below, we bypass that dispute because — under either 

plain error review or abuse of discretion review — his sentence 

passes muster.

When faced with a sentencing appeal in a criminal case, 

"[w]e first determine whether the sentence imposed is procedurally 
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reasonable (that is, free from reversible error in its procedural 

aspects) and then determine whether it is substantively 

reasonable." United States v. Demers, 842 F.3d 8, 12 (1st Cir. 

2016). Within this bifurcated structure, we review a sentencing 

court's factual findings for clear error and its interpretation 

and application of the guidelines de novo. See United States v. 

Walker, 665 F.3d 212, 232 (1st Cir. 2011).

As a preliminary matter, we note that although the 

appellant's opening brief states that his sentence was both 

"substantively and procedurally unreasonable," none of his 

briefing indicates what procedural aspect of his sentence was 

erroneously imposed. The only potential argument that we can 

identify as to procedural reasonableness is the appellant's

statement that the district court "provided no explanation" for 

why the length of the appellant's sentence "was appropriate or 

necessary." Cf. United States v. Crespo-Ríos, 787 F.3d 34, 37 n.3 

(1st Cir. 2015) ("The lack of an adequate explanation can be 

characterized as either a procedural error or a challenge to the 

substantive reasonableness of the sentence."). The appellant, 

though, has not developed this argument separately from his

argument that, in the context of substantive reasonableness, his 

sentence lacked a "plausible sentencing rationale." United States

v. Gonzalez, 981 F.3d 11, 24 (1st Cir. 2020) (quoting United States

v. Cameron, 835 F.3d 46, 52 (1st Cir. 2016)). Thus, we consider 
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any claim of procedural error waived for lack of development.2 

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) 

(explaining "settled appellate rule that issues adverted to in a 

perfunctory manner, unaccompanied by some effort at developed 

argumentation, are deemed waived"). 

We proceed, then, directly to the issue of substantive 

reasonableness. The appellant's primary contention is that his 

sentence was disproportionately harsh when compared to those of 

his codefendants. See United States v. Reverol-Rivera, 778 F.3d 

363, 366 (1st Cir. 2015) (considering argument that "sentence was 

substantively unreasonable because of the disparity with the 

sentence given to a co-defendant"). And it is common ground that 

a district court, when imposing a sentence, "must consider 'the 

need to avoid unwarranted sentence disparities among defendants 

with similar records who have been found guilty of similar 

conduct.'" Id. (quoting 18 U.S.C. § 3553(a)(6)). Even so, a 

genuine sentence disparity can only exist "between 'two 

identically situated defendants.'" United States v. De La Cruz, 

91 F.4th 550, 555 (1st Cir. 2024) (quoting United States v. 

2 In all events, we have commented before "that an adequate 

explanation for an upwardly variant sentence and the 'plausible 

rationale' element of the test for substantive reasonableness 'are 

almost always two sides of the same coin.'" United States v. 

Ortiz-Pérez, 30 F.4th 107, 113 (1st Cir. 2022) (quoting United 

States v. Valle-Colón, 21 F.4th 44, 50 (1st Cir. 2021)). The same 

principle may apply even when the sentence is not a variant 

sentence but, rather, a within-the-range sentence.
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Grullon, 996 F.3d 21, 35 (1st Cir. 2021)). "Where 'material 

differences between the defendant and the proposed comparator 

suffice to explain the divergence,' a sentencing disparity claim 

is unlikely to prevail." United States v. Coplin-Benjamin, 79 

F.4th 36, 43 (1st Cir. 2023) (quoting Demers, 842 F.3d at 15).

In this instance, there were several material 

differences between the appellant and the codefendants to whom he 

points. Those discrepancies were more than sufficient to explain 

the differences in their sentences. For example, the proposed 

comparator codefendants were subject to lower guideline sentencing 

ranges than was the appellant, and the appellant does not dispute 

the accuracy of the guideline calculations. This is a critical 

datum in a disparity analysis. See United States v. Bedini, 861 

F.3d 10, 22 (1st Cir. 2017) (rejecting defendant's sentencing 

disparity claims in part because other defendants were "subject to 

lower applicable Guidelines ranges").

Moreover, the codefendant who received the lowest 

sentence of ninety-six months was supportably found to be the 

"least culpable" of the four coconspirators because he only 

participated as the drop-off and getaway driver for the robbery. 

The appellant, in contrast, was one of the two main physical 

aggressors in the robbery. So, too, this codefendant warranted 

leniency because he cooperated with the government — but the 

appellant turned a deaf ear. Lack of cooperation is a powerful 
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reason for holding a defendant to the rigors of the guidelines. 

Cf. United States v. La Guardia, 902 F.2d 1010, 1016 (1st Cir. 

1990) ("[T]he government has a strong interest in encouraging 

defendants to cooperate.").

Similarly, another codefendant, who received a sentence 

of 144 months (later reduced to 128 months), played a significantly

different role in the robbery because he was not a physical 

aggressor. His case thus differentiated itself from that of the 

appellant. And in addition, this codefendant started with a 

cleaner slate than the appellant. All these differences — and 

others like them — are factors that we have held are reasonable

for imposing a lower sentence on one codefendant than on another. 

See, e.g., United States v. Oquendo-Garcia, 783 F.3d 54, 58 (1st 

Cir. 2015) (finding no disparity when codefendant who received 

lower sentence had fewer weapons-based and overall convictions and 

arrests); United States v. Mateo-Espejo, 426 F.3d 508, 514 (1st 

Cir. 2005) (finding no disparity when coconspirator who received 

lower sentence cooperated more promptly and fully); De La Cruz, 91 

F.4th at 556 (finding no disparity when codefendant who received 

lower sentence played different role in conspiracy).

The appellant trains his heaviest fire on the disparity 

between his 175-month sentence and the 120-month sentence given to 

the second physical aggressor in the robbery (the codefendant who

apparently shot the victim). The justification for this 
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codefendant's lower sentence, though, is evident: Unlike the 

appellant, he cooperated in the government's investigation and 

thus received a downward departure for substantial assistance 

under USSG §5K1.1. Our caselaw provides unambiguously that 

"dissimilar . . . cooperation with the government" is a sufficient 

material difference between defendants to defeat a disparity 

claim. United States v. Romero, 906 F.3d 196, 211 (1st Cir. 2018); 

see United States v. Flores-Machicote, 706 F.3d 16, 24 (1st Cir. 

2013).

The appellant argues that rewarding his codefendant's

cooperation with a lower sentence is "fundamentally unfair" 

because his codefendant at one point lied to investigators about 

being the shooter whereas the appellant "never sought to shift 

blame to others." We see nothing unfair about this outcome. Even 

assuming that the codefendant lied about being the shooter, his 

testimony on this fact was not the primary source of his 

cooperation with the government. As the government explained to 

the district court, the codefendant's testimony corroborated both 

physical evidence and other witnesses' testimony and played a major 

role in securing the conviction against another codefendant for 

whom the government did not have DNA evidence. Nothing in the 

record suggests that these grounds for the codefendant's 

cooperation would have been diminished by his alleged dishonesty 

about who shot the victim.
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Nor are we convinced by the appellant's argument that,

"[e]ven apart from the question of disparity," his sentence lacked 

a "plausible sentencing rationale" and a "defensible result." 

(Quoting Gonzalez, 981 F.3d at 24). Generally, we will consider 

a sentence substantively reasonable as long as it falls within the 

"universe of reasonable sentencing outcomes." United States v. 

Clogston, 662 F.3d 588, 592 (1st Cir. 2011). Where, as here, the 

challenged sentence was within a properly calculated guideline 

range, the appellant carries a particularly heavy burden to "adduce 

fairly powerful mitigating reasons and persuade us that the 

district judge was unreasonable in balancing pros and cons despite 

the latitude implicit in saying that a sentence must be 

'reasonable.'" United States v. Madera-Ortiz, 637 F.3d 26, 30 

(1st Cir. 2011) (quoting United States v. Navedo-Concepción, 450 

F.3d 54, 59 (1st Cir. 2006)). 

In the case at hand, the district court clearly stated 

its reasons for imposing a top-of-the-range sentence: the violent 

nature of the crime, the appellant's extensive criminal history,

and the need for both specific and general deterrence. There is 

nothing implausible or indefensible about this rationale, 

especially with respect to a within-range sentence. Each of these 

reasons is supported by undisputed facts in the record.3 What is 

3 Although the appellant disputes certain details related to 

his criminal history, he does not dispute the fact that he has 
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more, the appellant is incorrect that the district court failed to 

"explain[] . . . how such a sentence considered the extraordinary 

mitigating factors the court acknowledged and found were present." 

The district court stated that because the appellant's difficult 

childhood served as a mitigating factor, it would not impose an 

upward variance as the government requested. The court was not 

obligated to give this and other mitigating circumstances more 

weight. See Clogston, 662 F.3d at 593 ("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."). 

That ends this aspect of the matter. We find no 

meaningful sentencing disparity. Nor do we find anything 

substantively unreasonable about the appellant's within-the-range 

sentence, which is both defensible on the record and plausibly 

explained by the district court in ample detail. See Gonzalez, 

981 F.3d at 24. Although the appellant may have preferred that 

the district court weighed his circumstances differently and 

focused on a lower point in the guideline sentencing range, we 

cannot say that his sentence — as imposed — falls outside the "wide 

universe of supportable sentencing outcomes." United States v. 

Del Valle-Rodríguez, 761 F.3d 171, 177 (1st Cir. 2014). 

multiple felony convictions or that he participated in physically 

ambushing the victim, even if he did not fire the gun.
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III

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

the district court's sentence is

Affirmed.