United States Court of Appeals 

For the First Circuit 

No. 17-1319 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

ELVING MADERA-RIVERA, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

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

Before 

Howard, Chief Judge, 

Boudin and Kayatta, Circuit Judges. 

Rafael F. Castro Lang on brief for appellant. 

Rosa Emilia Rodríguez-Vélez, United States Attorney, 

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

Appellate Division, and Julia M. Meconiates, Assistant United 

States Attorney, on brief for appellee. 

August 2, 2018 

 
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BOUDIN, Circuit Judge. Elving Madera-Rivera ("Madera") 

was the architect of a cocaine trafficking conspiracy, using the 

mails and commercial airlines to send kilogram quantities of the 

drug via Puerto Rico into the continental United States. Madera 

recruited and paid the couriers, using contacts in the continental 

United States to make arrangements for distribution of the cocaine 

after it arrived. 

Madera was indicted with fourteen co-defendants on June 

26, 2013, and charged with one count of conspiracy to possess five 

kilograms or more of cocaine with intent to distribute. 21 U.S.C. 

§§ 841, 846. He then sought bail and, when it was denied, filed 

an emergency motion, describing an enlarged spleen, low platelet 

levels, and Hepatitis C; the latter caused him to suffer from 

chronic liver ailments, including liver cirrhosis.1 The government 

ultimately agreed to support Madera’s bail motion, at least for a 

period. 

As the case progressed, Madera rejected, for reasons 

that are disputed, the government’s proffered plea agreement and 

instead entered a straight guilty plea. Madera says that the 

government required as a condition of the plea bargain that he 

waive any right to seek continued bail for medical treatment 

 1 Madera's principal and reply briefs--not filed under 

seal--cite to and directly quote materials from his sealed 

appendix, including medical records, effectively inviting resort 

by anyone else. 
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pending sentencing. The government denies this happened, arguing 

instead that Madera's decision to enter a straight plea was a 

strategic one to allow him to contest other issues. 

After Madera pled guilty, the court held sentencing 

hearings to determine the amount of cocaine to attribute to Madera, 

U.S.S.G. § 2D1.1(c) (U.S. Sentencing Comm'n 2014), his precise 

role in the conspiracy, id. § 3B1.1, and the offense level decrease 

for his acceptance of responsibility, id. § 3E1.1. The court held 

Madera responsible for seventy-seven kilograms of cocaine, id. 

§ 2D1.1(c)(3), and found that he was a leader of the conspiracy, 

id. § 3B1.1(a). The court granted a three-level decrease for 

acceptance of responsibility. Id. § 3E1.1(a)-(b). 

Madera then sought a downward departure under 

U.S.S.G. § 5H1.4 (and also requested a variance--an issue we 

address below). Section 5H1.4 states: 

Physical condition . . . may be relevant in 

determining whether a departure is warranted, 

if the condition . . . individually or in 

combination with other offender 

characteristics, is present to an unusual 

degree and distinguishes the case from the 

typical cases covered by the guidelines. An 

extraordinary physical impairment may be a 

reason to depart downward . . . . 

Madera argued that his life was in danger and would 

assuredly be shortened by a guidelines sentence, since prison 

facilities would be unable to fully address his medical needs. 

See United States v. Herman, 848 F.3d 55, 59 (1st Cir. 2017). 
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The government pressed for a within-guidelines sentence and said 

that "nothing presented" indicated that the Bureau of Prisons 

("BOP") was incapable of providing appropriate medical treatment. 

The court's final tally was a total offense level of 

thirty-five, entailing a guidelines range of 168 to 210 months. 

U.S.S.G. ch. 5, pt. A. The court ultimately imposed a 180-month 

sentence. 

During the last hearing, the court said that it 

understood--from whom or what is not clear--that Madera’s health 

condition, "serious as it is, can be adequately treated and handled 

during his incarceration." The court urged that Madera be sent to 

the Butner Federal Correction Institution in North Carolina--a 

prison known for its medical facilities and requested by defense 

counsel. 

Madera now seeks a remand and a sentence at the mandatory 

minimum of ten years. 21 U.S.C. § 841(b)(1)(A). He relies on his 

doctor, Barbara Rosado Carrion, who reported that Madera "has a 

reduced survival and shorten[ed] life expectancy ([five] years or 

less) in the absence of liver transplantation." Madera also 

challenges the court's refusal to impose a variant sentence below 

the guidelines range. 

The standard for review of a denial of a downward 

departure depends, as with most claims of error on appeal, on the 

nature of the issue pressed by the appellant--which may be a 
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straight issue of law, an issue of fact, or one (for example) that 

contests the judge's disposition on a matter of discretion, usually 

on the ground that discretion was abused. Madera's claim here is 

first that the guideline regarding extraordinary physical 

impairment, U.S.S.G. § 5H1.4, would have permitted the judge to 

depart downward in his case; second that the medical evidence 

indicated that he needed a liver transplant within five years or 

else would die; and third that it was an abuse of discretion to 

deny the reduction of his sentence to the mandatory minimum of ten 

years. 

The first proposition is at least plausible; the second 

might have been debated, yet the government declined to do so at 

this time; but our rejection of the appeal rests on the flawed 

reasoning that underlies Madera's "abuse of discretion" argument. 

A ten-year sentence does nothing to respond to the supposed peril 

Madera faces, namely, death within five years without a transplant. 

Madera's doctor prescribed routine testing on a permanent basis 

and Madera has not sufficiently demonstrated that the major federal 

prison medical facilities would be incapable of providing such 

treatment.2 Only Madera's need for a transplant exceeds the 

 2 Dr. Carrion wrote in part: 

Mr. Madera needs to be followed closely by a 

liver specialist every [three] to [four] 

months with blood work[up] that includes [a] 

liver profile, coagulation profile and CBC. 

Medical assessment should include evaluation 
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mundane. And Madera's requested reduced sentence of ten years 

would do nothing to address the threat of death within five. 

Further, if Madera's condition worsens and the 

government denies or unduly delays a transplant, the remedy would 

be injunctive relief under the Eighth Amendment. See Estelle v. 

Gamble, 429 U.S. 97, 104 (1976); Kosilek v. Spencer, 774 F.3d 63, 

82-84 (1st Cir. 2014) (en banc). In sum, a sentence at the 

mandatory minimum would not mitigate the risk Madera faces and the 

remedy would likely be a constitutional claim that the defendant 

has not made. 

Madera also argues that the court erred at sentencing 

when it failed to make a "specific finding" as to whether he 

suffered from an "extraordinary physical impairment," 

U.S.S.G. § 5H1.4. This circuit has not required such a finding 

and anyway the government did not question Madera's condition or 

challenge his doctor's grave medical assessment. Cf. Fed. R. Crim. 

P. 32(i)(3)(B) (a sentencing court must rule on any "controverted 

matter" at sentencing or determine that a ruling is unnecessary). 

What was disputed was whether Madera's patently dire condition 

 

for the presence of fluid retention, ascites, 

jaundice or gastrointestinal bleeding. . . . 

In addition, [Madera] needs surveillance for 

liver cancer every [six] months with [a] 

dedicated liver ultrasound or three phase[] CT 

scan plus AFP (alpha-fetoprotein) tumor 

marker. He should get vaccinated against 

hepatitis A and hepatitis B . . . . 
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warranted a downward departure and, for the reasons stated, the 

court's negative decision was not error. 

 This brings us to Madera's argument for a downward 

variance. Madera claims that the district court failed to give 

appropriate weight to the section 3553(a) factors, 18 U.S.C. 

§ 3553(a), and that a variant downward sentence to the ten-year 

minimum was "more than justified." Madera cites his need for 

medical care, the non-violent nature of the offense, his status as 

a first-time offender, his history of stable employment, and 

avoidance of sentencing disparities among co-defendants. 

But the district court heard these arguments at 

sentencing. And after explicitly stating that it had "considered 

all [of the section 3553(a)] sentencing factors," the court 

referred to relevant circumstances including, for example, 

Madera's age, education, medical condition, and lack of criminal 

history. See United States v. Ruiz-Huertas, 792 F.3d 223, 227 

(1st Cir. 2015). 

Madera's argument, then, is essentially a disagreement 

with the court's weighing of these factors; but appraising and 

comparing such factors is an exercise "largely within the 

[sentencing] court's informed discretion." United States v. 

Clogston, 662 F.3d 588, 593 (1st Cir. 2011). Further, some factors 

that Madera suggests deserved more weight were justifiably 

balanced by others: Madera's status as a first-time offender, for 
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instance, was likely offset by the fact that he was the leader of 

a heavily-orchestrated drug conspiracy. 

Madera also claims that a variance was warranted because 

of the government's supposedly improper conditioning of the plea 

offer on Madera agreeing to forego bail. Madera cites as evidence 

only an e-mail between his own two attorneys based on an alleged 

prior discussion with the prosecutor. Indeed, the government at 

multiple points consented to Madera's release on bail for medical 

examination or treatment. Absent substantial evidence that the 

condition was ever actually imposed, the district court's failure 

to entertain such a claim is well-justified. 

Lastly, Madera asserts that his sentence was 

substantively unreasonable. For the reasons already set forth, 

Madera's within-guideline sentence of 180 months was both 

plausibly reasoned and within the universe of reasonable 

sentences. See United States v. Alejandro-Rosado, 878 F.3d 435, 

440 (1st Cir. 2017). 

 Affirmed.