United States v. Pizarro-Mercado

• Court: Court of Appeals for the First Circuit
• Decided: July 30, 2025
• Docket: 23-1211
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

Nos. 23-1208, 23-1211

UNITED STATES,

Appellee,

v.

JAIRO HUERTAS-MERCADO; ERICK PIZARRO-MERCADO,

Defendants, Appellants.

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

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

Before

Barron, Chief Judge, Thompson and Rikelman, Circuit Judges.

Mauricio Hernandez Arroyo, for appellant Jairo Huertas-Mercado. José R. Gaztambide-Añeses, for appellant Erick Pizarro-Mercado.

Ricardo A. Imbert-Fernández, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Maríana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

July 30, 2025 THOMPSON, Circuit Judge. Jairo Huertas-Mercado

("Huertas") and Erick Pizarro-Mercado ("Pizarro") are maternal

cousins and "best friend[s]" turned codefendants from Loiza,

Puerto Rico. In September 2022, after a long-drawn-out, for

reasons to be explained, pretrial process culminating in a one-week

jury trial in the District Court for the District of Puerto Rico,

Huertas and Pizarro were found guilty of crimes including, inter

alia, six carjackings and two kidnappings -- one resulting in

death. Both cousins were sentenced to terms of life in prison

plus more for their offenses. The two kinsmen now come before

this court bringing a boatload of bones to pick: constitutional

speedy trial right grievances, evidence insufficiency quibbles,

sentencing unreasonableness grouses, and double jeopardy plaints.

We will flesh out the cousins' arguments and analyze the merits as

we proceed, but, for now, it suffices to say that the arguments

all fail and that the appellants' requests for relief are all

denied.

BACKGROUND

We begin, as usual, by outlining the background facts

relevant to the appellants' claims on appeal. In our review of

the facts relative to the constitutional speedy trial claim, which

Huertas raises, and which we will tackle first when we get to the

Discussion, we'll describe the details of the proceedings below

with particularity and in a balanced fashion. See United States

- 2 - v. Felton, 417 F.3d 97, 99 (1st Cir. 2005) (explaining that

appellate claims other than sufficiency-of-the-evidence challenges

may require a balanced factual treatment); see also United States

v. Loud Hawk, 474 U.S. 302, 305 (1986) (explaining that "[i]n view

of the nature of respondents' [speedy trial] claim, we state the

factual and procedural history of this case in some detail"). As

for Huertas and Pizarro's sufficiency-of-the-evidence challenges,

we'll rehearse the facts underlying their convictions in the manner

most favorable to the jury's verdict, though the essential facts

here are not reasonably disputed by either appellant.1 See United

States v. Burgos-Montes, 786 F.3d 92, 99 (1st Cir. 2015). In so

doing, we will draw the relevant facts primarily from the

1 Seventeen Counts were charged in the operative indictment. Huertas was charged in Counts One through Sixteen, while Pizarro was charged in Counts One through Seven and Counts Ten through Sixteen. We'll get to the details of the crimes charged, but, for now, we note that Counts One, Two, and Three charged carjacking, 18 U.S.C. §§ 2119(1), 2, kidnapping, 18 U.S.C. §§ 1201(a)(1), 2, and discharge of a firearm in furtherance of those crimes of violence against Bryant Myers, 18 U.S.C. §§ 924(c)(1)(A)(ii)- (iii), 2; Counts Four through Thirteen charged carjackings and the brandishing of firearms in furtherance of said crimes of violence relative to other victims; Counts Fourteen, Fifteen, and Sixteen charged the kidnapping resulting in death of Luis Manuel Saenz-Matias, 18 U.S.C. §§ 1201(a)(1), 2, the discharge of a firearm in furtherance of that crime of violence, 18 U.S.C. §§ 924(c)(1)(A)(iii), 2, and the discharge of a firearm in furtherance of that crime of violence causing murder, 18 U.S.C. §§ 924(j)(1), 2. Neither cousin was charged in count Seventeen, which charged their contemporary with unlawful possession of a firearm modified to shoot more than one round of ammunition without manual reloading by a single function of the trigger, in violation of 18 U.S.C. §§ 922(o), 924(a)(2).

- 3 - witnesses' testimonies, and we'll present a frame-by-frame

vignette of each incident encompassed within the seventeen-count

indictment, all of which illuminates the connection between the

appellant cousins and the crimes. We kick off our background

exposition by giving the lowdown on the offenses, and then we will

advance to unravel the winding road of process below.

A. The Crimes of Conviction

i. Carjacking Number One - The Toyota Tacoma

On May 20, 2018, around 11:00 p.m., Carlos E.

Caez-Delgado ("Delgado"), a then-twenty-four-year-old security

guard, was driving his 2016, gray Toyota Tacoma in the Rio Blanco

area of the town of Naguabo on his way "to buy, you know, food."

Along his path, Delgado encountered a one-lane bridge, which was

occupied by a vehicle traveling in the opposite direction. Aptly,

Delgado stopped "to wait for the other person to pass." But the

vehicle defied his expectation as it approached him "quite fast"

with its high beams blazing, and it stopped "practically in front

of [him]." A man then exited the vehicle. Delgado, through the

headlight's glare, saw the man's "silhouette and . . . [a]

firearm." "By then," as he explained, "[the man] was already

aiming [the firearm] directly at [him]." Unsure of "what [the

man's] intentions [were] and if he[] [was] coming to fire the gun,"

Delgado put his head down against the wheel and his arms up. "All

this happened quite quickly and by then [Delgado] had other people

- 4 - by [him]," also "pointing their weapons at [him]." For good

reason, he did not "look the[] [men] in the eyes," as he "did not

want to give them a motive to feel nervous or try to assault [him]

in any manner" -- but Delgado did notice, nevertheless, that the

men were likely in their twenties, and that they carried two

assault rifles and a handgun between them. The armed men advanced,

the door to the Tacoma was thrown ajar, and Delgado was instructed

to get out of the car. After he exited, the men frisked him for

a weapon, and finding none, they gave him a couple of options to

avoid being shot -- either "jump off the bridge" or "throw

[him]self down in the [roadside] vegetation" and remain still.

Delgado went for the vegetation. The men then left the area with

Delgado's vehicle and with his other personal property trapped

within it.

ii. Carjacking Number Two - The Nissan Infiniti

Later in May 2018, Gilberto José Medina-Cardona

("Medina") and his family, including his wife, his

then-fifteen-year-old son, his son's girlfriend, and his

then-twenty-or-twenty-one-year-old daughter, were on a family road

trip "adventure crossing through Juncos, Canóvanas, . . . Rio

Grande, and final[ly,] . . . the rain forest of El Yunque."

Seeking to take full advantage of the sights and splendors their

voyage had to offer, Medina and his family made use of rural and

residential roads on Puerto Rico's northern coast. On a stretch

- 5 - of their drive in or near El Yunque, Medina spied "this

sight-seeing place" with "beautiful" ocean views and a bridge

surrounded by several waterfalls. Spotting this vista, Medina

parked the family's 2004, copper-brown Nissan Infiniti nearby.

His son and daughter exited the vehicle and trekked toward the

waterfalls to pose for photos. Medina, his wife, and his son's

girlfriend remained nearer to the family's Infiniti, standing

ready on the bridge as photographers to capture the siblings from

that auspicious vantage. While his children approached their

photoshoot target, Medina, "over [his] shoulder[,] . . . felt a

small car" approaching him, "followed by a second car," to wit,

"a . . . gray . . . Toyota Tacoma," which "stopped nearby [the

family's parked Infiniti]." "And immediately by the left side

driver and passenger [side of the Tacoma] . . . [Medina saw] two

guys c[o]me out." The two men began "running towards" Medina, his

wife, and his son's girlfriend, while "screaming and yelling" at

them "[d]on't look at us, don't look at us, get on your knees."

As Medina related the story of what transpired on that May 27,

2018 day, "all he c[ould] see [at that point] was these two guys

pointing at us with -- one was a large gun and the other one was

a handgun with a large magazine." Medina cautioned his wife and

his son's girlfriend to follow their assailants' instructions, and

he screamed to his son and daughter some ways away by the

waterfalls "to stay down." Before Medina knew it, the men were

- 6 - "at [the family's] back asking for cell phones or all [of the

family's] personal belongings, money, jewelry, everything." So,

Medina, his wife, and his son's girlfriend "gave them everything."

The men then demanded Medina's car keys, which he informed them

were in the cupholder of the Infiniti, which was unlocked. "Okay,

don't look back, don't look back. Count to one hundred and stay

there. Don't look back. Don't look at us," was the men's directive

in response. So, gripped in terror and panic, that's what Medina,

his wife, and his son's girlfriend did -- as the two men took off

with the family's Infiniti and personal effects, including their

cameras.

iii. The Kidnapping Resulting in Death of L.S.M.

Just four days after the second carjacking incident

involving the Infiniti, on May 31, 2018, an investigation team

from the Puerto Rico Institute of Forensic Science, a Commonwealth

of Puerto Rico department, was called to the scene of a "10-7,

which refers to a dead person." When the forensics team arrived

at the specified locale in the Antigua Central Ward of

Canóvanas -- a "rural woody area" blotted by ruins of a "sugar

mill, abandoned concrete structures, and . . . an open field of

vegetation" -- they encountered a "body with wounds of apparent

bullet projectiles" resting there. "In front of the body there

was [a] completely burned truck," which appeared "to be that of an

Infiniti." Littered around the body, which lay face down in "the

- 7 - ventral prone position," were forty-six spent bullet casings,

nineteen matching the caliber of an AK-47-style rifle and

twenty-seven matching that of a pistol. Brain matter was visible.

"Wounds. Wounds. Wounds. Wounds," riddled the corpse's head and

torso, numbering twenty-six in total. A lack of gunshot residue

near the wounds indicated that "the [gunshot] wounds were from a

long distance." The observed evidence all plainly indicated foul

play to the government, but by whom was the mystery. A pathologist

from the Institute of Forensic Science would later identify the

decedent as Luis Manuel Saenz-Matias ("L.S.M.").

iv. Carjacking Number Three - The Nissan Altima2

The week following the discovery of L.S.M.'s body and

the burned Infiniti nigh, during the early morning of June 3, 2018,

Edwin Barreras ("Barreras") was in "Piñones to go surfing" with

"two friends of [his], two girls." "[T]he waves were good" that

morning, and Barreras foresaw that the cadre "was gonna [have] a

nice day out" embracing the ocean's undulations. When the group

arrived at the beach in Barreras' gold 2009 Nissan Altima,

ever-vigilant Barreras observed near the strand, a "light gray

SUV, with two guys with long cameras which were expensive." Not

thinking the worst of the fellows when he had not been given reason

to, Barreras presumed the men were "just making a video." After

2 Pizarro was not charged in any counts relating to this particular incident in Piñones.

- 8 - all, as Barreras thought of it, "it's normal in Puerto Rico to see

filming crew[s] out and about; it's normal in Puerto Rico

especially by the beach." And "th[ese] w[eren]'t . . . cheap

camera[s]," so Barreras "figured [the men] were, you know,

cinematograph[ers]." He nonetheless "drove around twice just to

make sure everything was safe," before parking the Nissan. "Then

all three [friends] went down to the beach."

Sometime later (presumably after savoring the surf),

Barreras slipped away to stash his surfboard back in his car. As

he did so, one of the men he had noted upon arrival "c[a]me[] up

to [him] with an AR15" and stated: "Hey, this is a carjacking."

While Barreras immediately recognized he was staring down the

barrel of a genuine assault rifle, his bold response to the man's

declaration was, on his account: "Ha, ha, ha, is this a joke,

man. Where the camera[s] at?" A former coastguardsman, Barreras

was "thinking to [him]self[,] I can take this guy. This guy is on

drugs, he's nervous, I don't know." The threat was no joke though.

"Next thing [Barreras] kn[e]w, [he] s[aw] another guy come from

the bushes," right behind his car to the passenger's side, and

"one of [his] girlfriends[,] she came up and [the guy] hit her

with [an] AK47 on her head." "She fell[,] and that's when

[Barreras] got down," and got knocked on the head too. During

this dizzying spell, "one of the girls" was struggling with one of

the men over "a real expensive diamond ring, [which] was her mom's,

- 9 - [and] was worth 20 grand." The assailant threatened that he would

rape her lest she give up the jewel. She did not yield even so,

and her ring remained on her hand; the man remained at enough

distance. The familiar refrain was then screeched: "Stay down.

Don't look at us." Barreras, perhaps dosed with some reality,

feared for his life at that moment, as he had "already looked at

them," and because "[t]here's no way, there's no back," from a

glance once stolen, especially for someone like Barreras who had

been blessed, as he put it, with a "photographic" memory. But

providence spared the frightened victims from quietus that day.

The assailants simply snagged Barreras' Nissan Altima and

surfboard, plus his rent money, which happened to be in the car in

cash, and drove off.

v. Carjacking Number Four - The Toyota Camry

The very next day, on June 4, 2018, Maria Isabel

Martínez-Figueroa ("Martínez"), a then-sixty-year-old homemaker,

and her husband were motoring out towards Naguabo in a red burgundy

Toyota Camry "to . . . go crab[bing], it was the season." When

they "arrived at the town, at the end[,] the town of Punta

Santiago, there [they] saw this vehicle pass [them] by very fast."

But they continued. And then, they "saw a crab and stopped" on

the side of the road in an area known as El Amarillo, which is

part of Humacao, about three minutes away from Tropical Beach,

where Naguabo begins. After searching unsuccessfully for the crab

- 10 - though, they moved on. As they hit the road again, quickly, they

"realized there was a car behind [them]." "And the car was trying

to push [them] so that [they] would go [back] to the side of the

road. It was coming from behind and toward the side forcing [them]

to stop." "Well," as Martínez explained, "then [they] had to

stop." And the car which pressed them stopped perpendicular "-- it

was like a RAV4 type of car," by Martínez's telling. "And

quickly[,] two people got out, one on the driver's side, the other

on the passenger's side." The driver-side assailant carried a

short weapon, and his passenger a long one. On this occasion, the

men did not aim the firearms at the couple directly, "the truth is

they . . . maintained them in their hands while they spoke to [the

couple] and . . . asked [them] if [they] had weapons." The answer

was no. And then the men "asked [the couple] to get out of the

automobile." The answer was no again. At that point, encountering

frustration in their criminal mission, one of the "guy[s] that was

on the passenger's side shouted out to the SUV that they had gotten

out of and said they were gonna have to kill [the couple] 'cause

[they] didn't want to get out of the car." Threat notwithstanding,

one crabber still was not persuaded -- "[w]ell, then[,] [Martínez's

husband still] didn't want to [get out of the car,] but [she] told

him that [they] had to get out because it was better to lose the

car than [their] lives." "[S]o[,] [the couple] got out." Two of

- 11 - the men then got in the red Toyota Camry and drove off toward

Naguabo.

vi. Carjacking Number Five - The Kia Sportage

Full pedal to the metal, the car heisting spree continued

that day. In the evening of June 4, 2018, Alicia Roldán-Sánchez

("Roldán") was leaving an after-church meal with friends, "heading

home taking a shortcut through the Palma Sola Ward" in the

municipality of Canóvanas, when she encountered misfortune. She

was driving a white 2016 Kia Sportage through the ward at the time.

A red car passed by her abruptly and then farther along "cross[ed]

over" and stopped. At first, Roldán was "thinking that the car

broke down[,] but a door open[ed] and a young person or a young

man got out," and started "heading toward [her] car like[,]

crouched down." Roldán knew in that instant that "something was

going on" -- but when she tried to back up, she "had another

vehicle behind [her]." And in a blink, "there's this young man

pointing a gun at [her]," saying: "Get out or I'll shoot you."

The gun was "pointed right at [Roldán's] face," so close that, in

its barrel (as she put matters quite poetically), she "could

see . . . like these half moons." "Fear[ing] for [her] life," she

hurried and "got out of the car because [she] was ordered to get

out of the car [then]." She began to walk toward the woods nearby,

as that was an order too. When she "tried looking

behind . . . [one of the men] sa[id] to [her] to keep on walking

- 12 - or [he'd] shoot [her,] twice," so she kept her eyes forward and

kept moving headfirst. The last image she viewed other than the

thickets "was three cars," including her Kia Sportage, taking off

in different directions.

vii. Carjacking Number Six - The BMW X6, and the Kidnapping of Bryant Myers

The ballad of the next day's crimes would reverberate

across the island, as infamy orchestrated the mic-drop of our-now

appellants' criminal rampage. The lyric and the beat follow. On

June 5, 2018, a then-twenty-year-old música urbana star, Bryan R.

Rohena-Pérez, aka Bryant Myers ("Myers"), was in his grandparents'

neighborhood in the Loma Alta area of Carolina, Puerto Rico playing

basketball with "quite a few people." "There at the

court . . . were younger guys . . . [and] several [adult]

men . . . from the neighborhood," alongside Myers -- and all

delighted in the occasion for an evening of wholesome recreation

brushing shoulders with one another in the ancient dance of

athletics. Yet hazard had contrary designs, and the once-fond

evening took a violent turn just as it began. "[S]everal people

came into the basketball court shouting and it got all -- a mess

ensued." The intruders comprised four men "that were armed" with

"long weapons and short weapons," and they were saying: "Nobody

move and look down to the floor." They homed in on Myers, and

they "grabbed [him] by [his] braids and took [him] out of the

- 13 - basketball court." The men hit him in the head several times in

the process, obscuring his vision. Myers' mother, Maria Elena

Pérez-Díaz ("Pérez"), had seen what was transpiring from the

"balcony at [her] parents' home," where she had been in repose,

shoes off, enjoying the view of her son and the neighborhood

basketball game just across the road. "[A]ll of a sudden,"

lacerating the tranquil moment, Pérez observed "on [her] left-hand

side this guy passing in front of [her] parents'

house . . . carrying on his right side a long weapon . . . in a

concealed way." And the man "had his neck upright looking out

toward the [c]ourt." Mother's instincts, the "first thing that

crossed [Pérez's] mind was to tell [her son] to be careful." But

other things happened before she could do so. Pérez "got

up and . . . was able to have more visibility toward the court[,]

[and she] saw this young man aiming [a long weapon] at [her son]."

Panicked, Pérez rushed to the scene, barefoot still, to help her

son however she could.

By the time Pérez made it "down the stairs and start[ed]

heading toward the road," she saw that "they were bringing [her

son Myers] with his head down." "[O]ne guy was in front of

him . . . pulling on him by his braids," and "there were three

other guys behind them aiming at him." The assemblage was making

its way "toward [a] vehicle," a "white van." "And so at that

point[,] Pérez approached them and asked them why were they doing

- 14 - that, to leave him alone, what was it that that wanted[?]" And

she "grabbed [her] phone to call the police," but one of the men

"took away [her] phone and threw it to the ground and broke it.

He broke [her] phone." Pérez then "started begging them to please

leave [her] son alone and not to harm him, to please not harm [her]

son, and what was it that they wanted[?] [I]f it was money that

they wanted to tell [her] what they wanted." "And then the

struggle began." Pérez was "grabbing onto [her] son and they were

struggling to make him get into the vehicle and then, you know,

they were able to get him into the vehicle and [she] kept on

holding on and didn't want them to take away [her] son." She was

"grabbing onto him by his sneakers" in desperation. "Well, then

[one of] the guy[s] . . . started asking where the keys to the

BMW" stationed nearby belonging to Myers were, and Pérez "told

him, 'I know where the keys are. I know where the keys are but

I'm not letting him go alone. He's not leaving without me. I'm

going along.'" A response came: "Well, go ahead, take her, take

her along too." And the jostling ceased as a "gunshot c[a]me from

the area where [one of the men] was standing." The white van's

doors shut. And, unlatched from her son, Pérez made her way to

the BMW X6 with one of the cohorts.

Now Pérez was in the BMW X6 with one of the men, and

Myers was in the white van with the three others. The scene in

the X6 looked something like this: Pérez instructs the assailant

- 15 - how to operate the X6, the X6 takes off with the van, the assailant

is driving with a long gun between his legs, "he ha[s] his cell

phone and he [is] receiving instructions because he w[ill] repeat

what he [is] being told," Pérez begs him not to harm her son, but

he keeps replying "[j]ust take it easy, stay calm. I've been

ordered to do this." Cut to the scene in the van: "Well, the

truth is it [is] abusive." Myers is in the backseat, and there

are men next to and in front of him aiming weapons in his direction.

Myers cannot see the weapons, because he is looking down, "but

[he] c[an] feel them." The men who hold his life in the balance

are "asking [him] if [he] could go get money and how much money

[he] could get."

Eventually, both the X6 and the white van "arrived and

parked in front of a gate" near "the entrance of a landfill."

"[W]hen they were parking and all that's when the police arrived."

The man in the X6 with Pérez then "opened the door and took his

weapon and went running." At a rapid pace, "several shots [then]

r[a]ng out." Then the compadres in the van "stopped focusing on

[Myers] so much and focused on the police," and Myers seized the

"opportunity . . . to open the [van] door . . . and jump[] out,"

hurting his knee in the process. As he spilled out of the van,

"[t]wo cops . . . were approaching [him] aiming at [him]," while

Myers entreated them: "Look, I'm a singer. Look, I'm Bryant

Myers. I'm a singer." "Then the cops put [him] into the patrol

- 16 - car." Pérez, for her part, was taking cover in the X6 while the

guns blazed, until "the police arrived and . . . told [her] to

take it easy, that [her] son was okay, that he had jumped out of

the vehicle." "And after some minutes they took [her] to where

[her] son was." The men had absconded in the meantime, but law

enforcement eventually caught up, as we'll discuss next.

B. The Proceedings Below

With our mise-en-scène in place, and the crime details

spelled out, we move on to discuss the proceedings in the District

of Puerto Rico, which held Huertas and Pizarro (along with others)

responsible for the above-described events, and which resulted in

the imposition of a life sentence plus more on both cousins.

i. The First Indictment

As dates matter when we review constitutional speedy

trial right challenges, we take care in pointing out precisely

what happened and when. See Loud Hawk, 474 U.S. at 305. The first

man to be called to account for the crime spree was Huertas. On

June 20, 2018, Huertas was arrested pursuant to a criminal

complaint alleging three offenses -- all deriving from the Bryant

Myers incident: carjacking, kidnapping, and brandishing a firearm

in furtherance of a crime of violence. He was taken into custody,

and he appeared before a federal magistrate judge the very same

- 17 - day.3 The court "ordered that a member of the [Criminal Justice

Act] Panel be appointed to represent [him]," and "ordered [him]

detained pending hearings." Given the detention order, the

district court then scheduled a bail hearing for June 28, 2018,4

at which the "defense counsel stated . . . at that moment they

[we]re not requesting bail. The [district] [c]ourt [thus]

ordered . . . [Huertas] detained without bail."

With Huertas in detention, the proceedings next advanced

from the complaint toward the charges. On July 18, 2018, a

District of Puerto Rico grand jury returned a three-count

indictment pinning Huertas and one of his contemporaries, Joshua

Luyando-González ("Luyando"), with the offenses stemming from the

carjacking and kidnapping of Bryant Myers. Huertas was arraigned

shortly thereafter on July 24, 2018, wherein he entered a plea of

not guilty on all counts. Luyando was arrested and arraigned a

few months later, and he too entered pleas of not guilty on all of

the counts charged. So, the district court attended to its

At his initial appearance, Huertas "was provided with [a] 3

copy of the complaint and advised as to the charges, maximum penalties applicable[,] and his rights." The district court originally scheduled a combined 4

preliminary and bail hearing for June 28, 2018, but only a bail hearing ultimately took place on that day. As for the preliminary hearing, Huertas agreed to waive his right to that proceeding several days later on July 10, 2018.

- 18 - criminal management responsibilities and entered an order

scheduling the two men's trial for November 26, 2018.

On the second day of November, the district court set

aside Luyando and Huertas' designated trial date -- as Huertas,

Luyando, and the government all agreed that additional time was

needed to prepare their respective cases. The parties explained

to the court that such was necessary because an investigation into

Huertas and Luyando's conduct was still ongoing, and because

Huertas was likely to be indicted in a parallel case with a

death-penalty-eligible offense. Therefore, in lieu of trial, the

district court set a status conference for December 13, 2018,

which, on the parties' joint motion, got pushed to

January 25, 2019. When that conference convened on the 25th, the

government informed the district court that its ongoing

investigation into Huertas and Luyando had revealed more crimes,

and it advised the court that it was consequently seeking a

superseding indictment. Considering the metastasis developing in

the case, all of the parties then requested that the court schedule

a further status conference for after the superseding indictment's

filing, and a conference was accordingly set for March 27, 2019.

ii. The Superseding Indictment

Sure enough, on February 13, 2019, a grand jury returned

the superseding indictment as anticipated, and it charged Huertas

with four additional offenses: the carjackings of Martínez's

- 19 - Toyota Camry and Roldán's Kia Sportage, and the brandishing of a

firearm in furtherance of those two crimes of violence. Huertas

subsequently entered a plea of not guilty as to all the charges on

February 19, 2019. After a brief continuance at the government's

request, the district court then held a status conference on

April 5, 2019. Therein, the parties informed the court that an

indictment charging Huertas with the foretold

death-penalty-eligible offense had indeed been returned in the

parallel-but-separate proceeding previously noted, and they

apprised the court that in consequence they had "agree[d] that 60

additional days [we]re needed to receive all discovery, [to] decide

if the cases w[ould] be consolidated, and [to] explore

negotiations, while the other [parallel] case against

Huertas-Mercado progresse[d]." The government told the court in

addition that a plea offer had been tendered to Luyando -- which

remained outstanding -- and that "it [was] likely that no offer

w[ould] be tendered" to Huertas. Hence, the district court set a

further status conference for May 30, 2018, at which point the

parties again "agree[d] that additional time [was] needed to

receive all discovery and engage in negotiations . . . . A further

status conference was [accordingly] requested for mid-August."

On August 12, 2019, that further status conference took

place. There, the government told the court that Luyando was still

in plea negotiations. Concerning Huertas, the government said

- 20 - that it still did not plan on tendering him a plea offer. Moreover,

the government cautioned that its investigation into both Huertas'

and Luyando's conduct remained ongoing, and it advised that a

second superseding indictment charging the men with additional

crimes could be filed by the end of the following month. The

district court set trial for November 12, 2019, nonetheless.

iii. The Second Superseding Indictment

As predicted, a grand jury returned the second

superseding indictment the following month on September 25, 2019,

which charged Huertas with two additional counts related to the

beachfront carjacking of Barreras' Nissan Altima. Huertas entered

a plea of not guilty on the newly charged counts on

October 8, 2019. Huertas and Luyando's November 12th trial date

remained in place, and as it crept nearer, Luyando, on

October 30, 2019, moved to change his plea pursuant to an agreement

with the government. Steadfast Huertas though, a few days later,

informed the court that he intended to exercise his right to go to

trial. "Because the Court w[ould] not be available on November

14-15, [however,] trial was continued. Counsel [for Huertas and

the government] were consulted as to their schedule[s] and the

availability of witnesses, and agreed on a date during the first

week of February. Jury Trial for Huertas was continued for

2/3/2020 at 09:00 AM in Courtroom 2 before Judge Francisco A.

Besosa."

- 21 - On January 17, 2020, as the February 3rd adjusted trial

date loomed, Luyando's counsel, still in pursuit of a final

agreement with the government, filed a further status report, which

threw another wrench in the wheels of justice. Counsel's report

advised the district court that Luyando "wished to cooperate with

the United States," and it explained that "should [Luyando's

willingness to cooperate] result in a formal cooperation

agreement, the United States w[ould] supersede the instant

indictment with additional defendants[,] which would delay the

currently scheduled February 3 trial date." In view of that

information, the district court set aside the February 3rd trial

date, opting to hold a pretrial conference in its place. During

that scheduled conference on the 3rd, the government informed the

court that it would be seeking a third superseding indictment,

with additional counts and codefendants, by February 11, 2020.

Thereupon, the district court determined that a "new schedule

[would] be established once the superseding indictment [had] been

filed and the defendants [had] been arraigned."

iv. The Third Superseding Indictment

Now, we pause for some quick math on time's passage so

far, keeping in mind that Huertas is before us asserting his

constitutional right to a speedy trial (something he never made a

peep about below). Between the first indictment on July 18, 2018,

and the date when the grand jury returned the third superseding

- 22 - indictment as predicted on February 11, 2020 -- adding cousin

Pizzaro and three other men as codefendants, and charging each of

the men with their own personal mix of offenses drawing from the

suite of earlier-discussed crimes, now including all of the

carjackings heretofore told, along with the brutal killing of

L.S.M. -- around nineteen months had come and gone. And the counts

charged had increased correspondingly, now comprising seventeen.5

And, as the ides of March 2020 neared, as fate would have it,

COVID-19 was skulking just around the corner.

All the same, within three weeks of the third superseding

indictment's return, most of the newly charged men -- with the

exception of Pizarro and Wilkin Michael Cepeda-Colon

("Cepeda") -- had been arraigned.6 While the parties and the court

5 To refresh, Counts One, Two, and Three charged carjacking, 18 U.S.C. §§ 2119(1), 2, kidnapping, 18 U.S.C. §§ 1201(a)(1), 2, and discharge of a firearm in furtherance of those crimes of violence against Bryant Myers, 18 U.S.C. §§ 924(c)(1)(A)(ii)- (iii), 2; Counts Four through Thirteen charged the remainder of the carjackings and the brandishing of firearms in furtherance of those crimes of violence; Counts Fourteen, Fifteen, and Sixteen charged the kidnapping resulting in death of L.S.M., 18 U.S.C. §§ 1201(a)(1), 2, the discharge of a firearm in furtherance of that crime of violence, 18 U.S.C. §§ 924(c)(1)(A)(iii), 2, and the discharge of a firearm in furtherance of that crime of violence causing murder, 18 U.S.C. §§ 924(j)(1), 2. As we previously noted, supra note 1, neither Huertas nor Pizarro was charged in Count Seventeen, which charged their cohort with unlawful possession of a firearm modified to shoot more than one round of ammunition without manual reloading by a single function of the trigger. 6 Cepeda had had his arraignment continued twice, first due to a scheduling conflict, and next, on March 11, 2020, because of a chicken pox outbreak at the Bayamón Correctional Complex where he was being held, which resulted in his unit, B-9, being placed

- 23 - worked diligently to schedule the last two men's arraignments

lickety-split, lamentably, the COVID-19 virus vexed even the

best-laid plans during this period in world history. In response

to this universal crisis -- one imperiling the health of all -- on

March 13, 2020, the then Chief Judge of Puerto Rico's federal

district court, issued an order continuing all trials "scheduled

to begin between March 16, 2020 and May 29, 2020" because "of the

outbreak." Another order continuing all "civil and criminal

non-jury trials, hearings, and conferences scheduled before

district and magistrate judges" followed two days later, and an

order continuing deadlines followed soon on that order's heels.

In-person proceedings, including jury trials, were ultimately

continued until November 6, 2020, the time restrictions were

relaxed, until they were lifted altogether on December 19, 2022.

Yet the pretrial process soldiered on.7 On May 18, 2020,

the government, in consultation with the defendants, filed a status

report with the district court. In the report, the government

emphasized (among other things) that three of the codefendants,

in quarantine until the 17th. Meanwhile, Pizarro was being held in custody in a facility in Philadelphia on an unrelated charge, as the government "filed the appropriate paperwork to have [him] transferred to [Puerto Rico]" for his arraignment there. 7 Cepeda's arraignment eventually took place via video teleconference on May 7, 2020. Pizarro, for his part, would not be arraigned until March 1, 2021, but neither the parties nor the court lollygagged while his arraignment lingered.

- 24 - Huertas, Pizarro, and Luyando (who still had not reached a plea

agreement with the government at this time), had been rendered

eligible for the death penalty in the instant matter on account of

their involvement in the death of L.S.M. On that solemn score,

the government told the court that "initial discovery ha[d] been

provided, learned counsel8 ha[d] been appointed, and the case ha[d]

been submitted to the Capital Crimes Unit for death penalty

review."9 The government concluded by saying "the parties need[ed]

additional time for death penalty determinations to be made for

the death-penalty eligible defendants" and "to review discovery

and discuss plea offers" with the others. In turn, the district

court ordered Huertas, Pizarro, and Luyando to file, by

August 10, 2020, a joint informative motion "indicating the status

of investigations being conducted by learned counsel [relative to

the death penalty review process] and the time needed to conclude

them."

8 See United States v. Pesante-Lopez, 582 F. Supp. 2d 186, 187 (D.P.R. 2008) (explaining that "Congress codified a federal capital defendant's right to representation by two attorneys, one of whom must be 'learned in the law applicable to capital cases.'" (quoting 18 U.S.C. § 3005)). 9 Concerning Cepeda and the other two codefendants, Kevin Villegas-Carrasco ("Villegas") and Roberto Meléndez-Hiraldo ("Meléndez"), the government explained that "initial discovery [had] been provided and the parties [were] in plea negotiations." They were given a deadline date, like the others, of August 10, 2020 to file any pretrial or change of plea motions.

- 25 - The August 10th deadline was later pushed to

September 10, 2020 by the district court.10 In anticipation of the

appointed deadline, on June 25th, the government notified the

district court that it would not seek the death penalty as to

Pizarro and Luyando on the offenses underlying this case (leaving

Huertas by himself on the death penalty hook). The government

also filed a status report with the district court, in consultation

with the defendants, on September 10th. The report apprised the

court that all of the charged men, except Pizarro, who was still

awaiting his arraignment, and Huertas, who was still mired in death

penalty review, were in active plea negotiations. As such, the

parties requested a sixty-day extension to change their pleas or

to file informative motions, which the court granted.

Sixty days later, in November 2020, plea negotiations

still had not concluded. In addition, the government had informed

the district court that Luyando and Huertas could face new

death-penalty-eligible charges soon (though such charges never

came to be). The district court in response granted the parties

another extension to file their change of plea or informative

motions until January 15, 2021. That deadline passed too without

10In the lead up to September 10th, Pizarro filed several motions concerning the death penalty process, including a motion requesting a mitigation expert, a motion requesting an interpreter, a motion requesting an investigator, and a motion requesting a paralegal to assist appointed learned counsel's death penalty review -- all of which were granted.

- 26 - any motion, so, on January 17th, the district court issued an order

stating that the parties had "failed to comply with" its deadline

and requiring the parties to comply with its prior order by

February 5, 2021.

Before February 5th arrived, Huertas filed an

informative motion telling the court that "[d]ue to the Covid-19

pandemic, in person case preparation, including mitigation

investigation, [had been] severely impeded." Because DOJ

protocols contemplate a mitigation submission by the defense in a

case authorized as a capital prosecution,11 and because COVID-19

had apparently impeded that submission's preparation as to

Huertas, the district court, considering his motion, continued

Huertas' deadline to move for a change of plea or to notify the

court that he would go to trial.12

11Huertas explained in his informative motion that DOJ protocols provide a limited carve out empowering the government under certain circumstances "with the ability to . . . [to seek] a fast-track disposition" of the death penalty review process, which "does not require a mitigation submission by the defense," but he did not suggest that the government should seek such a disposition in this case. 12Luyando notified the court for his share that although he had not reached a plea agreement with the government yet, he "[did] not anticipate going to trial in any of the cases in which he [had] been or [would] be charged." And Pizarro failed to apprise the court of any new developments whatsoever, though he was eventually arraigned on March 1, 2021, before the next scheduled conference. As for the other three criminal cohorts: Cepeda moved to change his plea on January 28, 2021, and he pled guilty on February 21, 2021. Villegas moved to change his plea on February 5, 2021, and he pled guilty pursuant to an agreement with the government on March 15, 2021. And Meléndez, who just barely

- 27 - How Huertas, Pizarro, and Luyando would proceed was thus

left to be determined come March 2021, when a further status

conference was held. At that conference, the government informed

the court that death penalty review for Huertas was still ongoing,

that Luyando had been targeted for a separate murder investigation,

and that the government was hoping to reach an agreement with

Pizarro. A "[f]ollow [u]p [d]eadline" was accordingly set for

May 14, 2021. In advance of the appointed date, the government

filed a motion notifying the district court that it would not seek

the death penalty against Huertas nor Luyando in any of the cases

pending against them. With that, the death penalty review process

met its denouement.

Post conclusion of the death penalty review process, the

government tendered a plea offer to Huertas after all. Once

Huertas, Pizarro, and Luyando's criminal contemporaries had

reached plea agreements with the government and been sentenced,

the district court set a status conference for the trio for

January 3, 2022, which was later pushed to January 10th on Huertas'

motion. On the 10th, Huertas, Pizarro, and Luyando informed the

court that they remained in plea negotiations. Luyando, for his

missed the February 5th deadline, notified the court soon after that date that he had entered into an agreement with the government in a separate case, under which the government would dismiss at sentencing the charges against him in the criminal case underlying this appeal.

- 28 - part, told the court that he intended to plead guilty pursuant to

an agreement with the government in short order. But Huertas and

Pizzaro apparently had not yet discussed their plea offers with

counsel due to COVID-19 related complications, which purportedly

prevented them from doing so. The court thus set a deadline of

January 28, 2022 for change of plea motions. All three defendants

missed that deadline too. That said, by February 9, 2022, Huertas

had informed the court that he had rejected the government's plea

offer and would go to trial. Luyando had moved to change his plea

to guilty, pursuant to an agreement with the government. Per

contra, Pizarro, still silent, had given no indications of his

intentions.

The district court accordingly held a conference

concerning just Huertas and Pizarro on February 22, 2022.

Pizarro's counsel there again indicated that COVID-19 was

complicating communications between her and him, so a status

conference was reset for March 10th. At that penultimate status

conference, Pizarro's counsel told the court that Pizarro was still

not fully understanding the plea offer but would likely go to

trial. The district court told Pizarro and Huertas to be prepared

for trial by May. The last pretrial conference was held on

May 9, 2022. Pizarro confirmed then that he would go to trial

with his cousin, Huertas. As such, the court set the trial date

for September 6, 2022. And the trial began, as scheduled, on that

- 29 - day, some fifty-one months after the first indictment charging

Huertas.

v. The Trial

After each party gave its opening statement, the

prosecution started calling witnesses. We will not repeat the

testimonial facts we have already outlined in our background

section; we will acquaint the reader with the hitherto unmentioned

evidence needed to evaluate the appellate claims before us.

The government kicked off its case with the testimony of

FBI task force officer Jonathan Rosado-Rodriguez ("Rosado"), a

fifteen-year law enforcement veteran. Rosado explained to the

jury that in summer 2018, he began investigating "a series of

carjackings and kidnappings." In that effort, Rosado stated that

he "interview[ed] an individual known as Jairo Huertas-Mercado,"

on the 19th of June. Rosado testified that during the interview,

after Mirandizing Huertas, Huertas admitted several points: that

he had targeted and kidnapped Bryant Myers after four days of

planning because Myers "had [supposedly] made some comments in a

song" against a group, that Huertas had, sometime earlier,

carjacked "a lady" to acquire the Kia Sportage which was used to

transport Myers during the kidnapping, and that he had carjacked

a Toyota Camry "in the town of Naguabo, in the area of the beach,"

sometime before that, which he later "sold . . . in a housing

project" nearby. A second Mirandized interview of Huertas was

- 30 - conducted by Rosado the following day at "[t]he federal building

located on Chardon Avenue in Hato Rey," where Huertas admitted to

an additional offense: the carjacking of a Nissan Altima from "a

male, and two females," in the Piñones area. As for that hot

wheel, Rosado explained that Huertas had confessed that it was

sold "at the drug point" in "the Los Mirtos housing project in

Carolina."

The next day of trial, the testimony of the carjacking

victims, excepting Bryant Myers, was presented, as well as

testimony from certain forensics team members who had investigated

the brutal scene where L.S.M.'s body rested in the La Central area.

In that day's testimony, Barreras, the surfer coastguardsman

jacked for his Altima, identified Huertas in open court. And

Pérez, Bryant Myers' mother, testified too about identifying

Huertas through photographs nine days after the kidnapping and

carjacking.

On the third day of trial, Villegas, Huertas and

Pizzaro's comrade turned cooperating witness, delivered more

damning evidence pinning the charges relative to the Bryant Myers

incident on the cousins, and further illuminating Pizzaro's role

in all of this violence which we now review.13 Some brief

13A prosecution expert witness, Guillermo González, also testified on this day of trial about the "international nexus of vehicles possessed in Puerto Rico," as did "an expert in ballistic and firearms," Israel Sánchez-Amaro, who testified about the

- 31 - background on Villegas. Villegas told the jury that, after living

for some time in the continental United States, he had "arrived in

Puerto Rico to be in the underworld[,] because [he] had [a] friend

in the underworld who needed or wanted to control the Los Mirtos

housing projects, so [he] came to Puerto Rico to help him." On

that takeover mission is how Villegas met Pizarro, Huertas, and

Luyando, during "meetings" "at the [nearby] Lagos de Blasina

housing project."

After telling the jury the tale of his life in much more

detail than is necessary here, Villegas testified how he

"participate[d] in the kidnapping and carjacking of Bryant Myers

and his mom," with "Erick [Pizarro-]Mercado," who he identified in

open court "here to [his] right next to his defense with a red

shirt with buttons," "Jairo Huertas-Mercado[,] sitting there next

to his defense with the black sleeved shirt with buttons[,]" and

"Joshua Luyando." Villegas told the jury then how Huertas, aka

"Cavito," Pizarro, aka "Chimi," Luyando, aka "Jumanji," and their

cohort Cepeda (who participated in the discussion over the phone,

and who also happens to be a cousin of the appellants), had hatched

a plan to "go talk to" Bryant Myers after receiving "knowledge

that Bryant Myers was in the Las Lomas Ward neighborhood where his

firearm and ballistic evidence gathered at the scene of L.S.M.'s death, reasoning that it was consistent with the weapons which testimony showed that the appellants were using.

- 32 - mother lived." Villegas explained that the men's reason for the

engagement was because "according to the information they had,

Bryant Myers[] had paid for the death of one of their cousins known

as Corroro." Villegas told the jury how in pursuit of the luminary

target, the men all "got in [an] SUV, a white Sportage . . . [and

drove to] this place where Bryant Myers was known to be," and how

"[he] was carrying a Glock automatic 9 by 19 automatic. Erick

[Pizarro-]Mercado to [his] right here with the red shirt with

buttons he was carrying an AK47. Jairo Huertas-Mercado[,] to [his]

right here wearing the black shirt with buttons[,] he was carrying

an AK47 known as The Punisher. [And] Joshua Luyando was carrying

an AR15." Villegas said that all the guns were loaded, "[y]es,

loaded." He explained how, after arriving "at the basketball court

in Lomas" where Bryant Myers was recreating with neighborhood

friends and acquaintances, Pizarro and Luyando "went ahead and

grabbed [Myers] by force," "hit him in the head with [a] pistol,

as [they] say in the underworld," and "put him in the SUV." He

reported how, when people gathered around to try to stop them,

"Joshua Luyando went ahead and fired a shot in the air" to disperse

"all the people," and how Pérez during all this time, "was by [the]

SUV crying, nervous, just like any mother." And he recounted how

he "communicated to [Pérez]" around this point in the action that

"[n]othing[] [was] gonna happen to [her son]," with the ominous

addendum: "but the thing is that your son is mixing the streets

- 33 - with music." Villegas elaborated on Pérez's position at that time,

somewhat enigmatically, saying that the men "wanted to put her in

the [Sportage] so that she would be safe," but because "she didn't

fit," Huertas "got out . . . and got into Bryant Myers' BMW and

Bryant Myers' mom got in with him," leaving Pizarro, himself, and

Luyando in the Sportage with Myers. He narrated what followed,

how after driving the Sportage and "park[ing] toward the exit of

[a] landfill," the "Carolina municipal police [arrived] . . . [and

Huertas] got out [of the X6] and jumped over the fence and ran

into the -- ran away into the vegetation of what divides Carolina

from Canóvanas," and the "police at that point fired several

shots," and Myers "opened the door and jumped out" of the Sportage,

and the men in the Sportage "took off [driving] at

high-speed" -- and "everyone was able to escape." His telling

revealed too that the SUV-of-escape was burned sometime later.

On the fourth day of trial, the final witness relevant

to the instant appeal, Luyando, another cohort turned cooperator,

took the stand; and his testimony would extend into the next day.14

Luyando put much flesh on the bones of the evidence outlined so

far. He explained to the jury how, with Huertas and Pizarro, who

he identified in open court, he had "participated . . . in

14 This day of trial also included testimony from Bryant Myers,

which we have already rehearsed in our recital of the pertinent background facts.

- 34 - carjackings" in order "to commit robberies, murder[,] and to move

around." Relative to the carjackings, he explained how he,

Huertas, and Pizarro had stolen "by intimidation and . . . force"

a Tacoma, an Infiniti, an Altima, a Camry, a Sportage, and an X6,

providing testimony which aligned with that of Villegas and the

victims. Relative to robbery and murder, Luyando explained that

the men had engaged in such criminal conduct because they had

"enemies [and] rivals" in the "[d]rug [game] . . . [who] wanted to

take over the places where [they] spent [their] time," and because

he, Pizarro, and Huertas had a get-them-before-they-get-us

attitude. On that more gruesome latter strand, Luyando provided

a window into the kidnapping resulting in the death of L.S.M. So,

borrowing the words the prosecution used, "[l]et's talk about that

murder."

As Luyando narrated the macabre tale, on May 31, 2018,

"[he] was with Jairo [Huertas], Erick [Pizarro], and [a man called]

Jico[,] and [they] were coming down from Carolina toward Naguabo[,]

and [they] were going to drop Jico off at his house. And[,] as

[they] were passing by the Villas Del Río housing project[,] [they]

came up with the idea while entering into the housing project of

holding up the [local] drug dealer." With that proposed dreadful

deed in mind, the men proceeded, first dropping off Jico "at his

house [be]cause he wasn't gonna do any of that with [them]," and

then circling back to "enter[] into the Villas Del Río housing

- 35 - project and . . . do what [they] thought [they] could do." Luyando

espied and "identified the [drug] seller," L.S.M., who he had known

since childhood, Huertas then "went walking to him and asked him

for weed . . . [with a] firearm hidden in his back, and when he

identified him[,] he aimed it at him." Huertas "told him not to

move. Then [Pizarro] followed him and also aimed at him with the

rifle." Luyando stayed in the car observing. Pizarro and Huertas

then "took the drug dealer's money and drugs and [Luyando] open[ed]

the [car] door and told them to bring him, and they put him in the

vehicle that all three of [the men] were in." The men then drove

L.S.M. to what Luyando described as a "landfill" in the La Central

area, with guns raised at their victim along the way. On their

route, Huertas, Pizarro, and Luyando "were telling the victim to

talk [be]cause he was too quiet, not to be afraid. And [they]

were asking him if he knew of another person who was of a higher

rank than him, you know . . . somebody more important, somebody

who was like [them] after [them] doing the same thing to [them]."

When the men were not getting an answer, they "ask[ed] [L.S.M.] if

he wanted to have his crew wearing a shirt with his photograph on

it[,] or if he preferred to have somebody else," which "meant to

tell him at that point . . . if he wanted to give up somebody else

[to die] . . . [he] could pick somebody else instead of him." When

L.S.M. "didn't say anything," Luyando, Pizarro, and Huertas, after

consulting with another member of their crew called "Gongo" over

- 36 - the phone, "knew what [they] had to do. [Their]

understanding [was] that [they were] meant . . . to kill [L.S.M.]"

So, the men "entered into La Central to an old factory and when

[Luyando] parked close to the Infiniti that [the men] had [earlier]

burned[,] [Huertas] got out and got [L.S.M.] out after." And then

Pizarro "also got out." And Pizarro "aimed at the victim" with an

AK47 rifle, to wit, "[t]he Punisher," as the victim "had his back

to him," and shot. Huertas "also started shooting at him." In

this murderous frenzy, Luyando "took the firearm away from

[Huertas] and also started shooting at [L.S.M.]" And then the men

"got into the[ir] vehicle and left."

After the conclusion of Luyando's testimony on the fifth

day of trial, the prosecution rested. Both Pizarro and Huertas

then moved for acquittal on all counts charged under Federal Rule

of Criminal Procedure 29, raising many of the same sufficiency

arguments which they now raise to us. See Fed. R. Crim. P. 29(a)

("After the government closes its evidence or after the close of

all the evidence, the court on the defendant's motion must enter

a judgment of acquittal of any offense for which the evidence is

insufficient to sustain a conviction."). The court denied the

motions. The court then recessed for the evening and proceeded

the next morning with jury instructions and closing arguments, as

the defense did not call any witnesses or introduce any additional

evidence of its own. Jury deliberations began on

- 37 - September 13, 2022, at 2:34 p.m., and, after mulling over their

decision until the next afternoon, on the seventh day of trial,

the jury returned a verdict of guilty as to all offenses Pizarro

and Huertas were charged with in the third superseding indictment

underlying this appeal.

vi. The Sentencings

1. Huertas' Sentencing

Huertas' sentencing took place several months later on

February 10, 2023. At the hearing's kickoff, the district court,

on the government's motion, "dismissed on double jeopardy grounds"

Count Fifteen of the indictment -- which charged Huertas with

discharge of a firearm in furtherance of a crime of violence,

18 U.S.C. § 924(c) -- a lesser included offense relative to Count

Sixteen, discharge of a firearm in furtherance of a crime of

violence causing murder, 18 U.S.C. § 924(j). Huertas did not

utter a word at the sentencing or during trial about any double

jeopardy implications of Count Fifteen, nor did he object to that

Count's dismissal.

After the lesser included Count Fifteen got dismissed,

the government requested a life sentence plus 45 years for Huertas

on the remaining offenses. The defense, for its part, offered

this statement: "I mean, there is really no sentencing

recommendation, Your Honor." Thus, after conducting the requisite

Guidelines mathematics, and after considering the apposite

- 38 - considerations, the district court sentenced Huertas to a life

term of imprisonment plus 660 months, with a term of supervised

release to follow if ever released from incarceration. Huertas

did not make any objections to the sentence imposed, nor does he

raise any claims relative to his sentence on appeal.

ii. Pizarro's Sentencing

Pizarro's sentencing hearing also took place on

February 10, 2023.15 At the hearing, Pizarro's counsel recommended

a sentence "in the range of 40 or 50 years," while the government

recommended a sentence "of life plus 38 years consecutive." In

his argument for a sentence less than life, Pizarro's counsel

offered this laconic pitch: "The Court is aware that he has two

children and wants to help with family when he comes out, Your

Honor. That's what we have to say." The government, for its part,

emphasized the serious nature and the numerosity of Pizarro's

offenses. The court then attended to its task and sentenced

Pizarro to a "total imprisonment term of life imprisonment plus

456 months." A term of supervised release was additionally imposed

upon Pizarro "if ever released from confinement."16 There was no

objection.

15 Count Fifteen was dismissed as to Pizarro during his sentencing. 16We will provide more details outlining Pizarro's sentencing hearing later when we address his sentencing arguments before us.

- 39 - THE APPEAL

Sentenced to life in prison plus, Huertas and Pizarro

now voice their grievances to us. With the benefit of our

presentation of the facts, we can deal with the arguments

forthrightly, starting with Huertas' speedy trial claim.

A. Huertas' Constitutional Speedy Trial Claim

The Sixth Amendment provides that all criminal

defendants "shall enjoy the right to a speedy and public trial."

U.S. Const. amend. VI. "If the government violates this

constitutional right, [then] the criminal charges must be

dismissed." United States v. Dowdell, 595 F.3d 50, 60 (1st Cir.

2010). Huertas says that the government here did just that,17 and

In addition to his well-developed (on appeal) argument that 17

the government violated his Sixth Amendment speedy trial right, Huertas argues with thin analysis that "the limitations placed upon the Federal Government by the Due Process Clause of the Fifth and Fourteenth Amendment . . . were passed in the case at bar that denied Huertas a speedy trial for a period of fifty-one (51) months in violation of these constitutional protections." True, our circuit has acknowledged in past cases that "pretrial detention . . . resulting [in a] length of detention [which] is substantial enough to constitute 'punishment' without trial . . . [may] violat[e] . . . the due process clause of the fifth amendment," United States v. Zannino, 798 F.2d 544, 547 (1st Cir. 1986), as Huertas argues in patches. We pointed to some factors which may guide the analysis whether due process has been so run afoul in Zannino. Id. And the Supreme Court has indeed acknowledged that "the Due Process Clause of the Fifth Amendment would require dismissal of [an] indictment if it were shown at trial that the pre-indictment delay in th[e] case caused substantial prejudice to [a defendant's] rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused," United States v. Marion, 404 U.S. 307, 324 (1971), as Huertas argues, without support, as we will

- 40 - he duly mounts a total attack on the verdict below.18 To support

his speedy-trial blitz, Huertas asserts that the pretrial period

of fifty-one months which elapsed between the first

indictment -- which charged him and Luyando with three counts

relative to the Bryant Myers incident -- and the trial -- which

held him and Pizarro to account for those three counts and fourteen

more -- was gratuitously lengthy because of the government's

impropriety and in violation of his constitutional right. As

earlier noted, not once did Huertas raise his speedy trial

grievances to the district court. Thus, he concedes that this

court should review his constitutional claim for plain error, and

we proceed in accordance with that appellant-inimical-standard

understanding. See United States v. Perez-Cubertier, 958 F.3d 81,

later show, occurred here. With all that said, because Huertas fails to develop an argument based in the relevant caselaw explaining how his due process rights were violated below, beyond his flat statement that they were, we find this alternative line of constitutional argumentation waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (explaining that "issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived"). 18 We note for the reader's benefit that Huertas brings no developed argument before us relative to his statutory right to a speedy trial pursuant to the Speedy Trial Act, 18 U.S.C. § 3161 et seq. (1985), nor did he move for dismissal of his case under the Act during the district court proceedings, meaning any statutory arguments he could have raised here against his conviction are flatly waived, as Huertas concedes in his opening brief. See id. § 3162(a)(2) (providing that "[f]ailure of the defendant to move for dismissal prior to trial or entry of a plea of guilty or nolo contendere shall constitute a waiver of the right to dismissal" under the Act).

- 41 - 90 (1st Cir. 2020) (reviewing constitutional speedy trial

arguments raised for the first time on appeal for plain error);

see also United States v. Cahill, 85 F.4th 616, 621 (1st Cir. 2023)

(explaining that "[t]he [appellant's] burden [to succeed] under

the plain error standard is a heavy one" and that "[t]he

[appellant] must prove '(1) an error, (2) that is clear or obvious,

(3) which affects his substantial rights . . . and which

(4) seriously impugns the fairness, integrity, or public

reputation of the proceeding'" (first quoting United States v.

Ramirez-Benitez, 292 F.3d 22, 27 (1st Cir. 2002); then quoting

United States v. Correa-Osorio, 784 F.3d 11, 17-18 (1st Cir.

2015))). Standard of review in situ, we move on to evaluate

Huertas' constitutional claim.

We begin our plain-error analysis ferreting out

potential obvious errors in the record. See Cahill, 85 F.4th at

621. The error alleged by Huertas is that the government plainly

contravened his constitutional speedy trial right, so that is where

our dig is focused. But sit tight reader, a little background on

the Sixth Amendment right will prove helpful before we begin our

excavation.

The Supreme Court has explained that the speedy trial

right "is an important safeguard to prevent undue and oppressive

incarceration prior to trial, to minimize anxiety and concern

accompanying public accusation[,] and to limit the possibilities

- 42 - that long delay will impair the ability of an accused to defend

himself." United States v. Ewell, 383 U.S. 116, 120 (1966). While

the orbit of the safeguard's aegis is undoubtedly expansive, "[t]he

right of a speedy trial is necessarily relative. It is consistent

with delays and depends upon circumstances. It secures rights to

a defendant. It does not preclude the rights of public justice."

Beavers v. Haubert, 198 U.S. 77, 87 (1905). The necessarily

relative nature of the speedy trial right is why, as the Court has

eloquently expressed, "the speedy trial right is so slippery."

Barker v. Wingo, 407 U.S. 514, 522 (1972).

In this constitutional vein, the Supreme Court has

limned a quadripartite balancing test which courts are to apply to

determine if the slippery trial right has been abridged. See id.

at 530-33. The formula calls for an assessment of (1) whether the

delay before trial was unusually long; (2) whether the government

or the defendant is more to blame for that delay; (3) whether the

defendant timely asserted his right to a speedy trial; and

(4) whether he suffered prejudice as a result of the delay. See

Doggett v. United States, 505 U.S. 647, 651 (1992) (citing Barker,

407 U.S. at 530). Commonly referred to as the Barker factors,

"[n]one of [the identified factors] is either a necessary or

sufficient condition to the finding of a deprivation of the right

of speedy trial. Rather, they are related factors and must be

considered together with such other circumstances as may be

- 43 - relevant." United States v. Henson, 945 F.2d 430, 437 (1st Cir.

1991) (citation modified).

i. Length of Delay19

The first Barker factor, the length of delay, is "a

double enquiry." Doggett, 505 U.S. at 651. The criterion serves

both as "a triggering mechanism for the rest of the [speedy trial]

19 Huertas and the government agree as a general matter that the first speedy trial factor concerns the length of delay between Huertas' indictment and the date of his trial. See United States v. Reyes, 24 F.4th 1, 29 (1st Cir. 2022). That said, Huertas and the government clash over whether the "the speedy trial clock ticks anew for [the] offenses that [were] added in superseding indictments" in this case (the government's position) or, on the other hand, whether the clock runs from the moment of the first indictment for all counts charged (Huertas' position). This court has previously opined on this speedy trial topic "that the start-date question is not subject to per se rules -- e.g., that the date of the original indictment is always the start date, or that it is never the start date when a new indictment adds charges." See United States v. Handa, 892 F.3d 95, 106 (1st Cir. 2018) (discussing the when-does-the-clock-start issue). Rather, we have explained that "the Sixth Amendment inquiry requires careful consideration of all the factual circumstances presented." Id. Under circumstances such as "where (1) the additional charge and the charge for which the defendant was previously accused are based on the same act or transaction, or are connected with or constitute parts of the common scheme or plan previously charged, and (2) the government could have, with diligence, brought the additional charge at the time of the prior accusation," we have held that "the bringing of the additional charge does not reset the Sixth Amendment speedy trial clock to the date of a superseding indictment." Id. Huertas argues that such circumstances are present in this case, and the government says the opposite, as expected. Because the outcome of this appeal does not turn on when we start the clock, we will assume without deciding that Huertas is correct, and we will measure the length of delay for all counts charged from the date of the first indictment.

- 44 - analysis, and a factor in that analysis." United States v.

Carpenter, 781 F.3d 599, 609 (1st Cir. 2015). Relative to the

first factor's role as a trigger, we have explained that in order

"[t]o invoke the Sixth Amendment speedy trial inquiry, a defendant

must allege that the time between accusation -- whether by arrest

or indictment -- and trial has crossed the threshold dividing

ordinary from presumptively prejudicial delay." Handa, 892 F.3d

at 101 (citation modified). Courts have observed that a delay

approaching one year is presumptively prejudicial, and that

crossing that threshold triggers the need for a judicial

examination in which a court must proceed to weigh the length of

delay against the other Barker factors. Id. at 102; see Doggett,

505 U.S. at 656 (explaining that "such presumptive prejudice cannot

alone carry a Sixth Amendment claim without regard to the other

Barker criteria").

Huertas and the government agree here that the

fifty-one-month span which elapsed between when he was first

indicted and when the trial commenced, which is the period relevant

to our inquiry, exceeds "the one-year point at which pretrial delay

is generally considered presumptively prejudicial." United States

v. Casas, 425 F.3d 23, 33 (1st Cir. 2005). And Huertas and the

government agree that, in addition to triggering the speedy trial

inquiry, the fifty-one-month delay weighs against the government

in our balancing of the Barker factors. See Rashad v. Walsh, 300

- 45 - F.3d 27, 34 (1st Cir. 2002) (explaining that "as the length of the

delay increases, its relative importance also increases"). Seeing

no reason to unsettle the parties' settled course, we find that

the length of delay weighs in favor of Huertas.

ii. Reasons for Delay

The second factor considering the reasons for delay is

the "focal inquiry" of the Barker test. See United States v. Lara,

970 F.3d 68, 82 (1st Cir. 2020). Huertas argues in essence that

the reasons for delay below were primarily attributable to the

government, and moreover that the government intentionally

orchestrated the delay in bad faith -- and he says that that means

this central criterion weighs heavily in his favor. See Doggett,

505 U.S. at 656 ("Barker stressed that official bad faith in

causing delay will be weighed heavily against the government.").

The government argues that the reasons for delay were all neutral

or attributable to Huertas. For instance, in its efforts to throw

the blame for the pretrial delay back at Huertas, the government

points to Huertas' failure to request severances of counts or

defendants, to the requests for continuances submitted by his

codefendants in which he joined (and thus made his own), and to

the delay which Huertas, himself, purportedly caused during the

death penalty review process. The government says that this focal

feature therefore does not favor Huertas. See, e.g., Lara, 970

F.3d at 82 ("Thus, because the delay is 'largely due to the needs

- 46 - of codefendants, rather than any slothfulness on the government's

part,' this second factor points against finding a speedy trial

violation." (quoting United States v. Vega Molina, 407 F.3d 511,

533 (1st Cir. 2005))). Because our appraisal of the reasons for

delay falls somewhere in the middle of the parties' in terms of

who was at fault for reasons we'll shortly explain, we find that

the crucial second factor in our inquiry fails to meaningfully tip

the scale one way or the other here.

We start with Huertas' arguments in his labors to tilt

the scale. Huertas points to three primary, government-provoked

reasons he contends caused the fifty-one-month delay, and we will

discuss each reason in turn.20

First, Huertas points to the "increasing number of

superseding indictments," and argues, without citation to any

relevant authority, that the government's decision to file three

of them in this case should be weighed against the government in

our speedy trial calculus. In response, the government points

aptly to this court's prior expression that "superseding

indictments setting forth new charges or adding new defendants are

familiar fare," United States v. Flemmi, 245 F.3d 24, 28 (1st Cir.

20Huertas observes that the COVID-19 pandemic played a major role in the delay ad rem, but he does not "blame the government for that." See, e.g., United States v. Vargas, 97 F.4th 1277, 1291 (11th Cir. 2024) ("At the most basic level, everything slowed down during the COVID-19 pandemic.").

- 47 - 2001), which, together with our prior pronouncement that we will

not "find bad faith from a record barren of indications that any

[bad faith] in fact existed," United States v. Colombo, 852 F.2d

19, 25 (1st Cir. 1988), means that Huertas, who cites to no record

evidence to support his argument, cannot prove any misconduct by

the government in seeking the follow-up indictments. See United

States v. Worthy, 772 F.3d 42, 49 n.10 (1st Cir. 2014) (rejecting

a speedy trial "argu[ment] on appeal that the government's strategy

of bringing successive indictments itself betrays a dilatory and

venal purpose," when, as here, "all the indictments in th[e] case

added either additional codefendants or new charges"); see also

Rashad, 300 F.3d at 34 (explaining that "to the extent that valid

reasons cause delay," it "does not count against the [government]

at all"). Because our review of the record confirms the

government's assertion that Huertas highlights no evidence

suggesting governmental misconduct in its pursuit of additional

superseding indictments, we decline to weigh the seeking of the

three superseding indictments against it.21

21Huertas propounded on this point at oral argument, saying that the government was plainly aware of the majority of the counts charged in the superseding indictments from the time when the first indictment was filed. To support that belief, Huertas' counsel relied on the fact that Huertas had admitted to several carjackings in addition to the Bryant Myers incident during his post-arrest interview with Rosado. Counsel contended that the government's seeking of several successive indictments was therefore a tactic designed to delay. But, as the government indicated in response, Huertas did not admit to all the offenses charged in the

- 48 - Second, Huertas says that the "government's decision to

charge multi-defendants[] for the same murders" was designed to

cause unjustifiable delay. Parrying this assertion, the

government again has an apt response: It notes that this court

has previously explained in the speedy trial context that "the

joint prosecution of defendants involved in the same [crimes]" is

nothing abnormal, and that we have reasoned further that such

joinder "is justified as a means of serving the efficient

administration of justice."22 Casas, 425 F.3d at 34. As before,

superseding indictments during the interview with Rosado (most notably, he did not admit to the kidnapping resulting in death of L.S.M.), nor did he reveal all his would-be compadres. 22 The government notes too, perhaps less aptly, that Huertas could have, but did not, move to sever any of the counts or to sever his trial from that of his codefendants who he now complains proceeded alongside him, a fact which the government asserts renders much of the delay relative to the joint prosecution attributable to Huertas. See United States v. Santiago-Becerril, 130 F.3d 11, 22 (1st Cir. 1997) (noting that the appellant "never sought relief from delays occasioned by his codefendants by requesting a severance" when considering the reasons for delay in the case). But we will not weigh the fact that Huertas did not file a motion to sever against him in our ultimate speedy trial calculus, because the Santiago-Becerril case referenced by the government to support its proposition that we should do so did not go so far. See id. In that case, the court merely noted "Santiago never . . . request[ed] a severance," to support its conclusion that "the various delays were each justified by 'a valid reason,'" id. (quoting Barker, 407 U.S. at 531), but the court did not point to the lack of a motion to sever as evidence that the delay was attributable to Santiago. Because Santiago-Becerril does not support weighing against Huertas the fact that he "never sought relief from delays occasioned by his codefendants by requesting a severance," and because the government provides no other precedent or meaningful explanation as to why we should hold that fact against him, we will not. Nor do we weigh against Huertas that he joined his comrades' motions for continuances, as the government

- 49 - Huertas has little to say in response to the government's

contention that its decision to pursue a joint prosecution is not

weighed against it. Thus, without any reasoned, oppositional

argument from Huertas providing an explanation as to why this case

is different from the run of cases where the joint prosecution of

codefendants involved in the same crimes did not weigh against the

government on the speedy trial score, we decline to find that the

government's decision to bring a joint prosecution weighs against

it here. See Lara, 970 F.3d at 82; Casas, 425 F.3d at 34;

Vega-Molina, 407 F.3d at 533.

Third, Huertas claims "that [this] case[] w[as]

unnecessarily complicated by charges of murder, and, initially[,]

the demand for death sentences, that should not have been pursued

and were ultimately rejected." Thus, he says the delay caused by

the death penalty review process should be attributed solely to

the government. Before we embark on our analysis on this liminal

strand, it cannot go without saying first that "[d]eciding whether

[to] seek the death penalty for a defendant is one of the

government's gravest responsibilities." See United States v.

Duran-Gomez, 984 F.3d 366, 375 (5th Cir. 2020). In accord with

the gravity of the responsibility, as a general principle of

prudence, courts have rightly opined that "[t]he path to decision

filed such motions too -- so culpability for continuances, we believe, shakes out in the wash.

- 50 - should be proportionately ruminative." Id.; see Woodson v. North

Carolina, 428 U.S. 280, 305 (1976) (explaining that the death

penalty "qualitatively" differs from life imprisonment and that

"there is a corresponding difference in the need for reliability

in the determination that death is the appropriate punishment in

a specific case"); see also Ewell, 383 U.S. at 120 (explaining

that one of the reasons the speedy trial right "depends upon the

circumstances" is that "many procedural safeguards [are] provided

[to] an accused"). Huertas, though, does not challenge the notion

that death penalty review calls for unalloyed deliberation -- he

says instead that the death sentence should not have been

considered in this case in the first instance, and he asserts that

any delay relative to the death penalty review hence falls at the

government's feet. But we must reject Huertas' death penalty

review related argument, as the record illustrates something quite

different about the government's death penalty review process

below.

There can be no dispute that Huertas was charged with

capital offenses. As such, and as the government points out, under

the Department of Justice procedures in operation at the time

Huertas was charged with said crimes, the government was required

to submit Huertas' case for death penalty review, regardless of

whether the specific attorneys representing the United States in

this case contemplated seeking the death penalty or not. See U.S.

- 51 - Dep't of Just., Just. Manual § 9-10.010 et seq.23 That goes for

the case underlying this appeal, where Huertas was ultimately found

guilty of a capital offense, and the separate case charging Huertas

with a capital offense where he was found not guilty -- a case

which he complains improperly prolonged the delay too by

introducing a second parallel death penalty review process which

persisted after the review in the case underlying this appeal had

concluded. Huertas' argument that the government was wrong to

initiate the death penalty review process as to either case below

cannot succeed on these identified facts when Huertas has no

response to the government's assertion that it acted in alignment

with protocol, nor does he tell us why the government was wrong to

do so. And critically, Huertas fails to point to any evidence in

the record indicating that the government acted in bad faith or

without reasonable diligence during the review process once

initiated, and he presents no argument otherwise to explain why

the delay relative to the review should be weighed against the

government. See Colombo, 852 F.2d at 25. As such, we will not

23 See id. § 9-10.060 ("Absent extenuating circumstances, prior to seeking an indictment charging a capital-eligible offense, the United States Attorney or Assistant Attorney General shall submit the case for review pursuant to the provisions of this Chapter."); see also id. § 9-10.040 (explaining that "[i]n the event the Attorney General determines the death penalty will be sought in a particular case, the Capital Case Section can provide valuable litigation advice and support, as well as trial assistance" (emphasis added)).

- 52 - weigh any delay deriving from the death penalty review against the

government.24

Because we conclude that the delays in this case cannot

be placed squarely on the shoulders of one side or the other, the

second, focal factor weighs neutrally in our analysis.

iii. Assertion of the Right

It is undisputed that Huertas did not assert his speedy

trial right below, which is the third Barker factor's concern. We

have explained in previous cases that "[a]lthough a defendant 'has

no duty to bring himself to trial' and does not waive his Sixth

Amendment claim by not raising it in district court, he does have

some responsibility to assert his speedy trial [right]."

Perez-Cubertier, 958 F.3d at 91 (quoting Look v. Amaral, 725 F.2d

4, 6-7 (1st Cir. 1984)). Huertas failure to meet this

responsibility means that the third Barker criterion weighs

heavily against him, "mean[ing] . . . he must make a much stronger

showing on the other factors in order to succeed in his claim."

Rashad, 300 F.3d at 34.

In addition to rebutting Huertas' argument that the delay 24

relative to the death penalty review process was attributable to the government, the government also asserts that "the record . . . places blame at the feet of the pandemic and Huertas himself" for the delay, pointing to the informative motion Huertas filed below wherein he indicated to the district court that he needed additional time to prepare a mitigation investigation due to the COVID-19 pandemic. Nevertheless, just as we have not weighed delay attributable to the COVID-19 pandemic against the government, we will not weigh any such delay against Huertas.

- 53 - iv. Prejudice

"The prejudice prong seeks to protect three interests:

avoidance of oppressive pretrial incarceration, minimizing anxiety

and concern, and limiting the possibility that the defense will be

impaired." Carpenter, 781 F.3d at 614. Of these three interests,

"the most serious is the last, because the inability of a defendant

adequately to prepare his case skews the fairness of the entire

system." Reyes, 24 F.4th at 30 (quoting Barker, 407 U.S. at 532).

Howbeit, "[a]s a general rule, the defendant bears the burden of

alleging and proving specific ways in which the delay attributable

to the [government] unfairly compromised his ability to defend

himself." Rashad, 300 F.3d at 34. In the case at hand, for

reasons we will tell, Huertas fails to meet his burden25 to show

any impingement on that most-important third interest (impairment

of his defense) relative to the fourth Barker factor, which his

favorable showing on the two others cannot overcome.26

25 We have explained in the past that factor-four prejudice in the speedy trial analysis, while distinct from factor-one prejudice, may sometimes similarly be presumed "[i]n aggravated cases, involving grossly excessive delay," meaning factor four can favor a defendant without an actual demonstration of prejudice to any of the three protected interests we've described above. Rashad, 300 F.3d at 34. However, that presumption is neither "automatic or inexorable," nor is it warranted in every case. Id. at 41. Here, Huertas makes no presumptive prejudice argument relative to the fourth factor, so we need say no more. 26The government concedes that the first two factors of the prejudice prong -- avoidance of oppressive pretrial incarceration and minimizing anxiety and concern -- weigh "somewhat in Huertas'

- 54 - Huertas' argument that his ability to defend himself was

somehow hampered rises and falls on the supposed "failure of the

many witnesses to recall events that impacted the trial."27 That

position has evident holes. For starters, Huertas does not call

out any testimony where a witness failed to recollect information.

While Huertas does note that "several victims could not and did

[not] identify [him]," he does not show that those victims would

have been able to identify him even had the trial happened the

same day as the crimes. Remember, Huertas' modus operandi was to

tell his victims: "Don't look." And even if it may be true that

witnesses had forgotten things by the time Huertas went to trial,

Huertas does not "alleg[e] and prov[e] [the] specific ways" these

lapses in memory prejudiced his defense. See Rashad, 300 F.3d at

34. Huertas even concedes himself that this court and the Supreme

Court have recognized that evidence of "clouded recollection"

alone is not evidence of prejudice. Id. at 42-43; see Loud Hawk,

474 U.S. at 315 (explaining that diminished witness recall

resulting from delay "is a two-edged sword . . . [because] [i]t is

the Government that bears the burden of proving its case beyond a

favor," because Huertas suffered a lengthy pretrial incarceration in anxiety-inducing pandemic conditions. 27Huertas also argues, without any citation to the record, that he was held "without contact from his attorneys to prepare for trial during [the] pretrial period." We cannot credit Huertas' telling when it comes to us without any support.

- 55 - reasonable doubt"). Considering that concession, considering that

the burden to show prejudice to his defense laid with Huertas, and

considering the paltry evidence and argument he marshaled, we do

not see any prejudice to Huertas defense, and we will not weigh

this factor against the government.

v. Our Weighing of the Factors

With everything now said, and bearing in mind that

Huertas' speedy trial claim comes before us on plain error review,

we can dispense with his grievance with dispatch. Because Huertas

failed to assert his speedy trial right below, "mean[ing] . . . he

must make a much stronger showing on the other factors in order to

succeed in his claim," Rashad, 300 F.3d at 34, and because he made

no such showing, as we have just shown, our appraisal of the

factors identified by the Supreme Court in Barker reveals that the

district court did not err, let alone plainly, in permitting the

government's case to proceed despite the fifty-one-month delay

between when Huertas was first indicted and when he ultimately

went to trial, with Pizarro, with the third superseding indictment

in operation.

B. Sufficiency of the Evidence

Now, on to the evidence revealed at trial, which we have

already drawn in fine detail, and which both cousins complain, for

reasons we will explore, was insufficiently probative to convict

them of the offenses charged. Properly preserved

- 56 - sufficiency-of-the-evidence challenges, such as the cousins', are

reviewed de novo. See United States v. Buoi, 84 F.4th 31, 37 (1st

Cir. 2023). Nevertheless, our review still imposes upon such a

claim "an uphill battle on appeal." United States v. Hernández,

218 F.3d 58, 64 (1st Cir. 2000). An appellant must show that after

viewing the evidence in the light most favorable to the

prosecution, no rational trier of fact could have found the

essential elements of the crimes charged beyond a reasonable doubt.

United States v. Falcón-Nieves, 79 F.4th 116, 123 (1st Cir. 2023).

This court will reverse an appellant's convictions on

sufficiency-of-the-evidence grounds only if they can meet their

burden to illustrate that such a dearth persisted below. See

United States v. Andujar, 49 F.3d 16, 20 (1st Cir. 1995). Should

this burden be met, the government is precluded from again trying

that individual for the same offense. See Burks v. United States,

437 U.S. 1, 11 (1978) (explaining that "[t]he Double Jeopardy

Clause forbids a second trial for the purpose of affording the

prosecution another opportunity to supply evidence which it failed

to muster in the first proceeding"). In the instant case, we need

not restage all the dramatic facts that could bear upon our

analysis to conduct our inquiry -- we can go directly to the heart

of the matter instead.

The core sufficiency challenge, which both Huertas and

Pizarro mount, relates to the carjacking charges, and it revolves

- 57 - around the Supreme Court's holding in Holloway v. United States,

526 U.S. 1 (1999), where the Court explained that the mens rea

element required to sustain a conviction for federal carjacking

"requires the Government to prove beyond a reasonable doubt that

the defendant would have at least attempted to seriously harm or

kill the driver if that action had been necessary" to take the

car, id. at 11-12; see 18 U.S.C. § 2119 (the applicable federal

carjacking statute).28 The cousins argue, sketchily, without much

citation to the record, that their appropriation of vehicles by

force as here was of a "garden variety" outside of the statute's

coverage, and they say that all the carjacking counts must fall

for that reason.29 See United States v. Guerrero-Narváez, 29 F.4th

28The elements of the offense are: "(1) taking . . . from the person or presence of another; (2) a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce; (3) through the use of force, violence, or intimidation; (4) with the intent to cause death or serious bodily harm." United States v. Garcia-Alvarez, 541 F.3d 8, 16 (1st Cir. 2008). 29 In addition to arguing that the carjackings occurred without the requisite intent as a matter of fact, the cousins also argue that the "degree and type of injury contemplated by § 2119," as a matter of law, is of a magnitude more significant than the injuries contemplated by the government in bringing the federal carjacking charges against them. That legal argument goes nowhere though, because the cousins also acknowledge "there can be no challenge at this point" that the district court, whose decision we review, not the government's, "inform[ed] its reading of the carjacking statute's intent element" correctly. In other words, because the cousins concede that the district court correctly understood the relevant law, and because the cousins advance no argument that the district court presented the law improperly, to the jury or otherwise, their argument about the government's beliefs on the law lacks potency.

- 58 - 1, 10 (1st Cir. 2022) (explaining that the federal carjacking

statute covers "'a particular type of robbery' with the goal of

deterring especially violent crime" (quoting Holloway, 526 U.S. at

8-9)). Within the broad aperture of that argument capturing all

of the carjacking counts, the cousins only zoom in and make

specific assertions explaining why their actions failed to satisfy

the mens rea element of the statute as to one carjacking offense:

the taking of Bryant Myers' BMW X6. Accordingly, we conclude that

any challenge targeting the mens rea requirement as to the

remainder of the carjacking counts is waived, and we focus our

analysis on the cousins' state of mind during the Bryant Myers

incident as illustrated by the evidence.30 See Zannino, 895 F.2d

at 17.

The cousins contend that the trial evidence related to

the taking of the BMW X6 was insufficient to prove the requisite

mens rea because "there [was] no testimony that Huertas" -- who

ultimately drove off with the vehicle, with Pérez in tow, after

30While we decline to reach the cousins' perfunctory complaints relative to the mens rea element appending to the carjackings outside of the carjacking of Myers' X6, we note that our rehearsal of the evidence reveals that the cousins would struggle to mount a successful challenge as to those counts as well, because the evidence tends to show that the men brandished weapons and made serious threats from behind a guns' barrel on all occasions. See Guerrero-Narváez, 29 F.4th at 10 ("We have held that touching or threatening a victim while brandishing a firearm is sufficient evidence of intent 'to cause death or serious bodily harm' within the meaning of § 2119.").

- 59 - the basketball-court scuffle -- or the other defendants "were even

demanding the motor vehicle." Such is so, the cousins say, because

Peréz, the concerned mother, who was begging for the men to leave

her son alone at the time the vehicle was taken, supposedly

"voluntarily entered into the car and voluntarily show[ed]

[Huertas] where the keys [were] and ho[w] to operate the BMW car

of her son Myers, incidentally to the kidnapping of Mr. Myers."

The cousins' position is that these facts, in and of themselves,

demonstrate why there was no showing of any intent to cause serious

bodily harm,31 but the record evidence viewed in the light most

favorable to the prosecution, as the government points out, does

not paint the same picture.32

31Intermingled with their mens rea argument, the cousins also offer a few scattered words against the jury's conclusion that they stole the X6 "through the use of force, violence, or intimidation" -- the third element of the federal carjacking statute. Garcia-Alvarez, 541 F.3d at 16. While the cousins' no-force-violence-or-intimidation argument is likely waived for lack of development, see Zannino, 895 F.2d at 17, our alighting on the record will nevertheless show that the alternative argument is unavailing. 32In addition to confronting the cousins' presentation of the facts, the government also correctly points out from the law's perspective that, even if the taking of the BMW X6 was "incidental[] to the kidnapping of Mr. Myers," and even if no demand was made for the vehicle as a matter of fact -- as a matter of law, "nothing in the statute requires that the taking of a motor vehicle be an ultimate motive of the crime," see United States v. Rivera Figueroa, 149 F.3d 1, 4 (1st Cir. 1998), and a demand is not an element of the carjacking offense (although the use of force, violence, or intimidation is), see Guerrero-Narváez, 29 F.4th at 9. Therefore, the government says, whether the cousins made a demand, whether the carjacking was incidental, the evidence

- 60 - So, what did the trial evidence show about the cousins'

state of mind when they jacked Myers? Agent Rosado certainly

testified that Huertas admitted during a post-arrest interview

that he had begun planning to confront Myers some days in advance

of the incident, and Villegas testified similarly that Huertas,

Pizarro, and Cepeda had planned the encounter in advance because

they had misgivings with Myers related to the death of their cousin

Corroro. Huertas also apparently admitted during the interview

with Rosado, according to Rosado, that at least one of the

individuals who accompanied him to confront Myers demanded the

keys to Myers' X6 during the basketball-court interaction. Those

testified-to facts cut against the cousins' contention that the X6

fell into their hands incidentally due to happenstance and Pérez's

will alone. Peréz, on her occasion to tell the tale of the

carjacking, plainly testified for her part on point that she only

gave up the keys to the BMW X6 after the men had broken her phone

as she attempted to contact the police, and after "[one of] the

guy[s] . . . started asking where the keys to the BMW [were],"

which puts a further damper on the cousins' constructed narrative

that no demand was made. And all of this back and forth happened,

according to Villegas, Luyando, and Myers' testimony, only after

the group of men had hit, bludgeoned, and dragged Myers by the

presented here plainly meets the legal charge as to the theft of the X6 (and as to all the other carjackings as well).

- 61 - hair into their earlier-stolen Kia Sportage to take him away, while

struggling with Pérez to break her unrelenting grip on her child

all along, aiming weapons at them both throughout, and even firing

a shot in the air at one point. Considering these identified facts

held against the record in toto, we cannot adopt the cousins'

preferred inference that Pérez was under no threat and that her

relinquishing of the keys was therefore voluntary and attributable

solely to her own choices rather than the cousins' desire for the

X6 and intimidating demand for as much. We find on these facts

instead that the jury was presented sufficient evidence to conclude

that the cousins committed the criminal acts possessing the

requisite intent to cause serious bodily harm if necessary to

acquire the vehicle belonging to Myers. See Guerrero-Narváez, 29

F.4th at 10. To be sure, while Luyando and Villegas explained

that it was Huertas who ultimately drove off in the X6 with Pérez,

the cousins neglected to squarely argue that Pizarro could not be

held liable as an aider and abettor in the offense insofar as

Huertas is subject to liability as the principal,33 so any such

argument is waived, and Pizarro remains on the hook for the Bryant

Myers incident too.34 See Zannino, 895 F.2d at 17.

The district court instructed the jury that it could find 33

Huertas and Pizarro liable for the charged offenses under an aiding-and-abetting theory, and there is no argument before us that such an instruction was inappropriate. While we find the argument waived, we note on the topic, 34

nevertheless, that the evidence illustrated Pizarro associated

- 62 - We move on to the cousins' non-mens rea arguments, which

were all presented to us in a cursory and clumped-together

fashion -- arguments directed at the remainder of the carjackings

and the kidnapping resulting in the death of L.S.M. They say that

there was "no physical evidence" to connect them to the charged

offenses; they complain that only Luyando and Villegas identified

Pizarro in open court, and that only Luyando, Villegas, and

Barreras identified Huertas in open court; and they take issue

with the veracity of Luyando's and Villegas' testimony overall,

considering their once-comrades had something to gain from playing

the role of the cooperating witnesses during the trial.35 Be that

as it may, none of the cousins' arguments are sufficient to compel

himself with the criminal venture and that he participated in the assault on Myers and Pérez resulting in the taking of the X6 as something he wished to bring about. See United States v. Monteiro, 871 F.3d 99, 109 (1st Cir. 2017) (explaining that "[t]o establish aiding and abetting liability, the government must prove beyond a reasonable doubt that the defendant 'associated himself with the venture,' 'participated in [the venture] as something that he wished to bring about,' and that he 'sought by his actions to make the venture succeed'" (quoting United States v. Negrón-Sostre, 790 F.3d 295, 311 (1st Cir. 2015))). The cousins also offer a few words against the jury's 35

conclusion that they stole the relevant motor vehicles "through the use of force, violence, or intimidation" -- the third element of the federal carjacking statute. See Garcia-Alvarez, 541 F.3d at 16. However, because the cousins fail to drill down and illustrate with citations to the record, which of the numerous charged carjackings they are challenging and why, and because the record tends to show that force, violence, and intimidation were employed on all occasions, see supra note 30, the cousins' argument is unavailing.

- 63 - the reversal of any of the identified counts on the record here,

for reasons we now explain.

As for the general challenge the cousins raise against

the veracity of the cooperating witness testimony, wherein they

rely primarily on the mere fact that Villegas and Luyando testified

pursuant to an agreement with the government to impugn their

credibility, we have previously explained that "a defendant cannot

win a sufficiency-of-the-evidence challenge by claiming . . . the

witnesses against him were not credible." United States v.

Maldonado-Peña, 4 F.4th 1, 54 (1st Cir. 2021). That principle

applies whether witnesses testify pursuant to an agreement with

the government or for some other reason. See United States v.

Velazquez-Fontanez, 6 F.4th 205, 217 (1st Cir. 2021) (explaining

that "[an appellant] errs in claiming that the government's

reliance on cooperating witness testimony necessarily undermines

the sufficiency of the evidence"). In other words, in view of our

caselaw, the cousins' cooperating witness argument wilts and

burns. As for the issues the cousins raise with the identification

evidence, this court has emphasized that such "evidence is for the

jury in all but 'extraordinary cases.'" See United States v. De

León-Quiñones, 588 F.3d 748, 753 (1st Cir. 2009) (quoting United

States v. Henderson, 320 F.3d 92, 100 (1st Cir. 2003)). And

neither cousin isolates anything extraordinary about the evidence

presented to the jury here to show us why we should depart from

- 64 - our typical course in this case, so we decline to do so. Last, on

the lack of physical evidence, which was not so lacking as the

cousins contend,36 we have explained in previous cases that such

evidence is not necessary to support a conviction. See United

States v. Cruz-Rodriguez, 541 F.3d 19, 27 (1st Cir. 2008) ("Lack

of physical evidence does not render the evidence that is presented

insufficient." (quoting United States v. Magallanez, 408 F.3d 672,

681 (10th Cir.2005))). So that argument fails too. And that's

all folks. With everything told, this court is unmoved to upend

the jury's verdict; the cousins' sufficiency-of-the-evidence

challenges fail.

C. Double Jeopardy

The Fifth Amendment provides that no person shall "be

subject for the same offence to be twice put in jeopardy of life

or limb." U.S. Const. amend. V. Huertas contends that the Fifth

Amendment's proscription was violated when he was put to trial by

the government simultaneously for a violation of

18 U.S.C. § 924(j) and its lesser included offense,

18 U.S.C. § 924(c) -- charges which related to the kidnapping

36For example, members of the government's forensics team testified relative to the kidnapping resulting in death of L.S.M. that the weapon-related evidence collected at the scene of the crime aligned with what the evidence tended to show about Huertas and Pizarro's arsenal, and a burned Infiniti matching the description of a vehicle testimony illustrated Huertas and Pizarro had carjacked earlier in the criminal chain of events was found at the scene also.

- 65 - resulting in death of L.S.M.37 See United States v. García-Ortiz,

657 F.3d 25, 28 (1st Cir. 2011) (explaining that

18 U.S.C. § 924(c) -- discharge of a firearm in furtherance of a

crime of violence -- is a lesser included offense of

18 U.S.C. § 924(j) -- discharge of a firearm in furtherance of a

crime of violence causing murder). Huertas, who raises his double

jeopardy grievance for the first time before us rather than below,

concedes that we review his unpreserved claim for plain error.

See United States v. Stefanidakis, 678 F.3d 96, 99 (1st Cir. 2012).

The government does not challenge Huertas' assertion

that, under the Double Jeopardy Clause, he may not be punished for

violating both § 924(j) and § 924(c) as § 924(j)'s lesser included

37Huertas also appears to attempt to raise a due process challenge against the jury instructions and verdict form. In so doing, he asserts that, because the original verdict form submitted to the jury was incorrect -- as acknowledged (and addressed) by the district court -- the double jeopardy error he alleges "taken in concert with the erroneous jury verdict form, [which] raised valid questions during jury deliberations, created jury and trial confusion and affected [his] substantive right at a fair trial." So be it, because Huertas fails to identify with any amount of clarity what the confusion affecting his substantive right to a fair trial attaching to the district court's instructional error was, and considering the error was undisputedly corrected before the jury rendered its verdict (and after Huertas' attorney indicated she agreed with the correction), and in light of the fact that Huertas cites no caselaw in support of his position that his fair-trial rights were violated, we find Huertas' due process argument about error in the jury instructions and verdict form waived. See Zannino, 895 F.2d at 17; see also United States v. Serrano-Delgado, 29 F.4th 16, 29 (1st Cir. 2022) (explaining that an issue may also be waived if counsel's own conduct invited the trial judge's ruling).

- 66 - offense. Rather, it tells us, correctly, that the Supreme Court

has established that "the [government] is not prohibited by the

Double Jeopardy Clause from charging [a defendant] with greater

and lesser included offenses and prosecuting those offenses in a

single trial." Ohio v. Johnson, 467 U.S. 493, 500 (1984).

Instead, "the Double Jeopardy Clause prohibits prosecution of a

defendant for a greater offense when he has already been tried and

acquitted or convicted on the lesser included offense." Id. at

501. On those occasions where a defendant is convicted of an

offense and its lesser included charge in a single trial, "the

role of the constitutional guarantee is limited to assuring that

the court does not exceed its legislative authorization by imposing

multiple punishments for the same offense." Brown v. Ohio, 432

U.S. 161, 165 (1977).

Against this constitutional landscape plotted by the

Supreme Court and endorsed by the government hither, Huertas

descants that the district court plainly erred in allowing the

18 U.S.C. § 924(j) charge and the 18 U.S.C. § 924(c) charge to go

to the jury. However, in so doing, Huertas fails to provide any

citations to controlling precedent spelling out reversible double

jeopardy error under circumstances such as his: where the count

charging a lesser included offense was dismissed prior to the

district court's imposition of a sentence. Such failure is fatal

to Huertas' double jeopardy claim under the applicable plain error

- 67 - standard. See United States v. Rivera-Carrasquillo, 933 F.3d 33,

55 (1st Cir. 2019) (explaining that to establish plain error, an

appellant bears the burden to prove that the error is

"indisputable . . . given controlling precedent" (quoting United

States v. Morosco, 822 F.3d 1, 21 (1st Cir. 2016))). With that,

we move on.

D. Sentencing38

We now near the end of our appellate endeavor. Our last

assignment is to review Pizarro's argument that his

sentence -- life in prison plus more -- is unreasonable.39 Pizarro

avers that the sentence imposed upon him was so because the

district court improperly weighed certain unidentified mitigating

factors, because it disregarded certain unidentified others, and

because the sentence ultimately selected by the court was just too

38We draw the relevant facts describing Pizarro's sentencing hearing primarily from the presentence investigation report and the hearing transcript. Cf. United States v. Larios, 593 F.3d 82, 85 (1st Cir. 2010) ("We draw the facts . . . where appropriate, [from] the sentencing hearing transcript."). And we narrate the facts "largely in equipoise." Burgos-Montes, 786 F.3d at 99 n.1. 39"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 usually "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). In the instant case, however, because Pizarro -- as we will show -- only maintains a claim of substantive reasonableness, "we therefore confine our review to the issue of substantive reasonableness." See United States v. Flores-Nater, 62 F.4th 652, 655 (1st Cir. 2023).

- 68 - long. As to the first two noted contentions, the government points

out correctly that they were not raised before the district court,

and as such are at best subject to plain error review.40 The last

complaint, however, was raised in that venue, so we will review

Pizarro's preserved challenge targeting the reasonableness of the

sentence's length under the more appellant-amicable abuse of

discretion rubric. See Holguin-Hernandez v. United States, 589

U.S. 169, 171 (2020) (explaining that an "argument for a specific

sentence" less than that imposed by the district court "preserve[s]

[a] [substantive reasonableness] claim on appeal that the

[imposed] sentence was unreasonably long"); United States v.

Colón-De Jesús, 85 F.4th 15, 24 (1st Cir. 2023) (reviewing for

plain error certain substantive reasonableness arguments related

to mitigating factors when the appellant "did not object to

the substantive reasonableness of his sentence below"); see also

United States v. Pantojas-Cruz, 800 F.3d 54, 58 (1st Cir. 2015)

(explaining as a general matter that "[i]f a

defendant . . . 'fails to preserve an objection below, the plain

error standard supplants the customary standard of review'"

40Pizarro confoundingly asserts that the noted sentencing challenges were preserved below because "in this case [he] did raise the governmental cooperation argument before the district court." Whatever Pizarro may mean by that, the record plainly shows that he made no objection during the sentencing whatsoever beyond his argument that he should receive a sentence less than life of "40 or 50 years."

- 69 - (quoting United States v. Dávila–González, 595 F.3d 42, 47 (1st

Cir. 2010))).

While Pizarro recognizes relative to his two unpreserved

reasonableness arguments that "when [an] [a]ppellant [such as him]

has failed to raise his claims below, he or she is required to

overcome plain error," he does not engage in any plain error

analysis in his opening brief relative to those two assertions,

nor does he do so in his reply brief, which was penned at least

with the benefit of knowing that the government argued the

appellant-unfriendly standard applies here.41 "And, because

[Pizarro] failed to argue the plain error standard in his opening

brief [and his reply brief to boot], his . . . [first

two] challenges to the . . . reasonableness of his sentence,"

which relate to the court's consideration of unidentified

mitigating factors, are waived. Colón-De Jesús, 85 F.4th at 25.

So, we advance to review the reasonableness of the life sentence,

focusing narrowly on Pizarro's preserved substantive argument

about its duration.

Because any challenge faulting the district court's

weighing of the relevant factors or lack thereof is waived, see

Not only does Pizarro fail to engage in the requisite plain 41

error analysis relative to his claims, he also neglects to identify even a single mitigating factor which the district court improperly weighed or disregarded in its decision, which is another basis for waiver. See Zannino, 895 F.2d at 17.

- 70 - supra note 40; see also Colón-De Jesús, 85 F.4th at 25, in order

to determine whether the duration of the sentence imposed upon

Pizarro was reasonable, we ask simply whether the sentence's length

is defensible and based in a plausible rationale, see id. at 26;

see also United States v. Colcord, 90 F.4th 25, 30 (1st Cir. 2024)

(explaining that "[a] sentence is substantively reasonable if its

rationale is plausible and resulted in a defensible outcome"). We

have explained time and time again on this topic that a sentencing

outcome is defensible so long as it is part of the universe of

reasonable sentences. See Clogston, 662 F.3d at 592. And, here,

the district court imposed a sentence within what Pizarro concedes

were the properly-calculated guideline ranges as to all crimes of

conviction, which affords the sentence a presumption of

reasonableness for Pizarro to overcome, see United States v.

Ortíz-Mercado, 919 F.3d 686, 691 (1st Cir. 2019), placing pressure

on him requiring a "heavy lift" to repulse, United States v. De

Jesús-Torres, 64 F.4th 33, 41–42 (1st Cir. 2023) (explaining that

"[i]n virtually all cases, a within-guidelines sentence will be a

defensible outcome"). And as Pizarro treks uphill to confront his

life sentence, he does not even begin to explain with any manner

of specificity why, considering -- as the district court did in

divining its sentence -- the gruesome nature of the offenses, his

more-than-minimal criminal background, and the other § 3553

factors the court cited, the life sentence imposed upon him is

- 71 - beyond the universe of reasonableness. See Clogston, 662 F.3d at

593 (explaining that there is a latitude implicit in a sentencing

court's task to select a reasonable sentence, and reasoning

therefore that "[s]entencing is much more an art than a science,"

which we are reluctant to "substitute [our] judgment for" on

appeal). Pizzaro's failure to explain ends the matter, and his

sentence remains standing, as does his cousin Huertas'.

OUTCOME

All that's left to be said is: we affirm.

- 72 -