United States Court of Appeals For the First Circuit
No. 22-1857
UNITED STATES OF AMERICA,
Appellee,
v.
NYCOLE AMAURY ROSARIO SÁNCHEZ, t/n Nyckole Amaury Rosario Sánchez,
Defendant, Appellant.
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 Gelpí, Circuit Judges.
Raúl S. Mariani-Franco, with whom Allan A. Rivera-Fernández was on brief, for appellant.
Sean P. Murphy, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Maarja T. Luhtaru, Assistant United States Attorney, were on brief, for appellee.
July 3, 2025 GELPÍ, Circuit Judge. Defendant-Appellant Nycole Amaury
Rosario-Sánchez ("Rosario"), alongside six other individuals,
committed a deadly crime spree over the course of ten days in
January 2018.1 They robbed three Puerto Rican businesses, forcibly
carjacked two vehicles, and killed four people. Rosario pleaded
guilty to these crimes, and the district court subsequently
sentenced him to 480 months' imprisonment. Rosario now challenges
that sentence, chiefly arguing that the district court failed to
adequately consider both (1) certain mitigating factors and
(2) the "sentencing disparity" as between Rosario and his
co-defendants. For the reasons we will explain, we affirm
Rosario's sentence.
I. Background
This sentencing appeal follows a guilty plea, so we draw
the following facts from the plea agreement, the unobjected-to
Presentence Investigation Report ("PSR"), and the change of plea
and sentencing transcripts. See United States v.
Melendez-Hiraldo, 82 F.4th 48, 51 n.1 (1st Cir. 2023) (citing
United States v. Spinks, 63 F.4th 95, 97 (1st Cir. 2023)).
1 Rosario's co-defendants -- Omar Rivera-Moyet, Dereck Muñoz-Nieves, Daniel Dennes-García, Edwin O. Gómez-Caraballo, and Christopher Vázquez-Agosto -- were separately sentenced by a different judge. See United States v. Rivera-Moyet et al., No. 3:18-cr-00023-PAD; United States v. Vázquez-Agosto, No. 3:21-cr-00388-PAD. Though those individuals were separately charged and sentenced, we generally use the term "co-defendants" for ease of reference throughout this opinion.
- 2 - On January 4, 2018, Rosario (fifteen years old at the
time) and his accomplices began their series of crimes by robbing
a pizzeria in Yabucoa, Puerto Rico. "Rosario . . . brandished and
discharged a firearm during the robbery, and one of the employees
was shot in the abdomen but survived." He also shot "at one of
the pizzeria's clients, who was wounded." A week later, the same
group of defendants robbed a food stand in San Juan. During that
robbery, Rosario "brandished and discharged a firearm during the
robbery, and the employee died as a result." Continuing their
spree, the group stole a motorcycle from a gas station in Santurce
on January 13, 2018. During this carjacking, Rosario and a
co-defendant brandished firearms, and Rosario discharged his
firearm. The driver of the motorcycle "died as a result of shots
that were fired."
The next day, the group robbed a food truck. Multiple
members of the group, including Rosario, took aim at three
employees of the food truck. Each of the three employees were
shot, with one of them later succumbing to his injuries. Rosario
and his associates fled the scene with approximately $2,100 from
the food truck's cash register. Twenty minutes after robbing the
food truck, in the final act of their spree, Rosario and his group
- 3 - stole a car. One of Rosario's co-defendants shot and killed the
owner of that car.
Rosario was arrested eleven days later, on January 25,
2018. Though he was a minor when he committed the crimes, he
agreed to be prosecuted as an adult. Following his transfer to
said status, he pleaded guilty to a six-count Information, charging
him with: interference with commerce by robbery in violation of 18
U.S.C. § 1951 (Counts One, Two, and Five); carjacking in violation
of 18 U.S.C. § 2119(3) (Counts Three and Six); and using and
carrying a firearm during a crime of violence causing murder in
violation of 18 U.S.C. § 924(j)(1) (Count Four). In calculating
the total offense level, the parties applied the multiple counts
adjustment and added five offense levels for grouped counts under
U.S.S.G. § 3D1.4. The parties agreed to request a sentencing range
of twenty to thirty-five years, and Rosario also agreed to a waiver
of the right to appeal if the court-imposed sentence was 420 months
(thirty-five years) or less.
The PSR included information about Rosario's
participation in the robberies, carjackings, and resulting
murders. It also included information on his challenging
childhood. The PSR ultimately set forth a total offense level of
43 and a guideline imprisonment range of life.
Rosario did not object to the PSR and submitted that it
adequately reflected his characteristics and background. In his
- 4 - sentencing memorandum, however, he suggested that the district
court consider a downward departure or variance from the
guidelines' sentencing range (life). Arguing that the appropriate
sentence for his crimes was twenty years (or 240 months), Rosario
emphasized his difficult circumstances, including his troubled
childhood, during which he suffered abandonment and abuse. He
also claimed that he has a diminished IQ and an intellectual
disability, such that he was essentially a puppet of his
co-defendants. In support of these claims, he included three
neuropsychological reports, each of which determined that he has
diminished intellectual capacity and severe emotional and
intellectual issues, and also had a brutal upbringing. Finally,
he represented that his co-defendants entered plea agreements for
sentencing exposure between twenty-three and thirty years. While
the government did not file a sentencing memorandum, at sentencing
it sought a sentence of thirty-five years (420 months).
On October 12, 2022, the district court imposed a
sentence of forty years (480 months).2 In doing so, the court
first calculated the guidelines combined offense level to be 47,
and then reduced the offense level by three, given that Rosario
timely accepted responsibility for his offenses. Because the total
2 The sentence included 240 months on Counts One, Two, and Five, 300 months on Counts Three and Six, to be served concurrently with each other, but consecutively to 180 months as to Count Four.
- 5 - offense level was higher than 43, it was treated as level 43. See
U.S.S.G. ch.5, pt. A, cmt. n. 2 ("An offense level of more than 43
is to be treated as an offense level of 43."). Applying a criminal
history category of II, the court found the Guidelines sentencing
range to be life imprisonment. It then ultimately varied downward
to the sentence imposed. This timely appeal followed.
II. Legal Standard
On appeal, Rosario presses that his sentence is both
procedurally and substantively unreasonable. Our review of a
sentencing decision is "bifurcated: we first determine whether the
sentence imposed is procedurally reasonable and then determine
whether it is substantively reasonable." United States v.
Ayala-Vazquez, 751 F.3d 1, 29 (1st Cir. 2014) (internal quotation
marks omitted) (quoting United States v. Leahy, 668 F.3d 18, 21
(1st Cir. 2012)). We "consider the substantive reasonableness of
the sentence imposed under an abuse-of-discretion standard,"
affording due deference to the district court's analysis of the
section 3553(a) factors. United States v. Carvajal, 85 F.4th 602,
613 (1st Cir. 2023), cert. denied, 144 S. Ct. 1042 (2024) (quoting
Gall v. United States, 552 U.S. 38, 51 (2007)). We apply the same
- 6 - standard in our review of "claimed procedural errors."
Ayala-Vazquez, 751 F.3d at 29.
III. Discussion
A. Procedural Reasonableness
Procedural errors include a district court's "failing to
consider appropriate sentencing factors, predicating a sentence on
clearly erroneous facts, or neglecting to explain the rationale
for a variant sentence adequately." United States v. Del
Valle-Rodríguez, 761 F.3d 171, 176 (1st Cir. 2014) (citing United
States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008)). "We review
factual findings for clear error, arguments that the sentencing
court erred in interpreting or applying the guidelines de novo,
and judgment calls for abuse of discretion simpliciter." See
Ayala-Vazquez, 751 F.3d at 29 (quoting Leahy, 668 F.3d at 21).
Rosario bases his procedural error claim on the district
court's alleged failure to consider certain section 3553(a)
factors at sentencing, to wit, (1) his challenging life
circumstances and (2) the disparity in sentences between himself
and his co-defendants. We consider each argument seriatim,
reviewing for abuse of discretion. "[W]e will find an abuse of
discretion only when left with a definite conviction that 'no
reasonable person could agree with the judge's decision.'" United
States v. Maldonado-Peña, 4 F.4th 1, 56 (1st Cir. 2021) (quoting
United States v. McCullock, 991 F.3d 313, 317 (1st Cir. 2021)).
- 7 - "Appellate review of federal criminal sentences is characterized
by a frank recognition of the substantial discretion vested in a
sentencing court." United States v. Ortiz-Pérez, 30 F.4th 107,
112 (1st Cir. 2022) (quoting United States v. Flores-Machicote,
706 F.3d 16, 20 (1st Cir. 2013)).
1. Life Circumstances
Rosario's sentencing memorandum emphasized his tragic
life circumstances, including having been "born with a condition
that disgusted both [of] his parents."3 It also included details
of Rosario's "verbal abuse and maltreatment" at the hands of his
mother. Aside from his emotional hardships, Rosario also "suffers
from intellectual disability." As such, in his sentencing
memorandum he requested a diminished capacity departure under
U.S.S.G. § 5K2.13 and presented the results of multiple
psychiatric evaluations in support of this request.
At sentencing, the district court stated that it
"ha[d] . . . considered the other sentencing factors set forth in
Title 18 United States Code Section 3553(a)," as well as the PSR.
It further stated that it "ha[d] considered Mr. Rosario's age and
mental and emotional condition at the time of the offense as
relevant in determining his sentence." These conditions included
that "[h]e was 16 [sic] years old when he committed the offenses,
Rosario 3 was born with ambiguous genitalia and severe hypospadias.
- 8 - and perhaps lacked maturity and a sense of responsibility. Mr.
Rosario's longstanding history of abuse and neglect by his
caregivers, his physical and mental conditions, which were mostly
untreated, led him to be reckless and impulsive, but that
recklessness and impulsiveness culminated in the death of at least
four persons."4 The court ultimately concluded that the parties'
requested sentences did not "reflect[] the seriousness of the
offenses, or promote[] respect for the law, or protect[] the
public . . . , [or] . . . address the issues of deterrence and
punishment."
On appeal, Rosario argues that the district court failed
to adequately account for those potentially mitigating factors.
He insists that these factors were ignored by the sentencing court,
resulting in a procedural error. The government, on the other
hand, counsels affirmance. Highlighting the district court's
consideration of Rosario's personal characteristics, the
government posits that there was no procedural error. The
government points out that the district court "explicitly
considered [Rosario's] age and mental and emotional condition,
among other mitigating factors, and, as a result, issued a
downwardly variant sentence." The government also notes Rosario's
4 The district court inadvertently stated that Rosario was sixteen years old at the time of the crimes, but later corrected itself in observing he was fifteen years old.
- 9 - behavior while incarcerated, including the fact that he threatened
a custodial officer.5
The judge's "explicit statement" that he had considered
the section 3553(a) factors "is a point in favor of . . . finding
that the judge weighed each of [the section 3553(a)] factors."
See Ayala-Vazquez, 751 F.3d at 31 (citing United States v.
Clogston, 662 F.3d 588, 592 (1st Cir. 2011)). Moreover, the
district court ultimately downwardly varied (from the guideline
range of life imprisonment) and the sentence is, thus, entitled to
a presumption of reasonableness. See United States v. deJesus, 6
F.4th 141, 150 (1st Cir. 2021) (explaining the "steep uphill climb"
which exists where "a defendant contests the length of a downwardly
variant sentence"); see also United States v. Concepcion-Guliam,
62 F.4th 26, 36 (1st Cir. 2023) (explaining that when "a defendant
challenges a downwardly variant sentence, he must carry a
particularly heavy burden to show that the length of the sentence
imposed is unreasonable").
Given the downward variance and the district court's
analysis, Rosario has not met his burden of showing that there was
a procedural error. See id. It is clear from the sentencing
5During that incident, Rosario told the officer "when we catch you in the street, we will kill you, we have balls to kill, if we do not assault you here, for sure in the streets we will kill you, because we have real balls to kill." Rosario was convicted of a misdemeanor under the Puerto Rico Penal Code and received a six-month sentence.
- 10 - transcript that the court looked at Rosario's age, "longstanding
history of abuse and neglect by his caregivers," and his "physical
and mental conditions, which were mostly untreated." See, e.g.,
United States v. García Pérez, 9 F.4th 48, 52 (1st Cir. 2021)
(disagreeing that the court failed to consider youth as a
mitigating factor when it expressly mentioned his age). Rosario's
sentencing memo -- which the court signaled it had
read -- detailed the mitigating factors, and Rosario discussed
them at the sentencing hearing. Moreover, the PSR -- which the
court signaled it had reviewed -- also provided a detailed
discussion of Rosario's background. See United States v.
Lozada-Aponte, 689 F.3d 791, 793 (1st Cir. 2012) ("The potentially
mitigating factors [the defendant] identifies on appeal were
thoroughly discussed in the presentence report; that the district
court did not explicitly mention them during the sentencing hearing
suggests they were unconvincing, not ignored.").
Just because "the sentencing court chose not to attach
to certain of the mitigating factors the significance [Rosario]
thinks they deserved does not make the sentence unreasonable."
See Clogston, 662 F.3d at 593. Here, where the court explicitly
mentioned all of the above factors -- and also said "[b]ut" he
caused four deaths (and had recapped the details of the violent
crime spree already), and then doled out a downwardly variant
sentence -- it seems apparent that the court appropriately
- 11 - grappled with the mitigating and aggravating factors, fulfilling
its obligation. Accordingly, we find no procedural error as to
the district judge's review of the section 3553(a) factors.
2. Sentencing Disparity
We next address Rosario's disparity argument. "In
fashioning an appropriate sentence, judges are directed by statute
to consider 'the need to avoid unwarranted sentencing disparities
among defendants with similar records who have been found guilty
of similar conduct.'" United States v. Reyes-Santiago, 804 F.3d
453, 467 (1st Cir. 2015) (quoting 18 U.S.C. § 3553(a)(6)). While
section 3553(a)(6) is "primarily aimed at national disparities,"
a sentence also may be "unreasonable because of the disparity with
the sentence given to a codefendant." Id. (first quoting United
States v. Rivera-Gonzalez, 626 F.3d 639, 648 (1st Cir. 2010); and
then quoting United States v. Reverol–Rivera, 778 F.3d 363, 366
(1st Cir. 2015)).
Rosario -- both in his sentencing memorandum below and
now in his briefing on appeal -- mentions that, at the time of the
crimes, each of his co-defendants were adults, while he was fifteen
years old. Rosario claims that his co-defendants "harassed and
taunted him because of his physical and mental conditions" and
"enticed and promoted his participation and violence." By the
time sentencing for all of these defendants had concluded,
Rosario's was ultimately the highest, with each of his
- 12 - co-defendants receiving lower sentences.6 Rosario sees this as a
"failure to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct, as required by 18 U.S.C § 3553(a)(6)."7
The government, in turn, asserts that Rosario's claim as
to disparity is "unavailing." Citing our decision in
Reyes-Santiago, 804 F.3d at 467, the government presses that it is
the defendant's duty to "compare apples to apples." Rosario has
not only failed in that obligation, the government contends, but
he could not possibly meet it. The government submits there are
key differences between Rosario and his co-defendants -- such as
the fact that they were sentenced by different judges and played
different roles in the crimes -- and that those differences foil
Rosario's disparity argument.
"To present '[a] well-founded claim of disparity,' a
defendant must compare apples to apples." Id. (quoting United
States v. Mateo-Espejo, 426 F.3d 508, 514 (1st Cir. 2005)). And,
if "material differences between the defendant and the proposed
comparator suffice to explain the divergence," a sentencing
6 Rivera-Moyet was sentenced to 216 months, Muñoz-Nieves was sentenced to 360 months, Edwin O. Gómez-Caraballo was sentenced to 312 months, and Daniel Dennes-Garcia was sentenced to 178 months. Again, Rosario was sentenced to 480 months. 7 Rosario's briefing appears to cast his disparity argument under the procedural -- rather than the substantive -- umbrella. Accordingly, we address it as a procedural challenge.
- 13 - disparity claim is unlikely to prevail. United States v. Demers,
842 F.3d 8, 15 (1st Cir. 2016). A defendant "is not entitled to
a lighter sentence merely because his co-defendants received
lighter sentences." United States v. Dávila-González, 595 F.3d
42, 50 (1st Cir. 2010).
Here, Rosario hasn't provided the necessary information
to determine whether he and his co-defendants were identically
situated or were, instead, materially different. See United States
v. Candelario-Ramos, 45 F.4th 521, 526 (1st Cir. 2022) (noting a
disparity claim failed, in part, when appellant failed to provide
relevant information to determine whether co-defendants were
relevant comparators). Rosario does not offer up any details for
comparison other than listing some co-defendants' sentences and
contending those individuals were adults who influenced him. He
also says that those adults didn't suffer the same ailments as he,
and that they received more favorable plea offers. But "[m]erely
pointing to a [co-defendant]'s sentence . . . does not prove the
existence of an impermissible sentencing disparity." See United
States v. Nuñez, 840 F.3d 1, 7 (1st Cir. 2016).
Rosario tells us nothing about his proposed comparators'
criminal histories, the specific circumstances of their plea
agreements, or the particularities of their crime-spree conduct as
compared to Rosario's. See Candelario-Ramos, 45 F.4th at 526
(noting that, without that information, the court on appeal
- 14 - couldn't determine whether the co-defendants were relevant
comparators); Demers, 842 F.3d at 15. In addition, the
co-defendants he compares himself to were sentenced by a different
judge. See Candelario-Ramos, 45 F.4th at 526 ("Two of the
co-defendants . . . were sentenced by a different judge . . . , a
fact that makes [their] sentence[s] . . . less relevant."). We
also note that, at the time of Rosario's sentencing, three of his
co-defendants were not yet sentenced. See United States v.
Bishoff, 58 F.4th 18, 26 (1st Cir. 2023) (noting "the court could
not have explained the reasons for the disparity during [the
defendant's] sentencing hearing because [the defendant] was
sentenced five months before [the co-defendant] and, at that point,
there was no disparity to consider or justify"). Rosario
alternatively argues that the district court committed error when
it "did not even bother to assess the sentencing disparity issue."
But he does not point us to case law to support the idea that the
sentencing court's purported failure to explicitly address
disparity was error where three of his co-defendants were not yet
sentenced and where they were ultimately sentenced by a different
judge. See id.; Candelario-Ramos, 45 F.4th at 526.8
8 For the one co-defendant who had been sentenced at the time of Rosario's sentencing, Gomez-Caraballo, Rosario did not present enough information for the apples-to-apples comparison we outline above. See Reyes-Santiago, 804 F.3d at 467.
- 15 - Thus, on this issue, we find no abuse of discretion by
the district judge. See Carvajal, 85 F.4th at 613.
B. Substantive Reasonableness
Having found no procedural error, we next review
Rosario's argument that his sentence is substantively
unreasonable. "[T]he linchpin of a substantively reasonable
sentence is a plausible sentencing rationale and a defensible
result." Ayala-Vazquez, 751 F.3d at 32 (alteration in original)
(quoting United States v. Pol–Flores, 644 F.3d 1, 4–5 (1st Cir.
2011)). Rosario "must adduce fairly powerful mitigating reasons
and persuade [this Court] that the district judge was unreasonable
in balancing pros and cons." Id. at 32-33 (alteration in original)
(quoting United States v. Batchu, 724 F.3d 1, 14 (1st Cir. 2013)).
There is no clear delineation between Rosario's claims
of procedural error and his claims of substantive error. That
said, Rosario's contention on substantive error appears to be that
the district court "exceeded the bounds of permissible choice" and
"fail[ed] to account for factors that should have received
significant weight." He -- again -- recites those factors which
he believes deserved more attention, including his IQ, his age at
the time the crimes were committed, and his health conditions.
For these reasons, he believes that the district court committed
substantive error.
- 16 - The government, in turn, posits that the district court
indeed discussed the section 3553(a) factors, including Rosario's
"age, education, [and] employment history." It further notes that
"[h]aving weighed all the aggravating and mitigating factors, the
court agreed with the parties that a downward variance was
appropriate but disagreed with the extent of the proposed
variances." Hence, the government says, Rosario has not met the
"particularly heavy" burden articulated in Concepcion-Guliam, 62
F.4th at 36. We agree.
For his substantive challenge, Rosario relies solely on
the district court's alleged failure to account for various factors
and alleged granting of an unreasonable amount of weight to other
factors. He also says that "[e]ven if the court followed the
proper procedures, the case can still be substantively
unreasonable if the district court imposed a sentence that is
'greater than necessary.'" The district court appropriately
pointed to the seriousness of Rosario's offenses, as well as the
"reckless[ness] and impulsiv[ity]" of his actions. And, as the
government notes, Rosario made violent threats (against a
custodial officer) while incarcerated. Thus, the district court
appropriately considered the section 3553(a) factors, such that
the sentence is substantively reasonable and there was no abuse of
the judge's "substantial discretion." See Ortiz-Pérez, 30 F.4th
at 112 (quoting Flores-Machicote, 706 F.3d at 20).
- 17 - Rosario also points to Miller v. Alabama, 567 U.S. 460
(2012), in arguing that the district court imposed a sentence that
is disproportionate and harsh given Rosario's age at the time of
the offense. He argues that Miller emphasized "the need to take
into account the age and maturity of the offender at the time of
the crime." Rosario did not advance this particular argument below
and it is, therefore, unpreserved and subject to plain-error review
(at most). See United States v. Feliciano-Candelario, 128 F.4th
5, 16 (1st Cir. 2025) (citing United States v. Aponte-Colón, 104
F.4th 402, 415 (1st Cir. 2024)). That said, under any standard of
review, Rosario's arguments on this issue are unavailing. As we
have previously explained, the Supreme Court's Miller decision
"invalidated only mandatory life-without-parole sentences for
juveniles." United States v. Gonzalez, 981 F.3d 11, 18 (1st Cir.
2020) (citing Miller, 567 U.S. at 489). As the government notes,
Rosario did not receive such a sentence and, so, his Miller-related
arguments are unavailing.9
9 Rosario also cites Atkins v. Virginia, 536 U.S. 304 (2002), for the proposition that his disabilities result in a decreased level of moral culpability. Atkins dealt with the principle of gross disproportionality in the context of death penalty cases. See United States v. Polk, 546 F.3d 74, 76 (1st Cir. 2008) (citing Atkins, 536 U.S. at 318). Rosario does not develop this argument, so we deem it waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.").
- 18 - Because we find no procedural or substantive error, we
also reject Rosario's argument that a "series of errors" which
were "individually harmless" cumulatively amounted to prejudice
warranting reversal.
III. Conclusion
For the foregoing reasons, we affirm the appellant's
sentence.
- 19 -