United States v. Flores-Nater

62 F.4th 652

• Court: Court of Appeals for the First Circuit
• Decided: March 20, 2023
• Docket: 21-1856P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

Nos. 21-1856 21-1979

UNITED STATES OF AMERICA,

Appellee,

v.

JADNEL FLORES-NATER, a/k/a Potro,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Kayatta, Selya, and Montecalvo, Circuit Judges.

Naomi T. Fetterman and Law Office of Naomi T. Fetterman, LLC on brief for appellant. W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá- Almonte, Assistant United States Attorney, Chief, Appellate Division, and Maarja T. Luhtaru, Assistant United States Attorney, on brief for appellee.

March 20, 2023 SELYA, Circuit Judge. A sentence imposed in a federal

criminal case must be substantively reasonable. See Gall v. United

States, 552 U.S. 38, 51 (2007); United States v. Raymond, 697 F.3d

32, 41 (1st Cir. 2012). To satisfy this element, a sentencing

court must articulate a plausible sentencing rationale and impose

a sentence that itself represents a defensible outcome. In these

appeals, defendant-appellant Jadnel Flores-Nater challenges his

thirty-year term of immurement as substantively unreasonable.

Concluding, as we do, that the sentencing court has thus far failed

to articulate a plausible rationale for the defendant's upwardly

variant thirty-year sentence, we vacate and remand.

I

We briefly rehearse the relevant facts and travel of the

case. Because these sentencing appeals "follow[] 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. Melendez-Rosado, 57 F.4th 32, 36 (1st Cir. 2023) (quoting United

States v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009)).

On June 8, 2018, the defendant and four other members of

a gang to which he belonged kidnapped WGE from a public housing

complex. Each of the gang members — including the defendant —

carried an assault rifle during the kidnapping. After forcibly

placing the victim in a vehicle, the kidnappers drove to an area

- 2 - in Barrazas, Carolina, Puerto Rico. At some point in the process,

the gang members told the defendant "Llegó tu día" (translated:

"Your day has come") and handed him a revolver. Upon their arrival

in Barrazas, the defendant got out of the car and proceeded to

shoot WGE in the head. Several other gang members also shot him.

WGE died.

Over two years later — on August 3, 2020 — the

authorities apprehended the defendant. A federal grand jury

sitting in the District of Puerto Rico subsequently indicted him.

The operative charging document (the second superseding

indictment) charged the defendant with one count of kidnapping

resulting in death, see 18 U.S.C. §§ 2, 1201(a)(1); one count of

using, carrying, brandishing, or discharging a firearm in

furtherance of a crime of violence, see id. §§ 2,

924(c)(1)(A)(iii); and one count of using, carrying, or

discharging a firearm in furtherance of a crime of violence causing

murder, see id. §§ 2, 924(j)(1).

Although the defendant initially maintained his

innocence, he later entered into a plea agreement (the Agreement)

with the government. Under the terms of the Agreement, the

defendant agreed to plead guilty to the charge of discharging a

firearm in furtherance of a crime of violence. See id.

§ 924(c)(1)(A)(iii). In exchange, the government agreed to

dismiss the two other counts against him, as well as all charges

- 3 - lodged in a separate but related case. The parties further agreed

that they would jointly recommend that the defendant be sentenced

to a twenty-five-year term of immurement.

The district court accepted the defendant's change of

plea and ordered the preparation of a PSI Report. When received,

the PSI Report noted that the guideline sentence for the offense

of conviction was 120 months (the mandatory minimum). See id.;

see also USSG §2K2.4, cmt. n.2. Neither party objected to the PSI

Report. And although the mandatory minimum sentence was the

guideline sentence for the offense of conviction, see United States

v. Rivera-González, 776 F.3d 45, 49 (1st Cir. 2015), the defendant

filed a sentencing memorandum in which he stated that, based on

the "unique case and surrounding circumstances," a twenty-five-

year sentence was "fair and just punishment for his offenses"

despite the fact that such a sentence was "way above the statutory

minimum" of ten years (and, thus, "way above" the guideline

sentence). (Emphasis in original).

The district court convened the disposition hearing on

October 7, 2021. Pursuant to the Agreement, both parties

recommended a twenty-five-year incarcerative sentence. Following

the parties' statements, the district court accepted the guideline

calculation limned in the PSI Report. It then stated that it had

considered the sentencing factors listed in 18 U.S.C. § 3553(a)

and the defendant's sentencing memorandum. The court briefly

- 4 - discussed the defendant's current age, educational background,

prior drug use, employment status at the time of the offense, and

previous criminal convictions before recounting the uncontested

facts relating to the defendant's participation in the kidnapping

and murder. And after noting the parties' joint sentencing

recommendation, the court, without elaboration, stated that "the

sentence recommended by the parties does not reflect the

seriousness of the offense, does not promote respect for the law,

does not protect the public from further crimes by Mr. Flores, and

does not address the issues of deterrence and punishment."

Furnishing no further explanation, the court imposed a thirty-year

incarcerative sentence, which reflected a twenty-year upward

variance.

These appeals followed.1

II

In this venue, the defendant argues that his sentence is

substantively unreasonable. In advancing this argument, he

complains that a thirty-year sentence is "greater than necessary

to punish [him]" for the offense of conviction. This general claim

of error is deemed to be preserved. See Holguin-Hernandez v.

United States, 140 S. Ct. 762, 766 (2020). Accordingly, our review

Although there are two notices of appeal, the second is 1

superfluous and may be untimely. But because the first notice of appeal is both timely and sufficient, we do not probe the point more deeply.

- 5 - is for abuse of discretion. See United States v. Jurado-Nazario,

979 F.3d 60, 64 (1st Cir. 2020).

We begin with first principles. "Appellate review of

claims of sentencing error [typically] entails a two-step pavane."

United States v. Matos-de-Jesús, 856 F.3d 174, 177 (1st Cir. 2017).

Within this bifurcated framework, "we first determine whether the

sentence imposed is procedurally reasonable and then determine

whether it is substantively reasonable." United States v.

Clogston, 662 F.3d 588, 590 (1st Cir. 2011). Here, however, the

defendant does not assign procedural error, and we therefore

confine our review to the issue of substantive reasonableness.

See United States v. de Jesús, 831 F.3d 39, 42 (1st Cir. 2016).

Reasonableness in the sentencing milieu "is a protean

concept." United States v. Martin, 520 F.3d 87, 92 (1st Cir.

2008). Consequently, "[t]here is no one reasonable sentence in

any given case but, rather, a universe of reasonable sentencing

outcomes." Clogston, 662 F.3d at 592. Our task, then, is "to

determine whether the sentence falls within this broad universe."

United States v. Rivera-Morales, 961 F.3d 1, 21 (1st Cir. 2020).

To make that determination, "we look for the hallmarks of a

substantively reasonable sentence: 'a plausible sentencing

rationale and a defensible result.'" United States v. Díaz-Lugo,

963 F.3d 145, 157 (1st Cir. 2020) (quoting Martin, 520 F.3d at

96).

- 6 - Where, as here, the district court imposes an upwardly

variant sentence, it must explain its reasons for doing so.2 See

United States v. Ortiz-Pérez, 30 F.4th 107, 114 (1st Cir. 2022);

United States v. Montero-Montero, 817 F.3d 35, 37 (1st Cir. 2016);

see also Gall, 552 U.S. at 50-51. The court's burden of

explanation "increases in proportion to the extent of [its]

deviation from the guideline range." Montero-Montero, 817 F.3d at

37. As the variance increases, so too does the district court's

burden to offer a sound justification for the sentence imposed.

See id. By the same token, "the greater the variance, 'the more

compelling the sentencing court's justification [for the higher

sentence] must be.'" United States v. Guzman-Fernandez, 824 F.3d

173, 178 (1st Cir. 2016) (quoting United States v. Del Valle-

Rodríguez, 761 F.3d 171, 176-77 (1st Cir. 2014)).

In this instance, the district court imposed a sentence

that was twenty years longer than that recommended by the

guidelines. Yet the court offered no case-specific rationale to

We have noted before that a district court's procedural duty 2

to adequately explain an upwardly variant sentence bears a strong family resemblance to its duty to spell out a plausible sentencing rationale in order to undergird the substantive reasonableness of a sentence. See United States v. Vargas-Martinez, 15 F.4th 91, 102 n.7 (1st Cir. 2021). This strong family resemblance reflects the fact that "an adequate 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)).

- 7 - justify a variance of so great a magnitude. The only attempt at

explanation made by the court was its statement that, in its view,

the somewhat shorter sentence recommended by the parties did "not

reflect the seriousness of the offense, . . . promote respect for

the law, . . . protect the public from further crimes by [the

defendant], [or] . . . address the issues of deterrence and

punishment."

That statement, in itself, scarcely constitutes a

plausible rationale sufficient to justify a steep upward variance.

It is negative, not positive. More importantly, it is generic,

not case-specific. At bottom, it simply rehearses — but does not

apply — certain of the factors that Congress has instructed courts

to consider in imposing sentences. See 18 U.S.C. § 3553(a)(2).

In faulting the adequacy of the type of boilerplate

explanation that confronts us here, we do not write on a pristine

page. The same judge used virtually the same words to undergird

a steep upward variance in United States v. Muñoz-Fontanez, 61

F.4th 212, ___ (1st Cir. 2023) [slip op. at 3-4]. Faced with an

otherwise barren sentencing record and a claim of an inadequately

explained sentence, we found plain error, holding that such a rote

incantation of sentencing factors did not provide an adequate

explanation for the sentence imposed. See id. at ___ [slip op. at

3-5]. Nor did such a rote incantation satisfy the requirement

that an upward variance be "[]moored [to] individual

- 8 - characteristics of either the offender or the offense of

conviction." United States v. Rivera-Berríos, 968 F.3d 130, 137

(1st Cir. 2020).

To be sure, a sentencing court's rationale need not

always be explicit even when the court imposes an upwardly variant

sentence. There are some instances in which a court's rationale

may be teased from the sentencing record. Montero-Montero, 817

F.3d at 38; see United States v. Rivera-Gonzalez, 809 F.3d 706,

712 (1st Cir. 2016). After all, we have not mandated that a

sentencing court follow any particular format in explaining an

upwardly variant sentence. It is enough if the explanation can be

gleaned "by fair inference" from the sentencing record. Ortiz-

Pérez, 30 F.4th at 114 (quoting Montero-Montero, 817 F.3d at 38).

An example helps to illustrate the point. In Ortiz-

Pérez, we found the court's sentencing rationale plausible because

we could "fairly infer from the record the factor that drove the

court's decision to impose the upwardly variant sentence." Id.

There, the court had "expressed concern" that "on two occasions

the defendant had 'pointed firearms at the victims to take their

vehicles by force, violence, and intimidation.'" Id. at 111, 114.

That statement — coupled with other facts illuminated by the

sentencing record — grounded the necessary inference.

The case at hand is at a considerable remove from Ortiz-

Pérez. The court's generic explanation stands as a solitary

- 9 - sentry, guarding an otherwise empty sentencing record (which

contains no meaningful insight into the court's reasoning). There

are simply no spoor for the cognoscenti.

In this case — as with most cases — the rationale

underlying the upward variance should "be rooted either in the

nature and circumstances of the offense or the characteristics of

the offender." Martin, 520 F.3d at 91. This is often a matter of

degree, and the upward variance must rest on more than factors

already accounted for in the guideline calculus. See Rivera-

Berríos, 968 F.3d at 136. Given that the offense of conviction is

obviously more horrific than the heartland offense falling within

the applicable guideline, we can perhaps infer, notwithstanding

the opacity of the sentence record, what sparked the perceived

need for an upward variance. But from this opaque sentencing

record, we cannot say what specific factors shaped the full extent

of the court's upwardly variant sentence. In such circumstances,

meaningful appellate review is frustrated. See United States v.

García-Pérez, 9 F.4th 48, 53 (1st Cir. 2021).

Nor is it enough that — before pronouncing sentence —

the court recounted the facts of the victim's kidnapping and

murder. See Muñoz-Fontanez, 61 F.4th at ___ [slip op. at 4].

Those are reprehensible crimes. "But the court's mere listing of

the facts . . . , without emphasis on any particular circumstance,

makes it impossible to tell" what led the district court to impose

- 10 - a sentence that tripled the guideline sentence. Id. "When

imposing a significant variance, a sentencing court must make clear

which specific facts of the case motivated its decision and why

those facts led to its decision." Id. at ___ [slip op. at 5]

(emphases in original). The court below failed to satisfy this

standard and, thus, failed to articulate a plausible sentencing

rationale.

Of course, this case is unusual because the parties had

agreed to recommend an upwardly variant sentence: twenty-five

years. Such a sentence would have included an upward variance of

fifteen years. The defendant's agreement to such a sentence could

be construed as an admission on his part that an upward variance

of that length was appropriate. Cf. United States v. Bermúdez-

Meléndez, 827 F.3d 160, 165-67 (1st Cir. 2016) (explaining that

one factor favoring affirmance of upwardly variant sentence was

that defendant himself had recommended sentence exceeding

guideline range). Had the district court simply accepted the

parties' joint recommendation, this would have been a different

case.

Here, however, the court went further: it imposed a

sentence that was even harsher than a fifteen-year upward variance.

Although the court was not required to explain why it rejected the

fifteen-year upwardly variant sentence recommended by the parties,

see, e.g., United States v. Vega-Salgado, 769 F.3d 100, 104 (1st

- 11 - Cir. 2014), it should have given at least some indication as to

why it believed that a twenty-year upward variance was the option

of choice.

III

We need go no further. For the reasons elucidated above,

we conclude that the district court has not articulated a plausible

sentencing rationale. Consequently, we sustain the defendant's

claim of error, vacate his sentence, and remand for resentencing.

We take no view as to the appropriate length of the sentence to be

imposed in the proceedings to follow.

Vacated and Remanded.

- 12 -