United States Court of Appeals For the First Circuit
No. 22-1202
UNITED STATES OF AMERICA,
Appellee,
v.
ELISEO VAQUERANO CANAS, A/K/A PELIGROSO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Barron, Chief Judge, Howard and Montecalvo, Circuit Judges.
Jessica Hedges, with whom Hedges & Tumposky, LLP was on brief, for appellant. Mark T. Quinlivan, Assistant United States Attorney, with whom Joshua S. Levy, Acting United States Attorney, was on brief, for appellee.
August 30, 2023 MONTECALVO, Circuit Judge. In this sentencing appeal,
Eliseo Vaquerano Canas ("Vaquerano") appeals a 516-month sentence
imposed by the district court upon his guilty plea to one count of
conspiracy to conduct enterprise affairs through a pattern of
racketeering activity ("RICO"), in violation of 18 U.S.C.
§ 1962(d). Vaquerano asserts that the district court erred in
(1) imposing a sentencing enhancement for the use or attempted use
of a minor in the commission of the offense under the United States
Sentencing Guidelines ("guidelines") and (2) imposing a
substantively unreasonable sentence. Because we conclude that the
minor-use enhancement was properly applied in this case and that
the sentence imposed was substantively reasonable, we affirm the
challenged sentence.
I. Background
Where, as here, a "sentencing appeal follows a guilty
plea, 'we glean the following relevant facts from the plea
agreement, the undisputed sections of the presentence
investigation report, and the transcripts of the change-of-plea
and sentencing hearings.'" United States v. Spinks, 63 F.4th 95,
97 (1st Cir. 2023) (cleaned up) (quoting United States v.
Ubiles-Rosario, 867 F.3d 277, 280 n.2 (1st Cir. 2017)).
In October 2019, a federal grand jury returned a first
superseding indictment charging Vaquerano, alongside five
codefendants, with participation in a RICO conspiracy. The
- 2 - indictment alleged that Vaquerano was a "leader[], member[], or
associate[] of MS-13," a Salvadoran criminal organization.1 In
furtherance of the RICO conspiracy, the indictment alleged that
Vaquerano, with others, deliberately murdered Herson Rivas on July
30, 2018. In February 2021, Vaquerano pled guilty to the one-count
indictment and, in so doing, admitted to murdering Rivas.
Ahead of sentencing, the Probation Office prepared the
presentence investigation report ("PSR"), which stated that
Vaquerano's base offense level was 43 and that he was subject to
a two-level minor-use enhancement, pursuant to U.S.S.G. § 3B1.4,
for using or attempting to use a minor "to commit the offense or
assist in avoiding detection of, or apprehension for, the offense."
Application of the minor-use enhancement resulted in an adjusted
offense level of 45. That number was reduced by three levels for
"acceptance of responsibility," for a total offense level of 42.
See U.S.S.G. § 3E1.1(a), (b). This total offense level combined
with Vaquerano's criminal history category resulted in an
advisory-sentencing range of 360 months' to life imprisonment.
The indictment alleged that MS-13, also known as La Mara 1
Salvatrucha, is "a national and international criminal organization" and "one of the largest criminal organizations in the United States." The indictment also alleged that "[t]he leadership of MS-13 is based in El Salvador, with local leaders in the United States," and that the organization "is composed primarily of immigrants or descendants of immigrants from Central America, with members operating throughout Massachusetts."
- 3 - Vaquerano objected to the minor-use enhancement. He
filed a sentencing memorandum arguing for a below-guidelines
sentence of 264 months' imprisonment, which was well below the 600
months' imprisonment requested by the government. Vaquerano
argued a shorter sentence was warranted because he was only 18
years old when he murdered Rivas and, he maintained, "there is a
growing scientific consensus" that youthful offenders are less
blameworthy and more capable of rehabilitation. With his
sentencing memorandum Vaquerano submitted a forensic evaluation
and a psychological evaluation, both of which detailed his exposure
to violence in El Salvador, his regular use of marijuana and
alcohol, and his "overwhelming sense of displacement and
dislocation" resulting from his move to Massachusetts from El
Salvador at age 17.
For its part, the government supported its recommended
600-month sentence by describing Vaquerano as "someone who had
deeply committed himself to MS-13 and the gang's quest for extreme
and senseless violence." The government described how Vaquerano
"had lured [Rivas] out" to the murder site and "started hacking
and stabbing Rivas to death." At Vaquerano's last known address,
the government discovered two large knives, believed to be two of
the murder weapons, along with Vaquerano's personal effects. The
knife that Vaquerano allegedly used during the murder was damaged
- 4 - and was missing pieces of metal, corroborating a codefendant's
account that Vaquerano repeatedly stabbed Rivas in the skull.
The district court began the sentencing hearing by
considering the contested application of the minor-use
enhancement. As is relevant to the present appeal, Vaquerano urged
the district court to find that the Sentencing Commission exceeded
its authority in promulgating the minor-use enhancement to apply
to offenders under 21 years old. In support of this argument,
Vaquerano relied on the Sixth Circuit's holding in United States
v. Butler, 207 F.3d 839 (6th Cir. 2000), that the minor-use
enhancement is inapplicable to defendants who have not reached the
age of 21. Thus, he maintained, because he was 18 years old when
the offense conduct occurred, the minor-use enhancement could not
be applied to him.
The district court rejected this argument, finding that
the Sentencing Commission did not exceed its authority in drafting
the minor-use enhancement to apply to all defendants, regardless
of age. The district court overruled Vaquerano's objection and
then found that the minor-use enhancement applied because
Vaquerano "personally recruited and trained minors" in furtherance
of MS-13's activities, including recruiting a minor from his high
school to join the gang, training a minor on how to patrol the
streets, talking to a minor "about MS-13's mode of operating,
particularly killing rivals," showing a minor a recruitment video,
- 5 - and beating a minor as part of MS-13's training and teaching
process.
After ruling that the minor-use enhancement would
apply, the district court permitted Vaquerano to present evidence
about adolescent neural development as it relates to sentencing.
Vaquerano argued that "the character of a juvenile is not as
well-formed as that of an adult" and, therefore, young people are
"deeply mutable" and more capable of rehabilitation. He maintained
that 18- to 21-year-olds "share[] many characteristics that are
similar to the 16 to 17 group," and those characteristics should
be considered in sentencing.
On March 17, 2022, the district court convened a
sentencing hearing. The court confirmed that application of the
minor-use enhancement raised Vaquerano's guidelines range to 360
months' to life imprisonment. After hearing the arguments of
counsel and Vaquerano's allocution, the district court imposed a
sentence of 516 months' imprisonment. The court considered the 18
U.S.C. § 3553(a) sentencing factors and concluded that Vaquerano
"was an enthusiastic part of an . . . organization [] dedicated to
violence" and "played a leading role in luring [Rivas] to that
park in Lynn where [Vaquerano] knew [Rivas] would be killed."
The district court gave its reasoning with respect to
several of the § 3553(a) factors, including the nature of the
- 6 - crime: "a particularly barbaric murder." The court described how
Vaquerano participated in the murder of Rivas with
stunning brutality, with a long knife called a machete . . . that [Vaquerano] brought for that purpose, that [Vaquerano] hacked at Herson Rivas'[s] head while others were stabbing him and while he cried out to [Vaquerano] particularly . . . because he thought [Vaquerano] w[as] his special friend. [Vaquerano] should have been his protector. And afterwards, [Vaquerano] laughed about it.
The court recognized Vaquerano's history in that he "came from a
difficult country and had an abusive father," but pointed out that
while Vaquerano's sister went to college, he turned to MS-13 and
drugs.
The district court also recognized the need "to give a
sentence that affords adequate deterrence to criminal conduct,"
both to Vaquerano and "to other people." Finally, the court stated
that the sentence imposed would "protect the public" because
Vaquerano would not "be a threat to anybody in the United States
for about 43 years." Throughout its reasoning, the district court
"t[ook] into account the fact that [Vaquerano] committed the crime
when [he] w[as] 18." The court recognized that "people who commit
crimes at that age can change," and that Vaquerano had changed and
was not "hopeless." This timely appeal followed.
II. Standard of Review
"Appellate review of claims of sentencing error entails
a two-step pavane." United States v. Melendez-Rosado, 57 F.4th
- 7 - 32, 37 (1st Cir. 2023) (quoting United States v. Matos-de-Jesús,
856 F.3d 174, 177 (1st Cir. 2017)). We first assess any claims of
procedural error, including any claims that implicate the accuracy
of the district court's guidelines sentencing range. See United
States v. Ilarraza, 963 F.3d 1, 7 (1st Cir. 2020). "If the sentence
is procedurally sound, we then assess any claim of substantive
unreasonableness." United States v. Rijos-Rivera, 53 F.4th 704,
708 (1st Cir. 2022).
Throughout, our review is for abuse of discretion. See
United States v. Díaz-Lugo, 963 F.3d 145, 151 (1st Cir. 2020).
Under this standard, "we review the district court's factual
findings for clear error and examine its answers to questions of
law (including questions involving the 'interpretation and
application of the sentencing guidelines') de novo." Id. (quoting
Ilarraza, 963 F.3d at 8).
A. Validity of Section 3B1.4
We begin with Vaquerano's claim of procedural error.
This claim centers on the district court's imposition of a
two-level minor-use enhancement under U.S.S.G. § 3B1.4.
Specifically, Vaquerano contends that Congress intended "to
enhance sentences only for defendants at least 21 years of age who
use minors to commit federal offenses" and that "the Sentencing
Commission exceeded its authority by . . . ignoring Congress's
focus on age."
- 8 - The Sentencing Commission is a non-elected body created
by Congress whose purpose is to "establish sentencing policies and
practices for the Federal criminal justice system." 28 U.S.C.
§ 991; see Mistretta v. United States, 488 U.S. 361, 368-69 (1989).
The Sentencing Commission "enjoys significant discretion in
formulating guidelines," Mistretta, 488 U.S. at 377, but
ultimately "must bow to the specific directives of Congress,"
United States v. LaBonte, 520 U.S. 751, 757 (1997).
The relevant directive of Congress at issue in this case
comes from the Violent Crime Control and Law Enforcement Act of
1994, which directed the Sentencing Commission to "promulgate
guidelines or amend existing guidelines to provide that a defendant
21 years of age or older who has been convicted of an offense shall
receive an appropriate sentence enhancement if the defendant
involved a minor in the commission of the offense." Pub. L. No.
103-322, § 140008(a), 108 Stat. 1796, 2033 (1994). The resulting
guideline promulgated by the Sentencing Commission calls for a
two-level increase in the offense level "[i]f the defendant used
or attempted to use a person less than eighteen years of age to
commit the offense." U.S.S.G. § 3B1.4. The guideline enhancement
for use of a minor is generally applicable to all defendants, and
it also dropped the 21-year age restriction set forth in the
Congressional directive.
- 9 - Rejecting Vaquerano's contention that the Sentencing
Commission exceeded its authority, we conclude that the Sentencing
Commission properly invoked its general statutory powers to
promulgate the minor-use enhancement without an age restriction.
That is so because the Sentencing Commission submitted a statement
of reasons to Congress accompanying the proposed minor-use
enhancement guideline. The statement of reasons limned that
"[t]his amendment implements the directive in Section 140008 of
the Violent Crime Control and Law Enforcement Act of 1994
(pertaining to the use of a minor in the commission of an offense)
in a slightly broader form." Amendments to the Sentencing
Guidelines for the United States Courts, 60 Fed. Reg. 25074, 25086
(May 10, 1995) (emphasis added).
A specific statement that the Sentencing Commission is
implementing a directive in broader form constitutes an invocation
of the Commission's "broad authority to promulgate guidelines for
sentences." See United States v. Dale, 374 F.3d 321, 330 (5th
Cir. 2004), cert. granted, judgment vacated on other grounds, 543
U.S. 1113 (2005). This "broad authority" emanates from Congress's
delegation of power to the Sentencing Commission to "promulgate
and distribute . . . guidelines . . . for use of a sentencing court
in determining the sentence to be imposed in a criminal case." 28
U.S.C. § 994(a)(1); LaBonte, 520 U.S. at 757 ("Congress has
delegated to the [Sentencing] Commission 'significant discretion
- 10 - in formulating guidelines' for sentencing convicted federal
offenders." (quoting Mistretta, 488 U.S. at 377)). The guidelines
that the Sentencing Commission are empowered to promulgate include
those which assist a sentencing court in determining "the
appropriate length of a term of . . . imprisonment." 28 U.S.C.
§ 994(a)(1)(B). When promulgating these guidelines, the
Sentencing Commission is required to "submit to Congress
amendments to the guidelines . . . accompanied by a statement of
the reasons therefor." Id. § 994(p).
This statutorily mandated process is exactly what the
Sentencing Commission undertook in promulgating the minor-use
enhancement. The minor-use enhancement is aimed at protecting
minors by enhancing, when appropriate, a defendant's term of
imprisonment when they use a minor to commit the offense, see
United States v. Corbett, 870 F.3d 21, 33 (1st Cir. 2017), thus
falling within the Sentencing Commission's enumerated powers. See
28 U.S.C. § 994(a)(1)(B); id. § 994(c)(2) (directing the Sentencing
Commission to account for "the circumstances under which the
offense was committed which . . . aggravate the seriousness of the
offense"). The statement of reasons submitted to Congress invoked
the Sentencing Commission's authority to promulgate the guideline
by specifically stating that the Sentencing Commission was
implementing the Congressional directive in broader form. See
United States v. Soileau, 309 F.3d 877, 880 (5th Cir. 2002) (noting
- 11 - that the words "in a broader form" were "noticeably missing," and
thus the Sentencing Commission was not exercising its general
statutory authority to promulgate a guideline with broader
definitions than the Congressional directive (emphasis omitted)).
Accordingly, it is clear to us that the Sentencing Commission
properly promulgated the minor-use enhancement without the 21-year
age restriction even though its authority to do so came not from
the Congressional directive, but from the Sentencing Commission's
general statutory powers. See United States v. Ferrarini, 219
F.3d 145, 159-60 (2d Cir. 2000) (concluding that the Sentencing
Commission's "legal authority to adopt" a guideline can come from
both a Congressional directive or the Sentencing Commission's
general statutory authority "to develop guidelines . . . that
reflect the seriousness of the offense at issue").
Having established that the Sentencing Commission was
authorized to promulgate the minor-use enhancement without an age
restriction, the guideline is valid so long as it is not "'at odds'
with the [C]ongressional directive." United States v. Ramsey, 237
F.3d 853, 857 (7th Cir. 2001) (citing LaBonte, 520 U.S. at 757).
Indeed, broad as the Sentencing Commission's authority may be to
promulgate guidelines, that discretion "must bow to the specific
directives of Congress." LaBonte, 520 U.S. at 757.
Congress directed that an enhancement for involving a
minor in the commission of the offense be provided to "a defendant
- 12 - 21 years of age or older." § 140008(a), 108 Stat. at 2033. We do
not view this directive as a requirement that the defendant must
be at least 21 years old to be subject to the enhancement, contra
Butler, 207 F.3d at 849 (Jones, J., concurring and writing for the
court in adopting this interpretation), but rather as a requirement
that any defendant over 21 years old must be subject to the
enhancement. The guideline promulgated by the Sentencing
Commission accomplishes this Congressional directive because
"defendants age twenty-one or older will receive a sentence
enhancement if the defendant used a minor in the commission of the
offense." Ramsey, 237 F.3d at 857. And, the Sentencing
Commission, in its discretion, additionally provided that
defendants ages 18 to 20 are subject to the enhancement. See
U.S.S.G. § 3B1.4. We discern no conflict between the Congressional
directive and the guideline.
Moreover, Congress's actions in response to the proposal
of the guideline accord with our conclusion. The Sentencing
Commission submitted its proposed amendment to Congress, and
Congress had 180 days to review the proposal. See United States
v. Kravchuk, 335 F.3d 1147, 1158 (10th Cir. 2003). Congress
considered and rejected some of the other amendments proposed at
the same time as the minor-use enhancement but did not modify or
disapprove of this particular guideline. Ramsey, 237 F.3d at 858
& n.6 (pointing out that "Congress disapproved of a proposed
- 13 - amendment that would have eliminated the 100:1 sentencing ratio
that treats one who deals in a given quantity of crack cocaine the
same as it treats one who deals in 100 times as much powder cocaine"
(quoting Butler, 207 F.3d at 845 n.1 (Clay, J., dissenting
regarding the opinion of the court that U.S.S.G. § 3B1.4 is not
applicable to defendants under the age of 21))). As such, "by not
taking action with respect to section 3B1.4," id. at 858, Congress
did nothing to indicate that it understood that guideline to be
"at odds" with its prior directive.
We thus join many of our sister circuits in holding that
the minor-use enhancement is valid as applied to defendants ages
18 to 21. See, e.g., United States v. Murphy, 254 F.3d 511, 513
(4th Cir. 2001); Ramsey, 237 F.3d at 858; Kravchuk, 335 F.3d at
1158-59; United States v. Ramirez, 376 F.3d 785, 787-88 (8th Cir.
2004). We uphold the district court's application of the
enhancement to Vaquerano.2
2 We also find unavailing Vaquerano's argument that the rule of lenity requires that we overturn the application of the minor-use enhancement. The rule of lenity applies "in the context of the sentencing guidelines . . . when 'substantial ambiguity as to the guideline's meaning persists even after a court looks to its text, structure, context, and purposes.'" United States v. Pinkham, 896 F.3d 133, 138 (1st Cir. 2018) (quoting United States v. Suárez-González, 760 F.3d 96, 101 (1st Cir. 2014)). For the reasons already explained, the minor-use enhancement is valid as applied to defendants ages 18 to 21, and the rule of lenity does not apply.
- 14 - B. The Length of the Sentence
We next turn to Vaquerano's claim that the sentence
imposed is substantively unreasonable. We review that claim for
abuse of discretion, see Gall v. United States, 552 U.S. 38, 51
(2007), and bear in mind that "[w]hen mulling a challenge to the
substantive reasonableness of a sentence, considerable deference
is due to the district court's judgment," United States v.
de Jesús, 831 F.3d 39, 42 (1st Cir. 2016).
Vaquerano contends that the district court fashioned the
516-month sentence without due consideration of the fact that he
"was only 18 years old when he participated in the Rivas murder."
Specifically, Vaquerano complains that the district court focused
too much on the "gruesome nature of the Rivas murder" and did not
give enough weight to "what it means for an emerging adult to
engage in such conduct, as distinguished from a typical offender."
In light of what Vaquerano perceives as the district court's
failure "to contend meaningfully with legal and scientific
developments regarding adolescent offenders," he says that the
sentence is indefensible.
In the sentencing context "reasonableness is a protean
concept." United States v. Martin, 520 F.3d 87, 92 (1st Cir.
2008). Indeed, "[t]here is no one reasonable sentence in any given
case but, rather, a universe of reasonable sentencing outcomes."
United States v. Clogston, 662 F.3d 588, 592 (1st Cir. 2011). As
- 15 - such, "[c]hallenging a sentence as substantively unreasonable is
a burdensome task in any case, and one that is even more burdensome
where, as here, the challenged sentence is within a properly
calculated [guidelines sentencing range]." Id. at 592-93. "A
sentence is substantively reasonable if the district court
provided a 'plausible sentencing rationale and reached a
defensible result.'" United States v. Ouellette, 985 F.3d 107,
111 (1st Cir. 2021) (quoting United States v. Gomera-Rodríguez,
952 F.3d 15, 20 (1st Cir. 2020)).
Here, the district court provided a plausible rationale
for its sentencing decision. The court appraised Vaquerano's role
in the Rivas murder and the RICO conspiracy, stressing that
Vaquerano "played a leading role in luring [Rivas]" to the murder
site and "participated in that murder with stunning brutality."
The court also thought it significant that the Rivas murder was
not "an isolated aberrant act," given that Vaquerano had twice
previously attempted to murder other individuals. So, too, the
court attached significance to Vaquerano's participation in the
conspiracy by "energetically recruit[ing] other teenagers to join
the gang."
The court then extended its rationale to take account of
mitigating factors. It noted Vaquerano's traumatic childhood and
addiction to drugs. The court specifically "t[ook] into account
the fact that [Vaquerano] committed the crime when [he was] 18,
- 16 - and people who commit crimes at that age can change." The court
observed that Vaquerano was not "hopeless" and had "shown evidence
of changing" while in pretrial detention by "seeking to work."
The court noted that this evidence persuaded it to give Vaquerano
"a seven-year lower sentence" than it was initially inclined to
impose.
It is clear to us that the district court's rationale is
plausible. The district court expressly acknowledged Vaquerano's
age, the factor that Vaquerano now attempts to persuade us the
court failed to give due consideration to. Simply because the
court did not weigh Vaquerano's age as he would have liked "does
not undermine the plausibility of th[e sentencing] rationale."
United States v. Coombs, 857 F.3d 439, 452 (1st Cir. 2017).
The length of the sentence is also defensible. The
district court thoroughly considered the § 3553(a) factors and
determined that, notwithstanding Vaquerano's youth, "anything less
than a 43-year sentence . . . would not adequately serve" the
purposes of sentencing. It is clear to us that "the sentence in
this case is responsive to the nature and circumstances of the
offense, the characteristics of the offender, the importance of
deterrence, and the need for [just] punishment." Matos-de-Jesús,
856 F.3d at 180.
Lastly, Vaquerano entreats us to extend certain Supreme
Court precedents declaring life without the possibility of parole
- 17 - sentences on juvenile offenders as cruel and unusual punishment
into our substantive reasonableness assessment of a sentence
imposed upon a young adult offender. First, the 516-month sentence
imposed upon Vaquerano was a discretionary sentence, not a
mandatory one. Even in the context of homicide juvenile offenders,
the Supreme Court has never held that discretionary life without
parole sentences are impermissible. See Miller v. Alabama, 567
U.S. 460, 465 (2012) (holding mandatory life without parole
sentences unconstitutional for all juvenile offenders); see also
Graham v. Florida, 560 U.S. 48, 82 (2010) (holding life without
parole sentences unconstitutional for non-homicide juvenile
offenders). Beyond that, we are obligated to follow our First
Circuit precedent rebuffing the notion that the Supreme Court's
decision to draw the line between juvenile and adult offenders at
age 18 merits extension to offenders "in the
eighteen-to-twenty-age range when they committed the crimes of
conviction." United States v. Gonzalez, 981 F.3d 11, 21 (1st Cir.
2020); see also United States v. Guerrero, 19 F.4th 547, 550 (1st
Cir. 2021) ("[T]he 'law of the circuit' rule . . . forces us -- and
the district courts under us -- to follow the holdings of earlier
panel decisions regardless of how anyone might feel about them.").
More importantly, however, we continue to bear in mind
that Vaquerano's challenge to his sentence is premised on its
substantive reasonableness. In this context, "[t]here is rarely,
- 18 - if ever, a single correct sentence in any specific case. Instead,
there is almost always a 'range of reasonable sentences' for any
given offense." United States v. Santiago-Rivera, 744 F.3d 229,
234 (1st Cir. 2014) (quoting Martin, 520 F.3d at 92). As already
detailed, the district court did account for Vaquerano's age and
capacity for change in choosing the sentence. We find no abuse of
the district court's broad sentencing discretion in this case and
conclude that the sentence imposed by the district court is
substantively reasonable.
III. Conclusion
For the foregoing reasons, we affirm Vaquerano's
sentence.
- 19 -