United States Court of Appeals

For the First Circuit

No. 08-2575

UNITED STATES OF AMERICA,

Appellee,

v.

NOEL DÁVILA-GONZÁLEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Selya, Boudin and Howard, Circuit Judges.

Joseph C. Laws, Jr., Federal Public Defender, and Vivianne M.

Marrero, Assistant Federal Public Defender, on brief for appellant.

Rosa Emilia Rodriguez-Vélez, United States Attorney, Nelson

Pérez-Sosa, Chief, Appellate Division, and Thomas F. Klumper,

Assistant United States Attorney, on brief for appellee.

February 10, 2010
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SELYA, Circuit Judge. On August 13, 2008, defendantappellant Noel Dávila-González entered a straight plea of guilty to

charges of (i) aiding and abetting the laundering of money derived

from unlawful activities and (ii) conspiracy to commit money

laundering. See 18 U.S.C. §§ 2, 1956(a)(1)(B), 1956(h). The

district court sentenced him to serve a 78-month incarcerative

term. The appellant now challenges his sentence, citing a number

of supposed procedural errors. Discerning no merit in the

appellant's claims, we affirm.

When 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 following this

praxis, we rehearse only those facts that are needed to put the

claims of error into context.

On October 15, 2004, the appellant called a known member

of a drug cartel to arrange for the delivery of "two bundles."

Unfortunately for the appellant, the person to whom he reached out

doubled in brass as a confidential informant for the Federal Bureau

of Investigation (FBI). Over the course of several calls, most of

which were recorded, the appellant and the informant agreed to meet

and consummate the transaction. 
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This meeting took place at a Burger King restaurant in

Puerto Rico on October 18, 2004. At that time the appellant

effected delivery of the "two bundles" to the informant.

Subsequent analysis revealed that the "two bundles" contained

$204,440 in United States currency. 

Rather than springing the trap then and there, the FBI

continued its investigation for nearly three years. On May 3,

2007, a federal grand jury sitting in the District of Puerto Rico

returned a six-count indictment against the appellant and others.

The authorities arrested the appellant in Tampa, Florida, on May 9,

2008. Following his rendition to Puerto Rico, the appellant

entered a plea of guilty to the three counts against him (one of

which was dismissed at sentencing). 

The district court convened the disposition hearing on

November 13, 2008. The court deemed applicable a six-level

sentencing enhancement after finding that "the defendant knew or

believed that any of the laundered funds were the proceeds of, or

were intended to promote . . . an offense involving the

manufacture, importation, or distribution of a controlled substance

or a listed chemical." USSG §2S1.1(b)(1)(B)(i). It also ruled

that, for sentencing purposes, it would hold the appellant

responsible for only the cash contained in the two bundles

($204,440), even though the conspiracy as a whole had laundered a

much greater sum (approximately $1,839,208). 
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The court then proceeded to deny the appellant's request

for a downward role-in-the-offense adjustment. See USSG §3B1.2(b)

(authorizing a two-level downward adjustment if the defendant

played a minor role in the offense). Making a series of other

calculations, the court settled upon a total offense level of 25

and a criminal history category of III. In this venue, the

appellant does not challenge any of these rulings but, rather,

accepts the district court's calculation of the guideline

sentencing range (GSR): 70-87 months.

During the sentencing proceedings, defense counsel

briefly mentioned that the appellant was a former heroin addict

who, since committing the offense of conviction, had rehabilitated

himself. This information led to the following exchange:

The Court: So what are you suggesting?

Defense Counsel: I'm suggesting that the Court

depart downward because this . . . 

The Court: Absolutely not. On the basis of

what?

To this question, defense counsel explicated, in some detail, that

during the years intervening between the offense conduct and the

arrest, the appellant had checked himself into a rehabilitation

facility, moved to Florida, forsook his criminal ways, and obtained

gainful employment. Counsel argued that these developments

suggested that a below-the-range sentence would be an appropriate

outcome. The district court disagreed, stating:
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I'm going to deny the role request that you're

making. I am going to deny the departure

request you're going to make, and I'm going to

deny any other sentence than the advisory

guideline proposed here.

There is nothing on this record under

3553(a) that moves me, moves me to consider

any other sentence than the sentence proposed

as advisory by the guidelines for cases like

this.

In the end, the court imposed a mid-range sentence of 78

months in prison. At the conclusion of the hearing, it asked

whether either side had "[a]nything else?" The only rejoinder was

from defense counsel, who requested that the sentence be served in

"the Tampa area."

In this appeal, the appellant argues that the sentencing

court committed reversible error by (i) presuming the

reasonableness of the GSR; (ii) neglecting sufficiently to explain

the sentence imposed; and (iii) failing to consider mitigating

factors favoring a below-the-range sentence. We approach these

claims of error mindful that, in the wake of the Supreme Court's

landmark decision in United States v. Booker, 543 U.S. 220, 245

(2005), we have encouraged the district courts to follow a

specifically delineated roadmap when sentencing under the nowadvisory federal sentencing guidelines:

[A] sentencing court ordinarily should begin

by calculating the applicable guideline

sentencing range; then determine whether or

not any departures are in order; then mull the

factors delineated in 18 U.S.C. § 3553(a) as

well as any other relevant considerations;

and, finally, determine what sentence, whether
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within, above, or below the guideline

sentencing range, appears appropriate.

United States v. Pelletier, 469 F.3d 194, 203 (1st Cir. 2006)

(citing United States v. Jiménez-Beltre, 440 F.3d 514, 518-19 (1st

Cir. 2006) (en banc)).

The court below did not follow this roadmap. That

omission complicates appellate review, but in this instance it does

not frustrate that review. After all, we have treated this roadmap

as helpful, but not obligatory. Thus, a sentencing court may leave

the roadmap to one side and proceed in some other sequence as long

as the findings are made and all the requisite factors are

addressed. See, e.g., United States v. Pacheco, 489 F.3d 40, 44

(1st Cir. 2007) (explaining that district court may combine steps

or vary the order). This is such a case.

In reviewing a sentence, we seek to ensure that it is

both procedurally sound and substantively reasonable. United

States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). Here,

substantive reasonableness is not in issue; the appellant assigns

only procedural error. That taxonomy includes "failing to

calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the 18

U.S.C. § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen

sentence." United States v. Stone, 575 F.3d 83, 89 (1st Cir. 2009)
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(quoting United States v. Innarelli, 524 F.3d 286, 292 (1st Cir.

2008)).

The appellant's claims of error, like all claims of

procedural unreasonableness in sentencing, are reviewed, generally,

for abuse of discretion. United States v. Carrasco-De-Jesús, 589

F.3d 22, 26-27 (1st Cir. 2009); Martin, 520 F.3d at 92. Yet, when

a defendant fails to preserve an objection below, the plain error

standard supplants the customary standard of review. See, e.g.,

United States v. Almenas, 553 F.3d 27, 36 (1st Cir. 2009); United

States v. Mangual-Garcia, 505 F.3d 1, 15 (1st Cir. 2007).

In the case at hand, the appellant did not interpose an

objection as to any of the procedures that he now seeks to

challenge. This default is particularly glaring in view of the

district court's specific inquiry at the conclusion of the

disposition hearing. Consequently, plain error review obtains.

"Review for plain error entails four showings: (1) that an error

occurred (2) which was clear or obvious and which not only (3)

affected the defendant'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).

Against this backdrop we proceed to address the

appellant's claims of error one by one.
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The first issue deals with the weight that the district

court attached to the GSR. The touchstone for our analysis is the

decision in Gall v. United States, 552 U.S. 38 (2007). There, the

Supreme Court admonished that even though the federal sentencing

guidelines "should be the starting point and the initial benchmark"

for constructing a sentence, the sentencing court "may not presume

that the Guidelines range is reasonable." Id. at 49-50. 

Citing the Court's follow-on decision in Nelson v. United

States, 129 S. Ct. 890 (2009) (per curiam), the appellant labors to

convince us that the court below transgressed this tenet. In

particular, he assails the court's statement that it was "going to

deny any other sentence than the advisory guideline proposed" and

its summary rejection of his entreaty to depart downward. In the

appellant's view, these actions demonstrate the sentencing court's

embrace of the very presumption of reasonableness that Gall

forbids. 

We find this argument unpersuasive. To begin, Nelson

does not assist the appellant's cause. There, the district court

unequivocally declared at sentencing that "the Guidelines are

considered presumptively reasonable." Id. at 891. That was a

patent violation of the tenet articulated in Gall.

The case at bar is at a considerable remove. Here, the

sentencing court made no such declaration. Although it declined to

accept the appellant's proposal for a non-guideline sentence (24
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months), it made that ruling only after hearing lengthy arguments

as to whether and why the GSR should hold sway. The court

concluded that there was "nothing on th[e] record" that prompted it

"to consider any other sentence than the sentence proposed as

advisory by the guidelines." 

There is a world of difference between according a

presumption of reasonableness to the GSR — a practice that Gall

forbids — and finding that the GSR, in a particular case,

represents an appropriate sentencing range. This is a case of the

latter stripe. 

Read as a whole, the sentencing transcript makes manifest

not only the court's awareness that the GSR was merely an initial

benchmark, but also its conclusion that the circumstances of the

case made it appropriate to hew to that benchmark in fashioning the

appellant's sentence. That was not error. See, e.g., United

States v. Smith, 531 F.3d 109, 112 (1st Cir. 2008) (finding no

presumption of reasonableness where the district court "did not

feel bound to impose a sentence within the GSR").

The appellant's next contention is that the district

court failed adequately to explain its rationale for the sentence

it imposed. In this regard, the appellant invokes a statute

providing that, in a federal criminal case, a sentencing court must

"state in open court the reasons for its imposition of the

particular sentence." 18 U.S.C. § 3553(c). 
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We have recognized, however, that this directive must be

read in a practical, common-sense way. The statutory directive

"does not mean that the sentencing court's explanation need be

precise to the point of pedantry." United States v. TurbidesLeonardo, 468 F.3d 34, 40 (1st Cir. 2006). In all events, "with

respect to a sentencing court's duty of explanation, brevity is not

to be confused with inattention." Id. at 41-42. This is

especially true where, as here, a court prescribes a sentence that

falls within the GSR. See id. at 41; see also Rita v. United

States, 551 U.S. 338, 356-57 (2007) ("[W]hen a judge decides simply

to apply the Guidelines to a particular case, doing so will not

necessarily require lengthy explanation."). Where, as here, the

GSR has been correctly calculated and spans less than 24 months

from bottom to top, a district court "arguably is not required to

cite any reasons for imposing a within-the-range sentence."

Turbides-Leonardo, 468 F.3d at 41 (emphasis in original).

These principles are dispositive here. Although it is

true that the district court did not explicitly address each of the

appellant's arguments for a below-the-range sentence, the court was

not required to offer that level of elucidation. See id. at 40-41.

A sentencing court's process of ratiocination "can often be

inferred by comparing what was argued by the parties or contained

in the pre-sentence report with what the judge did." JiménezBeltre, 440 F.3d at 519; see also Rita, 551 U.S. at 358 (holding
 18 U.S.C. § 3553(c) provides in pertinent part that if the 1

GSR "exceeds 24 months," the court "shall state in open court . . .

the reason for imposing a sentence at a particular point within the

range."

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that where the sentencing court imposed a within-the-range sentence

and the record indicates that the court heard the defendant's

arguments and considered the supporting evidence, it may be

inferred that "[t]he judge simply found the[] circumstances

insufficient to warrant a sentence lower than the Guidelines

range"). 

So it is here: we may infer from the protracted arguments

and colloquy preceding the imposition of sentence that the court

below considered all the arguments and evidence before settling

upon an appropriate sentence. The court's clear pronouncement that

there was nothing in the record that warranted unusually favorable

treatment bolsters this inference. 

As a subset of this argument, the appellant suggests that

18 U.S.C. § 3553(c)(1) required more specificity. That suggestion,

however, is grounded in a misreading of the statute. This 1

provision applies only when the span of the GSR, measured from the

low end to the high end, is greater than 24 months. See United

States v. Arango, 508 F.3d 34, 44 (1st Cir. 2007); United States v.

Cirilo-Muñoz, 504 F.3d 106, 131 (1st Cir. 2007) (per curiam).

Here, the sentencing range begins at 70 months and tops off at 87

months. Simple arithmetic demonstrates that the spread between the
 The government urges us to deem this claim of error waived 2

by reason of the cursory treatment given to it in the appellant's

brief. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

1990). Because the claim is easily dispatched on the merits, we

bypass the waiver question. 

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low and high ends is too modest to trigger the statutory

requirement. 

The appellant's final claim of error is that the district

court failed to consider mitigating factors favoring a below-therange sentence. Specifically, he complains that he was less 2

culpable than his confederates, and that he undertook

rehabilitative efforts of his own volition. These plaints lack

force.

Merely raising potentially mitigating factors does not

guarantee a lesser sentence. "A criminal defendant is entitled to

a weighing of the section 3553(a) factors that are relevant to

[his] case, not to a particular result." Carrasco-De-Jesús, 589

F.3d at 29. 

Here, the sentencing court heard about a myriad of

circumstances, including the appellant's relative culpability and

efforts at rehabilitation. The court determined that those

circumstances did not warrant the degree of leniency that the

appellant sought. Although the court did not specifically

reference the factors that the appellant now highlights, the

sentencing transcript, read as a whole, evinces a sufficient

weighing of the section 3553(a) factors. See United States v.
 Codefendant Oneil Concepción-Zapata was sentenced on June 3

16, 2008, pursuant to a negotiated plea agreement, to 46 months in

prison. 

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Quiñones-Medina, 553 F.3d 19, 26-27 (1st Cir. 2009); see also

Turbides-Leonardo, 468 F.3d at 41-42. And the fact that the court

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

entitled to some weight. See United States v. Morales-Machuca, 546

F.3d 13, 26 (1st Cir. 2008). 

Pointing to one of his codefendants, the appellant makes

a related claim of sentencing disparity. That claim is hopeless. 3

A district court's consideration of sentencing disparity

"aims primarily at the minimization of disparities among defendants

nationally." Martin, 520 F.3d at 94; see also United States v.

Rodríguez-Lozada, 558 F.3d 29, 45 (1st Cir. 2009). While avoidance

of disparities among codefendants may be considered, a party "is

not entitled to a lighter sentence merely because his co-defendants

received lighter sentences." United States v. Wallace, 573 F.3d

82, 97 (1st Cir. 2009) (quoting United States v. Marceau, 554 F.3d

24, 33 (1st Cir. 2009)). 

The sockdolager is that the record contains no evidence

that the appellant and any codefendant were fair congeners. Among

other things, the codefendant pleaded guilty in accordance with a

negotiated plea agreement and, therefore, was not in that respect

situated similarly to the appellant. See Rodríguez-Lozada, 558

F.3d at 45.
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We need go no further. For the reasons elucidated above,

we conclude that the sentencing in this case was free from error,

plain or otherwise.

Affirmed.