United States Court of Appeals

For the First Circuit

No. 21-1863

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERTO M. MELENDEZ-HIRALDO, A/K/A COCODRILO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Lipez and Montecalvo, Circuit Judges,

Burroughs,* District Judge.

Jose Luis Novas-Debien on brief for appellant.

W. Stephen Muldrow, United States Attorney; Mariana E. 

Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate 

Division; and Maarja T. Luhtaru, Assistant United States Attorney, 

on brief for appellee.

September 21, 2023

* Of the District of Massachusetts, sitting by designation. 
- 2 -

MONTECALVO, Circuit Judge. Roberto M. Melendez-Hiraldo 

("Melendez") appeals from a 194-month sentence imposed after he 

pled guilty to using, carrying, brandishing, and discharging a 

firearm in furtherance of a crime of violence in violation of 

18 U.S.C. § 924(c)(1)(A)(iii) and (2). Melendez challenges the 

procedural and substantive reasonableness of his sentence. Having 

discerned no error, we affirm. 

I. Background1

On June 8, 2018, Melendez was involved in the kidnapping 

and murder of a rival gang member, referred to by the parties as 

"WGE." WGE had been threatening members of Melendez's gang, so

Melendez, with four other members of his gang, participated in the 

killing of WGE to support the gang.

On the day of the murder, Melendez traveled with members 

of his gang to the public housing complex where WGE lived. Armed 

with guns, Melendez and his codefendants forced WGE out of his 

home and into a Toyota Camry. WGE was transported in the Camry to

Barraza's Ward by a codefendant. Other codefendants, along with 

Melendez, traveled in a separate vehicle to Barraza's Ward. While 

he remained in the car, Melendez watched two codefendants take WGE 

1 Because this sentencing appeal follows a guilty plea, we 

draw the relevant facts from the plea agreement, the undisputed 

portions of the-change-of-plea colloquy, the presentence 

investigation report ("PSR"), and the sentencing record. See

United States v. Spinks, 63 F.4th 95, 97 (1st Cir. 2023). 
- 3 -

out of the Camry and saw them shoot WGE multiple times. Although 

Melendez did not shoot WGE, a cooperating witness alleged that

Melendez and another codefendant gave a revolver to the person who 

first shot WGE.2

On August 19, 2020, Melendez and four codefendants were 

charged in a three-count second superseding indictment (the 

"indictment") for the kidnapping and murder of WGE. The indictment 

charged Melendez with kidnapping resulting in death, in violation 

of 18 U.S.C. § 1201(a)(1) and (2); using, carrying, brandishing, 

and discharging a firearm during and in relation to a crime of 

violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and (2); 

and using, carrying, and discharging a firearm during and in 

relation to a crime of violence causing murder, in violation of 18 

U.S.C. § 924(j)(1) and (2). 

On June 21, 2021, Melendez pled guilty to count two of 

the indictment, and in exchange the government agreed to dismiss 

the remaining counts. Pursuant to the plea agreement, the parties 

stipulated that Melendez's guidelines sentence was 120 months, the 

minimum term of imprisonment required by statute. The parties 

also agreed to jointly recommend a sentence of 164 months, to be 

2 Melendez did not file formal objections to the PSR, but, 

at sentencing, he challenged this statement. The sentencing court 

rejected his objection and relied on the cooperating witness's 

statement at sentencing. On appeal, Melendez does not challenge 

the district court's finding. 
- 4 -

served consecutively with a previously imposed 46-month sentence 

Melendez had received in an unrelated federal case.3 Finally, 

Melendez stipulated to the statement of facts incorporated into 

the plea agreement. The court accepted Melendez's change of plea. 

Melendez's sentencing followed. Pursuant to the plea 

agreement, Melendez and the government jointly recommended a 

164-month sentence for the firearms offense. At the hearing, 

Melendez defended the recommendation before the court, arguing 

that 164 months was "more than sufficient punishment," 

particularly given certain mitigating factors discussed in his 

sentencing memorandum, including "his family background, or lack

thereof, . . . [the fact that] he's the first to plead guilty,

[and data showing] people age out of crime." 

The district court stated twice that the applicable 

guidelines sentence for the single count was 10 years, or 120 

months, and acknowledged that the parties had agreed to a variant 

sentence of 164 months. It also referenced Melendez's age, 

employment history, ninth grade education, and history of drug use 

as factors relevant to his sentencing. 

Before weighing in on the appropriate sentence, the 

court summarized the offense and detailed Melendez's criminal 

3 In criminal case No. 18-581, Melendez pled guilty to 

violating 18 U.S.C. § 922(g)(1) by illegally possessing a firearm 

three months after the killing of WGE. 
- 5 -

history. Along the way, the court calculated the applicable number 

of criminal history points that Melendez would have accrued for 

each conviction, noting that Melendez scored additional points for 

the instant conviction because he committed it while on escape 

status. In the end, the court concluded that Melendez "could have 

scored eight criminal history points, establishing a criminal 

history category of four," but added that "criminal history points 

. . . do not apply for this firearm conviction."

Next, having heard from the parties and considered the 

relevant sentencing factors, the district court announced that it 

would not be adopting the joint recommendation because it "agree[d] 

with the probation officer" that a 164-month sentence did not 

adequately "reflect the seriousness of the offense, does not 

promote respect for the law, does not protect the public from 

further crimes by . . . Melendez, and does not address the issues 

of deterrence and punishment."4

A detailed description of the offense followed. After 

describing the kidnapping, the court focused on the brutality of 

4 During this colloquy, the court stated: "[t]he parties 

agreed to recommend a varian[t] sentence . . . well, actually it's 

not a varian[t] sentence. It's within -- it's 10 months to life." 

We treat this as a misstatement where earlier in the hearing the 

court properly noted that "[t]he guideline sentence is the minimum 

term of imprisonment required by statute, which, in this case, is 

a minimum term of imprisonment of 10 years," or 120 months. We 

therefore proceed with the understanding that the court understood 

it was imposing an upwardly variant sentence. 
- 6 -

the murder, noting that "the victim received 10 shots to the head 

and 12 to his upper body," and that even after he was "shot to the 

head and dropped to the floor," he "receiv[ed] multiple shots." 

The court also noted that just before WGE was murdered, the 

codefendant who fired the first shot said, "Llego tu dia" ("[y]our 

day had arrived"). The court added that "Melendez and [another]

codefendant" were responsible for "giv[ing] a revolver" to the 

first shooter. 

When it finished detailing the kidnapping and murder, 

the court remarked: 

Accordingly -- again, the [c]ourt agrees with 

the probation officer [that the joint 

recommendation is inadequate]. . . . 

Accordingly, it is the judgment of the 

[c]ourt, [that] . . . Melendez . . . is 

committed to the custody of the Bureau of

Prisons to be imprisoned for a term of 194 

months to be served consecutively to the 

46-month sentence imposed on him in Criminal 

[Case] No. 18-581, for a total sentence of 240 

months of imprisonment. . . . Upon release . 

. . Melendez shall be placed on supervised 

release for a term of five years. 

Melendez objected and this timely appeal followed.5

5 Pursuant to Melendez's plea agreement, the government 

asked the court to dismiss all remaining counts in this case and 

the companion criminal case, 18-cr-0451 (FAB), against him. The 

court granted the government's request and dismissed the remaining 

counts. 
- 7 -

II. Discussion

We ordinarily review preserved claims of sentencing 

error for abuse of discretion. United States v. Montero-Montero, 

817 F.3d 35, 37 (1st Cir. 2016). "That review typically starts 

with claims of procedural error." Id. Such errors include 

"failing to calculate (or improperly calculating) the Guidelines 

range, treating the Guidelines as mandatory, failing to consider 

the § 3553(a) factors, selecting a sentence based on clearly 

erroneous facts, or failing to adequately explain the chosen 

sentence -- including an explanation for any deviation from the 

Guidelines range." Gall v. United States, 552 U.S. 38, 51 (2007).

Assuming the sentence is procedurally sound, we then 

consider the substantive reasonableness of the sentence under an 

abuse of discretion rubric. Id. A sentence is substantively 

reasonable if it "reflects 'a plausible sentencing rationale and 

a defensible result.'" United States v. Rossignol, 780 F.3d 475, 

477 (1st Cir. 2015) (quoting United States v. Martin, 520 F.3d 87, 

96 (1st Cir. 2008)). "[O]ur review is limited to determining 

whether [the district court's] sentence, 'in light of the totality 

of the circumstances, resides within the expansive universe of 

reasonable sentences.'" Id. (quoting United States v. King, 741 

F.3d 305, 308 (1st Cir. 2014)).

But when a defendant fails to preserve a claim of 

procedural or substantive error below, we review for plain error. 
- 8 -

Montero-Montero, 817 F.3d at 37. "To succeed under plain error 

review, an 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.'" Id. (alteration in original) (quoting United 

States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).

A. Procedural Reasonableness

Melendez lodges several challenges to the procedural 

reasonableness of his sentence. He contends that the district 

court erred by (1) making conflicting statements about his 

applicable guidelines sentence; (2) failing to consider relevant 

mitigating factors; (3) not providing specific reasons for 

upwardly varying beyond the parties' recommended sentence; (4)

failing to identify its reasons for imposing an upwardly variant 

sentence; and (5) not stating clearly whether it was departing or 

varying from the applicable guidelines sentence. 

As a threshold matter, the government argues that 

Melendez waived his procedural challenges because he failed to 

preserve his claims below and did not address the plain error 

standard in his opening brief. "To preserve a claim of procedural 

sentencing error for appellate review, a defendant's objection 

need not be framed with exquisite precision." United States v.

Rivera-Berríos, 968 F.3d 130, 134 (1st Cir. 2020) (citing United 
- 9 -

States v. Soto-Soto, 855 F.3d 445, 448 n.1 (1st Cir. 2017)). It 

must, however, be "sufficiently specific to call the district 

court's attention to the asserted error." Id. (quoting Soto-Soto, 

855 F.3d at 448 n.1).

Here, after the court handed down the sentence, Melendez 

made the following objection:

We object to, first of all, the recitation of 

facts. My client only accepts the stipulation 

of facts as entered into the plea agreement 

. . . . There are no proper reasons for the 

excessively upward variance in the [c]ourt's 

sentence. As the [c]ourt noted, the proper 

guideline for the charge is 120 months. The 

parties came up with an already-included 

variance as a recommendation of 44 months, 

which is a total of 164 months. 924(c) 

convicts have a lower risk[] of recidivism as 

per US Sentencing Commission studies.

And for those reasons . . . we object to the 

sentence[] and will entertain the possibility 

of appealing the variance that was handed down 

of 30 months on top of the recommended 

sentence. 

Because Melendez alerted the court to a perceived deficiency in 

its justification for varying upward, he preserved the two related 

claims: (1) that the district court failed to provide specific 

reasons for varying upward beyond the parties' recommended 

sentence and (2) that the district court did not identify its 

reasons for the upward variance. See Rivera-Berríos, 968 F.3d at 

134 (concluding that defendant preserved his procedural claim 

where "appellant's counsel made clear that he believed that the 
- 10 -

sentence was 'excessive' and that the court had not articulated 

any cognizable grounds that would support an upward variance"). 

Because the objection does not reach the subject matter 

of Melendez's three remaining procedural challenges,6 those claims

are subject to plain error review. But Melendez "does not attempt 

to satisfy that standard of review" in his opening brief. United 

States v. Rodriguez-Monserrate, 22 F.4th 35, 40 (1st Cir. 2021).

And even in the face of the government raising this deficiency, 

Melendez forewent the opportunity to explain by opting not to 

reply. Melendez has therefore waived his unpreserved claims. Id.

We review the two surviving procedural claims for abuse 

of discretion. Soto-Soto, 855 F.3d at 448 ("Preserved claims of 

sentencing error are typically reviewed for reasonableness, under 

an abuse of discretion rubric."). This is a multifaceted standard 

whereby "we apply clear error review to factual findings, de novo 

review to interpretations and applications of the guidelines, and 

abuse of discretion review to judgment calls." United States v. 

Nieves-Mercado, 847 F.3d 37, 42 (1st Cir. 2017). 

Melendez argues that the court erred in imposing an 

upwardly variant sentence without stating the specific reasons for 

doing so. And that likewise, the court failed to explain why it 

6 The remaining claims are: (1) improper understanding of 

the guidelines range, (2) failure to address mitigating factors, 

and (3) lack of clarity on whether the court was departing or 

varying.
- 11 -

imposed a sentence exceeding the parties' already upwardly variant 

joint recommendation of 164 months of incarceration.

A court commits "significant procedural error" by 

"failing to adequately explain the chosen sentence -- including an 

explanation for any deviation from the Guidelines range," Gall, 

552 U.S. at 51 -- but has no independent obligation to explain its 

decision not to adopt a joint recommendation, United States v.

Flores-Nater, 62 F.4th 652, 657 (1st Cir. 2023) ("[T]he court was 

not required to explain why it rejected the . . . upwardly variant 

sentence recommended by the parties."). Accordingly, we need only 

address whether the court adequately explained the variance. 

Melendez was sentenced to 194 months in prison, 74 months 

over the 120-month statutory minimum sentence -- which is also the

guidelines sentence -- and 30 months over the parties' 164-month 

joint recommendation. 

When a sentence exceeds the applicable guidelines range, 

as it did here, "[the court] must justify the upward variance" by 

"articulat[ing] why it believe[s] that the appellant's case 

differ[s] from the norm." United States v. Del Valle-Rodríguez, 

761 F.3d 171, 176, 177 (1st Cir. 2014). The exact parameters of 

this requirement fluctuate because "the greater a deviation from 

the [guidelines sentencing range], the more compelling the 

sentencing court's justification must be." Id. at 177 (citing 
- 12 -

United States v. Smith, 445 F.3d 1, 4 (1st Cir. 2006)). Here, the 

court provided an adequate explanation for the level of variance. 

Typically, we look for an express justification. And to 

be sure, here, the court's express explanation consisted of the 

type of boilerplate explanation that we have deemed insufficient 

before: 

[T]he [upwardly variant] sentence recommended 

by the parties does not reflect the 

seriousness of the offense, . . . promote 

respect for the law, . . . protect the public 

from further crimes by . . . Melendez, and

. . . address the issues of deterrence and 

punishment. 

Generic explanations like this that "simply rehearse[] -- but d[o] 

not apply -- certain of the factors that Congress has instructed 

courts to consider in imposing sentences" are inadequate because 

they do not satisfy "the requirement that an upward variance 

be '[]moored [to] individual characteristics of either the 

offender or the offense of conviction.'" Flores-Nater, 62 F.4th 

at 656 (alterations in original) (quoting Rivera-Berríos, 968 F.3d 

at 137); see also United States v. Franquiz-Ortiz, 607 F.3d 280, 

282 (1st Cir. 2010) (providing defendant-specific reasons for 

sentencing decision is necessary to produce "a record that provides 

a basis for evaluating the district court's exercise of its broad 

authority"). But if the court's rationale can be "teased from the 

sentencing record," we consider the requirement satisfied. 

Flores-Nater, 62 F.4th at 656. 
- 13 -

Here, the court's rationale for imposing the 194-month

sentence is apparent from the record. After rejecting the parties' 

recommended sentence, the court recounted the horrific details of 

the murder and emphasized Melendez's participation by noting he 

"had given a revolver to the person who first shot the victim." 

The court signaled that these details weighed heavily in its 

decision to impose a harsher sentence than the one recommended by 

the parties, and also referenced its agreement with the probation 

officer's position that the jointly recommended sentence was 

inadequate, before concluding that a 164-month sentence was

insufficient to achieve the goals of sentencing. From this, we 

draw the fair inference that the upwardly variant sentence was 

predicated on the court's belief that the recommended 

sentence -- and thus the guidelines -- failed to account for the 

gravity of the offense conduct. 

The court's rationale was also adequate. The rationale 

passes muster if it identifies "idiosyncratic facts [that] 

'remove[] th[e] case from the heartland of the applicable guideline 

provisions.'" United States v. Bruno-Campos, 978 F.3d 801, 806 

(1st Cir. 2020) (quoting United States v. Díaz-Lugo, 963 F.3d 145, 

155 (1st Cir. 2020)). Here, the applicable guideline sets the 

sentence for defendants "convicted of violating section 924(c)" as 

"the minimum term of imprisonment required by statute" regardless 

of the severity of the underlying crime or the individual 
- 14 -

characteristics of the defendant. U.S.S.G. § 2K.2.4(b). Indeed, 

unless exempted, the guidelines sentence applies so long as the 

defendant was convicted of "us[ing] or carr[ying] a firearm" 

"during and in relation to any crime of violence." 18 U.S.C. 

§ 924(c)(1)(A). In this case, the crime of violence was "kidnapping 

resulting in death." But to be convicted under 18 U.S.C. 

§ 924(c)(1)(A)(iii), a death need not result from the crime of 

violence. And the fact that the crime of violence resulted in 

death here was not accounted for anywhere in the guidelines 

calculation because, pursuant to U.S.S.G. § 2K.2.4(b), the 

guidelines sentence was the minimum term of imprisonment required 

by statute.7 Accordingly, because "[Melendez]'s situation is 

different from the ordinary situation covered by the guidelines 

calculation," Bruno-Campos, 978 F.3d at 806 (quoting United States

v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir. 2006)), a variance was 

proper. Nor can we fault the district court for concluding that 

a roughly six-year variance was warranted in light of the severity 

7 To be sure, Melendez was also initially charged with a 

separate count of brandishing a firearm during or in relation to 

a "[c]rime of [v]iolence [c]ausing [m]urder." But that charge was 

dismissed pursuant to the plea agreement and Melendez ultimately 

pled to the single, lessor count requiring only a "crime of 

violence." "A sentencing court may take into account relevant 

conduct underlying counts dismissed as part of a plea negotiation 

as long as that conduct was not used in constructing the 

defendant's guideline range." United States v. Fernández-Garay, 

788 F.3d 1, 7 (1st Cir. 2015).
- 15 -

of the crime, which resulted in a death. We therefore discern no 

error.

B. Substantive Reasonableness

Melendez also challenges the substantive reasonableness 

of his sentence. Echoing his claims of procedural error, Melendez 

contends his sentence was substantively unreasonable because it 

was "unmoored from any particular factor." 

 The government again argues that Melendez failed to 

preserve this challenge. This time, the government argues that 

the broad objection below could not preserve the specific 

substantive reasonableness arguments Melendez makes in his opening 

brief. We disagree. Here, Melendez objected to the "excessive[] 

upward variance" before reiterating his support for the shorter 

jointly recommended sentence, and we have consistently held that 

by arguing for a shorter sentence before the district court, a 

defendant preserves a challenge to the substantive reasonableness

of his sentence on appeal. See, e.g., United States v. 

Bruzón-Velázquez, 49 F.4th 23, 32 (1st Cir. 2022); 

Rodriguez-Monserrate, 22 F.4th at 40; United States v. 

Ramos-David, 16 F.4th 326, 335 (1st Cir. 2021). We therefore 

review for abuse of discretion. See Rodriguez-Monserrate, 22 F.4th 

at 41.

There are a broad range of reasonable outcomes in the 

sentencing context and our task is simply "to determine whether 
- 16 -

the sentence falls within [that permissible range]." 

Flores-Nater, 62 F.4th at 655 (quoting United States v. 

Rivera-Morales, 961 F.3d 1, 21 (1st Cir. 2020)). The components 

of a substantively reasonable sentence are a plausible rationale 

and a defensible result. United States v. Díaz-Rivera, 957 F.3d 

20, 25 (1st Cir. 2020).

We have already established that the court properly 

predicated Melendez's upwardly variant sentence on the fact that 

the "crime of violence" required for conviction was a premediated 

murder, a fact unaccounted for by the guidelines. See supra

Section II(A). "[A]n adequate explanation for an upward variance 

and a plausible rationale for that variance are almost always two 

sides of the same coin." United States v. Valle-Colón, 21 F.4th 

44, 50 (1st Cir. 2021). And this is such a case. Having already 

concluded that the court provided a sufficient justification for 

imposing the upwardly variant sentence, we need look no further to 

find that the rationale here was plausible. 

Likewise, for all the reasons we found the variant 

sentence justified, we also find it defensible. In addition to 

the serious nature of the offense and Melendez's contribution to 

it, other sentencing factors contribute to the defensibility of 

Melendez's 194-month sentence. Factors that bolster the 

defensibility of the sentence include Melendez's history of 
- 17 -

committing crimes while on "escape status," his history of firearms 

offenses, and his lengthy criminal record.8

Having found that the court provided a plausible 

sentencing rationale and arrived at a defensible result, we 

conclude that Melendez's 194-month sentence was substantively 

reasonable. Accordingly, we discern no error. 

III. Conclusion

For the foregoing reasons, Melendez's sentence is 

affirmed. 

8 As the court noted at sentencing, had Melendez's

criminal history been calculated and factored into his guidelines

sentence, Melendez would have been placed in criminal history 

category IV. Because criminal history was not a factor in his 

guidelines sentence, the court's rationale for upwardly varying 

could have properly rested on Melendez's past convictions.