United States v. Perez, 1st Cir. (2016)

United States Court of Appeals
For the First Circuit

No. 15-1234
UNITED STATES OF AMERICA,
Appellee,
v.
ENGLIS PREZ, t/n ENGLIS EDUARDO PREZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. Garca-Gregory, U.S. District Judge]
Before
Kayatta, Selya and Stahl,
Circuit Judges.
Michael R. Hasse on brief for appellant.

Rosa Emilia Rodrguez-Vlez, United States Attorney, Nelson
Prez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Thomas F. Klumper, Assistant United States Attorney,
Senior Appellate Counsel, on brief for appellee.
April 22, 2016
SELYA, Circuit Judge.

four discrete claims of error.
This sentencing appeal embodies

Having scrutinized these claims in
light of the record as a whole, we affirm the appellant's sentence.

I.
BACKGROUND
The critical facts are largely uncontested.
appellant
Englis
Prez,
Dominican
national,
Defendant-
journeyed
to
Venezuela in early 2014 to undertake a cocaine-smuggling venture.

Shortly after midnight on March 4, 2014, federal authorities
intercepted
30-foot
speedboat
operating
without
lights,
powered by two outsized outboard engines, and equipped with 23

extra fuel tanks that had left port in Venezuela and was
approaching the coast of Puerto Rico.
bales,
which
contained
in
the
The vessel was carrying 38
aggregate
approximately
1,056
kilograms of cocaine.
Only two persons were aboard the vessel when it was
intercepted: the appellant and an individual later identified as
Gregorio Rodrguez.
A federal grand jury sitting in the District
of Puerto Rico returned a six-count indictment against the pair,

charging them with conspiracy to import 5 or more kilograms of
cocaine
into
the
United
States,
in
violation
of
21
U.S.C.
952(a), 960, and 963 (count 1); conspiracy to possess with

intent to distribute 5 kilograms or more of cocaine, in violation
of 21 U.S.C. 841(a)(1) and 846 (count 2); aiding and abetting
in the possession with intent to distribute 5 kilograms or more of
- 2 -
cocaine, in violation of 18 U.S.C. 2 and 21 U.S.C. 841(a)(1)

(count 3); aiding and abetting in the importation of 5 kilograms
or more of cocaine, in violation of 18 U.S.C. 2 and 21 U.S.C.
952 and 960 (count 4); conspiracy to possess with intent to
distribute 5 or more kilograms of cocaine on board a vessel subject
to the jurisdiction of the United States, in violation of 46 U.S.C.
70502(c)(1)(D), 70503(a)(1), 70504(b)(1) and 70506(a) and (b)
(count 5); and aiding and abetting in the possession with intent
to distribute 5 kilograms or more of cocaine on board a vessel
subject to the jurisdiction of the United States, in violation of
18 U.S.C. 2 and 46 U.S.C. 70502(c)(1)(D), 70503(a)(1),
70504(b)(1)
and
70506(a)
(count
6).
Although
the
appellant
originally maintained his innocence, he shortly entered a straight

guilty plea to all six counts of the indictment.
Following the preparation of a presentence investigation
report and some related skirmishing, the district court convened
the disposition hearing on January 27, 2015.
The November 2014
edition of the sentencing guidelines controlled. See United States

v. Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. 1990).
The court
calculated the appellant's guideline sentencing range (GSR) as

135-168 months and imposed a sentence at the bottom of that range:
135 months.
This timely appeal ensued.
- 3 -
II.
ANALYSIS
In
this
case,
the
appellant
challenges
both
the
procedural underpinnings and the substantive reasonableness of his

sentence.
Overall, claims of sentencing error are reviewed for
abuse of discretion.
See Gall v. United States, 552 U.S. 38, 51
(2007); United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008).
With
respect
to
procedural
claims,
however,
the
discretion standard of review is not monolithic.
abuse-of-
Within it, "we
assay the district court's factfinding for clear error and afford
de novo consideration to its interpretation and application of the
sentencing guidelines."
United States v. Flores-Machicote, 706
F.3d 16, 20 (1st Cir. 2013).

Against
this
backdrop,
we
turn
to
the
appellant's
asseverational array. Because a reviewing court, in the sentencing

context, should first address claims of procedural error, see
Martin, 520 F.3d at 92, we start there.
A.
Mitigating Role.
The appellant asserts that the district court committed

procedural error when it refused to reduce his GSR to compensate
for the appellant's role in the offense.
This claim was preserved
below and, thus, our review is for clear error.
See United States
v. Garcia, 954 F.2d 12, 16 (1st Cir. 1992).

USSG 3B1.2(b) provides for reducing a defendant's base
offense
level
by
two
levels
if
- 4 -
the
defendant
was
minor
participant in the criminal activity.
The appellant argues that
he was entitled to the benefit of this adjustment,1 which would

have lowered his GSR (and, presumably, his sentence).
We do not
agree.
A defendant who seeks a mitigating role adjustment bears
the burden of proving, by a preponderance of the evidence, that he
is entitled to the downward adjustment.
See United States v.
Vargas, 560 F.3d 45, 50 (1st Cir. 2009).
"To qualify as a minor
participant, a defendant must prove that he is both less culpable

than his cohorts in the particular criminal endeavor and less
culpable than the majority of those within the universe of persons
participating
in
similar
crimes."
United
States
v.
Torres-
Landra, 783 F.3d 58, 65 (1st Cir. 2015) (quoting United States v.
Santos, 357 F.3d 136, 142 (1st Cir. 2004)).
Here, we need go no
further than the first prong of this two-part test.

Role-in-the-offense
fact-specific.
determinations
are
notoriously
See United States v. Melndez-Rivera, 782 F.3d 26,
28 (1st Cir. 2015); United States v. Rosa-Carino, 615 F.3d 75, 81

(1st Cir. 2010).
In this instance, the district court explicitly
found, as a matter of fact, that the two participants in the

smuggle (the appellant and Rodrguez) were "equally culpable."
The appellant originally sought a four-level decrease in his

offense level arguing that his role in the offense was no more
than minimal.
See USSG 3B1.2(a).
However, he abandoned that
position below.
- 5 -
This finding is not clearly erroneous: the two men traveled first
to Colombia and then to Venezuela, specifically to undertake the
unlawful voyage; they shared the work at sea en route to Puerto
Rico; and the appellant's special skill set as a mechanic was
essential to the success of the venture.
The fact that Rodrguez
was deemed the "captain" of the craft does not undermine the
sentencing court's finding that they were equal partners in the
criminal activity.
See, e.g., United States v. Bravo, 489 F.3d 1,
11 (1st Cir. 2007).

We have said before that "absent a mistake of law,
battles over a defendant's status . . . will almost always be won
or lost in the district court."
F.3d 70, 75 (1st Cir. 1995).
United States v. Graciani, 61
This case is no exception.
In an effort to blunt the force of this reasoning, the

appellant advances two arguments.
district
court
summarily
declined
First, he says that "the

to
grant
the
[minor
role]
adjustment without outlining any reasoning for its decision." This

statement
is
simply
wrong:
the
district
court
entertained
extensive argument on this very point and explained its reasoning

in some detail.
The court mentioned the large quantity of drugs,
the trust that the drug owners obviously placed in the appellant,
and the appellant's expertise in "how to handle the boat."
That
the appellant resists the district court's explanation for the
- 6 -
"equal culpability" finding is not a basis for holding that the

finding is unexplained.
The appellant also makes a hierarchical argument.
He
submits that he is a minor participant in the criminal activity,

broadly defined, because he played a bit part when compared to
those unidentified individuals who "owned" the drugs and those
unidentified
individuals
who
presumably
were
prepared
to
distribute them in the United States.

This argument is unavailing.
When two persons undertake
to transport by themselves a large quantity of drugs in a long and

hazardous voyage at sea, it is not clear error for a sentencing
court to regard each as a principal and refuse to grant any
mitigating role adjustment.2
See United States v. Zakharov, 468
F.3d 1171, 1181 (9th Cir. 2006); United States v. Coneo-Guerrero,

148 F.3d 44, 50-51 (1st Cir. 1998).
That ends this aspect of the matter.
Where there is
more than one plausible view of the circumstances, "the sentencing

court's choice among supportable alternatives cannot be clearly
erroneous."
United States v. Ruiz, 905 F.2d 499, 508 (1st Cir.
1990).
Here, moreover, the district court's choice to define the

criminal activity narrowly was consistent with the indictment,
which focused on the voyage and the interception of the vessel.
Consistent with this focus, the facts of record do not deal either
with the provenance of the drugs or with the ultimate plans for
their retail distribution.
- 7 -
B.
Failure to Explain.
Congress has directed every sentencing court to "state

in open court the reasons for its imposition of the particular
sentence."
18 U.S.C. 3553(c).
Though the court's explanation
need not "be precise to the point of pedantry," United States v.

Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 2006), the explanation
given
should
"identify
the
[relevant]
factors
driving
[the
sentencing] determination." United States v. Seplveda-Hernndez,

___ F.3d ___, ___ (1st Cir. 2016) [No. 15-1293, slip op. at 5];
see United States v. Ruiz-Huertas, 792 F.3d 223, 226-27 (1st Cir.),
cert. denied, 136 S. Ct. 258-59 (2015).
The appellant argues that the court below forsook this
duty. Since the appellant did not preserve any such claim of error
in the district court, our review is for plain error.
See United
States v. Montero-Montero, ___ F.3d ___, ___ (1st Cir. 2016) [No.
15-1405, slip op. at 3].
To establish plain error, an appellant
must show "(1) that an error occurred (2) which was clear or
obvious
and
which
not
only
(3)
affected
the
[appellant's]
substantial rights, but also (4) seriously impaired the fairness,

integrity, or public reputation of judicial proceedings."
United
States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).

The
appellant's
argument
is
puzzling.
He
alleges,
without qualification, that "the district court failed to explain

its reasons for the 135-month sentence it imposed."
- 8 -
Yet, the
sentencing
transcript
explicitly
stated
satisfactorily
belies
that
reflect
this
allegation.
"[t]he
the
The
guideline
components
of
computations
this
considering its nature and circumstances. . . ."
court
offense
by
The court went
on to note that it had "considered the other sentencing factors

set forth in Title 18, U.S. Code [] 3553." The court also referred
to the appellant's "personal history and characteristics . . . as
well as . . . the nature of the circumstances under which [he] was
hired to perform this job."
After alluding to the "elements of the offense and [the
appellant's] participation in the same," the court stated that it
was taking into account "the need to promote respect for the law,
protect the public from further crimes by defendant, the need to
address issues of deterrence and punishment, as balanced together
with the personal history and characteristics of defendant."
In
the end, the court concluded "that a sentence in this case at the
lower end of the guideline range would be a sentence that is just
and not greater than necessary."
Where, as here, the court imposes a sentence that comes
within the GSR, "the burden of adequate explanation is lightened."
Montero-Montero,
slip
op.
at
4.
We
hold
that
the
court's
explanation was sufficient to satisfy this lightened burden and to

explicate its within-the-range sentence. There was no error, plain
or otherwise.
- 9 -
C.
National Disparity.
Citing 18 U.S.C. 3553(a)(6), the appellant next argues

that his sentence was "disproportionate to others found guilty of
the same or similar conduct."
Section
This argument is unpersuasive.
3553(a)(6)
instructs
sentencing
court
to
consider "the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of
similar conduct."
This provision is aimed, generally, at the
minimization
sentencing
of
nationwide.
disparities
See Martin, 520 F.3d at 94.
among
defendants
Because the appellant
did not raise this claim of error below, our review is for plain
error.
See Duarte, 246 F.3d at 60.

We
appellant
see
nothing
presents
this
resembling
argument
in
plain
error
hortatory
developing any relevant factual foundation.
here.
terms
The
without
The lack of developed
argumentation is fatal to the claim. See United States v. Zannino,

895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.").
D.
The
Substantive Reasonableness.
appellant's
last
claim
of
error
targets
the
substantive reasonableness of his sentence. The standard of review

is murky.
See Ruiz-Huertas, 792 F.3d at 228 & n.4 (noting
uncertainty about whether a claim that a sentence is substantively
- 10 -
unreasonable must be preserved below).
Rather than resolving the
question, we assume favorably to the appellant that our review

of this claim is for abuse of discretion. Even so, the appellant's
challenge fails.
A sentence will survive a challenge to its substantive
reasonableness as long as it rests on a "plausible sentencing
rationale" and reflects a "defensible result."
at 96.
Martin, 520 F.3d
"A challenge directed at substantive reasonableness is
usually a heavy lift, and reversal is 'particularly unlikely when

. . . the sentence imposed fits within the compass of a properly
calculated [guideline sentencing range].'" Ruiz-Huertas, 792 F.3d
at 228-29 (quoting United States v. Vega-Salgado, 769 F.3d 100,
105 (1st Cir. 2014) (omission and alteration in original)).
So it is here: as recounted above, the district court
articulated an eminently plausible rationale for the sentence.
Moreover given the parameters of the GSR, the large quantity of
drugs involved, and the appellant's vital role in the smuggle a
135-month sentence is defensible.
The appellant's main argument in support of his plaint
that
his
sentence
is
substantively
unreasonable
is
that
his
coconspirator, Rodrguez, received a much lighter sentence (48

months).3
But at the time the appellant was sentenced January
Although the appellant's briefs assert that Rodrguez was

sentenced to 46 months' imprisonment, the court docket indicates
- 11 -
27, 2015 Rodrguez's case was still pending.
Rodrguez was not
sentenced until March 10, 2015, roughly six weeks after the
appellant was sentenced.
The fact that the disparity argument, as
made to us, could not have been made to the sentencing court
creates a curious anomaly.
Cf. Cahoon v. Shelton, 647 F.3d 18, 29
(1st Cir. 2011) (warning that a party cannot expect to obtain

relief from an appellate court that he never sought in the trial
court); Beaulieu v. U.S. IRS, 865 F.2d 1351, 1352 (1st Cir. 1989)
(same).
Here, however, we need not grapple with this anomaly.
That the appellant and Rodrguez received different sentences
tells us nothing about which of those sentences varies from the
norm; and the limited record available to us suggests that there
are
reasons
situations
together,
why
as
sentencing
quite
preclude
judge
different.4
any
finding
could
These
that
the
have
seen
the
uncertainties,
appellant's
two
taken
within-
guidelines sentence is substantively unreasonable.
that Rodrguez was sentenced to 48 months. See United States v.

Rodrguez, Crim. Case No. 3:14-cr-00182 (D.P.R. Mar. 10, 2015).
4
Unlike the appellant, Rodrguez pleaded guilty to only a

single count of the indictment; he did not enter a straight plea
but, rather, pleaded guilty pursuant to a negotiated plea agreement
(the terms of which are not summarized in the appellant's brief or
elsewhere in the sentencing record); and there is some indication
in the record that Rodrguez may have been experiencing medical
complications that influenced the duration of his sentence.
- 12 -
III.
CONCLUSION
We need go no further. For the reasons elucidated above,
the appellant's sentence is
Affirmed.
- 13 -

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United States Court of Appeals

For the First Circuit

APPEAL FROM THE UNITED STATES DISTRICT COURT

Michael R. Hasse on brief for appellant.

April 22, 2016

SELYA, Circuit Judge.

This sentencing appeal embodies

light of the record as a whole, we affirm the appellant's sentence.

Venezuela in early 2014 to undertake a cocaine-smuggling venture.

powered by two outsized outboard engines, and equipped with 23

The vessel was carrying 38

A federal grand jury sitting in the District

of Puerto Rico returned a six-count indictment against the pair,

952(a), 960, and 963 (count 1); conspiracy to possess with

cocaine, in violation of 18 U.S.C. 2 and 21 U.S.C. 841(a)(1)

originally maintained his innocence, he shortly entered a straight

The November 2014

edition of the sentencing guidelines controlled. See United States

calculated the appellant's guideline sentencing range (GSR) as

This timely appeal ensued.

procedural underpinnings and the substantive reasonableness of his

Overall, claims of sentencing error are reviewed for

See Gall v. United States, 552 U.S. 38, 51

discretion standard of review is not monolithic.

Within it, "we

United States v. Flores-Machicote, 706

F.3d 16, 20 (1st Cir. 2013).

asseverational array. Because a reviewing court, in the sentencing

The appellant asserts that the district court committed

This claim was preserved

below and, thus, our review is for clear error.

See United States

v. Garcia, 954 F.2d 12, 16 (1st Cir. 1992).

participant in the criminal activity.

The appellant argues that

he was entitled to the benefit of this adjustment,1 which would

See United States v.

Vargas, 560 F.3d 45, 50 (1st Cir. 2009).

"To qualify as a minor

participant, a defendant must prove that he is both less culpable

further than the first prong of this two-part test.

See United States v. Melndez-Rivera, 782 F.3d 26,

28 (1st Cir. 2015); United States v. Rosa-Carino, 615 F.3d 75, 81

In this instance, the district court explicitly

found, as a matter of fact, that the two participants in the

The appellant originally sought a four-level decrease in his

The fact that Rodrguez

See, e.g., United States v. Bravo, 489 F.3d 1,

11 (1st Cir. 2007).

United States v. Graciani, 61

This case is no exception.

In an effort to blunt the force of this reasoning, the

First, he says that "the

adjustment without outlining any reasoning for its decision." This

extensive argument on this very point and explained its reasoning

The court mentioned the large quantity of drugs,

the appellant resists the district court's explanation for the

"equal culpability" finding is not a basis for holding that the

submits that he is a minor participant in the criminal activity,