United States Court of Appeals For the First Circuit
No. 23-1329
UNITED STATES OF AMERICA,
Appellee,
v.
JASON CANDELARIO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. Jon D. Levy, U.S. District Judge]
Before
Barron, Chief Judge, Selya and Gelpí, Circuit Judges.
Edward S. MacColl and Thompson, Bull, Bass & MacColl, LLC, P.A. on brief for appellant. Darcie N. McElwee, United States Attorney, and Brian S. Kleinbord, Assistant United States Attorney, on brief for appellee.
June 24, 2024 SELYA, Circuit Judge. Defendant-appellant Jason
Candelario challenges his top-of-the-range sentence, arguing that
it is substantively unreasonable and creates an unwarranted
disparity with the sentences imposed on his codefendants.
Concluding, as we do, that the appellant's sentence was both
reasonable and proportionate, we affirm.
I
We briefly rehearse the relevant facts and travel of the
case. "Where, as here, a sentencing appeal follows a guilty plea,
we glean the relevant facts from the change-of-plea colloquy, the
unchallenged portions of the presentence investigation report (PSI
Report), and the record of the disposition hearing." United States
v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009).
In 2019, the appellant and three codefendants conspired
to rob a Maine resident of drugs and money. On the day of the
planned robbery, the appellant and three of his codefendants drove
to the victim's residence. The appellant and another member of
his crew, masked and armed, waited nearby for the victim to return
home. Shortly thereafter, the victim, accompanied by his
girlfriend and a female acquaintance,1 arrived in a truck and
parked in the garage. The appellant and his companion then entered
the garage. The appellant's confederate approached the vehicle,
1This acquaintance was later implicated in the robbery. She cooperated with the authorities, however, and was not charged.
- 2 - struck the passenger-side truck window with the butt of his gun,
and told the victim's girlfriend (who was in the passenger seat)
not to make eye contact with him or call 911.
Meanwhile, the appellant approached the victim, who
wrestled the appellant to the ground. The appellant's confederate
then shot the victim in the abdomen. The two attackers
subsequently fled, and the victim (who ultimately survived) was
rushed to the hospital.
About two years later, a federal grand jury sitting in
the District of Maine returned an indictment against four
defendants — the appellant, the second attacker, a third defendant
who drove the getaway vehicle, and a fourth defendant who
participated in organizing the robbery and provided the firearms
used. In November of 2022, the appellant entered a guilty plea to
counts charging conspiracy to commit a Hobbs Act robbery, see 18
U.S.C. § 1951(a); interference with commerce by violence, and
aiding and abetting, see id.; 18 U.S.C. § 2; and illegally
possessing a firearm, see 18 U.S.C. § 924(a)(2). His three
codefendants also entered guilty pleas to various counts.
The district court convened the appellant's disposition
hearing on March 27, 2023. At the outset, the court addressed the
disputed fact of whether the appellant or another defendant was
the assailant who, during the robbery, tried to break the truck's
passenger seat window and then fired the shot that injured the
- 3 - victim. The court concluded, for the purposes of sentencing, that
the appellant's confederate was the perpetrator. Even so, the
court deemed both men "equally culpable" for the events that
transpired in the victim's garage; after all, those events were "a
foreseeable consequence of [the two malefactors'] joint effort to
commit a robbery."
The district court calculated a guideline sentencing
range of 140 to 175 months, to which all parties acceded.
Emphasizing the violent nature of the crimes of conviction, the
appellant's role as one of the two physical assailants, and his
four prior felony convictions (which placed him in criminal history
category V), the government urged the district court to "depart or
vary its sentence upward." For his part, the appellant urged the
court to impose a sentence of 120 months, citing mitigating factors
such as his difficult childhood and genuine remorse. The district
court also heard statements from the victim's girlfriend, who spoke
about the crime's impact on her and the victim. And the court
heard from two friends of the appellant, who spoke about his
challenges growing up without a father and with a mother who was
incarcerated, as well as recent improvements he had made in his
life.
In the end, the district court imposed a 175-month term
of immurement. In the process, the district court accepted the
appellant's expressions of remorse and acceptance of
- 4 - responsibility as sincere. It also declined to impose an upward
departure and, giving weight to the appellant's difficult
childhood, declined to vary his sentence upward. All things
considered, the district court found that a sentence at the top of
the guidelines range was appropriate due to the seriousness of the
harm committed, the appellant's criminal history, the "serious
risk of recidivism," and the need to provide both specific
deterrence and "general deterrence to the public at large, which
needs to understand that the [c]ourt will impose lengthy sentences
for conduct this despicable."
This timely appeal followed.
II
In this venue, the appellant argues that his sentence
was substantively unreasonable. He emphasizes that it was the
highest of all of his codefendants' sentences. We agree with the
government that the appellant's sentence was substantively
reasonable and did not create an unwarranted disparity when
compared to his codefendants' sentences. Although the parties
dispute whether the appellant's challenges to his sentence were
preserved below, we bypass that dispute because — under either
plain error review or abuse of discretion review — his sentence
passes muster.
When faced with a sentencing appeal in a criminal case,
"[w]e first determine whether the sentence imposed is procedurally
- 5 - reasonable (that is, free from reversible error in its procedural
aspects) and then determine whether it is substantively
reasonable." United States v. Demers, 842 F.3d 8, 12 (1st Cir.
2016). Within this bifurcated structure, we review a sentencing
court's factual findings for clear error and its interpretation
and application of the guidelines de novo. See United States v.
Walker, 665 F.3d 212, 232 (1st Cir. 2011).
As a preliminary matter, we note that although the
appellant's opening brief states that his sentence was both
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United States Court of Appeals For the First Circuit
No. 23-1329
UNITED STATES OF AMERICA,
Appellee,
v.
JASON CANDELARIO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. Jon D. Levy, U.S. District Judge]
Before
Barron, Chief Judge, Selya and Gelpí, Circuit Judges.
Edward S. MacColl and Thompson, Bull, Bass & MacColl, LLC, P.A. on brief for appellant. Darcie N. McElwee, United States Attorney, and Brian S. Kleinbord, Assistant United States Attorney, on brief for appellee.
June 24, 2024 SELYA, Circuit Judge. Defendant-appellant Jason
Candelario challenges his top-of-the-range sentence, arguing that
it is substantively unreasonable and creates an unwarranted
disparity with the sentences imposed on his codefendants.
Concluding, as we do, that the appellant's sentence was both
reasonable and proportionate, we affirm.
I
We briefly rehearse the relevant facts and travel of the
case. "Where, as here, a sentencing appeal follows a guilty plea,
we glean the relevant facts from the change-of-plea colloquy, the
unchallenged portions of the presentence investigation report (PSI
Report), and the record of the disposition hearing." United States
v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009).
In 2019, the appellant and three codefendants conspired
to rob a Maine resident of drugs and money. On the day of the
planned robbery, the appellant and three of his codefendants drove
to the victim's residence. The appellant and another member of
his crew, masked and armed, waited nearby for the victim to return
home. Shortly thereafter, the victim, accompanied by his
girlfriend and a female acquaintance,1 arrived in a truck and
parked in the garage. The appellant and his companion then entered
the garage. The appellant's confederate approached the vehicle,
1This acquaintance was later implicated in the robbery. She cooperated with the authorities, however, and was not charged.
- 2 - struck the passenger-side truck window with the butt of his gun,
and told the victim's girlfriend (who was in the passenger seat)
not to make eye contact with him or call 911.
Meanwhile, the appellant approached the victim, who
wrestled the appellant to the ground. The appellant's confederate
then shot the victim in the abdomen. The two attackers
subsequently fled, and the victim (who ultimately survived) was
rushed to the hospital.
About two years later, a federal grand jury sitting in
the District of Maine returned an indictment against four
defendants — the appellant, the second attacker, a third defendant
who drove the getaway vehicle, and a fourth defendant who
participated in organizing the robbery and provided the firearms
used. In November of 2022, the appellant entered a guilty plea to
counts charging conspiracy to commit a Hobbs Act robbery, see 18
U.S.C. § 1951(a); interference with commerce by violence, and
aiding and abetting, see id.; 18 U.S.C. § 2; and illegally
possessing a firearm, see 18 U.S.C. § 924(a)(2). His three
codefendants also entered guilty pleas to various counts.
The district court convened the appellant's disposition
hearing on March 27, 2023. At the outset, the court addressed the
disputed fact of whether the appellant or another defendant was
the assailant who, during the robbery, tried to break the truck's
passenger seat window and then fired the shot that injured the
- 3 - victim. The court concluded, for the purposes of sentencing, that
the appellant's confederate was the perpetrator. Even so, the
court deemed both men "equally culpable" for the events that
transpired in the victim's garage; after all, those events were "a
foreseeable consequence of [the two malefactors'] joint effort to
commit a robbery."
The district court calculated a guideline sentencing
range of 140 to 175 months, to which all parties acceded.
Emphasizing the violent nature of the crimes of conviction, the
appellant's role as one of the two physical assailants, and his
four prior felony convictions (which placed him in criminal history
category V), the government urged the district court to "depart or
vary its sentence upward." For his part, the appellant urged the
court to impose a sentence of 120 months, citing mitigating factors
such as his difficult childhood and genuine remorse. The district
court also heard statements from the victim's girlfriend, who spoke
about the crime's impact on her and the victim. And the court
heard from two friends of the appellant, who spoke about his
challenges growing up without a father and with a mother who was
incarcerated, as well as recent improvements he had made in his
life.
In the end, the district court imposed a 175-month term
of immurement. In the process, the district court accepted the
appellant's expressions of remorse and acceptance of
- 4 - responsibility as sincere. It also declined to impose an upward
departure and, giving weight to the appellant's difficult
childhood, declined to vary his sentence upward. All things
considered, the district court found that a sentence at the top of
the guidelines range was appropriate due to the seriousness of the
harm committed, the appellant's criminal history, the "serious
risk of recidivism," and the need to provide both specific
deterrence and "general deterrence to the public at large, which
needs to understand that the [c]ourt will impose lengthy sentences
for conduct this despicable."
This timely appeal followed.
II
In this venue, the appellant argues that his sentence
was substantively unreasonable. He emphasizes that it was the
highest of all of his codefendants' sentences. We agree with the
government that the appellant's sentence was substantively
reasonable and did not create an unwarranted disparity when
compared to his codefendants' sentences. Although the parties
dispute whether the appellant's challenges to his sentence were
preserved below, we bypass that dispute because — under either
plain error review or abuse of discretion review — his sentence
passes muster.
When faced with a sentencing appeal in a criminal case,
"[w]e first determine whether the sentence imposed is procedurally
- 5 - reasonable (that is, free from reversible error in its procedural
aspects) and then determine whether it is substantively
reasonable." United States v. Demers, 842 F.3d 8, 12 (1st Cir.
2016). Within this bifurcated structure, we review a sentencing
court's factual findings for clear error and its interpretation
and application of the guidelines de novo. See United States v.
Walker, 665 F.3d 212, 232 (1st Cir. 2011).
As a preliminary matter, we note that although the
appellant's opening brief states that his sentence was both
"substantively and procedurally unreasonable," none of his
briefing indicates what procedural aspect of his sentence was
erroneously imposed. The only potential argument that we can
identify as to procedural reasonableness is the appellant's
statement that the district court "provided no explanation" for
why the length of the appellant's sentence "was appropriate or
necessary." Cf. United States v. Crespo-Ríos, 787 F.3d 34, 37 n.3
(1st Cir. 2015) ("The lack of an adequate explanation can be
characterized as either a procedural error or a challenge to the
substantive reasonableness of the sentence."). The appellant,
though, has not developed this argument separately from his
argument that, in the context of substantive reasonableness, his
sentence lacked a "plausible sentencing rationale." United States
v. Gonzalez, 981 F.3d 11, 24 (1st Cir. 2020) (quoting United States
v. Cameron, 835 F.3d 46, 52 (1st Cir. 2016)). Thus, we consider
- 6 - any claim of procedural error waived for lack of development.2
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
(explaining "settled appellate rule that issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived").
We proceed, then, directly to the issue of substantive
reasonableness. The appellant's primary contention is that his
sentence was disproportionately harsh when compared to those of
his codefendants. See United States v. Reverol-Rivera, 778 F.3d
363, 366 (1st Cir. 2015) (considering argument that "sentence was
substantively unreasonable because of the disparity with the
sentence given to a co-defendant"). And it is common ground that
a district court, when imposing a sentence, "must consider 'the
need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar
conduct.'" Id. (quoting 18 U.S.C. § 3553(a)(6)). Even so, a
genuine sentence disparity can only exist "between 'two
identically situated defendants.'" United States v. De La Cruz,
91 F.4th 550, 555 (1st Cir. 2024) (quoting United States v.
In all events, we have commented before "that an adequate 2
explanation for an upwardly variant sentence and the 'plausible rationale' element of the test for substantive reasonableness 'are almost always two sides of the same coin.'" United States v. Ortiz-Pérez, 30 F.4th 107, 113 (1st Cir. 2022) (quoting United States v. Valle-Colón, 21 F.4th 44, 50 (1st Cir. 2021)). The same principle may apply even when the sentence is not a variant sentence but, rather, a within-the-range sentence.
- 7 - Grullon, 996 F.3d 21, 35 (1st Cir. 2021)). "Where 'material
differences between the defendant and the proposed comparator
suffice to explain the divergence,' a sentencing disparity claim
is unlikely to prevail." United States v. Coplin-Benjamin, 79
F.4th 36, 43 (1st Cir. 2023) (quoting Demers, 842 F.3d at 15).
In this instance, there were several material
differences between the appellant and the codefendants to whom he
points. Those discrepancies were more than sufficient to explain
the differences in their sentences. For example, the proposed
comparator codefendants were subject to lower guideline sentencing
ranges than was the appellant, and the appellant does not dispute
the accuracy of the guideline calculations. This is a critical
datum in a disparity analysis. See United States v. Bedini, 861
F.3d 10, 22 (1st Cir. 2017) (rejecting defendant's sentencing
disparity claims in part because other defendants were "subject to
lower applicable Guidelines ranges").
Moreover, the codefendant who received the lowest
sentence of ninety-six months was supportably found to be the
"least culpable" of the four coconspirators because he only
participated as the drop-off and getaway driver for the robbery.
The appellant, in contrast, was one of the two main physical
aggressors in the robbery. So, too, this codefendant warranted
leniency because he cooperated with the government — but the
appellant turned a deaf ear. Lack of cooperation is a powerful
- 8 - reason for holding a defendant to the rigors of the guidelines.
Cf. United States v. La Guardia, 902 F.2d 1010, 1016 (1st Cir.
1990) ("[T]he government has a strong interest in encouraging
defendants to cooperate.").
Similarly, another codefendant, who received a sentence
of 144 months (later reduced to 128 months), played a significantly
different role in the robbery because he was not a physical
aggressor. His case thus differentiated itself from that of the
appellant. And in addition, this codefendant started with a
cleaner slate than the appellant. All these differences — and
others like them — are factors that we have held are reasonable
for imposing a lower sentence on one codefendant than on another.
See, e.g., United States v. Oquendo-Garcia, 783 F.3d 54, 58 (1st
Cir. 2015) (finding no disparity when codefendant who received
lower sentence had fewer weapons-based and overall convictions and
arrests); United States v. Mateo-Espejo, 426 F.3d 508, 514 (1st
Cir. 2005) (finding no disparity when coconspirator who received
lower sentence cooperated more promptly and fully); De La Cruz, 91
F.4th at 556 (finding no disparity when codefendant who received
lower sentence played different role in conspiracy).
The appellant trains his heaviest fire on the disparity
between his 175-month sentence and the 120-month sentence given to
the second physical aggressor in the robbery (the codefendant who
apparently shot the victim). The justification for this
- 9 - codefendant's lower sentence, though, is evident: Unlike the
appellant, he cooperated in the government's investigation and
thus received a downward departure for substantial assistance
under USSG §5K1.1. Our caselaw provides unambiguously that
"dissimilar . . . cooperation with the government" is a sufficient
material difference between defendants to defeat a disparity
claim. United States v. Romero, 906 F.3d 196, 211 (1st Cir. 2018);
see United States v. Flores-Machicote, 706 F.3d 16, 24 (1st Cir.
2013).
The appellant argues that rewarding his codefendant's
cooperation with a lower sentence is "fundamentally unfair"
because his codefendant at one point lied to investigators about
being the shooter whereas the appellant "never sought to shift
blame to others." We see nothing unfair about this outcome. Even
assuming that the codefendant lied about being the shooter, his
testimony on this fact was not the primary source of his
cooperation with the government. As the government explained to
the district court, the codefendant's testimony corroborated both
physical evidence and other witnesses' testimony and played a major
role in securing the conviction against another codefendant for
whom the government did not have DNA evidence. Nothing in the
record suggests that these grounds for the codefendant's
cooperation would have been diminished by his alleged dishonesty
about who shot the victim.
- 10 - Nor are we convinced by the appellant's argument that,
"[e]ven apart from the question of disparity," his sentence lacked
a "plausible sentencing rationale" and a "defensible result."
(Quoting Gonzalez, 981 F.3d at 24). Generally, we will consider
a sentence substantively reasonable as long as it falls within the
"universe of reasonable sentencing outcomes." United States v.
Clogston, 662 F.3d 588, 592 (1st Cir. 2011). Where, as here, the
challenged sentence was within a properly calculated guideline
range, the appellant carries a particularly heavy burden to "adduce
fairly powerful mitigating reasons and persuade us that the
district judge was unreasonable in balancing pros and cons despite
the latitude implicit in saying that a sentence must be
'reasonable.'" United States v. Madera-Ortiz, 637 F.3d 26, 30
(1st Cir. 2011) (quoting United States v. Navedo-Concepción, 450
F.3d 54, 59 (1st Cir. 2006)).
In the case at hand, the district court clearly stated
its reasons for imposing a top-of-the-range sentence: the violent
nature of the crime, the appellant's extensive criminal history,
and the need for both specific and general deterrence. There is
nothing implausible or indefensible about this rationale,
especially with respect to a within-range sentence. Each of these
reasons is supported by undisputed facts in the record.3 What is
Although the appellant disputes certain details related to 3
his criminal history, he does not dispute the fact that he has
- 11 - more, the appellant is incorrect that the district court failed to
"explain[] . . . how such a sentence considered the extraordinary
mitigating factors the court acknowledged and found were present."
The district court stated that because the appellant's difficult
childhood served as a mitigating factor, it would not impose an
upward variance as the government requested. The court was not
obligated to give this and other mitigating circumstances more
weight. See Clogston, 662 F.3d at 593 ("That the sentencing court
chose not to attach to certain of the mitigating factors the
significance that the appellant thinks they deserved does not make
the sentence unreasonable.").
That ends this aspect of the matter. We find no
meaningful sentencing disparity. Nor do we find anything
substantively unreasonable about the appellant's within-the-range
sentence, which is both defensible on the record and plausibly
explained by the district court in ample detail. See Gonzalez,
981 F.3d at 24. Although the appellant may have preferred that
the district court weighed his circumstances differently and
focused on a lower point in the guideline sentencing range, we
cannot say that his sentence — as imposed — falls outside the "wide
universe of supportable sentencing outcomes." United States v.
Del Valle-Rodríguez, 761 F.3d 171, 177 (1st Cir. 2014).
multiple felony convictions or that he participated in physically ambushing the victim, even if he did not fire the gun.
- 12 - III
We need go no further. For the reasons elucidated above,
the district court's sentence is
Affirmed.
- 13 -