United States Court of Appeals

For the First Circuit

No. 12-1991

UNITED STATES OF AMERICA,

Appellee,

v.

JORGE REVEROL-RIVERA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before

Howard, Stahl, and Barron,

Circuit Judges.

Liza L. Rosado-Rodríguez, Research and Writing Specialist,

with whom Eric Alexander Vos, Federal Public Defender, Héctor E.

Guzmán-Silva, Jr., Federal Public Defender, Hector L. Ramos-Vega,

Assistant Federal Public Defender, Supervisor, Appeals Section, and

Vivianne M. Marrero, Assistant Federal Public Defender, Supervisor,

Appeals Section, were on brief, for appellant. 

Tiffany V. Monrose, Assistant United States Attorney, with

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

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

Appellate Division, were on brief, for appellee.

February 20, 2015
BARRON, Circuit Judge. Jorge Reverol-Rivera and an

accomplice both pled guilty to importing cocaine to the United

States. In this appeal, Reverol challenges the District Court's

decision to give him a much longer sentence than his accomplice,

even though both piloted the boat used to import the cocaine. 

Because the sentencing disparity between these co-defendants was

reasonably justified by the difference in culpability that the

District Court expressly found, we affirm the sentence.

I.

Reverol and an accomplice piloted a small boat to a

rendezvous with another boat in international waters and then back

towards Puerto Rico. After the two men entered United States

territorial waters, law enforcement agents boarded the boat and

discovered what was later confirmed to be 148.5 kilograms of

cocaine.1

Pursuant to an agreement, see Fed. R. Crim. P.

11(c)(1)(A), (B), Reverol pled guilty to importing (and aiding and

abetting his accomplice in importing) into the United States at

least five kilograms of a substance containing cocaine. 21 U.S.C.

§§ 952(a), 960(a)(1), 960(b)(1)(B); 18 U.S.C. § 2. The government

1

 "Since this appeal trails in the wake of a guilty plea, we

draw the facts from the plea agreement, the change-of-plea

colloquy, the undisputed portions of the presentence investigation

report . . . , and the transcript of the disposition hearing." 

United States v. Rivera-González, -- F.3d --, 2015 WL 234774, at *1

(1st Cir. 2015).

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and Reverol agreed to "recommend a sentence at the lower end of the

applicable advisory guideline range."2

The Sentencing Guidelines recommend a range of sentences

based on two variables. See U.S.S.G. § 5A. The first variable is

the offense level, expressed as a point value determined initially

by the seriousness of the offense and then adjusted upward or

downward to account for aggravating or mitigating factors. See id.

§ 2 introductory cmt. The second variable is the defendant's

criminal history. See id. § 4A1.1.

The statement of facts that accompanied the plea

agreement stipulated that Reverol "captained the vessel" that

transported the cocaine. The plea agreement's recommended

guidelines calculation, however, did not apply the guideline that

enhances a defendant's offense level by two points "[i]f the

defendant unlawfully imported or exported a controlled substance

under circumstances in which . . . the defendant acted as a pilot,

copilot, captain, navigator, flight officer, or any other operation

officer aboard any craft or vessel carrying a controlled

substance." U.S.S.G. § 2D1.1(b)(3)(C). The government also

promised not to seek further enhancements.

2

 The agreement also contained a clause waiving Reverol's

appeal rights if the District Court sentenced Reverol "according to

[the agreement's] terms, conditions and recommendations." Because

the District Court departed from the agreement's recommended

calculation under the Sentencing Guidelines, this waiver does not

preclude our review of this case. See Rivera-González, __ F.3d __,

2015 WL 234774, at *2.

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The pre-sentence report, independently prepared by a

probation officer, contained its own recommended guidelines

calculation. See Fed. R. Crim. P. 32(d). The report took a

different approach and applied the captain enhancement. The report

based the enhancement on the factual stipulation in the plea

agreement regarding Reverol's duties on the boat.

At the sentencing hearing, the government, like Reverol,

"st[oo]d by th[e] plea agreement." That approach led the

government to inform the District Court at sentencing that 108

months in prison -- the lower bound of the 108- to 135-month

guidelines range for Reverol that the government, based on the plea

agreement, calculated without using the captain enhancement --

"would be sufficient punishment for this defendant even though he

did undertake duties of captaining the boat." The government also

argued that any sentence higher than 108 months would create an

unjustified disparity with his accomplice's already-imposed

sentence.

Reverol's accomplice, who the record indicates shared the

same criminal history category as Reverol, had pled guilty in a

straight plea without a formal agreement. The accomplice had then

received a sentence of 63 months in prison. That sentence was at

the lower end of the accomplice's guidelines sentencing range of 63

to 78 months. In calculating that range, the district court did

not apply the captain enhancement but did apply a deduction for the

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accomplice's having played a minor role in the crime. U.S.S.G.

§ 3B1.2(b).

At sentencing, both the government and Reverol stated

that the accomplice shared some piloting duties on the boat and

thus could have received the same captain enhancement. The

government explained, however, that the government's version of the

facts in the accomplice's plea colloquy did not mention that the

accomplice shared captaining duties. The government also explained

that the plea agreement with Reverol did include the description of

Reverol's duties as captain "because he in fact was the ultimate

person responsible for captaining the vessel" even if, in practice,

the duties were shared. The government argued, however, that a

sentence of 108 months for Reverol, compared to one of 63 months

for his accomplice, would be about the right punishment

differential and that a higher sentence for Reverol would be

unjustified. For his part, Reverol also argued that he should

receive a two-point deduction to cancel out the effects of the

captain enhancement, though he conceded that he did not meet the

requirements for a substantial assistance deduction, see id.

§ 5K1.1, and he did not identify any other guideline that would

permit such a deduction.3

3 Reverol thus mischaracterizes the record when he states

in his opening brief on appeal that he argued to the District Court

that he deserved "a two-level departure for substantial

assistance."

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The District Court followed the lead of the pre-sentence

report rather than the plea agreement and included the two-point

captain enhancement in calculating Reverol's guidelines sentencing

range. The District Court then sentenced Reverol to 135 months in

prison, which was the lower end of the 135- to 168-month guidelines

range that the District Court calculated.

The District Court explained that the sentence was

"sufficient but not greater than necessary." Addressing the

disparity argument, the District Court concluded that Reverol's

higher sentence was justified by his greater culpability. The

District Court found that the accomplice was "a last minute

replacement recruited by . . . Reverol . . . the day before the

scheduled pickup," and that Reverol transported the accomplice to

the boat, had primary responsibility for captaining the vessel,

read the geolocation system, and "knew the pickup location." The

District Court also explained that neither the government nor

Reverol "provided any concrete information to the Court regarding

the extent of Reverol[-]Rivera's assistance to the United States,

or its contents" to qualify for a substantial-assistance deduction.

 Reverol then brought this appeal.

II.

Reverol challenges the procedural and substantive

reasonableness of his sentence. Because Reverol preserved these

challenges, we review the discretionary sentence determinations for

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abuse of discretion, findings of fact for clear error, and

conclusions of law de novo. United States v. Rivera-González, __

F.3d __, 2015 WL 234774, at *2 (1st Cir. 2015).

Reverol first argues that the District Court imposed a

procedurally unreasonable sentence because it "failed to adequately

consider" his arguments, including the disparity argument, in favor

of a 108-month sentence. But the record clearly reveals the

opposite. See United States v. Ayala-Vazquez, 751 F.3d 1, 31-32

(1st Cir. 2014) (concluding that district court adequately

considered disparity argument by noting that disparate sentences

were justified where co-defendants pled guilty and were thus not

similarly situated to defendant who went to trial).

And so we turn to Reverol's substantive challenge. 

Reverol argues that the District Court's 135-month sentence, though

within the guidelines range, was substantively unreasonable in

light of the accomplice's 63-month sentence. Reverol concedes that

he was more culpable than his accomplice. He argues, however, that

his greater culpability would merit only a 108-month sentence, and

that any sentence above that would create too much of a disparity

with the sentence his accomplice received.

When imposing a sentence, a district court must consider

"the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of

similar conduct." 18 U.S.C. § 3553(a)(6). We have said that

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§ 3553(a)(6) is primarily concerned with national disparities. 

See, e.g., United States v. Dávila-González, 595 F.3d 42, 49 (1st

Cir. 2010). But we have also examined arguments, like Reverol's,

that a sentence was substantively unreasonable because of the

disparity with the sentence given to a co-defendant. See, e.g.,

id. at 49-50 (contrasting co-defendant who pled to defendant who

did not); United States v. Mateo-Espejo, 426 F.3d 508, 514 (1st

Cir. 2005) (contrasting co-defendant's "prompt and full

cooperation" with defendant's "belated and grudging cooperation").4

In performing such review, we have made clear that

differences in culpability can justify disparate sentences among

co-defendants. United States v. Rivera-Maldonado, 194 F.3d 224,

236 (1st Cir. 1999). And here, the District Court expressly found

that Reverol was significantly more culpable than his accomplice,

pointing to his accomplice's last-minute addition to the operation

and subordinate role at sea, Reverol's arrangement for the

accomplice's participation, and Reverol's ultimate responsibility

for captaining the ship (including, unlike the accomplice, knowing

the rendezvous location and guiding the boat using geolocation

technology).

4 The government argues that we held in Ayala-Vazquez, 751

F.3d at 32, that co-defendant disparity need not be considered at

all. But Ayala-Vazquez established only that the fact that one codefendant pled guilty while the other went to trial may justify a

disparity in their sentences. Id.

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Reverol asserts that 108 months was the highest sentence

that could be justified given the lower sentence the accomplice

received. But given that the record supports the District Court's

determination that Reverol and the accomplice were not equally

culpable, we find nothing in this record to indicate that the

District Court abused its discretion in concluding that the 135-

month sentence was justified by Reverol's individual level of

culpability. See Rivera-González, -- F.3d --, 2015 WL 234774, at

*6 ("In most cases, there is not a single appropriate sentence but,

rather, a universe of reasonable sentences."); United States v.

Martin, 520 F.3d 87, 96 (1st Cir. 2008) ("[T]he linchpin of a

reasonable sentence is a plausible sentencing rationale and a

defensible result.").

Our conclusion is not disturbed by the fact that the

government and Reverol recommended 108 months as the highest

sentence that could be justified by Reverol's greater culpability. 

The District Court was not bound by the jointly recommended

sentence, see Rivera-González, __ F.3d __, 2015 WL 234774, at *5-6,

and the District Court identified in some detail aspects of the

role Reverol played that reasonably support its conclusion that his

actions warranted a sentence of the length imposed.

We thus affirm the District Court's sentence.

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