United States Court of Appeals For the First Circuit
No. 20-1838
UNITED STATES OF AMERICA,
Appellee,
v.
JEAN PAUL ORTIZ-PÉREZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Howard, Chief Judge, Selya and Barron, Circuit Judges.
Eric Alexander Vos, Federal Public Defender, Franco L. Pérez- Redondo, Assistant Federal Public Defender, Supervisor, Appeals Division, and Liza L. Rosado-Rodríguez and Kevin E. Lerman, Research & Writing Specialists, on brief for appellant. W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá- Almonte, Assistant United States Attorney, Chief, Appellate Division, and Gregory B. Conner, Assistant United States Attorney, on brief for appellee.
March 31, 2022 SELYA, Circuit Judge. Defendant-appellant Jean Paul
Ortiz-Pérez pleaded guilty to two carjacking counts and one
firearm-possession count. On appeal, he challenges his aggregate
150-month prison sentence as procedurally flawed and substantively
unreasonable. Concluding, as we do, that the defendant's arguments
lack merit, we affirm.
I. BACKGROUND
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).
On April 14, 2019, the defendant (then eighteen years of
age) pointed a firearm at a man who was retrieving a suitcase from
the trunk of his car and ordered him to give the defendant the
keys to the car. The man tossed him the keys, and the defendant
drove the car away.
The next month, the defendant followed the same script:
he pointed a firearm at a woman who was entering her car, ordered
her out, and demanded the keys. When she complied, the defendant
Roughly a week later, the defendant was arrested. Both
victims identified him as the carjacker. In due course, a federal
- 2 - grand jury sitting in the District of Puerto Rico returned a four-
count indictment, which charged the defendant with two counts of
carjacking (counts 1 and 3), see 18 U.S.C. § 2119(1), and two
counts of brandishing a firearm in furtherance of a crime of
violence (counts 2 and 4), see id. § 924(c)(1)(A)(ii). 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, count 2 was to be reduced to a charge
of possession of a firearm in furtherance of a crime of violence,
see id. § 924(c)(1)(A)(i), and count 4 was to be dismissed. The
defendant would then plead guilty to the two remaining counts and
the revised version of count 2.
The district court accepted the defendant's change of
plea to the three specified counts and ordered the preparation of
a PSI Report. When received, the PSI Report recommended a
guideline sentencing range of seventy to eighty-seven months for
counts 1 and 3. With respect to count 2, as revised, the PSI
Report recommended a guideline range of sixty months (the mandatory
minimum under the statute of conviction, see id.). It also noted
that the sentence on count 2 had to be imposed consecutively to
any sentences imposed on the other counts. See id.
§ 924(c)(1)(D)(ii).
- 3 - The defendant filed objections to the PSI Report, which
the district court overruled.1 The defendant also filed a
sentencing memorandum. As relevant here, he argued that "[h]is
young age, lack of parental guidance, lack of proper mental health
treatment and poor background certainly contributed to the
commission of the offense." He provided extensive research about
the role of the "developing juvenile brain" in juvenile criminal
offenses. Arguing that he was "a young man with room to
rehabilitate," he implored the court to impose sentences "at the
lower end" of the applicable guideline ranges adumbrated in the
Agreement.2
At the disposition hearing, defense counsel urged the
court to impose an aggregate prison sentence of 117 months — a
sentence which fell below the sum of the applicable guideline
ranges recommended in the PSI Report. Counsel reiterated the
arguments made in the sentencing memorandum, focusing on the
defendant's poor upbringing, mental health problems, youth, and
potential for rehabilitation. For its part, the government argued
for an aggregate prison sentence of 131 months. The prosecutor
1Those objections are not pursued on appeal, and we need not discuss them in any detail. 2The guideline sentencing ranges (as to counts 1 and 3) delineated in the Agreement differed from that in the PSI Report. The range in the Agreement was fifty-seven to seventy-one months' imprisonment.
- 4 - commented that although the defendant was young, he had "a bit of
history" and that "[t]his [wa]sn't his first brush with the law."
After the defendant allocuted, the district court
adopted the guideline calculations limned in the PSI Report. It
then reviewed the sentencing factors listed in 18 U.S.C. § 3553(a)
and discussed characteristics of the defendant and of the offenses
of conviction. It stressed that on two occasions the defendant
had "pointed firearms at the victims to take their vehicles by
force, violence, and intimidation."
In the end, the court observed that defense counsel's
sentencing recommendation fell below the sum of the applicable
guideline ranges. Nor did either party's sentencing
recommendation "reflect the seriousness of the
offenses, . . . promote respect for the law, . . . protect the
public from further crimes by" the defendant, or "address the
issues of deterrence and punishment." With this in mind, the court
proceeded to impose an aggregate sentence of 150-months'
imprisonment — concurrent terms of seventy-eight months on counts
1 and 3, followed by a consecutive term of seventy-two months on
count 2.3 Finally, the court dismissed count 4 as called for by
the Agreement. This timely appeal ensued.
3 At the time of the disposition hearing, the defendant was awaiting sentence in a Puerto Rico court for selling a firearm to an undercover agent. See P.R. Laws Ann. tit. 25, § 458. When imposing sentence, the district court ordered that the sentence in
- 5 - II. ANALYSIS
"Appellate review of a criminal defendant's claims of
sentencing error involves a two-step pavane." United States v.
Miranda-Díaz, 942 F.3d 33, 39 (1st Cir. 2019). We first examine
any claims of procedural error. See id. If the sentence is
procedurally sound, we then examine any claim of substantive
unreasonableness. See id.
In the case at hand, the defendant advances both types
of claims. We address them separately.
A. The Procedural Claims.
The defendant makes four claims of procedural error. As
we explain below, we find none of them persuasive.
1. We start with the defendant's claim that, in
explicating its sentence, the district court considered factors
already accounted for in the guideline range without explaining
why those factors were worthy of extra weight. We give this claim
short shrift: because it was raised for the first time in the
defendant's reply brief, it is waived. See United States v. López,
957 F.3d 302, 309 (1st Cir. 2020) ("[I]t is settled beyond hope of
contradiction that arguments not made in an appellant's opening
brief are deemed abandoned.").
the federal case be served consecutive to any sentence to be imposed in the Puerto Rico case.
- 6 - 2. We next consider the defendant's claim that the
sentencing "court committed procedural error by failing to address
youth-related mitigation arguments." Because this claim was
raised below, our review is for abuse of discretion. See United
States v. Díaz-Lugo, 963 F.3d 145, 151 (1st Cir. 2020). We discern
none.
When imposing a sentence, a district court is obliged to
consider the factors outlined in 18 U.S.C. § 3553(a). In
explicating its sentencing determination, though, the court "is
not required to address those factors, one by one, in some sort of
rote incantation." United States v. Dixon, 449 F.3d 194, 205 (1st
Cir. 2006); see United States v. Pupo, 995 F.3d 23, 30 (1st Cir.
2021). "[I]t is sufficient for the sentencing court simply to
identify the main factors driving its determination." United
States v. Sepúlveda-Hernández, 817 F.3d 30, 33 (1st Cir. 2016).
Here, the defendant does not contend that the sentencing
court overlooked his youth-related argument. Nor could he: the
defendant made this argument at considerable length in his
sentencing memorandum and at the disposition hearing, and the
government directly countered it. In addition, the court mentioned
the defendant's age as a relevant sentencing factor.
Even so, the defendant complains that, when pronouncing
sentence, the court failed to "address" the argument. But the
court was not required to do so. See United States v. Rivera-
- 7 - Morales, 961 F.3d 1, 19 (1st Cir. 2020) (noting that "a sentencing
court is under no obligation [] to address every argument that a
defendant advances in support of his preferred sentence"). "When
a defendant has identified potentially mitigating sentencing
factors and those factors are thoroughly debated at sentencing,
the fact that the court 'did not explicitly mention them during
the sentencing hearing suggests they were unconvincing, not
ignored.'" Díaz-Lugo, 963 F.3d at 152 (quoting United States v.
Lozada-Aponte, 689 F.3d 791, 793 (1st Cir. 2012)). We hold,
therefore, that the sentencing court acted within the ambit of its
discretion in electing not explicitly to address the defendant's
youth-related argument when pronouncing sentence.
3. Shifting gears, the defendant posits that the
sentencing court abused its discretion by "neglect[ing] to
adequately consider [his] need for mental-health treatment."
Inasmuch as this claim was raised below, our review is for abuse
of discretion. See Díaz-Lugo, 963 F.3d at 151. Once again, we
discern none.
"Appellate review of federal criminal sentences is
characterized by a frank recognition of the substantial discretion
vested in a sentencing court." United States v. Flores-Machicote,
706 F.3d 16, 20 (1st Cir. 2013). It is the sentencing court's
prerogative — indeed, its duty — to "draw upon [its] familiarity
with a case, weigh the factors enumerated in [section] 3553(a),
- 8 - and custom-tailor an appropriate sentence." Id.; see Gall v.
United States, 552 U.S. 38, 49-50 (2007). And "[w]e will not
disturb a sentencing court's reasoned decision to weigh some
factors more heavily than others." United States v. Vélez-Andino,
12 F.4th 105, 117 (1st Cir. 2021).
To be sure, the PSI Report revealed that the defendant
had received mental health treatment while held in a residential
program for juvenile offenders. Moreover, defense counsel stated
at sentencing (albeit in conclusory fashion) that — at the time
the defendant committed the offenses of conviction — the defendant
"did not have the treatment that he needed in order to cope" with
his mental health. Thus, the court clearly was aware of the
defendant's past mental health treatment. It also was aware that
mental health care was available during incarceration, and it
specifically decreed that, upon the commencement of supervised
release, the defendant "shall participate in an approved mental
health treatment program for evaluation and to . . . determine if
treatment is necessary. If necessary, the treatment will be
arranged by the probation officer in consultation with the
treatment provider."
Viewing the record as a whole, the defendant's
contention that the sentencing court failed to "adequately
consider [his] need for mental-health treatment" cannot withstand
scrutiny. The evidence regarding a specific mental health
- 9 - diagnosis was sparse and, stripped of rhetorical flourishes,
defense counsel's argument boils down to a contention that the
court did not weigh that elusive factor as heavily as the defendant
would have liked. In the circumstances of this case, the fact
that the court did not attach more weight to that factor does not
require vacation of the sentence it imposed. See id. (explaining
that "a sentencing court's decision 'not to attach to
certain . . . mitigating factors the significance that [a
defendant] thinks they deserved does not make [a] sentence
unreasonable'" (first and third alterations in original) (quoting
United States v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011))).
The lesson to be learned is basic. There is no
"requirement that a district court afford each of the section
3553(a) factors equal prominence. The relative weight of each
factor will vary with the idiosyncratic circumstances of each
case . . . ." Dixon, 449 F.3d at 205. And in this area, the
sentencing court's exercise of its discretion is accorded great
latitude. See United States v. Santiago-Rivera, 744 F.3d 229, 232
(1st Cir. 2014). We hold, therefore, that the sentencing court
did not abuse its discretion by weighing this factor as it did.
4. We need not linger long over the defendant's final
claim of error. He says that the district court failed adequately
to explicate the sentences imposed. The aggregate sentence is
upwardly variant, and we have explained before that an adequate
- 10 - 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. Valle-
Colón, 21 F.4th 44, 50 (1st Cir. 2021); see United States v.
Merced-García, 24 F.4th 76, 82 n.3 (1st Cir. 2022). This is such
a case. And because we find the district court's sentencing
rationale plausible, see infra Part II(B), we find its explanation
adequate for the same reasons.
B. The Substantive Reasonableness Claim.
This brings us to the defendant's contention that his
150-month aggregate sentence is substantively unreasonable. Our
review is for abuse of discretion. See Holguin-Hernandez v. United
States, 140 S. Ct. 762, 766 (2020); United States v. Bruno-Campos,
978 F.3d 801, 808 (1st Cir. 2020).
We start with first principles. In sentencing,
"reasonableness is a protean concept." United States v. Martin,
520 F.3d 87, 92 (1st Cir. 2008). As such, "[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 [challenged] sentence
falls within this broad universe." Rivera-Morales, 961 F.3d at
21.
In mounting his claim of substantive unreasonableness,
the defendant's chief complaint is that "the district court did
- 11 - not properly balance the § 3553(a) factors." As we already have
explained, though, the balancing of the sentencing factors is
largely within the district court's discretion. See supra Part
II(A)(3). And "we cannot substitute our judgment of the
appropriate sentence for that of the sentencing court; to the
contrary, we must accord significant deference to the court's
informed determination that the section 3553(a) factors justify
the sentence imposed." Rivera-Morales, 961 F.3d at 21. When all
is said and done, a sentence will be deemed substantively
reasonable as long as it rests on "a plausible rationale
and . . . represents a defensible result." Id.
Where, as here, an aggregate sentence is the product of
two or more distinct sentences, we sometimes have found it useful
to analyze the substantive reasonableness of the aggregate
sentence by analyzing the substantive reasonableness of each of
its constituent parts. See, e.g., United States v. Padilla-
Galarza, 990 F.3d 60, 91 (1st Cir. 2021). We follow that praxis
here.
The aggregate sentence in this case is composed of three
separate sentences (two of which are to run concurrently). Those
concurrent sentences — seventy-eight months' imprisonment on
counts 1 and 3 — are within the guideline ranges for those counts,
and they are impervious to the defendant's attack. As we
previously have pointed out, "a defendant who attempts to brand a
- 12 - within-the-range sentence as unreasonable must carry a heavy
burden." United States v. Pelletier, 469 F.3d 194, 204 (1st Cir.
2006).
The defendant cannot lift that "heavy burden" here. To
undermine the reasonableness of a sentence that falls within the
guideline range, "a defendant must '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)). No such powerful mitigating reasons are apparent here.
At sentencing, the court made pellucid that it reached
its determination as to the length of these sentences after
considering the PSI Report, the defendant's objections to the PSI
Report, the section 3553(a) factors, the parties' arguments, and
the defendant's allocution. Ultimately, the court deemed
sentences within the applicable guideline ranges appropriate. It
noted that the defendant had carjacked two persons at gunpoint,
and in fashioning the sentences for those counts, it sought to
impose sentences that reflected the seriousness of the offenses.
Especially given the defendant's repetition of the offense (twice
within the span of approximately one month), we cannot say that
- 13 - the court's balancing of the relevant factors was unreasonable or
that its rationale was implausible.
The remaining sentence — the seventy-two-month sentence
on count 2 — was upwardly variant (twelve months over the guideline
range). Unlike a within-the-range sentence, an upwardly variant
sentence requires a "heightened" degree of explanation. Padilla-
Galarza, 990 F.3d at 91. When — as in this case — "a sentencing
court imposes a variant sentence, that sentence must be explained,
either explicitly or by fair inference from the sentencing record."
United States v. Montero-Montero, 817 F.3d 35, 38 (1st Cir. 2016).
Here, the sentencing court offered an undifferentiated
explanation for its imposition of the aggregate sentence, and it
did not explicitly state what factors contributed most directly to
the imposition of each of the component sentences. Nevertheless,
we can fairly infer from the record the factor that drove the
court's decision to impose the upwardly variant sentence. When
describing the offense of conviction — unlawful possession of a
firearm — the court noted the defendant's inappropriate use of
that firearm. It expressed concern that the defendant had "pointed
firearms at the victims to take their vehicles by force, violence,
and intimidation." Given the defendant's repeated use of a firearm
in this dangerous manner and the court's expressed concern, we can
infer that — as to the firearm-possession charge — the court gave
particular weight to the brandishing of a firearm on two occasions
- 14 - and the consequent threats to life.4 These aggravating factors,
along with the remainder of the court's explanation for the
sentences, formed a solid foundation for its sentencing rationale.
Hence, we find that rationale plausible.
Finally, the aggregate sentence fell comfortably within
the wide universe of reasonable sentencing outcomes. The
defendant, who had a prior weapons violation in his criminal
history, carjacked two persons at gunpoint on two separate
occasions. For these crimes and for the additional crime of
unlawfully possessing a firearm, the court sentenced him to an
aggregate term of immurement of 150 months. In our view, this
aggregate term of immurement represents a defensible result. Thus,
the claim of substantive unreasonableness falters.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the judgment of the district court is
Affirmed.
4Although the defendant was initially charged with two counts of "brandish[ing]" a firearm, 18 U.S.C. § 924(c)(1)(A)(ii), he ultimately pleaded to a single, lesser count of "possess[ing]" a firearm, id. § 924(c)(1)(A)(i). Even so, "[a] sentencing court may take into account relevant conduct underlying counts dismissed as part of a plea negotiation as long as that conduct was not used in constructing the defendant's guideline range." United States v. Fernández-Garay, 788 F.3d 1, 7 (1st Cir. 2015).
- 15 -