United States Court of Appeals

For the First Circuit

No. 19-1652

UNITED STATES OF AMERICA,

Appellee,

v.

CRISTIAN SERRANO-DELGADO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before

Howard, Chief Judge,

Thompson and Kayatta, Circuit Judges.

Victor Gonzalez-Bothwell, Assistant Federal Public Defender, 

with Eric Alexander Vos, Federal Public Defender, Franco L. PérezRedondo, Assistant Federal Public Defender, and Liza L. RosadoRodríguez, Research and Writing Specialist, on brief, for 

appellant.

David C. Bornstein, Assistant United States Attorney, with 

whom W. Stephen Muldrow, United States Attorney, and Mariana E. 

Bauzá-Almonte, Chief, Appellate Division, were on brief, for 

appellee.

March 22, 2022
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KAYATTA, Circuit Judge. Cristian Serrano-Delgado drove 

a car that transported two passengers to and from a robbery of a 

bar, during which one of his passengers killed an off-duty police 

officer. The government charged all three men with conspiracy to 

commit a robbery, committing the robbery, and discharging a firearm 

in relation to a crime of violence resulting in death. The two 

men who held up the bar negotiated guilty pleas, but Serrano opted 

to go to trial. After a jury found him guilty on all counts, the 

district court sentenced him to thirty years in prison. Serrano 

now challenges several aspects of his trial and sentence. Finding 

none of his challenges availing, we affirm.

I.

A.

The events of this case occurred on a single night in

2017, during which Herol Café -- a bar and restaurant in Ponce, 

Puerto Rico -- was robbed and a patron was killed. Before the 

robbery, Serrano had been driving two other men (Jonathan ValentínSantiago and Rubén Miró-Cruz) through the streets of Ponce. 

Security cameras recorded his car as he drove past Herol Café three 

times in five minutes. After the third pass-by, Serrano parked 

the car up the block and pointing away from the bar, even though 

there was plenty of parking much closer to the bar on both sides 

of the street.
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Valentín and Miró got out of the car and headed toward 

Herol Café. Serrano waited near the trunk of the vehicle, where 

(as he later admitted to an FBI agent) he "made as though he was 

looking for something." He testified at trial, however, that he 

was innocently tying down boxes of sneakers he had in the trunk 

because Valentín had been complaining of the noise while they were 

driving.

Outside the bar, a group of men were playing dominoes. 

With his face covered by a bandana, Valentín announced to the group 

that he was holding them up and that he and his partner would kill 

anyone who moved. The men put their jewelry and money on the 

table. Valentín then entered the bar while Miró, also masked and 

armed with a knife, stood watch over the men outside. Inside, 

Valentín pulled out a gun and ordered the patrons to give him 

money. One of the patrons, an off-duty police officer, took out 

his gun and fired at the robber, hitting Valentín in the abdomen 

three times. Valentín returned fire, killing the officer.

Upon hearing the shots, Miró raced back to the car. 

Seconds later, Valentín exited and began to hobble toward the car. 

There was cross-fire in the street as Valentín shot behind his 

back at the bar while the owner, using the officer's gun, returned 

fire. Serrano waited for Valentín to get into the car before he 

drove off. An eyewitness in a nearby building saw Valentín, with 

his face still masked, firing his pistol while he limped toward 
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the car. She testified that the car "left fast" as soon as Valentín 

got in. Serrano claimed at trial that, upon returning to the car, 

Valentín threatened to kill him unless he drove to a hospital. A 

tire blew out on the way, so Serrano parked on a nearby street and 

took a bleeding Valentín out of the car. He then called his mother 

to pick him up because he didn't have a spare tire.

A police officer who responded to the scene -- and who 

had already watched security footage of the incident -- heard a 

radio report of an injured person in a nearby subdivision. He 

went to investigate and "immediately recognized . . . the person 

who shot" the off-duty officer because he was wearing "the same 

clothes" and bandana. He radioed a medical emergency, and Valentín 

was quickly transported to the hospital.

Serrano, meanwhile, had been picked up by his mother. 

Once home, he gathered his brother and girlfriend to return to his 

car to fix the tire. Back at the car, Serrano started to clean 

Valentín's blood off the seats. He found a shirt, a cap, a 

kerchief, and a small rag, some of which were soaked in blood, and 

threw it all onto the property of an abandoned house nearby. 

Serrano's brother was changing the tire when a police officer 

arrived, recognized the car from the description of the one that 

sped away from the robbery, and arrested Serrano, his girlfriend, 

and his brother.
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After being Mirandized, Serrano spoke to an FBI agent. 

During the interview, he told the agent that Miró lived in the 

Dr. Pila Housing Project. The next day, the police arrested Miró 

at that address. Serrano later testified at trial that he had 

never met Miró before that night.

B.

Serrano, Valentín, and Miró were charged with conspiracy 

to commit a robbery affecting interstate commerce in violation of 

the Hobbs Act (18 U.S.C. § 1951(a)) and committing the Herol Café 

robbery (18 U.S.C. § 1951(a)), plus two added counts related to 

Valentín's gun: first, for discharging a firearm "during and in 

relation to crimes of violence" (18 U.S.C. § 924(c)(1)(A)(iii)), 

and second, for causing the death that resulted (18 U.S.C. 

§ 924(j)).1 Valentín and Miró each pleaded guilty to a reduced 

version of the charges, but Serrano chose to go to trial. After 

a 7-day trial, a jury convicted Serrano on all counts.

II.

For purposes of this appeal, there is no dispute that 

Valentín and Miró committed an armed robbery at a bar during which 

Valentín shot a patron to death. The principal question in this 

case is whether the jury properly found Serrano also liable for 

those acts. To establish that vicarious liability, the government 

1 A superseding indictment added a fifth charge solely 

against Valentín for being a felon in possession of a firearm.
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took a two-step approach. First, it charged him with both aiding 

and abetting the robbery (by serving as the driver) and with

conspiring to commit the robbery; second, it secured a so-called 

Pinkerton instruction, which informed the jury that -- if it found 

Serrano guilty of the charged conspiracy -- it could also find him

guilty of the firearm discharge and resulting death if those acts 

were both in furtherance of the conspiracy and reasonably 

foreseeable to Serrano. See Pinkerton v. United States, 328 U.S. 

640, 647–48 (1946). The jury so found.

Challenging his conviction in toto, Serrano argues that 

no rational jury could have found that he knew that Valentín and 

Miró were planning on robbing the bar, hence he could not be liable 

for aiding and abetting the robbery or for conspiring to commit 

the robbery. In short, he was an unwitting dupe, not a witting 

participant. Relatedly, he contends that the Pinkerton

instruction should not have been given and that the Pinkerton

instruction as given was too imprecise and confusing. Serrano 

also challenges two evidentiary rulings by the trial court 

rejecting his effort to introduce exculpatory testimony from 

Valentín, and he argues that his convictions under sections 924(c) 

and (j) must be reversed because they may have been premised on 

acts that are not crimes of violence (as required by statute). 

Finally, he contends that his 30-year sentence is disproportionate 
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to his co-conspirators' sentences and that, regardless, it is 

otherwise substantively unreasonable.

A.

We consider first Serrano's contention that there was 

insufficient evidence to find beyond a reasonable doubt that he 

was aware of what Valentín and Miró planned to do, much less that

he agreed to participate and help them as the driver. "The test 

is whether, taken as a whole and viewed in the light most favorable 

to the government, the evidence, and all legitimate inferences to 

be drawn therefrom, would support a rational trier of fact's 

finding of guilt beyond a reasonable doubt." United States v. 

Martinez, 922 F.2d 914, 923 (1st Cir. 1991) (citing Jackson v. 

Virginia, 443 U.S. 307, 319 (1979)). Our review is de novo. 

United States v. Portalla, 496 F.3d 23, 26 (1st Cir. 2007).

Certainly Serrano behaved exactly as he would have had 

he been part of a three-person group set on committing a robbery. 

He was with Miró and Valentín before the robbery. He provided the 

transportation to take them to the bar. He drove by the bar three 

times. He let his two passengers out of the car up the block --

even though there was plenty of parking closer -- pointing away 

from the bar. He waited for the masked robbers to return, even 

after the shooting began. He then served as a get-away driver, 

speeding off from the scene. And, finally, he tried to cover up 

evidence of his involvement.
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Serrano offered the jury an innocent interpretation of 

this evidence: Valentín just introduced him to Miró that night, 

and Serrano took them on a joy ride with no idea that he was 

assisting them in a robbery, at least until they returned to the 

car, at which point he claims that he was compelled at gunpoint to 

drive his passengers away.

While a reasonable juror might have believed Serrano's 

story, after hearing him testify these jurors did not. And we 

cannot say that the jurors lacked a basis for finding the 

government's version of events correct beyond a reasonable doubt. 

A juror could reasonably have thought it unlikely that Valentín 

and Miró would depend on an unwitting get-away driver who might 

act quite unpredictably when the robbery ensued. Plus, why would 

Serrano stand waiting outside at the trunk of the car while they 

went to the bar unless he was serving as a lookout and expecting

them to return quite quickly? And what did he think the repeated 

drive-bys were all about? Perhaps most damning is Serrano's 

contemporaneous statement to an FBI agent that he felt a need to 

feign looking in his trunk, followed by a different explanation at 

trial. The discrepancy and the sense of guilt it suggests could 

have led a reasonable juror to be skeptical of his whole story. 

Cf. United States v. Marchena-Silvestre, 802 F.3d 196, 203 (1st 

Cir. 2015). Similarly, Serrano's knowledge of Miró's address did 
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not fit easily with his claim that he had just met Miró that 

evening.

Viewing all of this in the light most favorable to the 

verdict, there was sufficient evidence for a jury to find beyond 

a reasonable doubt that Serrano knew from the outset what Valentín 

and Miró were up to. And if he did what he did with such advance 

knowledge, he was clearly guilty of both robbery as an aider and 

abettor, see United States v. Palmer, 203 F.3d 55, 66 (1st Cir. 

2000), and of conspiring (i.e., agreeing) to assist in that 

robbery, see United States v. McDonough, 727 F.3d 143, 156 (1st 

Cir. 2013) (explaining that proof of conspiracy "may include the 

defendants' acts that furthered the conspiracy's purposes").

B.

We turn next to Serrano's challenges to the use of a 

Pinkerton instruction, which allows a jury to find a defendant 

liable for the substantive crimes his co-conspirators committed in 

furtherance of the conspiracy if it were reasonably foreseeable 

that those crimes would occur. United States v. Bucci, 525 F.3d 

116, 132 (1st Cir. 2008).

The instruction gets its name from a 1946 Supreme Court 

opinion arising out of an appeal by two brothers who conspired to 

defraud the United States of tax revenue. Pinkerton, 328 U.S. at 

641. Although they agreed to commit fraud, only one of the 

brothers actually committed the particular fraud on which the 
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convictions were sustained. Id. at 645. Indeed, the other brother 

was incarcerated during the relevant time period. Id. at 648 

(Rutledge, J., dissenting in part). Nevertheless, the Court held 

that "acts in furtherance of the conspiracy are . . . attributable 

to the other[] [co-conspirators] for the purpose of holding them 

responsible for the substantive offense." Id. at 647 (majority 

op.). The Court then put limits on the breadth of its holding, 

explaining that a co-conspirator could not be liable if the 

substantive offense "was not in fact done in furtherance of the 

conspiracy, did not fall within the scope of the unlawful project, 

or was merely a part of the ramifications of the plan which could 

not be reasonably foreseen as a necessary or natural consequence 

of the unlawful agreement." Id. at 647–48.

We have applied Pinkerton's formulation consistently 

since then. See, e.g., United States v. Vázquez-Botet, 532 F.3d 

37, 62 (1st Cir. 2008) ("[U]nder the Pinkerton doctrine, a 

defendant can be found liable for the substantive crime of a 

coconspirator provided the crime was reasonably foreseeable and 

committed in furtherance of the conspiracy."). We have also 

cautioned, however, that "a Pinkerton charge 'should not be given 

as a matter of course.'" United States v. Sanchez, 917 F.2d 607, 

612 n.4 (1st Cir. 1990) (quoting United States v. Sperling, 506 

F.2d 1323, 1341 (2d Cir. 1974)). In some complex cases, the charge 

can cause confusion. See United States v. Manzella, 791 F.2d 1263, 
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1267 (7th Cir. 1986). As an example, we have said that concern 

can arise "particularly where the jury is being asked . . . to 

infer, on the basis of a series of disparate criminal acts, that 

a conspiracy existed." United States v. Vázquez-Castro, 640 F.3d 

19, 25 (1st Cir. 2011) (quoting Sanchez, 917 F.3d at 612 n.4); see 

also Sperling, 506 F.2d at 1342 (disapproving of Pinkerton

instruction where evidence of substantive acts was great, but the 

evidence of a conspiracy linking them together was weak, because 

those "circumstances [are] quite different from those that gave 

[Pinkerton] birth"). At the same time, we have acknowledged that 

"some interplay between the jury's assessment of guilt on the 

substantive counts and the conspiracy charge is both natural and 

appropriate." See United States v. Wester, 90 F.3d 592, 597 (1st 

Cir. 1996).

Here, Serrano argues that this is a case in which it was 

error to give the charge at all due to the caution expressed in 

Sanchez and Sperling. He also argues on appeal that the 

instruction as given was deficient in form because it was 

"compressed," "overcomplicated the jury's task," and left "complex 

analytical tasks totally unexplained." The government responds

that Serrano failed to preserve these objections and that, in any 

event, the district court did not err in giving the charge. As we 

next explain, we find the objection to the decision to give a 

Pinkerton instruction preserved, but unconvincing; however, we 
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conclude that Serrano failed to preserve any objection to the form 

of the instruction as given.

1.

The government contends that Serrano failed to preserve 

either of his objections to the Pinkerton charge.

As to his objection that a Pinkerton charge should not 

have been given at all, the government contends that his postcharge objection did not meet the specificity requirement of 

Federal Rule of Criminal Procedure 30(d). We disagree. Our 

circuit is an outlier in that we deem objections to jury 

instructions automatically unpreserved unless made after the 

instructions are given and before the jury retires. See United 

States v. Roberson, 459 F.3d 39, 45 (1st Cir. 2006) (explaining 

that, in this circuit, "a litigant must lodge a specific objection 

and state the grounds for the objection after the court has charged 

the jury and before the jury begins deliberations" (emphasis in 

original)). This outlier rule has recently elicited significant 

criticism from several members of this court. See United States

v. Pérez-Rodríguez, 13 F.4th 1, 35 (1st Cir. 2021) (Lipez, J., 

concurring) (explaining that our idiosyncratic requirement that 

defendants re-raise their jury instruction challenges after the 

charge is a-textual and out of step with modern trial practice); 

id. at 35–36 (Barron, J., concurring) (same); id. at 37 n.19 

(Kayatta, J., dissenting) (same). Our panel nevertheless has no 
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power to ignore it as circuit precedent. We also, though, have no 

reason to expand upon it or to construe it broadly.

The relevant sequence here was as follows: The district 

court entertained proposals and objections as to jury instructions 

before instructing the jurors. Serrano submitted a written 

objection to the proposed Pinkerton instruction. Quoting Sanchez, 

he explained that this circuit has cautioned that "a Pinkerton

charge should not be given as a matter of course," "particularly 

where the jury is being asked to make the converse inference; that 

is, to infer, on the basis of a series of disparate criminal acts, 

that a conspiracy existed." 917 F.2d at 612 n.4 (internal 

quotation marks omitted). He argued that this case presents that 

precise concern because "the jury must infer from different acts, 

all based on circumstantial evidence, that a conspiracy existed."

The court overruled the objection and gave the Pinkerton

instruction. After giving all the instructions, the district court 

again invited objections. Serrano's counsel once more objected to 

the decision to give the Pinkerton instruction, stating:

It is an instruction that should not have been 

included because of its broad application.

This case in the indictment and the evidence 

presented talked about aiding and abetting, 

and the Pinkerton doctrine gives the jury 

another option, a broader option that, without 

knowingly, it can find the Defendant guilty.

And we cite United States v. Sanchez, 971 F.2d 

607, from the First Circuit, 1990.
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The government questions whether the objection was 

nevertheless too cryptic because counsel simply referred to 

Sanchez without explaining why he was citing the case. See Fed. 

R. Crim. P. 30(d) (requiring counsel to "inform the court of the 

specific objection" to a jury instruction and "the grounds for the 

objection"). But "Sanchez" by that point was already shorthand

for the concern being conveyed. Certainly if counsel objected to 

admitting a defendant's confession by saying "no Miranda warning," 

she would not need to explain what Miranda is. Sanchez, of course, 

is not so well known generally, but in that courtroom at that time, 

everyone knew what Sanchez was and of its relevance precisely 

because of the pre-charge communications.

So while a pre-charge objection by itself preserves 

nothing under our precedent, there is no reason why we need to 

ignore it in deciding whether a post-charge objection was 

sufficiently detailed to preserve a specific objection. In this 

manner, we retain any benefit sought to be attained by our postcharge requirement (i.e., that the judge knows that a specific 

objection has not been dropped or satisfied by the instructions as 

given), while avoiding any necessity to belabor a point well 

understood by the judge.

That leaves the matter of the form of the Pinkerton

instruction as given. On this, we agree with the government that 

Serrano preserved no objection. Indeed, his capable counsel in 
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raising numerous objections to various instructions voiced no 

concern at all that the form of the Pinkerton instruction was 

flawed in any way.

2.

Turning first to the merits of Serrano's preserved 

objection to the Pinkerton charge, we begin with an examination of 

the work done by the charge. The substantive crimes here are the 

robbery, the discharge of a firearm in relation to a robbery, and 

the resulting death.

The Pinkerton charge performed no work for the robbery 

conviction; rather, the case for finding Serrano to have aided and

abetted the robbery turned entirely on whether Serrano's conduct 

as driver was unwitting. As we have explained, the evidence 

supported a negative answer beyond a reasonable doubt. Nor was 

there any reason to rely on the Pinkerton charge to reach that 

conclusion. To the contrary, in this case it was Serrano's own 

participation in the robbery that provided the basis for inferring 

an agreement to commit the robbery, not vice versa. Thus, the 

jurors could not have found him guilty of conspiring to aid and 

abet the robbery without first concluding that he did in fact aid 

and abet the robbery.

The work done by the Pinkerton charge concerned, 

instead, the latter two crimes (the discharge of the gun and the 

resulting death). Without the Pinkerton charge, the jurors could 
- 16 -

have found Serrano guilty on those counts only under an aidingand-abetting theory, which would have required the government to 

prove beyond a reasonable doubt that Serrano had actual advance 

knowledge that Valentín possessed the gun. See Rosemond v. United 

States, 527 U.S. 65, 77–80 (2014). Pinkerton, by contrast, allowed 

a finding of liability if the use of the gun and resulting death 

were merely "reasonably foreseeable" (and in furtherance of a 

conspiracy).

Given that aiding and abetting a crime could often 

support an inference of conspiracy to commit the crime, one might 

ask why Pinkerton is not more frequently employed. The answer, we 

suspect, is that prosecutors and district courts prudently pay 

heed to our warnings regarding its use when the evidence of a

separate agreement is not strong and the case is complex.

In any event, Pinkerton is the law in federal court, and 

there was nothing confusing about its application in this easyto-understand case centered on a single robbery in which all three 

suspects substantially participated in their respective roles. 

Nor is this a case in which the crimes to which the Pinkerton

charge was relevant (the discharge and the resulting death) were 

themselves the basis for inferring a conspiracy in the first 

instance. Rather, what we have here is what one academic has 

dubbed "[t]he classic example" of someone liable under Pinkerton, 

namely "[t]he lookout who stays behind in the car." Jens David 
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Ohlin, Group Think: The Law of Conspiracy and Collective Reason, 

98 J. Crim. L. & Criminology 147, 147–48 (2007). The lookout "is 

just as guilty as" the bank robber who shoots a security guard, 

"as long as it was reasonably foreseeable that the plan might go 

awry and result in physical violence." Id. at 148. Accordingly, 

the district court did not abuse its discretion in deciding to 

give a Pinkerton instruction.

3.

As for Serrano's unpreserved argument that the Pinkerton

instruction was confusing as given, Serrano can only succeed if he 

meets the stringent requirements of plain error review, under 

which:

a reviewing court may set aside a challenged 

portion of a criminal sentence if, and only 

if, the appellant succeeds in showing (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. Padilla, 415 F.3d 211, 218 (1st Cir. 2005) (en 

banc) (cleaned up).

Serrano on appeal makes no effort to show that he can 

satisfy the plain error standard in seeking review of the 

particular form of the instruction. Even after the government 

waved the plain error flag in its brief, Serrano failed to argue 

in reply either that this argument was preserved or that he meets 
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the plain error standard. See United States v. Pabon, 819 F.3d 

26, 33–34 (1st Cir. 2016) (holding that plain error review is 

waived if its four-part test is not argued at least in reply).

The instruction given by the district court2 largely 

tracks the circuit's model Pinkerton instruction. See Pattern 

Jury Instructions for the District Courts of the First Circuit 

§ 4.18.371(2). Arguably that instruction could be criticized for 

permitting liability if it is foreseeable a co-conspirator "might 

commit" the charged substantive crime, rather than Pinkerton's 

formulation, which discussed whether the offense could be

"reasonably foreseen as a necessary or natural consequence of the 

unlawful agreement." Pinkerton, 328 U.S. at 648. And it would 

have been better had the district court separated out each of the 

counts rather than linking them disjunctively in a single 

instruction. But there is nothing here that comes close to the 

type of miscarriage of justice that might arguably have allowed us 

to overlook Serrano's waiver and also find plain error.

C.

We turn next to the gun charges. 

Section 924(c)(1)(A)(iii) has two elements: The government has to 

prove beyond a reasonable doubt that, (1) "during and in relation 

to" a "crime of violence," (2) the defendant "discharged" a 

2 We have attached as an appendix to this opinion the jury 

instruction given in this case.
- 19 -

firearm. The 924(j) count only "requires proof of one additional 

fact: the death." United States v. García-Ortiz, 657 F.3d 25, 28 

(1st Cir. 2011).

Serrano does not argue that the government failed to 

prove a discharge of the gun or the resulting death. He argues 

instead that he did not actually know that a gun would be used. 

But actual knowledge is not required under Pinkerton. United 

States v. Carter, 19 F.4th 520, 527 (1st Cir. 2021). And, 

presumably because few robbers enter a busy bar to commit a robbery 

without a means of deterring resistance, he does not claim that 

the use of a gun would not have been reasonably foreseeable to one 

who knew of the intended robbery.

Serrano's argument trains instead on the statutory 

requirement that the discharge and death need to have occurred 

during and in relation to a crime of violence. While Hobbs Act 

robbery is a crime of violence, see United States v. García-Ortiz, 

904 F.3d 102, 109 (1st Cir. 2018), the government concedes that

conspiring to commit such a robbery no longer counts as one, see, 

e.g., United States v. Lara, 970 F.3d 68, 74 (1st Cir. 2020) 

(accepting the government's concession on this precise point). 

Serrano therefore reasons that the jurors might have found that 

the discharge and death occurred only during and in relation to 

the conspiracy, not the robbery. And pointing to the "categorical 

approach" employed in other contexts, see, e.g., Descamps v. United 
- 20 -

States, 570 U.S. 254, 260–61 (2013) (explaining the categorical 

approach used to determine whether a past conviction qualifies as 

a crime of violence under the Armed Career Criminal Act), he 

concludes that we must assume that the jurors so found, see In re 

Gomez, 830 F.3d 1225, 1227 (11th Cir. 2016) (concluding that a 

"crime of violence" finding cannot be upheld where a general 

verdict makes it impossible to tell whether the jury "reach[ed] a 

unanimous agreement on during which crime it was that [the 

defendant] possessed the firearm"). Finally, he contends that the 

Pinkerton instruction "provided a theory of guilt that would leave 

no viable crime of violence predicate whatsoever" because "it is 

[e]minently possible that [his] substantive convictions rested on 

the jury's conspiracy finding."

Whatever one may think of this line of reasoning in the 

abstract, it entirely fails on this record. Simply put, it is not 

possible for the jurors to have found that the discharge and death 

occurred during and in relation to the conspiracy, but not during 

and in relation to the robbery. No party suggested to the jury 

otherwise. Nor did the jurors need to decide whether robbery is 

a crime of violence, which is a matter of law; they only needed to 

have decided beyond a reasonable doubt that the discharge and death 

occurred during and in relation to the robbery. And there is no 

way to read the general verdict as not resting on such a finding 

because, as we have explained above, on these facts the jury could 
- 21 -

have found Serrano guilty of conspiracy only by first concluding

that he knowingly joined the robbery as the get-away driver.

D.

Serrano's evidentiary challenges arise out of his 

attempt to secure the benefit of helpful testimony from Valentín, 

the shooter. At his change-of-plea hearing, Valentín agreed that 

he had conspired with both Miró and Serrano to commit the robbery 

at Herol Café. However, once Valentín was convicted, but before 

he was sentenced, he turned his attention to trying to get Serrano 

off the hook. He did this by telling his attorney that Serrano 

actually had no prior knowledge that Valentín and Miró were 

planning a robbery. Valentín's attorney then conveyed this 

information to Serrano's counsel, and to the government and the 

judge hearing Serrano's case.

Serrano asked first that the court compel Valentín to 

testify. In response, Valentín invoked his right not to testify 

under the Fifth Amendment, citing the fact that if he testified as 

forecast he could be admitting that he committed perjury at his 

change of plea hearing when he agreed that Serrano was in on the 

planned robbery. After having Valentín confirm under oath and 

outside the presence of the jury his refusal to testify, the trial 

court rejected Serrano's request.

Serrano's counsel then moved to call Valentín's attorney 

to tell the jury what Valentín had told her. In that manner, 
- 22 -

Serrano sought to get the benefit of Valentín's assistance without 

Valentín having to swear under oath to any statement contrary to 

his testimony at his change of plea hearing, and Valentín would 

also be insulated from cross-examination by the government. The 

trial court declined this gambit. It refused to allow Serrano to 

call Valentín's attorney as a witness. Serrano now argues that 

the district court twice erred: first, by conducting an inadequate 

voir dire of Valentín; and second, by rejecting Serrano's back-up 

plan to call Valentín's attorney to testify as to what Valentín 

told her.

1.

When Valentín was called and the Fifth Amendment issue 

was raised, Serrano's counsel told the court, "[A]ll I need is 

[Valentín] to take the stand and say if he is going to take the 

Fifth or not." Government counsel agreed, noting that while the 

government would normally insist on a question-by-question 

assertion of the Fifth Amendment privilege, here it agreed with 

Serrano's proposed general inquiry because his counsel had already 

provided the questions to the court. The court then did precisely 

as Serrano's counsel proposed: It called Valentín to the stand in 

a voir dire hearing outside the presence of the jury and asked him 

if he would "take the Fifth Amendment" if called to testify. When 

Valentín answered "[y]es," the court denied Serrano's request to 

call Valentín. Not surprisingly, Serrano's counsel did not object 
- 23 -

to the court having done precisely what Serrano's counsel asked 

the court to do. Rather, Serrano's counsel moved immediately for 

leave to call Valentín's attorney as a witness.

In view of the foregoing, any objection to the procedure 

employed by the district court in determining whether Valentín 

should be called as a witness was waived. Absent extreme 

circumstances not present here, a defendant cannot ask a trial 

court to follow a certain procedure and then be heard to complain 

only later on appeal that the trial court did as requested. See

United States v. Chen, 998 F.3d 1, 6 (1st Cir. 2021) ("An issue 

may also be waived if counsel's own conduct invited the trial 

judge's ruling."); see also United States v. Kakley, 741 F.2d 1, 

3 (1st Cir. 1984) (rejecting a claim of error because counsel 

requested the challenged instruction).

2.

By contrast, Serrano preserved his challenge to the 

denial of his request to call Valentín's attorney to testify that 

Valentín told her that Serrano had no advance notice of the 

robbery. We review this preserved objection to the district

court's evidentiary ruling for abuse of discretion and will reverse 

"only if [we are] 'left with a definite and firm conviction that 

the court made a clear error of judgment.'" United States v. 

Sweeney, 887 F.3d 529, 537 (1st Cir. 2018) (quoting United States

v. Joubert, 778 F.3d 247, 253 (1st Cir. 2015)).
- 24 -

As the sole basis for proffering the out-of-court 

statement attributed to Valentín, Serrano relies on 

Rule 804(b)(3). To be admissible under Federal Rule of 

Evidence 804(b)(3), the out-of-court statement must be, inter 

alia, "supported by corroborating circumstances that clearly 

indicate its trustworthiness." Not having been born yesterday, 

the district court was not persuaded that the circumstances here 

clearly indicated trustworthiness. Valentín had already testified 

under oath precisely to the contrary of the proffered statement.

Nor did Valentín or Serrano proffer any additional evidence 

corroborating his new version of events. We also share the 

government's concern that this sort of gambit poses a risk of abuse 

by facilitating efforts of defendants to secure pleas with one 

story while assisting a co-conspirator with another, all while 

avoiding telling the exculpatory story under oath. All in all, 

there is plenty in these circumstances to support the trial court's 

evidentiary ruling under Rule 804(b)(3); it was not an abuse of 

discretion.

E.

We arrive at Serrano's final contention: Even accepting 

all of the above, he maintains that his lengthy thirty-year 

sentence was substantively unreasonable. The district court 

calculated his United States Sentencing Guidelines range for 

counts 1 through 3 separately from count 4 (the discharge) because 
- 25 -

that count carried a mandatory consecutive minimum sentence of ten 

years. See 18 U.S.C. § 924(c)(1)(A)(iii), (D)(ii). For the first 

three counts, Serrano's initial Guidelines sentencing range was 

life imprisonment (due primarily to the death), but the district 

court downwardly departed sua sponte for his base offense level --

from 43 to 38 -- because Serrano was unarmed and did not himself 

discharge a weapon. As adjusted, the range for those three counts

became 235 to 293 months, rather than life. (Serrano concedes 

that the district court's Guidelines calculations were correct.) 

For those counts, the district court sentenced him to the low end 

of the downwardly adjusted range (240 months), which means that

sentence is presumptively reasonable. United States v. CalderónLozano, 912 F.3d 644, 648–49 (1st Cir. 2019). As required by 

statute, 18 U.S.C. § 924(c)(1)(D)(ii), the court then added a 

consecutive sentence of 120 months for count 4, which resulted in 

a total sentence of 360 months. Serrano contends that his sentence 

is nevertheless unreasonable for two reasons.

First, Serrano claims his sentence is not proportional 

to the sentences received by his co-defendants because his sentence 

is almost equal to Valentín's 408-month sentence and higher than 

Miró's 294-month sentence. Valentín and Miró, however, each only 

pleaded to two of the four counts and each received credit for 

accepting responsibility. In addition, Miró only pleaded guilty 

to the lesser-included, section 924(c)(1)(A)(i) offense of aiding 
- 26 -

and abetting the carrying of a firearm (rather than the discharge 

and resulting death), which relieved him of a consecutive 

mandatory-minimum sentence of ten years. Thus, Serrano's 

proportionality plaint fails for lack of an apt comparator. See

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

Second, he maintains that the district court did not 

fully consider mitigating evidence and the fact that he played a 

minor role in the offense. This argument is equally unavailing. 

"[A] sentence is not substantively unreasonable simply because 

th[e] court 'chose not to attach to certain of the mitigating 

factors the significance that [the defendant] thinks they 

deserved.'" United States v. González-Rodríguez, 859 F.3d 134, 

140 (1st Cir. 2017) (quoting United States v. Clogston, 662 F.3d 

588, 593 (1st Cir. 2011)). Here, the district court already 

considered Serrano's role in the offense when it downwardly 

departed in calculating Serrano's base offense level. The court 

also expressly noted other mitigating circumstances, such as 

Serrano's "documented history of learning disabilities," the fact 

that this was his "first known offense," and that he did not 

approach any victims in the commission of the crime. Serrano on 

appeal, in essence, takes issue with how the court weighed these 

factors, but that weighing "is left largely within a sentencing 

court's discretion." Id. We are left, therefore, with a sentence 

driven by a decision not to plead guilty and a statutory minimum 
- 27 -

consecutive sentence added onto a low-end guideline sentence 

determined after a downward departure. While undoubtedly still 

very long, it does not exceed the boundaries of the sentencing 

court's wide discretion in giving within-guideline sentences. 

Hence, we must affirm.

III.

For the foregoing reasons, we affirm.
- 28 -

Appendix to Opinion

The district court gave the Pinkerton instruction as 

follows:

There is another method by which you may 

evaluate whether to find defendant Cristian 

Serrano-Delgado guilty of the charge in Count 

TWO or Count THREE or Count FOUR of the 

superseding indictment.

If, in light of my instructions, you find 

beyond a reasonable doubt that defendant 

Cristian Serrano-Delgado was guilty on the 

conspiracy count (Count ONE), then you may 

also, but you are not required to, find him 

guilty of the crime charged in Count TWO or 

Count THREE or Count FOUR, provided you find 

beyond a reasonable doubt each of the 

following elements:

First, that someone committed the 

crimes charged in Count TWO or Count 

THREE or Count FOUR;

Second, that the person you find 

actually committed the crimes 

charged in Count TWO or Count THREE 

or Count FOUR was a member of the 

conspiracy of which you found 

defendant Cristian Serrano-Delgado 

was a member;

Third, that this co-conspirator 

committed the crimes charged in 

Count TWO or Count THREE or Count 

FOUR in furtherance of the 

conspiracy;

Fourth, that defendant Cristian 

Serrano-Delgado was a member of this 

conspiracy at the time the crimes 

charged in Count TWO or Count THREE 

or Count FOUR was committed and had 

not withdrawn from it; and

Fifth, that defendant Cristian 

Serrano-Delgado could reasonably 

have foreseen that one or more of 
- 29 -

his co-conspirators might commit 

one or more of the crimes charged in 

Count TWO or Count THREE or Count 

FOUR.

If you find all five of these elements to exist 

beyond a reasonable doubt, then you may find 

defendant Cristian Serrano Delgado guilty of 

the crimes charged in Count TWO or Count THREE 

or Count FOUR, even though he did not 

personally participate in the acts 

constituting the crimes charged in Count TWO 

or Count THREE or Count FOUR, or did not have 

actual knowledge of them.

If, however, you are not satisfied as to the 

existence of any one of these five elements, 

then you may not find defendant Cristian 

Serrano-Delgado guilty of the crimes charged 

in Count TWO or Count THREE or Count FOUR, 

unless the government proves beyond a 

reasonable doubt that he personally committed 

one of the substantive crimes charged in Count 

TWO or Count THREE or Count FOUR or aided and 

abetted their commission.