United States Court of Appeals

For the First Circuit

No. 23-1066

UNITED STATES OF AMERICA,

Appellee,

v.

MISAEL M. RIVERA-GERENA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Raúl M. Arias-Marxuach, U.S. District Judge]

Before

Barron, Chief Judge, 

Selya and Montecalvo, Circuit Judges.

Francisco Diez-Perez on brief for appellant.

W. Stephen Muldrow, United States Attorney, Mariana E. BauzáAlmonte, Assistant United States Attorney, Chief, Appellate 

Division, and Gabriella S. Paglieri, Assistant United States 

Attorney, on brief for appellee. 

August 14, 2024
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SELYA, Circuit Judge. Defendant-appellant Misael M. 

Rivera-Gerena challenges his downwardly variant sentence. He 

contends that it is both procedurally flawed and substantively 

unreasonable because, inter alia, the district court failed 

adequately to evaluate and balance the relevant 18 U.S.C. § 3553(a) 

sentencing factors. Concluding, as we do, that the appellant's 

sentence is free of procedural error and substantively reasonable, 

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). 

On September 1, 2019, the appellant was one of two 

persons aboard a vessel in waters of the United States when members 

of the Coast Guard seized fifty-two packages. Those packages 

proved to contain substances that tested positive for amphetamine 

and cocaine. Federal agents later located an additional 448 bricks 

of cocaine on board the vessel.

The appellant's arrest and indictment followed. On 

September 14, 2022, the appellant pleaded guilty in the United 

States District Court for the District of Puerto Rico to one count 
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of conspiracy to possess with intent to distribute at least 150 

kilograms but less than 450 kilograms of cocaine on board a vessel 

subject to the jurisdiction of the United States. See 46 U.S.C. 

§§ 70502(c)(1), 70503(a)(1), 70506. The district court accepted 

the plea and ordered the preparation of a PSI Report.

After the probation office prepared the PSI Report and 

shared it with the parties, the district court convened the 

disposition hearing on December 14, 2022. Following the PSI 

Report's recommendation, the court set a guideline sentencing 

range (GSR) of 262 to 327 months.1 Neither side objected to this 

calculation, and the district court accepted it.

The statute of conviction carried a mandatory minimum 

sentence of 120 months in prison. See 46 U.S.C. §§ 70503(a), 

70506(a); 21 U.S.C. § 960(b)(1)(B). At the disposition hearing, 

the government recommended an incarcerative sentence of 135 

months. The appellant countered by requesting that the court 

impose the mandatory minimum sentence: 120 months. In support, 

he asserted that he had "accepted responsibility since day one," 

that he had tried to exhibit "exemplary" behavior while on bond, 

1 This GSR was higher than the GSR forecast in the parties' 

plea agreement. One reason for this discrepancy was that the PSI 

Report based its calculation on the actual amount of cocaine seized 

from the vessel (548.1 kilograms) rather than the amount mentioned

in the plea agreement (at least 150 but less than 450 kilograms). 

This difference does not affect our analysis because the appellant 

does not dispute the district court's selection of the GSR.
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and that his prior criminal convictions were either remote in time 

or for minor violations. He also expressed remorse for his 

conduct. 

In pronouncing sentence, the district court stated that 

it had considered the plea agreement and the 18 U.S.C. § 3553(a) 

sentencing factors, including "the need to promote respect for the 

law and protect the public from further crimes of the [d]efendant 

as well as [to] address the issues of deterrence and punishment." 

The court acknowledged, among other things, that the appellant had 

two dependents; that he suffered from scoliosis and bouts of 

sadness and anxiety; that he had a history of using marijuana, 

fentanyl, oxycodone, and buprenorphine, including multiple 

positive drug tests during his time under pretrial supervision; 

and that the offense of conviction was the appellant's "12th known 

arrest and ninth conviction." 

When all was said and done, the district court stated

that it would "exercise leniency" and agreed with the parties that 

a downward variance from the GSR of 262 to 327 months was 

appropriate. Even so, it emphasized that the appellant "pled 

guilty to an offense involving multiple, multiple kilograms of 

narcotics" and noted the need to "avoid unwarranted sentencing 

disparities" between the appellant — who had "a criminal history 

involving narcotics" — and the appellant's co-defendant — who had 

no criminal history and received a sentence of 135 months after 
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pleading guilty to the same offense. Reasoning that a sentence 

that was beneath the bottom of the GSR but "slightly 

higher . . . than that recommended by the parties" would be "just 

and not greater than necessary," the district court imposed a 147-

month term of immurement.

This timely appeal ensued.

II

The appellant argues that his sentence was both 

procedurally flawed and substantively unreasonable. Each of these 

arguments depend on his assertion that the district court did not 

adequately evaluate the 18 U.S.C. § 3553(a) factors in fashioning 

his sentence. This assertion gains the appellant no traction.

We begin with the basics. In a typical sentencing 

appeal, "we first determine whether the sentence imposed is 

procedurally reasonable and then determine whether it is 

substantively reasonable." United States v. Clogston, 662 F.3d 

588, 590 (1st Cir. 2011). When making these determinations, 

preserved claims of sentencing error are reviewed for abuse of 

discretion. See United States v. Leach, 89 F.4th 189, 195 (1st 

Cir. 2023). But when a claim has not been preserved in the district 

court, our review is only for plain error. See id. 

"The touchstone of abuse of discretion review in federal 

sentencing is reasonableness." United States v. Vargas-Dávila, 

649 F.3d 129, 130 (1st Cir. 2011). In reviewing for abuse of 
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discretion, "we assay the district court's factfinding for clear 

error and afford de novo consideration to its interpretation and 

application of the sentencing guidelines." United States v. 

Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).

Unpreserved claims of error are reviewed only for plain 

error. See Leach, 89 F.4th at 195. That limited review presents 

an appellant with a heavier burden. To prevail under plain error 

review, the appellant must show "(1) that an error occurred (2) 

which was 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." United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 

2001). With these standards in place, we turn to the appellant's 

asseverational array. We start with his procedural claim and then 

proceed to his claim of substantive unreasonableness.

A

The appellant argues that his sentence was procedurally 

flawed because the district court "failed to adequately evaluate 

the [section] 3553(a) factors" and "focused all its attention" on 

"the negative factors" affecting his case. Because the appellant

did not raise this claim of error at the time of sentencing, his 

procedural challenge is unpreserved. See United States v. Matosde-Jesús, 856 F.3d 174, 177 (1st Cir. 2017). Consequently, we 

review only for plain error. See Leach, 89 F.4th at 195. 
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The centerpiece of the appellant's argument is his 

contention that the district court failed to consider several 

mitigating factors. These include the following alleged facts: 

that the appellant was raised in a dysfunctional family setting; 

that he became involved in the offense of conviction out of 

"stupidity"; that his young children depended on him financially 

and emotionally; that his daughter was struggling with her father's 

absence; that he was suffering from sadness and anxiety from being 

separated from his children; that the "extreme pain" from his 

scoliosis had caused him to self-medicate; and that he was 

currently in a precarious financial situation. The appellant 

submits that such mitigating factors could be gleaned from "a 

simple reading" of the PSI Report and "the district court simply 

chose to disregard" them. We do not agree. 

It is a bedrock principle of federal sentencing law that 

— in order to fulfill a sentencing court's responsibilities — the

court must "consider all relevant section 3553(a) factors." 

Clogston, 662 F.3d at 592. The court, though, "need not do so 

mechanically." Vargas-Dávila, 649 F.3d at 131. We have previously 

made it clear that "we do not require an express weighing of 

mitigating and aggravating factors or that each factor be 

individually mentioned." United States v. Lozada-Aponte, 689 F.3d 

791, 793 (1st Cir. 2012). Relatedly, the fact that a sentencing 

court chooses not to discuss individually every mitigating factor
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that the appellant cites "suggests [that those unaddressed 

factors] were unconvincing, not ignored" in the court's sentencing 

calculus. Id. 

Here, it is nose-on-the-face plain that "the sentencing 

transcript, read as a whole, evinces a sufficient weighing of the 

section 3553(a) factors." United States v. Dávila-González, 595 

F.3d 42, 49 (1st Cir. 2010). To begin, the district court 

explicitly discussed several of the mitigating factors that the 

appellant claims it ignored. For instance, the court acknowledged 

that the appellant has two dependents, suffers from scoliosis and 

bouts of sadness and anxiety, and has a history of drug use. Its 

decision to vary downward by more than 100 months from the bottom 

of the GSR, its granting of the appellant's request for voluntary 

surrender so that he could spend Christmas with his family, and

its recommendation of the appellant for a residential 

drug-treatment program all help to demonstrate that the court was 

sensitive to these mitigating factors at the time of sentencing. 

What is more, the court took pains to explain why certain 

section 3553(a) factors counseled in favor of a sentence that was 

"slightly higher . . . than that recommended by the parties." For 

example, it highlighted the seriousness of the offense, which 

involved "multiple, multiple kilograms of narcotics" and 

reasonably concluded that the appellant's criminal history 

militated in favor of a stiffer sentence. See 18 U.S.C. 
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§ 3553(a)(1)-(2)(A). And we take particular note that the court 

twice stated that it had considered all the section 3553(a) factors 

— statements that in themselves are "entitled to some weight." 

Clogston, 662 F.3d at 592 (quoting Dávila-González, 595 F.3d at 

49). 

In sum, we discern no clear or obvious procedural flaw

in the sentencing court's weighing of the section 3553(a) factors. 

Plain error is plainly absent.

B

We turn next to the appellant's attack on the substantive 

reasonableness of his sentence. This claim of error was preserved 

below and, thus, our review is for abuse of discretion. See

Holguin-Hernandez v. United States, 589 U.S. 169, 174-75 (2020)

("A defendant who, by advocating for a particular sentence, 

communicates to the trial judge his view that a longer sentence is 

'greater than necessary' has thereby informed the court of the 

legal error at issue in an appellate challenge to the substantive 

reasonableness of the sentence." (quoting 18 U.S.C. § 3553(a))).

The appellant's plaint that his sentence is 

substantively unreasonable relies generally on the same reasoning 

that drove his claim of procedural error: that the district court 

abused its discretion by failing adequately to analyze and balance 

all of the pertinent section 3553(a) factors. By putting too much 

emphasis on "negative" factors that weighed in favor of a harsher 
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sentence, the appellant suggests, the court imposed a 

substantively unreasonable term of imprisonment. This suggestion,

too, is unavailing.

A substantively reasonable sentence is one that 

"reflects 'a plausible sentencing rationale and a defensible 

result.'" United States v. Soto-Soto, 855 F.3d 445, 450 (1st Cir. 

2017) (quoting United States v. Martin, 520 F.3d 87, 96 (1st Cir. 

2008)). The sentence at issue in this case passes muster under 

this standard.

Here, the district court gave a plausible rationale for 

the sentence it imposed: it explained that it would exercise 

leniency by varying downward from the GSR but that the appellant's 

circumstances required a somewhat longer sentence than either 

party proposed due to the seriousness of the crime, the appellant's 

criminal history, and the need to avoid an unwarranted sentencing 

disparity. Although the appellant asserts that the district court

reached this conclusion by "balancing the section 3553(a) 

factors . . . improperly," the court was not obligated to "attach 

to certain of the mitigating factors the significance that the 

appellant thinks they deserved." Clogston, 662 F.3d at 593. When 

— as in this instance — a sentencing court has performed its duty 

by assessing the relevant factors bearing on the case before it, 

"the weighting of those factors is largely within the court's 

informed discretion." Id. So it is here. The court, for example, 
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was entitled to weigh the appellant's criminal history as 

supporting a lengthier sentence. See 18 U.S.C. § 3553(a)(1); cf.

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

("There is no 'requirement that a district court afford each of 

the section 3553(a) factors equal prominence.'" (quoting United 

States v. Dixon, 449 F.3d 194, 205 (1st Cir. 2006))).

So, too, the district court reached a defensible result. 

As a general rule, it is rare for a reviewing court to find a 

below-the-range sentence substantively unreasonable. See, e.g.,

United States v. deJesús, 6 F.4th 141, 150 (1st Cir. 2021); United 

States v. Millán-Machuca, 991 F.3d 7, 32 (1st Cir. 2021); United 

States v. Rentas-Muñiz, 887 F.3d 1, 6 (1st Cir. 2018). Here, as 

in United States v. King, 741 F.3d 305, 310 (1st Cir. 2014), 

"[t]his case plainly falls within the general rule, not within the 

long-odds exception to it." In imposing the sentence, the district 

court varied downward by 115 months, resulting in a sentence that 

was only slightly more than half the length of the bottom of the 

GSR. Considering this substantial downward variance, we discern 

nothing that suffices to support the appellant's complaint that 

his sentence was inordinately harsh. We conclude — without serious 

question — that the sentence in this case came within the wide

"universe of reasonable sentencing outcomes." Clogston, 662 F.3d 

at 592. It follows that the sentence was both substantively 
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reasonable and a proper exercise of the district court's 

discretion.

III

We need go no further.2 For the reasons elucidated 

above, the judgment of the district court is

Affirmed.

2 In his reply brief, the appellant contends that the 

government breached the plea agreement by defending the district 

court's 147-month sentence on appeal. This argument is futile. 

The appellant concedes that when a criminal defendant appeals his 

or her sentence, "the government normally should be free, on 

appeal, to support a ruling of the district court even though a 

plea agreement precluded it below from arguing the position that 

underpins the ruling." United States v. Jurado-Nazario, 979 F.3d 

60, 63 (1st Cir. 2020) (quoting United States v. Carbajal-Váldez, 

874 F.3d 778, 786-87 (1st Cir. 2017)). We discern no reason to 

disrupt this general rule here.