United States Court of Appeals 

For the First Circuit 

No. 13-2275 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

JOEL MANUEL RIVERA-CLEMENTE, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

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

Before 

Barron and Stahl, Circuit Judges, 

and Sorokin, District Judge. 

 Joseph M. Bethony, with whom Gross, Minsky, Mogul, P.A. was 

on brief, for appellant. 

 Francisco A. Besosa-Martínez, Assistant United States 

Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States 

Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, 

were on brief, for appellee. 

February 10, 2016 

 

 Of the District of Massachusetts, sitting by designation. 

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SOROKIN, District Judge. The defendant Joel Manuel 

Rivera-Clemente pleaded guilty to two offenses in connection with 

the killing of a security guard at the Sabana Seca Navy Base in 

Puerto Rico. The district court sentenced him to 322 months in 

prison. On appeal, the defendant argues error in the district 

court’s failure to apprise him of the consequences of his guilty 

plea, as required by Federal Rule of Criminal Procedure 

11(c)(3)(B), and in the district court’s alleged failure to comply 

with the requirements of 18 U.S.C. § 3553 during the imposition of 

his sentence. Finding no error warranting reversal, we affirm. 

I. Background. We recite the basic facts of the case, 

which are not in dispute, and reserve some facts for later 

discussion. Because the defendant pleaded guilty, we draw from 

the stipulated version of the facts accompanying the plea 

agreement, United States v. Jones, 551 F.3d 19, 21 (1st Cir. 2008), 

as well as from “the plea colloquy, the unchallenged portions of 

the pre-sentence investigation report (PSR), and the sentencing 

hearing transcript.” United States v. Ortiz-García, 665 F.3d 279, 

281 (1st Cir. 2011). On October 19, 2011, the defendant and a 

minor, denoted E.R.P., entered the Sabana Seca base to steal 

copper.1 Immediately thereafter, Frankie Rondon-Rosario, a base 

 1 The parties stipulated that the Sabana Seca Navy Base is 

within the special maritime and territorial jurisdiction of the 

United States. 

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security guard, escorted the defendant and E.R.P. from the base. 

In the course of this interaction, Rondon-Rosario displayed a 

weapon. 

Later that night, the defendant and E.R.P. returned to 

the base intending to steal what they believed to be RondonRosario’s gun. With them were Josean Clemente and another minor, 

denoted K.T.S., both of whom carried a firearm. Once RondonRosario was identified as the guard who had escorted the defendant 

from the base earlier that night, Josean Clemente and K.T.S. 

approached Rondon-Rosario, told him they intended to rob him, and 

then shot Rondon-Rosario dead. The two shooters then searched the 

victim and found only a fake firearm. 

As is relevant to this appeal, Count One of the 

superseding indictment charged the defendant with aiding and 

abetting murder, in violation of 18 U.S.C. §§ 1111, 7(3) & 2, and 

Count Two charged him with aiding and abetting in the carrying and 

use of a firearm during and in relation to a crime of violence 

causing death, in violation of 18 U.S.C. §§ 924(c)(1)(A), 924(j)(1) 

& 2. Prior to trial, the defendant pleaded guilty to these 

offenses in a plea agreement entered into under Fed. R. Crim. P. 

11(c)(1)(A) & (B).2 In the plea agreement, the parties calculated 

 2 Pursuant to the plea agreement, the government agreed to 

dismiss Count Three of the superseding indictment, which charged 

the defendant with interfering with commerce by robbery in 

violation of 18 U.S.C. § 1951(a). 

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the guideline sentencing range (GSR) for both counts as 270-322 

months in prison. The government and the defendant then 

recommended in the plea agreement a sentence of 276 months in 

prison. The district court accepted the defendant’s guilty plea 

at the change-of-plea hearing and ordered preparation of a PSR. 

At sentencing, the government and the defendant 

requested the 276-month sentence in accordance with the 

recommendation in the plea agreement. The district court concurred 

with the parties' GSR calculations but, contrary to the 

recommendation of the parties, imposed a high-end guideline 

sentence of 322 months. The 322-month sentence is forty-six months 

longer than the term of imprisonment recommended by the parties in 

the plea agreement.3

II. Discussion. This appeal followed, in which the 

defendant challenges both the district court’s failure to warn him 

of the consequences of his guilty plea, and its imposition of his 

sentence. We consider these contentions in turn. 

A. Plea Hearing. The defendant contends that the 

district court violated Fed. R. Crim. P. 11(c)(3)(B) by failing to 

 3 Because the district court did not adopt the recommendation 

of the parties, the defendant is not precluded from bringing this 

appeal by the plea agreement's appeal-waiver provision. Neither 

party disputes this point. The district court appeared to believe 

that any within-guidelines sentence would preclude appeal under 

the waiver provision. We have previously rejected just such a 

reading of an identical waiver provision. See United States v. 

Ocasio-Cancel, 727 F.3d 85, 88-89 (1st Cir. 2013). 

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inform him, at the change-of-plea hearing, that he could not 

withdraw his guilty plea in the event that the court did not follow 

the sentencing recommendation in the plea agreement. Because the 

defendant entered into a plea agreement with the government under 

Fed. R. Crim. P. 11(c)(1)(B), in which the government recommended 

a particular sentence, Rule 11 required the court to inform the 

defendant that he had “no right to withdraw the plea if the court 

[did] not follow the recommendation . . . .” Fed. R. Crim. P. 

11(c)(3)(B). The court did not give this warning at the changeof-plea hearing. 

However, at no point prior to the appeal did the 

defendant seek to withdraw his plea or object to the district 

court’s failure to provide the required warning, so we review only 

for plain error. Ortiz-García, 665 F.3d at 285. “Plain error 

review is not appellant-friendly.” United States v. CortésMedina, No. 14-1101, 2016 WL 67358, at *2 (1st Cir. Jan. 6, 2016). 

It requires the defendant to “show that: (1) an error occurred; 

(2) the error was plain; (3) the error affected the defendant’s 

substantial rights; and (4) the error ‘seriously affect[ed] the 

fairness, integrity or public reputation of judicial 

proceedings.’” Ortiz-García, 665 F.3d at 285 (quoting United 

States v. Rivera-Maldonado, 560 F.3d 16, 19 (1st Cir. 2009)). 

The district court’s failure to give the warning 

required by Fed. R. Crim. P. 11(c)(3)(B) is an error that is plain 

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on the record. See United States v. Hernández-Maldonado, 793 F.3d 

223, 226 (1st Cir. 2015). Moreover, it relates to a “core concern” 

of Rule 11, namely the defendant’s “knowledge of the consequences 

of the guilty plea.” See United States v. Noriega-Millán, 110 

F.3d 162, 166-67 (1st Cir. 1997). 

Whether the error affected the defendant’s substantial 

rights is another matter. “To meet [this] third prong of the plain 

error test, ‘a defendant who seeks reversal of his conviction after 

a guilty plea, on the ground that the district court committed 

plain error under Rule 11, must show a reasonable probability that, 

but for the error, he would not have entered the plea.’” 

Hernández-Maldonado, 793 F.3d at 226 (quoting United States v. 

Dominguez Benitez, 542 U.S. 74, 83 (2004)). This the defendant 

has failed to do. 

To reach this conclusion, we consider a number of 

factors, including whether “the court made statements at the 

change-of-plea hearing that put the defendant on plain notice that 

it was not bound by the plea agreement.” United States v. Saxena, 

229 F.3d 1, 8 (1st Cir. 2000); accord Noriega-Millán, 110 F.3d at 

168.4 We also consider “the defendant’s statements at the 

 4 Saxena and Noriega-Millán each considered an earlier version 

of Fed. R. Crim. P. 11, in which Rule 11(e)(2) required a court to 

inform a defendant who entered a non-binding plea agreement that 

the defendant could not withdraw his or her plea if the court did 

not follow the plea-bargained sentencing recommendation. See 

Saxena, 229 F.3d at 8; Noriega-Millán, 110 F.3d at 165. Although 

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colloquy, ‘the overall strength of the Government’s case and any 

possible defenses that appear from the record,’ and the inclusion 

of the warning in the plea agreement.” Hernández-Maldonado, 793 

F.3d at 226 (quoting Dominguez Benitez, 542 U.S. at 84-85). 

Here, despite failing to offer the defendant the Rule 

11(c)(3)(B) warning at the plea hearing, the district court advised 

the defendant that each count carried a maximum punishment of life 

imprisonment (with the sentence on Count Two running consecutively 

as a matter of law), and confirmed the defendant understood. On 

the heels of this warning, the Court explained that it had “the 

discretion to sentence [the defendant] above the guidelines.” Next 

the Court told the defendant that it was not bound by the 

sentencing recommendation in his plea agreement.5 The defendant 

then confirmed that he understood. All of these warnings came 

after the court had unequivocally told the defendant that, as a 

result of his plea, “[t]here will be no trial.” 

 

this provision now appears as Rule 11(c)(3)(B), the requirement 

“has not changed in substance.” Dominguez Benitez, 542 U.S. at 78 

n.3. 

5 Specifically, the court said to the defendant (and to his 

co-defendant who also changed his plea at the hearing) that “[y]ou 

should know that any sentencing recommendation that may come before 

me is just a recommendation. I have an obligation to look at them, 

and if I can follow them, because I understand that they are 

appropriate for your cases, I will. If I understand for some 

reason that the recommendations are not appropriate for your case, 

of course I will not follow them.” 

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Moreover, the defendant’s plea agreement delineated that 

“the defendant may not withdraw [his] plea solely as a result of 

the sentence imposed and the Court is not bound by this plea 

agreement.” See Saxena, 229 F.3d at 8-9 (where the defendant’s 

plea agreement stated that he “may not withdraw his plea of guilty 

regardless of what sentence is imposed,” and where “the court made 

statements at the change-of-plea hearing that put the defendant on 

plain notice that it was not bound by the plea agreement,” there 

was no reversible error in the district court’s failure to warn 

the defendant that he could not withdraw his non-binding plea if 

the court did not follow the plea agreement’s sentencing 

recommendation). 

The defendant argues that he did not read or understand 

the portions of his plea agreement concerning the non-binding 

nature of the sentencing recommendation or his inability to 

withdraw his plea. This argument fails. The defendant, who 

required an interpreter at the change-of-plea hearing, certified 

in the plea agreement that he read the agreement, that he 

“carefully reviewed every part of it” with his attorney, and that 

his lawyer translated the plea agreement into Spanish which left 

the defendant with “no doubts as to the contents of the agreement.” 

The defendant’s attorney confirmed these statements in his 

separate certification in the plea agreement in which he certified 

both that he “translated the plea agreement” and that he “explained 

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it in the Spanish language” to the defendant. Moreover, the 

defendant stated at the plea colloquy that he discussed his guilty 

plea with his attorney and was satisfied with his lawyer’s 

services. See Dominguez Benitez, 542 U.S. at 85 (where the 

defendant’s plea agreement was translated into his native language 

and it “specifically warned that he could not withdraw his plea if 

the court refused to accept the Government’s recommendations,” the 

court concluded that these facts tend “to show that the Rule 

11[(c)(3)(B)] error made no difference to the outcome . . . .”); 

Hernández-Maldonado, 793 F.3d at 226 (finding no plain error in 

the court’s failure to give the Rule 11(c)(3)(B) warning where the 

warning appeared in the plea agreement and the defendant “stated 

that he had time to consult with his attorney and was satisfied 

with the attorney’s services”). And, at sentencing, defense 

counsel represented that the PSR also was translated for the 

defendant. Nothing affirmative in the record suggests that these 

translations did not occur (as the defendant now contends in his 

brief without record citation) or that the defendant failed to 

appreciate the terms of his plea. 

To be sure, “this court has repeatedly stated that the 

defendant’s acknowledgement of a signed plea agreement or other 

written document will not substitute for Rule 11’s requirement of 

personal examination by the district court.” Noriega-Millán, 110 

F.3d at 164. Here, however, there is more than just the plea 

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agreement. To summarize, the “court’s admonitions, the 

[defendant’s] statements, and the contents of the plea agreement 

combined to put the [defendant] on ample notice of the consequences 

of his plea.” Saxena, 229 F.3d at 9. This is to say that “had 

the court told the [defendant] explicitly that he would not be 

allowed to retract his plea if the court rejected the recommended 

sentence, the sum total of the [defendant’s] knowledge would not 

have been increased and his willingness to plead would, in all 

probability, have been unaffected.” Id. Consequently, the 

district court’s violation of Rule 11(c)(3)(B) does not rise to 

the level of plain error.6 

B. Sentencing. Turning to the defendant’s challenges 

to his sentence, we bifurcate our review and first decide whether 

the sentence is procedurally reasonable and then consider whether 

it is substantively reasonable. See United States v. Clogston, 

662 F.3d 588, 590 (1st Cir. 2011). 

Before addressing the defendant’s arguments, however, we 

review the relevant facts. At sentencing, the district court heard 

 6 The defendant also argues error in the court’s failure to 

put his interpreter under oath during the change-of-plea and 

sentencing hearings. It is true that the court failed to swear 

the interpreter at each hearing, but the defendant did not object 

below and we therefore conclude that these omissions do not rise 

to the level of plain error because there is nothing in the record 

to suggest that the defendant did not understand the proceedings 

or that his substantial rights were affected otherwise. 

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from defense counsel who urged the court to follow the sentencing 

recommendation in the plea agreement, particularly in light of the 

defendant’s youth, his lack of a criminal record, and the fact 

that he did not intend for the victim to be killed. The prosecutor 

likewise recommended the sentence in the plea agreement. The court 

also heard briefly from the defendant, and then –- at length –- 

from the mother of the victim. The court spoke with the victim’s 

mother about the victim’s qualities and her grief. She told the 

court that she viewed the parties’ sentencing recommendation as 

too lenient, and the court then discussed with her the difficulties 

inherent in arriving at a just sentence. When the court finished 

speaking with the victim’s mother, he calculated the GSR, expressly 

surmised from the record that the defendant had engaged in previous 

undetected criminal conduct,7 and immediately thereafter imposed 

the defendant’s sentence of 322 months in prison. With the arc of 

the sentencing hearing in mind, we turn to the issues presented. 

 1. Procedural Reasonableness. First, the defendant 

argues that the district court failed to consider at sentencing 

the factors set forth in 18 U.S.C. § 3553(a). Specifically, the 

defendant contends that the court violated § 3553(a) by overlooking 

the defendant’s history and characteristics, his supposedly 

 7 Both defense counsel’s oral confirmation at the sentencing 

hearing and the unchallenged facts set forth in the PSR amply 

support the district court’s conclusion. 

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limited involvement in the underlying crime, and whether the 

sentence imposed was greater than necessary to achieve the goals 

of sentencing. We are not persuaded. 

The defendant concedes that plain error review is 

appropriate here because he did not object at sentencing. “A 

violation of § 3553’s mandates will warrant reversal under plain 

error review only if the defendant demonstrates ‘a reasonable 

probability that, but for the error, the district court would have 

imposed a different, more favorable sentence.’” United States v. 

Rodríguez, 731 F.3d 20, 25 (1st Cir. 2013) (quoting United States 

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

defendant’s uphill battle is only intensified by the fact that he 

was sentenced to 262 months’ imprisonment for the murder 

conviction, a sentence at the high end of – but within – the 

guideline sentencing range.8 “As the Supreme Court has explained, 

the guideline range itself bears a direct relation to the 

compendium of considerations listed in section 3553(a) and, thus, 

 8 As for the count against the defendant for aiding and 

abetting in the carrying and use of a firearm during and in 

relation to a crime of violence causing death, the PSR noted, 

validly, that this count is “precluded from Guideline computations 

as it mandates a fixed consecutive term of at least five (5) years 

imprisonment.” See United States v. Vargas- García, 794 F.3d 162, 

166 (1st Cir. 2015). In any event, the court imposed the lowest 

legally authorized sentence on this count, the sixty month 

mandatory minimum required by statute, which was below the parties’ 

sixty-six month recommendation. 

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a within-the-range sentence ‘likely reflects the section 3553(a) 

factors.’” Cortés-Medina, 2016 WL 67358 at *4 n.4 (quoting Rita 

v. United States, 551 U.S. 338, 355 (2007)). 

Although the court here did not state explicitly the 

factors set forth in § 3553(a), we “have never required that 

sentencing courts undertake ‘an express weighing of mitigating and 

aggravating factors.’” United States v. Ocasio-Cancel, 727 F.3d 

85, 91 (1st Cir. 2013) (quoting United States v. Lozada-Aponte, 

689 F.3d 791, 793 (1st Cir. 2012)). “Instead, we have taken a 

pragmatic approach and recognized that ‘a court’s reasoning can 

often be inferred by comparing what was argued by the parties or 

contained in the pre-sentence report with what the judge did.’” 

Id. (quoting United States v. Jiménez-Beltre, 440 F.3d 514, 519 

(1st Cir. 2006) (en banc)). The record establishes the district 

court considered the § 3553(a) factors. 

With regard to the defendant’s history and 

characteristics, the district court heard argument on, or 

expressly considered, the defendant’s youth and lack of criminal 

history or trouble with substance abuse. The court indicated an 

understanding that the defendant had no criminal record or history 

of drug abuse, and heard from defense counsel that the defendant 

was only eighteen at the time of the offense. Based on the gravity 

of the murder for which the defendant was convicted, however, the 

court expressed skepticism that this incident was, in fact, the 

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defendant’s first foray into criminal activity, and defense 

counsel agreed that the court’s perspective was valid. 

The defendant is correct, however, that the district 

court did not discuss his upbringing, but such an omission is not 

fatal where, as here, the defendant did not raise this particular 

issue at sentencing. See Gall v. United States, 552 U.S. 38, 54 

(2007) (“[I]t was not incumbent on the District Judge to raise 

every conceivably relevant issue on his own initiative”). Although 

defense counsel did mention briefly that the defendant did not 

complete high school, and the court did not discuss it further, 

the court was “not required to address frontally every argument 

advanced by the parties, nor need it dissect every factor made 

relevant by 18 U.S.C. § 3553 ‘one by one, in some sort of rote 

incantation, when explicating its sentencing decision.’” See 

United States v. Turbides-Leonardo, 468 F.3d 34, 40-41 (1st Cir. 

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

2006)). 

Furthermore, the district court’s reasoning from the 

bench at sentencing indicates its consideration of certain factors 

relevant to whether the sentence was no greater than necessary to 

effectuate the goals of sentencing. See 18 U.S.C. § 3553(a)(2). 

The court took into account the rights of the victim, which speaks 

to the need for just punishment. The court also highlighted the 

seriousness of the offense in at least two instances: it noted 

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that the “death of a human being is a very serious matter,” and it 

pointed out, plausibly, that even though the defendant was being 

sentenced for second-degree murder, the facts of the case supported 

the more severe charge of murder in the first degree.9 The court’s 

colloquy at sentencing demonstrates a consideration and weighing 

of these factors against and in light of the defendant’s youth and 

lack of a criminal record, as well as in the context of the 

difficulty of fashioning sentences. 

Finally, the defendant’s argument that the district 

court misjudged his involvement in the offense is without merit. 

The defendant contends that he was less culpable than his 

compatriots because he sought only to rob the victim and did not 

fire the fatal shots. The district court disagreed. It cogently 

explained its view that on the facts of this case, which the record 

establishes it knew intimately, the defendant bore equal 

 9 The defendant is correct that the district court did not 

expressly consider factors relating to deterrence of other 

criminal conduct, protecting the public from the defendant, or the 

treatment needed by the defendant, see 18 U.S.C. § 3553(a)(2), but 

this does not rise to the level of reversible error. See CortésMedina, 2016 WL 67358, at *4 (“This court has not required 

sentencing courts to walk, line by line, through the section 

3553(a) factors.”); United States v. Ramos, 763 F.3d 45, 57 (1st 

Cir. 2014) (“A sentencing court is required to consider relevant 

§ 3553(a) factors, but need not address each one.”). In any event, 

the court’s discussion of the seriousness of the offense, the 

effect on the victim’s family, and the existence of other uncharged 

responsible persons makes manifest the court’s consideration of 

these factors. 

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responsibility.10 In all, we discern no plain error in the court’s 

consideration of the § 3553(a) factors. See United States v. 

Lucena-Rivera, 750 F.3d 43, 54 (1st Cir. 2014) (noting that a 

court’s failure to consider expressly the § 3553(a) factors does 

not constitute plain error where the record indicates that the 

court in fact considered relevant § 3553(a) factors at sentencing); 

United States v. Ramos, 763 F.3d 45, 57-58 (1st Cir. 2014); OcasioCancel, 727 F.3d at 90-91. 

The district court’s sufficient consideration of the § 

3553(a) factors leads also to our rejection of the defendant’s 

second procedural challenge to his sentence – that the court failed 

to explain the sentence under 18 U.S.C. § 3553(c). Section 3553(c) 

provides that “the court ‘at the time of sentencing, shall state 

in open court the reasons for its imposition of the particular 

sentence’ and, if the GSR spans more than 24 months, shall also 

state ‘the reason for imposing a sentence at a particular point 

within the range.’” Cortés-Medina, 2016 WL 67358, at *4 (quoting 

18 U.S.C. § 3553(c) & (c)(1)). “The court’s explanation is 

adequate for purposes of § 3553(c)(1) if it ‘specifically 

identif[ies] some discrete aspect of the defendant’s behavior and 

 10 The court reasoned that “when you go into a property at 

night to do something like this, and you are armed, or the – or 

your colleagues are armed, don’t you think that it’s reasonable to 

assume that something can go really wrong and that a death can 

result, a murder can result?” 

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link[s] that aspect to the goals of sentencing.’” United States 

v. Rivera-Gonzalez, 626 F.3d 639, 646-47 (1st Cir. 2010) 

(alteration in original) (quoting United States v. Vazquez-Molina, 

389 F.3d 54, 58 (1st Cir. 2004), vacated on other grounds, 544 

U.S. 946 (2005)). Accordingly, “the sentencing court need only 

identify the main factors behind its decision,” and “need not ‘be 

precise to the point of pedantry.’” United States v. VargasGarcía, 794 F.3d 162, 166 (1st Cir. 2015) (quoting TurbidesLeonardo, 468 F.3d at 40). Because the defendant did not object 

below, we adhere to the familiar plain error standard. 

Given that the court took into account relevant § 3553(a) 

factors – such as the defendant’s history and characteristics, the 

seriousness of the offense, and the need for just punishment – in 

explaining and arriving at the sentence, we find no plain error 

here. See Rivera-Gonzalez, 626 F.3d at 647 (concluding that the 

court did not plainly err in explaining its sentence where the 

court considered the substance underlying relevant § 3553(a) 

factors in justifying the sentence). The transcript makes clear 

that the court weighed the relevant sentencing factors differently 

than the parties, giving greater weight to the seriousness of the 

offense, and discounting the significance of the defendant’s 

status as a first time offender and very young man in light of his 

history of prior uncharged misconduct and the nature of the 

offense. As a result, the court imposed a high-end, rather than 

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low-end, guideline sentence tempered, slightly, by imposing a 

consecutive sentence of sixty rather sixty-six months on Count 

Two. In all, we conclude that the defendant’s sentence is 

procedurally sound.11

2. Substantive Reasonableness. Finally, the defendant 

contends that his sentence is substantively unreasonable. We 

disagree. 

 “Challenging a sentence as substantively unreasonable 

is a burdensome task in any case, and one that is even more 

burdensome where, as here, the challenged sentence is within a 

properly calculated GSR.” Clogston, 662 F.3d at 592-93. Although 

the “linchpin of a [substantively] reasonable sentence is a 

plausible sentencing rationale and a defensible result[,]” United 

States v. Pol-Flores, 644 F.3d 1, 4-5 (1st Cir. 2011) (quoting 

United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)), a 

“defendant who protests his within-the-range sentence” as 

substantively unreasonable “‘must adduce fairly powerful 

 11 In any event, even if we were to conclude that the district 

court failed to explain why a sentence at a particular point within 

the GSR was appropriate, as required by § 18 U.S.C. § 3553(c)(1), 

such an error would not warrant reversal here because it did not 

affect the defendant’s substantial rights. See United States v. 

Gilman, 478 F.3d 440, 447-48 (1st Cir. 2007) (noting that a 

violation of § 3553(c)(1) did not affect the defendant’s 

substantive rights where the court’s reasoning “tie[d] the 

defendant’s specific conduct to Section 3553(a) considerations and 

to specific relevant goals of sentencing,” and thus the defendant 

had failed to show “that the court would be persuaded to alter its 

course on a resentencing”). 

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mitigating reasons and persuade us that the district court was 

unreasonable in balancing pros and cons despite the latitude 

implicit in saying that a sentence must be reasonable.’” Clogston, 

662 F.3d at 593 (quoting United States v. Madera-Ortiz, 637 F.3d 

26, 30 (1st Cir. 2011)). Although the defendant did not object 

below on the ground of substantive unreasonableness, it is unclear 

whether we are to review for abuse of discretion or plain error. 

See United States v. Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir. 

2015). We need not resolve this issue here, however, because even 

under the abuse of discretion standard -- which is more favorable 

to the defendant -- his claim fails. 

This is so because the defendant puts forth no “powerful 

mitigating reasons” to support a finding of substantive 

unreasonableness here. He stands convicted of murder, a most 

serious offense. The district court heard from the victim’s mother 

how the murder devastated her family and, in doing so, considered 

the need for punishment; it also considered the defendant’s 

significant role in this grave offense and his previous criminal 

activity. In the end, it arrived at a sentence that we cannot 

conclude is erroneous. See United States v. Colón-Rodríguez, 696 

F.3d 102, 108 (1st Cir. 2012) (determining that the defendant’s 

sentence was not substantively unreasonable where the court based 

it on consideration of the § 3553(a) factors, and “articulate[d] 

a plausible rationale and arrive[d] at a sensible result” 

Case: 13-2275 Document: 00116957434 Page: 19 Date Filed: 02/10/2016 Entry ID: 5976243
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(alteration in original) (quoting United States v. Carrasco-DeJesús, 589 F.3d 22, 30 (1st Cir. 2009))). 

Despite the defendant’s protestations on appeal, the 

district court did in fact account for the defendant’s purported 

limited involvement in the offense, his youth, and his lack of a 

criminal record or history of substance abuse, but found these 

considerations carried less weight than the defendant thought they 

should. Likewise, the district court gave more weight to the 

seriousness of the offense.12 The sentencing court has “the 

latitude to ‘emphasize the nature of the crime over the mitigating 

factors,’ and such a ‘choice of emphasis . . . is not a basis for 

a founded claim of sentencing error.’” Ramos, 763 F.3d at 58 

(quoting United States v. Zapata, 589 F.3d 475, 488 (1st Cir. 

2009)).13 

 12 The defendant fares no better in arguing that his sentence 

is unreasonable because it is identical to that imposed upon Josean 

Clemente, the shooter in this case who, in the eyes of the 

defendant, played a larger role in the murder. In support, the 

defendant relies on United States v. Cirilo-Muñoz, 504 F.3d 106, 

125-26 (1st Cir. 2007), in which Judge Torruella denounced 

sentencing an aider and abettor defendant to the same or greater 

sentence than that imposed on the principal. Judge Torruella’s 

separate opinion in Cirilo-Muñoz is not controlling. See CiriloMuñoz, 504 F.3d at 107. And, in any event, Cirilo-Muñoz is of no 

help to the defendant because in that case the aider and abettor’s 

sentence was particularly egregious in light of the district 

court’s description of him as a “minor” participant in the offense. 

Id. at 125. That type of disparity in culpability is not present 

on the facts of this case. 

13 The defendant contends also that the district court 

thwarted appellate review of his sentence by failing to disclose 

to defense counsel a Statement of Reasons form. Because we affirm 

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III. Conclusion. For the foregoing reasons, we affirm

the sentence imposed by the district court. 

 

the defendant’s sentence on the basis of the sentencing transcript, 

the defendant’s contention is unavailing. To the extent the 

defendant argues that the court committed reversible error simply 

by failing to disclose to him the Statement of Reasons form, such 

an argument fails for the same reason: because the court 

adequately explained the defendant’s sentence, he cannot show 

prejudice resulting from the form’s absence. See United States v. 

Vázquez-Martínez, No. 14-1648, 2016 WL 324971, at *5 (1st Cir. 

Jan. 27, 2016). 

Case: 13-2275 Document: 00116957434 Page: 21 Date Filed: 02/10/2016 Entry ID: 5976243