United States Court of Appeals For the First Circuit
No. 24-1455
UNITED STATES,
Appellee,
v.
BRIAN JERIEL ACEVEDO-RODRÍGUEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]
Before
Gelpí, Howard, and Dunlap, Circuit Judges.
Robert F. Hennessy, with whom Schnipper Hennessy, PC was on brief, for appellant. Juan Carlos Reyes-Ramos, Assistant United States Attorney, Chief, Appellate Division, with whom W. Stephen Muldrow, United States Attorney, was on brief, for appellee.
June 16, 2026 GELPÍ, Circuit Judge. Brian Jeriel Acevedo-Rodríguez
("Acevedo-Rodríguez") pleaded guilty to eleven Hobbs Act robberies
and six carjackings, all committed over a three-week span. He
also pleaded guilty to one count of discharging a firearm in
relation to one of his robbery offenses. He now appeals his
207-month sentence (imposed at resentencing after the firearm
conviction was vacated based on an intervening Supreme Court
decision), challenging both its procedural and substantive
reasonableness. Finding no error, we affirm Acevedo-Rodríguez's
sentence.
I. Background1
To explain how law enforcement ultimately traced the
crime spree to Acevedo‑Rodríguez, we begin with the last crime in
the series. On December 3, 2018, Acevedo-Rodríguez, two
co-defendants, and a juvenile attempted to rob a gas station in
San Juan, Puerto Rico. The group arrived in a car they had
previously carjacked. Security footage showed one of the adult
co-defendants get out of the car, brandish a firearm, and try to
force his way into the station. But the attempted robbery quickly
unraveled when the co-defendant exchanged gunfire with the
1 Because Acevedo-Rodríguez pleaded guilty, "we draw the facts from the undisputed sections of the presentence investigation report (PSR) and the transcripts of the change-of-plea and sentencing hearings." United States v. Burgos, 133 F.4th 183, 187 n.1 (1st Cir. 2025) (citation modified).
- 2 - security guard inside, was shot in the leg, and fell to the ground.
The juvenile then got out of the car and fired at the guard while
the injured man limped and crawled back toward the vehicle. Once
both were back inside, the group fled.
Later that night, the injured co-defendant's mother
received a phone call telling her that her son had been injured
and left at a restaurant near the gas station. She picked him up
and called for help. An ambulance took him to the hospital, where
he underwent surgery for the gunshot wound. Police arrested him
at the hospital two days later, and a grand jury subsequently
indicted him for the attempted robbery and related firearm
offenses.
The investigation that followed tied Acevedo-Rodríguez
to the crime, and to a broader spree: eleven robberies (one
attempted) and six carjackings (one attempted) committed from
November 14 to December 3, 2018. Then, a twenty-eight count
superseding indictment added Acevedo-Rodríguez as a defendant and
brought charges for the other robberies, carjackings, and related
firearm offenses under § 924(c). Police later arrested
Acevedo-Rodríguez.
Facing those charges, Acevedo-Rodríguez entered into a
plea agreement, under which he pleaded guilty to all of the charged
robbery and carjacking counts, and the government agreed to dismiss
all § 924(c) counts except Count Two (which was predicated on the
- 3 - December 3rd attempted robbery of the gas station). The government
also agreed to recommend 120 months of imprisonment on the § 924(c)
count, plus a sentence at the low end of the U.S. Sentencing
Guidelines ("Guidelines" or "USSG") range on the remaining counts,
based on a total offense level of twenty-nine and a criminal
history category to be determined by the court. If
Acevedo-Rodríguez had a criminal history category of I, that
recommendation would yield a total recommended sentence of 207
months' imprisonment: 120 months on Count Two plus 87 months on
the remaining counts.
The plea agreement also contained a waiver-of-appeal
provision that read:
The defendant knowingly and voluntarily agrees that, if the imprisonment sentence imposed by the Court is two-hundred and twenty-eight (228) months or less, the defendant waives the right to appeal any aspect of this case's judgment and sentence, including but not limited to the term of imprisonment or probation, restitution, fines, forfeiture, and the term and conditions of supervised release.
The court accepted Acevedo-Rodríguez's guilty plea on
March 6, 2021, and sentenced him six days later. At the sentencing
hearing, it was undisputed that Acevedo-Rodríguez's criminal
history category was I. Therefore, pursuant to the plea agreement,
Acevedo-Rodríguez and the government both requested 207 months of
- 4 - imprisonment.2 The court accepted the parties' recommendation and
sentenced him as such.
On June 21, 2022, the Supreme Court issued its opinion
in United States v. Taylor, 596 U.S. 845, 851 (2022), which held
that attempted Hobbs Act Robbery, the predicate offense underlying
Count Two in Acevedo-Rodríguez's conviction, is not categorically
a "crime of violence" as defined in 18 U.S.C. § 924(c)(3)(A). As
such, it could not serve as a predicate offense for a § 924(c)
conviction. Id. at 852. Acevedo-Rodríguez then filed a motion
under 28 U.S.C. § 2255 collaterally attacking his conviction on
Count Two. The district court granted the motion, vacated that
conviction, and scheduled a resentencing hearing on his remaining
counts of conviction.
The U.S. Probation Office filed an amended PSR which
again calculated a total offense level of thirty and a criminal
history category of I, resulting in a recommended Guidelines
sentence of 97 to 121 months. Still, the government argued for a
total aggregate imprisonment of 207 months -- the same aggregate
sentence to which the court had originally sentenced
Acevedo-Rodríguez. It maintained that the sentence "still fit[]"
2 They did so even though the PSR had calculated Acevedo-Rodríguez's adjusted offense level at thirty, rather than twenty-nine. An adjusted offense level of thirty meant that the Guidelines range for the carjackings and robberies was 97 to 121 months' imprisonment, not 87 to 108 months as originally contemplated by the parties.
- 5 - Acevedo-Rodríguez's conduct since, pursuant to the plea agreement,
the government had dismissed seven viable § 924(c) counts
predicated on completed robberies and carjackings to which
Acevedo-Rodríguez pleaded guilty.3 The government argued that it
could have moved to reinstate the § 924(c) counts but did not
because it believed the record was sufficient to justify a
207-month sentence. And it argued that Acevedo-Rodríguez would
still benefit from a supervised release term of three years,
instead of the five years that accompanied the dismissed § 924(c)
conviction.
Acevedo-Rodríguez argued for an imprisonment sentence at
the low end of the Guidelines range -- ninety-seven months.
Defense counsel recognized that "this was a serious case" and that
"the violence [wa]s shown" in the crimes. But he asked the court
to consider that Acevedo-Rodríguez had just turned eighteen, was
a drug user, and was naive when he committed the crimes. Defense
counsel pointed to the fact that Acevedo-Rodríguez worked and
studied while serving his imprisonment term and that he had not
tested positive for drugs.
3The minimum terms of imprisonment for the dismissed § 924(c) counts predicated on completed Hobbs Act robberies and carjackings were as follows: Count Sixteen, seven years; Count Eighteen, seven years; Count Twenty, seven years; Count Twenty-Two, ten years; Count Twenty-Four, seven years; Count Twenty-Six, seven years; and Count Twenty-Eight, seven years; yielding a total minimum term of fifty-two years.
- 6 - The court stated that it considered the 18 U.S.C.
§ 3553(a) sentencing factors, amended PSR, plea agreement,
memoranda, and both parties' arguments that day. It then
resentenced Acevedo-Rodríguez to 207 months' imprisonment -- the
same sentence imposed before the conviction on Count Two was
dismissed. Acevedo-Rodríguez raised no further objections to the
sentence or the court's explanations.
This appeal ensued.
II. Discussion
Acevedo-Rodríguez now challenges the procedural and
substantive reasonableness of his sentence to 207 months of
imprisonment. As a threshold matter, the parties dispute whether
the appellate waiver in Acevedo-Rodríguez's plea agreement bars
this appeal. Acevedo-Rodríguez argues that the waiver does not
clearly apply to resentencing and, in any event, that it should
not be enforced because the government materially breached the
plea agreement by recommending a sentence above the low end of the
Guidelines range at resentencing, contrary to the parties'
agreement. Because we conclude that the resentencing sentence was
both procedurally and substantively reasonable, we assume without
deciding that the waiver does not bar this appeal. See, e.g.,
United States v. Angiolillo, 864 F.3d 30, 34 (1st Cir. 2017).
- 7 - A. Procedural Reasonableness
First, we address Acevedo-Rodríguez's challenge to the
procedural reasonableness of his sentence. He did not preserve
this challenge, so we review it for plain error. See United States
v. Colón-De Jesús, 85 F.4th 15, 20-21 (1st Cir. 2023). "To survive
plain-error review and merit resentencing, a defendant must make
four showings: (1) an error occurred, (2) that was clear or
obvious, (3) that affected his substantial rights, and (4) that
seriously impaired the fairness, integrity, or public reputation
of judicial proceedings." Id. at 21 (quoting United States v.
Millán-Isaac, 749 F.3d 57, 66 (1st Cir. 2014)).
The district court did not plainly err in explaining its
sentence. "A court commits a procedural error where it fails to
adequately explain a deviation from the Guidelines range." United
States v. Maldonado-Velazquez, 164 F.4th 154, 158 (1st Cir. 2026)
(citation modified). In particular, when deviating upwards, the
court must "articulat[e] why it believe[s] that the appellant's
case differ[s] from the norm." United States v. Melendez-Hiraldo,
82 F.4th 48, 55 (1st Cir. 2023) (second and third alteration in
original) (quoting United States v. Del Valle-Rodríguez, 761 F.3d
171, 176, 177 (1st Cir. 2014)). And if it relies on factors
already accounted for by the Guidelines, it should explain why
those are worthy of "extra weight" in that particular case. United
States v. Carmona-Alomar, 109 F.4th 60, 73 (1st Cir. 2024) (quoting
- 8 - United States v. Rivera-Berríos, 968 F.3d 130, 136 (1st Cir.
2020)). The court's explanation may be "either explicit[] or
[derived] by fair inference from the sentencing record." United
States v. Montero-Montero, 817 F.3d 35, 37 (1st Cir. 2016).
Acevedo-Rodríguez argues that, in fashioning his
sentence, the district court committed plain procedural error by
(a) relying on factors that were already accounted for by the
Guidelines or inherent to his crime without sufficiently
articulating why they deserved "extra weight" and (b) failing to
consider any mitigating factors. We address his arguments
seriatim.
1. Aggravating Factors
First, Acevedo-Rodríguez contends that the Guidelines
already account for the numerosity of his crimes through the
multiple-count adjustment in USSG § 3D1.4; that they already
provide for six- and seven-point enhancements based on use and
brandishing of firearms, respectively, see USSG
§ 2B3.1(b)(2)(A)-(B); and that the use of actual or threatened
force is a factor that is generic to robbery and carjacking.
According to Acevedo-Rodríguez, these factors therefore could not
support an upward variance without further justification. We
disagree. To explain why, we briefly walk through how the
Guidelines range is typically calculated, and how it was calculated
here.
- 9 - Under the Guidelines, every federal crime has a base
offense level. See, e.g., USSG § 2B3.1(a). Courts adjust that
level upward or downward based on specific offense characteristics
(like the use of a firearm) or general adjustments (like
obstruction of justice). See, e.g., USSG § 2B3.1(b)(2)(B). The
result is the adjusted offense level for that count. Where, as
here, a case involves multiple closely related counts of
conviction, the Guidelines require the court to calculate the
adjusted offense level for each count and to take the highest
adjusted offense level as the starting point. USSG
§§ 1B1.1(a)(4), 3D1.1-3D1.3. The court should then increase that
level based on the number of "units" assigned to the remaining
counts. See USSG § 3D1.4. As relevant here, an offense receives
one unit if it is equally serious or one to four offense levels
less serious than the highest adjusted offense level in the group.4
USSG § 3D1.4(a).
In Acevedo-Rodríguez's case, the highest adjusted
offense level among his group of related offenses was twenty-eight
for Count Twenty-Five (which had a base offense level of twenty,
a six-level increase for the use of a firearm, and a two-level
increase because the offense involved a carjacking). The remaining
4 An offense receives one-half unit if it is five to eight levels less serious, and no units if it is nine or more levels less serious. See USSG § 3D1.4(b)–(c).
- 10 - offenses had offense levels of twenty-seven, twenty-six, or
twenty-four, so each fell within four levels of the highest offense
level of twenty-eight, meaning each offense was assigned one unit.
Adding those units together resulted in seventeen total units.
But the Court did not add all the available units to the base level
of twenty-eight because USSG § 3D1.4 caps the increase for
additional units at five. So Acevedo-Rodríguez's combined
adjusted offense level (before deductions) was thirty-three, not
forty-five -- the highest adjusted offense level of twenty-eight,
plus five units.
Against that backdrop, we cannot say the district court
erred -- much less plainly erred -- in considering the sheer
number of Acevedo-Rodríguez's multiple back-to-back offenses when
imposing an upwardly variant sentence. After all, out of the
seventeen robberies and carjackings that Acevedo-Rodríguez
committed, only six of them were accounted for in the final offense
level -- the base offense (the most serious one) and the five
offenses accounted for through units. Eleven counts had no effect
on Acevedo-Rodríguez's final offense level. Similarly, because
only six of the seventeen counts ultimately affected the final
offense level, the Guidelines range did not fully account for the
firearm conduct or the actual or threatened force and violence
across the entire spree (which would have otherwise been accounted
for through adjustments at the specific count level). The district
- 11 - court thus did not plainly err in considering any of these factors
as relevant for an upwardly variant sentence.
Acevedo-Rodríguez separately argues that the district
court's statement that the original plea agreement "opened the
door to a sentence of 207 months of incarceration" suggests that
the court "possib[ly]" believed it did not have to adequately
explain the new sentence. We are not sure what this argument is
trying to get at. As the government points out, if the court
believed no explanation was required, the sentencing transcript
would not contain pages of reasoning. Moreover, in context, we
read the court as alluding to the fact that the dismissed counts
included seven other viable § 924(c) counts (predicated on
completed Hobbs Act robberies or carjackings) from which the
original sentence could have been replicated, and which altogether
spared Acevedo-Rodríguez fifty-two years of mandatory minimum
sentences.5 The government presented both these arguments in its
5 The government may move to "reinstate[]" "counts of an indictment . . . that are dismissed pursuant to a plea agreement" if "the guilty plea [is] subsequently vacated on the motion of the defendant." 18 U.S.C. § 3296(a). Although the statute speaks of the "guilty plea['s]" vacatur, id., it also covers successful collateral motions to vacate a count of conviction, the situation here, see Witham v. United States, 97 F.4th 1027, 1035 (6th Cir. 2024); Jones v. United States, 39 F.4th 523, 526 (8th Cir. 2022); United States v. Moore, 802 F. App'x 338, 342 (10th Cir. 2020); but see United States v. Petties, 42 F.4th 388, 397 (4th Cir. 2022) (raising "questions" about § 3296's application when defendant's "conviction, not his guilty plea, was vacated"). Although the government did not take the steps outlined in § 3296, it pointed to that ability in arguing for the reimposition of the original
- 12 - resentencing memorandum and during resentencing. See United
States v. Rivera-Clemente, 813 F.3d 43, 50 (1st Cir. 2016) ("[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." (quoting United States v. Ocasio-Cancel, 727
F.3d 85, 91 (1st Cir. 2013)).
2. Mitigating Factors
Next, Acevedo-Rodríguez claims the district court failed
to consider mitigating factors, including his age, prior drug use,
and subsequent rehabilitation. We discern no such error. It is
true that, "[w]hen imposing a sentence, a district court is obliged
to consider the factors outlined in 18 U.S.C. § 3553(a)." United
States v. Ortiz-Pérez, 30 F.4th 107, 111 (1st Cir. 2022). But
"the court 'is not required to address those factors, one by one,
in some sort of rote incantation.'" Id. (quoting United States v.
Dixon, 449 F.3d 194, 205 (1st Cir. 2006)). In fact, "[w]hen a
defendant has identified potentially mitigating sentencing factors
and those factors are thoroughly debated at sentencing, the fact
207-month sentence, given that the dismissed charges carried the same or similar mandatory minimums. The district court could well consider the prison term carried by these dismissed charges (waiting in the wings, so to speak), and the government's ability to seek their reinstitution, when the court conducted resentencing. The district court, to the extent it made that consideration, did not thereby short-circuit the § 3296 process. Cf. United States v. Narang, No. 19-4850, 2021 WL 3484683, at *6 (4th Cir. Aug. 9, 2021) ("[R]einstatement is ministerial[.]").
- 13 - that the court 'did not explicitly mention them during the
sentencing hearing suggests they were unconvincing, not ignored.'"
United States v. Díaz-Lugo, 963 F.3d 145, 152 (1st Cir. 2020)
(quoting United States v. Lozada-Aponte, 689 F.3d 791, 793 (1st
Cir. 2012)). That is what happened here.
Recall that at the resentencing, defense counsel asked
the court to consider that Acevedo-Rodríguez was eighteen years
old and a drug user at the time of the offense. Counsel also
argued that Acevedo-Rodríguez was "trying to study," "trying to
comply with all the conditions of the prison that he has been in,"
and that he had not tested positive on a drug test. And his
sentencing memorandum had noted Acevedo-Rodríguez was a first-time
offender. The court, for its part, expressly stated that it had
considered Acevedo-Rodríguez's lack of criminal record, the
§ 3553(a) factors, and the parties' memoranda. Thus, we have no
reason to think the court overlooked the mitigating factors. On
this record, the more natural reading is that the court found the
mitigating factors unpersuasive in light of the seriousness of the
offense. See Díaz-Lugo, 963 F.3d at 152-53. That is not error.
See United States v. Ruperto-Rivera, 16 F.4th 1, 6 (1st Cir. 2021)
("The weighing of sentencing factors represents a judgment
call . . . for the sentencing court alone to make." (citation
modified)); United States v. Majeroni, 784 F.3d 72, 78 (1st Cir.
2015) (substantive reasonableness) ("That the sentencing court
- 14 - chose not to attach to certain of the mitigating factors the
significance that the appellant thinks they deserved does not make
the sentence unreasonable." (quoting United States v. Clogston,
662 F.3d 588, 593 (1st Cir. 2011))).
B. Substantive Reasonableness
We turn to consider whether the district court's
sentence was substantively reasonable. Acevedo-Rodríguez
preserved this challenge by advocating for a more lenient sentence
than the one imposed by the district court. See Colón-De Jesús,
85 F.4th at 25. We therefore review it for abuse of discretion.
See id. at 26. Under an abuse-of-discretion standard,
"considerable deference must . . . be given to the district
court's judgment," United States v. Contreras-Delgado, 913 F.3d
232, 239 (1st Cir. 2019), because "there is no one reasonable
sentence in any given case but, rather, a universe of reasonable
sentencing outcomes," United States v. Burgos, 133 F.4th 183, 195
(1st Cir. 2025) (citation modified). "Our task is simply to
determine whether the sentence falls within this broad universe,"
United States v. Del-Valle-Camacho, 164 F.4th 52, 58 (1st Cir.
2026) (citation modified), guided by "the hallmarks of a
substantively reasonable sentence: a plausible sentencing
rationale and a defensible result," United States v.
Ramírez-Ayala, 101 F.4th 80, 89 (1st Cir. 2024) (citation
modified). We think that standard was satisfied here.
- 15 - We have previously noted that "an adequate explanation
for an upward variance and a plausible rationale for that variance
are almost always two sides of the same coin." United States v.
Valle-Colón, 21 F.4th 44, 50 (1st Cir. 2021). As explained above,
the district court provided an adequate explanation for its
sentence, and we see no reason to belabor our discussion of the
district court's plausible rationale. The court grounded its
variant sentence on the seriousness and breadth of
Acevedo-Rodríguez's conduct: his participation in at least eleven
robberies and six carjackings, all involving actual or threatened
violence, including the discharge and brandishing of firearms with
intent to commit serious bodily harm. That conduct did not change
simply because one count was later vacated on collateral attack.
And that point carries particular force here because the counts
dismissed pursuant to the plea agreement included seven other
viable § 924(c) counts from which the original sentence could have
been replicated or increased. See Melendez-Hiraldo, 82 F.4th at
56 n.7 ("A sentencing court may take into account relevant conduct
underlying counts dismissed as part of a plea negotiation . . . ."
(quoting United States v. Fernández-Garay, 788 F.3d 1, 7 (1st Cir.
2015)).
The length of the sentence here is also defensible.
Although the sentence exceeded the top of the Guidelines range by
approximately seventy percent, we have affirmed comparable upward
- 16 - variances where the circumstances warranted it. See, e.g., United
States v. Amirault, 224 F.3d 9, 14 (1st Cir. 2000) (upholding
seventy-percent departure after analogizing to adjustments for
related offenses); United States v. Rostoff, 53 F.3d 398, 411 (1st
Cir. 1995) (collecting cases). Ultimately, we cannot say that a
207-months sentence is outside the range of reasonable sentences
for Acevedo-Rodríguez's conduct. We discern no abuse of discretion
by the district court.
III. Conclusion
Having resolved Acevedo-Rodríguez's procedural and
substantive challenges, we affirm the district court's sentence.
- 17 -