Not for Publication in West's Federal Reporter
United States Court of Appeals For the First Circuit
No. 14-2126
UNITED STATES OF AMERICA,
Appellee,
v.
CYRIL PETER JR.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Lynch, Lipez, and Thompson, Circuit Judges.
Rafael F. Castro Lang on brief for appellant. Rosa Emilia Rodríguez–Vélez, United States Attorney, Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, and Francisco A. Besosa–Martínez, Assistant United States Attorney, on brief for appellee.
January 28, 2016 THOMPSON, Circuit Judge.
Stage-Setting
As part of a written plea agreement, Cyril Peter Jr.
pled guilty to one count of importing at least 500 grams of cocaine
into the United States, waiving his right to appeal his sentence
if the district judge sentenced him according to its terms and
recommendations — one term, for example, set Peter's adjusted-
offense level under the sentencing guidelines at 25.1 The judge
at sentencing did start with level 25. But over the government's
— not the defense's — objection, the judge then lowered that number
to 23 after giving Peter the benefit of a proposed guidelines
amendment pending at the time of sentencing (that amendment — later
adopted — reduced the offense levels for various drug crimes).2
Combined with his criminal-history category of IV, this number
netted Peter a guidelines-sentencing range of 70-87 months (for
comparison, had the judge not applied the then-pending amendment,
1 As per usual, we pull the background facts from the plea agreement, the unchallenged parts of the presentence-investigation report, and the transcripts from the relevant court hearings. See, e.g., United States v. Romero-Galindez, 782 F.3d 63, 65 n.1 (1st Cir. 2015). 2 Defense counsel thanked the judge for dropping the offense level to 23. - 2 - Peter's range would have been 84-105 months).3 And the judge
ultimately handed out a within-guidelines sentence of 87 months.
From this sentence, Peter appeals. He first argues that
the appeal-waiver provision is not enforceable because the judge
did not adequately explain its significance to him, because the
judge settled on an adjusted-offense level different from the one
the parties had agreed to in the plea agreement (23, rather than
the bargained-for 25), and because holding him to that provision
would work a miscarriage of justice. He then argues that his
sentence is either procedurally or substantively unreasonable,
accusing the judge of not appreciating the full extent of his
cooperation, not thinking about giving him a sentencing break
because he was only a minor participant in the crime, not
considering all of the relevant sentencing factors in 18 U.S.C.
§ 3553(a), and not offering sufficient reasons for the chosen
sentence. The government, unsurprisingly, disagrees with every
one of Peter's arguments.
For our part, we opt to avoid the appeal-waiver issue,
because even assuming that the fought-over provision does not
apply, we can easily handle this case on the merits. See United
States v. Dávila-Tapia, 491 F. App'x 197, 198 (1st Cir. 2012)
3 Peter does not challenge his assigned criminal-history category, by the way. - 3 - (explaining that while "the resolution of the [appeal-waiver]
issue is not clear-cut" because "of what transpired" below, "the
claim of sentencing error itself is easily dispatched" and so
"[f]or ease of analysis, we . . . assume arguendo that the waiver-
of-appeal provision does not bar the maintenance of this appeal");
see also United States v. Sánchez-Maldonado, 737 F.3d 826, 827-28
(1st Cir. 2013) (taking a similar tack in a similar situation).
So on to the merits we go, mindful that our review is for abuse of
discretion only.4 See, e.g., United States v. Razo, 782 F.3d 31,
36 (1st Cir. 2015).
Procedural Reasonableness
We start with procedural reasonableness:
1. Kicking things off, Peter blasts the judge for
thinking that because prosecutors never moved for a sentence
reduction for substantial assistance under section 5K1.1 of the
sentencing guidelines, he could not — and so did not — consider
Peter's cooperation. To give this theory an aura of legitimacy,
Peter plays up what the judge said at a pretrial conference (held
before the change-of-plea hearing): "If I don't see the motion for
cooperation, there is none." Peter is right that a sentencer can
4 It is debatable whether Peter did enough below to preserve every point for review. But we need not decide whether plain-error review applies because his arguments fail under the abuse-of- discretion standard. - 4 - consider a defendant's cooperation with prosecutors even if
prosecutors have not made a section 5K1.1 motion. See United
States v. Landrón-Class, 696 F.3d 62, 77 (1st Cir. 2012). But at
sentencing — which occurred roughly three months after the judge's
quoted comment — the judge intimated no whisper of a hint of a
suggestion that he felt that he could not consider Peter's
cooperation. Actually, the judge listened as defense counsel
pitched Peter's cooperation efforts; rather than ordering counsel
to stop, the judge let counsel go on; and the judge took it all
in, saying "[v]ery well" at the end — all of which indicates that
the judge (despite what Peter argues) believed that he "had the
discretion to consider the extent of appellant's cooperation in
fashioning the appropriate sentence." See id.
2. Also misfiring is Peter's claim that the judge erred
by not thinking about shaving off some time given his (supposedly)
minor role in the crime, see USSG § 3B1.2(b) — a theory premised
on his being nothing more than a "drug mule."5 We see two problems
for Peter. One is that the plea agreement specifically says that
he cannot request any "further adjustments." Another is that to
score a minor-role adjustment, he has to show that he is both less
culpable than (a) most of those involved in the crime of conviction
5 Any reference to the sentencing guidelines is to those effective November 1, 2013. - 5 - and (b) most of those who have committed similar crimes. See
United States v. Meléndez-Rivera, 782 F.3d 26, 28 (1st Cir. 2015).
Yet he makes no effort to explain how he satisfies either prong
(he does not even cite the test, let alone apply it), resulting in
waiver of this issue. See United States v. Zannino, 895 F.2d 1,
17 (1st Cir. 1990).
3. We disagree too with Peter's suggestion that the judge
did not adequately explain the rationale for the within-the-range
sentence. Here is why.
Before pronouncing sentence, the judge heard the
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Not for Publication in West's Federal Reporter
United States Court of Appeals For the First Circuit
No. 14-2126
UNITED STATES OF AMERICA,
Appellee,
v.
CYRIL PETER JR.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Lynch, Lipez, and Thompson, Circuit Judges.
Rafael F. Castro Lang on brief for appellant. Rosa Emilia Rodríguez–Vélez, United States Attorney, Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, and Francisco A. Besosa–Martínez, Assistant United States Attorney, on brief for appellee.
January 28, 2016 THOMPSON, Circuit Judge.
Stage-Setting
As part of a written plea agreement, Cyril Peter Jr.
pled guilty to one count of importing at least 500 grams of cocaine
into the United States, waiving his right to appeal his sentence
if the district judge sentenced him according to its terms and
recommendations — one term, for example, set Peter's adjusted-
offense level under the sentencing guidelines at 25.1 The judge
at sentencing did start with level 25. But over the government's
— not the defense's — objection, the judge then lowered that number
to 23 after giving Peter the benefit of a proposed guidelines
amendment pending at the time of sentencing (that amendment — later
adopted — reduced the offense levels for various drug crimes).2
Combined with his criminal-history category of IV, this number
netted Peter a guidelines-sentencing range of 70-87 months (for
comparison, had the judge not applied the then-pending amendment,
1 As per usual, we pull the background facts from the plea agreement, the unchallenged parts of the presentence-investigation report, and the transcripts from the relevant court hearings. See, e.g., United States v. Romero-Galindez, 782 F.3d 63, 65 n.1 (1st Cir. 2015). 2 Defense counsel thanked the judge for dropping the offense level to 23. - 2 - Peter's range would have been 84-105 months).3 And the judge
ultimately handed out a within-guidelines sentence of 87 months.
From this sentence, Peter appeals. He first argues that
the appeal-waiver provision is not enforceable because the judge
did not adequately explain its significance to him, because the
judge settled on an adjusted-offense level different from the one
the parties had agreed to in the plea agreement (23, rather than
the bargained-for 25), and because holding him to that provision
would work a miscarriage of justice. He then argues that his
sentence is either procedurally or substantively unreasonable,
accusing the judge of not appreciating the full extent of his
cooperation, not thinking about giving him a sentencing break
because he was only a minor participant in the crime, not
considering all of the relevant sentencing factors in 18 U.S.C.
§ 3553(a), and not offering sufficient reasons for the chosen
sentence. The government, unsurprisingly, disagrees with every
one of Peter's arguments.
For our part, we opt to avoid the appeal-waiver issue,
because even assuming that the fought-over provision does not
apply, we can easily handle this case on the merits. See United
States v. Dávila-Tapia, 491 F. App'x 197, 198 (1st Cir. 2012)
3 Peter does not challenge his assigned criminal-history category, by the way. - 3 - (explaining that while "the resolution of the [appeal-waiver]
issue is not clear-cut" because "of what transpired" below, "the
claim of sentencing error itself is easily dispatched" and so
"[f]or ease of analysis, we . . . assume arguendo that the waiver-
of-appeal provision does not bar the maintenance of this appeal");
see also United States v. Sánchez-Maldonado, 737 F.3d 826, 827-28
(1st Cir. 2013) (taking a similar tack in a similar situation).
So on to the merits we go, mindful that our review is for abuse of
discretion only.4 See, e.g., United States v. Razo, 782 F.3d 31,
36 (1st Cir. 2015).
Procedural Reasonableness
We start with procedural reasonableness:
1. Kicking things off, Peter blasts the judge for
thinking that because prosecutors never moved for a sentence
reduction for substantial assistance under section 5K1.1 of the
sentencing guidelines, he could not — and so did not — consider
Peter's cooperation. To give this theory an aura of legitimacy,
Peter plays up what the judge said at a pretrial conference (held
before the change-of-plea hearing): "If I don't see the motion for
cooperation, there is none." Peter is right that a sentencer can
4 It is debatable whether Peter did enough below to preserve every point for review. But we need not decide whether plain-error review applies because his arguments fail under the abuse-of- discretion standard. - 4 - consider a defendant's cooperation with prosecutors even if
prosecutors have not made a section 5K1.1 motion. See United
States v. Landrón-Class, 696 F.3d 62, 77 (1st Cir. 2012). But at
sentencing — which occurred roughly three months after the judge's
quoted comment — the judge intimated no whisper of a hint of a
suggestion that he felt that he could not consider Peter's
cooperation. Actually, the judge listened as defense counsel
pitched Peter's cooperation efforts; rather than ordering counsel
to stop, the judge let counsel go on; and the judge took it all
in, saying "[v]ery well" at the end — all of which indicates that
the judge (despite what Peter argues) believed that he "had the
discretion to consider the extent of appellant's cooperation in
fashioning the appropriate sentence." See id.
2. Also misfiring is Peter's claim that the judge erred
by not thinking about shaving off some time given his (supposedly)
minor role in the crime, see USSG § 3B1.2(b) — a theory premised
on his being nothing more than a "drug mule."5 We see two problems
for Peter. One is that the plea agreement specifically says that
he cannot request any "further adjustments." Another is that to
score a minor-role adjustment, he has to show that he is both less
culpable than (a) most of those involved in the crime of conviction
5 Any reference to the sentencing guidelines is to those effective November 1, 2013. - 5 - and (b) most of those who have committed similar crimes. See
United States v. Meléndez-Rivera, 782 F.3d 26, 28 (1st Cir. 2015).
Yet he makes no effort to explain how he satisfies either prong
(he does not even cite the test, let alone apply it), resulting in
waiver of this issue. See United States v. Zannino, 895 F.2d 1,
17 (1st Cir. 1990).
3. We disagree too with Peter's suggestion that the judge
did not adequately explain the rationale for the within-the-range
sentence. Here is why.
Before pronouncing sentence, the judge heard the
defense's leniency plea — focusing on, for example, mitigating
factors like Peter's role in the drug scheme and his cooperation
efforts. And then the judge touched on Peter's education and work
experience, his battles with substance abuse, and his previous
scrapes with the law (giving him one of the highest available
criminal-history categories, IV) — as well as the seriousness of
the offense (at least inferentially, given the judge's mention of
the cocaine amount involved plus the judge's decision to lower his
offense level by applying a not-yet-effective guidelines
amendment). Wait, says Peter, the judge did not expressly
reference the mitigating factors. True. But "[w]e have never
required that sentenc[ers] . . . undertake 'an express weighing of
mitigating and aggravating factors.'" United States v. Ocasio-
- 6 - Cancel, 727 F.3d 85, 91 (1st Cir. 2013) (quoting United States v.
Lozada-Aponte, 689 F.3d 791, 793 (1st Cir. 2012)). And besides,
a judge'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." United States v. Jiménez-Beltre, 440 F.3d
514, 519 (1st Cir. 2006) (en banc). Such is the case here, i.e.,
we can infer from the presentence papers and arguments that the
judge considered Peter's points before selecting a sentence.
Now, yes, the judge's explanation was a bit brief. But
brief does not automatically mean inadequate. See, e.g., United
States v. Vargas-García, 794 F.3d 162, 166 (1st Cir. 2015); United
States v. Turbides-Leonardo, 468 F.3d 34, 42 (1st Cir. 2006). And
for the reasons just given, we find the explanation adequate,
particularly since a judge "need not wax longiloquent" when handing
down a within-the-range sentence. See United States v. Murphy-
Cordero, 715 F.3d 398, 402 (1st Cir. 2013).
The bottom line is that we cannot find Peter's within-
the-range sentence procedurally unreasonable.
Substantive Reasonableness
Nor can we find the sentence substantively unreasonable,
despite Peter's dogged insistence:
1. Noting that a sentence passes substantive-
reasonableness review if the judge's reasoning is plausible and
- 7 - the result is defensible, see United States v. Martin, 520 F.3d
87, 96 (1st Cir. 2008), Peter writes that "there is no sentencing
rationale and no defensible result" here. But what we have just
said about the judge's explicit and implicit reasoning kiboshes
the idea that his decision is reason-less. And knowing that "there
is no perfect sentence but, rather, a wide universe of supportable
sentencing outcomes," we also think that what we have just said
about the judge's analysis kiboshes the idea that the sentence
here is indefensible. See United States v. Del Valle–Rodríguez,
761 F.3d 171, 177 (1st Cir.) (stressing too that "[t]he fact that
we, from a lofty appellate perch, might think some lesser sentence
appropriate is not, in itself, a sufficient reason to disturb the
district court's exercise of its discretion"), cert. denied, 135
S. Ct. 293 (2014).
2. Ever persistent, Peter recycles another already-
rejected argument — namely, that the judge did not consider the
"mitigating factors" raised below. But our conclusion that one
can infer that the judge was simply not impressed with these
factors cuts the legs out from under this theory. As a fallback,
Peter intimates that the judge should have placed decisive weight
on the mitigating factors. But a judge's choosing "not to attach
to certain of the mitigating factors the significance that the
appellant thinks they deserved does not make the sentence
- 8 - unreasonable." United States v. Clogston, 662 F.3d 588, 593 (1st
Cir. 2011).
So just like with his procedural-reasonableness claim,
Peter's substantive-reasonableness claim fails because we spy no
abuse of discretion on the judge's part.
Wrap Up
Our work over, we affirm Peter's sentence.
- 9 -