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Date: 10-15-2021

Case Style:

United States of America v. BENNY RUPERTO-RIVERA

Case Number: 20-1817

Judge: Bruce M. Selya

Court: United States Court of Appeals For the First Circuit

Plaintiff's Attorney: W. Stephen Muldrow, United States Attorney, Mariana E. BauzáAlmonte, Assistant United States Attorney, Chief, Appellate
Division, and Robert P. Coleman III, Assistant United States

Defendant's Attorney:

Boston, MA - Criminal defense Lawyer Directory


Boston, MA - Criminal defense lawyer represented defendant with a possession of a firearm and ammunition by a convicted felon charge.

We briefly rehearse the relevant facts and travel of the
case. Where, as here, "a sentencing appeal follows a guilty plea,
'we glean the relevant facts from the change-of-plea colloquy, the
unchallenged portions of the presentence investigation report (PSI
Report), and the record of the disposition hearing.'" United
States v. Dávila-González, 595 F.3d 42, 45 (1st Cir. 2010) (quoting
United States v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009)).
On an unknown date in 2018, four individuals were
captured in a video, pointing firearms at a fifth individual and
threatening to shoot him. The firearms depicted in the video
included two handguns, a third handgun with an extended magazine,
and a rifle with a drum magazine. Following an investigation, one
of the four individuals was identified as the appellant — a
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previously convicted felon — who was shown in the video holding a
Glock pistol.
On September 20, 2018, a federal grand jury sitting in
the District of Puerto Rico returned an indictment, which — as
relevant here — charged the appellant, then age 28, with possession
of a firearm and ammunition by a convicted felon. See 18 U.S.C.
§§ 922(g)(1), 924(a)(2). Although the appellant initially
maintained his innocence, he reversed course on March 29, 2019 and
moved for leave to enter a guilty plea. The district court later
accepted his guilty plea, and a PSI Report was prepared. Based on
a total offense level of seventeen and a criminal history category
of IV, the appellant's guideline sentencing range (GSR) was thirtyseven to forty-six months. Neither party objected to any portion
of the PSI Report.
At the disposition hearing, defense counsel lamented
that the appellant "ha[d] not had an exemplary upbringing." She
added that the appellant "ha[d] spent most of his young adult years
in the state penitentiaries" and argued that "long-term punishment
and incarceration [do] not necessarily rehabilitate[] young
persons." Because "more incarceration w[ould] not improve or help
anything," she advocated for the appellant's release under the
supervision of the probation office.
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The appellant allocuted. He stated that he had made a
"mistake" and asked the court for "an opportunity so that [he] can
prove that [he's] ready to move on with [his] life, to be better."
The government had a different view of the matter.
Noting that the appellant's "criminal record reflect[ed] an
escalation" in criminal activity, the prosecutor requested a term
of immurement of thirty-seven months.
The sentencing court began by addressing the appellant's
statement that he had made a "mistake." The court recounted the
appellant's criminal history, pointed out the short time lapse
between the appellant's release from prison and his involvement in
the charged offense, and described that offense. The court
observed that "[t]hese type[s] of offenses are not simply
mistakes . . . they are called crimes." It went on to say that
"making threats against the life of individuals is a very serious
offense . . . [a]nd the type of weapons is quite serious."
After determining that the GSR was properly calculated,
the court proceeded to consider the factors limned in 18 U.S.C.
§ 3553(a). The court discussed a wide array of subjects, including
the appellant’s age, education level, health, employment record,
substance-use history, and criminal past. Next, it confirmed its
familiarity with the facts of the offense of conviction. "And
after balancing all [the] factors," the court concluded that a
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forty-six-month term of immurement was a condign punishment and
imposed an incarcerative sentence of that length.
Defense counsel immediately requested reconsideration of
the sentence imposed due to what she deemed as the court's reliance
on dismissed criminal conduct (specifically, past arrests for
first-degree murder and a weapons violation). The court responded
that it had made clear that those charges had been dismissed and
that the appellant was a convicted felon by reason of a prior "drug
charge[]" — a charge that had ripened into a conviction. Replying
to defense counsel's comment that she "d[id]n't want to figure out
that the Court see[s the appellant] as a murderer or a person who
used to use weapons in the past," the court said that it "ha[d]
not considered the murder at all." The court added that it "ha[d]
[partly] imposed the sentence based on what is perceived to be
[the appellant's] prognosis for rehabilitation." Accordingly, the
motion for reconsideration was denied. This timely appeal
"Appellate review of claims of sentencing error entails
a two-step pavane." United States v. Matos-de-Jesús, 856 F.3d
174, 177 (1st Cir. 2017). Under this bifurcated framework, we
first examine any claims of procedural error. See id. If the
sentence is procedurally sound, we then examine any claim of
substantive unreasonableness. See id.
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In the case at hand, the appellant is less than precise
as to whether he wishes to mount a claim of procedural error, a
claim of substantive unreasonableness, or both. In an abundance
of caution, we inspect his claims, where applicable, through both
A. The Procedural Lens.
The appellant's flagship claim is that the district
court "failed to adequately balance the sentencing factors." He
identifies two ways in which the court allegedly blundered. First,
he submits that the court erred by considering dismissed criminal
conduct and "plac[ing] too much weight on" it. Second, he submits
that the court "disregarded the mitigating factors." Viewed
through the lens of procedural error, neither claim gains him any
At the disposition hearing, the appellant voiced his
objection to the sentencing court's alleged reliance on dismissed
charges. Thus, we review his first claim of error for abuse of
discretion. See United States v. Díaz-Lugo, 963 F.3d 145, 151
(1st Cir. 2020). We discern none.
The appellant's contention that the sentencing court
impermissibly "considered" dismissed criminal conduct is little
more than gaslighting. Perscrutation of the sentencing transcript
makes pellucid that the sentencing court did nothing more than
recite the appellant's arrest record (including dismissed criminal
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charges) as it narrated his criminal history. Such a reading is
consistent with the court's explicit statement that it "ha[d] not
considered the murder at all." A defendant's criminal record is
a part of his history, and a sentencing court does not abuse its
discretion simply by chronicling that record (without attaching
any weight to mere arrests or dismissed charges). See United
States v. Santa-Soler, 985 F.3d 93, 96-97 (1st Cir. 2021) (holding
that "sentencing court's mere mention of a defendant's arrest
record as a matter of historical fact, without more, does not
constitute an abuse of discretion"); cf. United States v. VélezAndino, ___ F.4th ___, ___ (1st Cir. 2021) [No. 19-1300, slip op.
at 9] (finding no plain error in sentencing court's "unadorned
recitation of matters of historical fact," including dismissed
criminal charges).
The appellant's second claim of error fares no better.
To begin, this claim — that the sentencing court disregarded
mitigating factors — is raised for the first time on appeal and,
thus, engenders only plain-error review. See United States v.
Duarte, 246 F.3d 56, 60 (1st Cir. 2001).
"The plain error hurdle is high." United States v.
Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989). The proponent of
plain error must carry the devoir of persuasion as to each of "four
showings: (1) that an error occurred (2) which was clear or
obvious and which not only (3) affected the [appell]ant's
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substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings." Duarte,
246 F.3d at 60. Here, our review starts — and ends — at the first
step because the appellant cannot show that any error occurred.
"[T]he sentencing inquiry . . . ideally is broad, openended, and significantly discretionary." United States v. Martin,
520 F.3d 87, 92 (1st Cir. 2008). Once a sentencing court has
properly calculated a defendant's GSR, "sentencing becomes a
judgment call." Id. Although the court must consider all of the
relevant factors limned in 18 U.S.C. § 3553(a), it need not give
every factor equal weight. See United States v. Dixon, 449 F.3d
194, 205 (1st Cir. 2006). And when explicating the sentence
imposed, the court "is not required to address [the sentencing]
factors, one by one, in some sort of rote incantation." Id. Nor
is the court required "to explain why it eschewed other suggested
sentences." United States v. Vega-Salgado, 769 F.3d 100, 104 (1st
Cir. 2014). It is enough for the "court simply to identify the
main factors driving its determination." United States v.
Sepúlveda-Hernández, 817 F.3d 30, 33 (1st Cir. 2016).
Here, the record makes manifest that the sentencing
court considered all the relevant section 3553(a) factors. Indeed
— after hearing arguments from both sides — the court expressly
acknowledged its obligation to mull those factors. It then
referred to a number of the factors and proceeded to elaborate on
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the appellant’s background, criminal history, and participation in
the offense of conviction. Summing up, the court confirmed that
it had "balanc[ed] all [the] factors" — and such a statement "is
entitled to some weight." Dávila-González, 595 F.3d at 49.
The appellant's contention that the court "disregarded"
mitigating factors is not supported by the record. The point most
vigorously pressed by defense counsel at the disposition hearing
was rehabilitation. The court dealt explicitly with this point.
In fact, it stated that it had, in part, "imposed the sentence
based on what is perceived to be [the appellant's] prognosis for
rehabilitation." That the court did not explain in exquisite
detail why it chose to afford relatively little weight to the
factors that the appellant advanced in mitigation is not the sort
of stuff out of which a claim of sentencing error can be
constructed. See United States v. Sayer, 916 F.3d 32, 38-39 (1st
Cir.) (observing that "courts are not required to specifically
explain why they rejected a particular defense argument in favor
of a lower sentence"), cert. denied, 139 S. Ct. 2731 (2019).
Stripped of rhetorical flourishes, the appellant's
plaint that the sentencing court undervalued mitigating factors
seems to be another way of saying that the court did not share
defense counsel's view of the salience of those factors. In other
words, the plaint boils down to a lament that the court did not
weigh the aggravating and mitigating factors as counsel would have
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preferred. Seen in this light, the appellant's claim, in effect,
asks us to elevate his counsel's appraisal of the mitigating
factors over that of the sentencing court. The law does not permit
us so blithely to displace a sentencing court's exercise of its
After all, it is "[t]he sentencing court's task [] to
sift the available information and balance the pertinent factors."
United States v. Madera-Ortiz, 637 F.3d 26, 32 (1st Cir. 2011).
The weighing of sentencing factors "represent[s] a judgment
call . . . for the sentencing court" alone to make. Id. Because
the court below did not abuse its discretion in balancing the
section 3553(a) factors in a manner that it reasonably deemed
appropriate, the appellant's claim cannot succeed on plain-error
B. The Substantive Lens.
Next, we view the challenged sentence through a more
substantive lens. With respect to the substantive reasonableness
of a sentence, our review is for abuse of discretion. See HolguinHernandez v. United States, 140 S. Ct. 762, 766 (2020); United
States v. Bruno-Campos, 978 F.3d 801, 808 (1st Cir. 2020).
"In the sentencing context, 'reasonableness is a protean
concept.'" United States v. Clogston, 662 F.3d 588, 592 (1st Cir.
2011) (quoting Martin, 520 F.3d at 92). Consequently, "[t]here is
no one reasonable sentence in any given case but, rather, a
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universe of reasonable sentencing outcomes." Id. Our task, then,
is "to determine whether the [challenged] sentence falls within
this broad universe." United States v. Rivera-Morales, 961 F.3d
1, 21 (1st Cir. 2020). In making this determination, "we cannot
substitute our judgment of the appropriate sentence for that of
the sentencing court; to the contrary, we must accord significant
deference to the court’s informed determination that the section
3553(a) factors justify the sentence imposed." Id.
When all is said and done, "a sentence is substantively
reasonable so long as the sentencing court offers a plausible
rationale and the sentence represents a defensible result." Id.
Thus, we measure the sentence imposed on the appellant against
this benchmark.
In this instance, the sentencing court lucidly
articulated its sentencing rationale. The court addressed the
appellant’s age, education level, health, employment record,
substance-use history, and criminal past. It also addressed his
participation in the offense of conviction. The court noted that
"making threats against the life of individuals is a very serious
offense . . . [a]nd the type of weapons is quite serious." What
is more, the court found it significant that the appellant engaged
in the offense "shortly after" being released from prison. In the
court’s estimation, the appellant’s commission of the offense of
conviction could not be written off as a mere "mistake." Finally,
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the court determined that a forty-six-month prison sentence — a
sentence at the top of, but within, the GSR — was appropriate.
The sentence imposed was a logical culmination of the
sentencing court's juxtaposition and evaluation of the relevant
sentencing factors. We therefore find its sentencing rationale
So, too, the challenged sentence constitutes a
defensible result. The district court thoroughly considered the
relevant section 3553(a) factors. The court took particular note
of the appellant's threat to kill. And as the court pointed out,
the appellant's conduct was all the more worthy of reproof because
that conduct occurred soon after his release from prison. See
Vélez-Andino, ___ 4th at ___ [No. 19-1300, slip op. at 18] (finding
sentence defensible when, among other things, defendant engaged in
offense of conviction "[l]ess than three months after being
released from prison").
We have said before — and today reaffirm — that "[a]
challenge directed at substantive reasonableness is usually a
heavy lift, and reversal is 'particularly unlikely when . . . the
sentence imposed fits within the compass of a properly calculated
[GSR]." United States v. Ruiz-Huertas, 792 F.3d 223, 228-29 (1st
Cir. 2015) (second alteration in original) (quoting Vega-Salgado,
769 F.3d at 105); see Clogston, 662 F.3d at 592-93. On the facts
of this case, the appellant cannot accomplish that heavy lift:
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the sentencing outcome is entirely defensible. Cf. Clogston, 662
F.3d at 593 ("That the sentencing court chose not to attach to
certain of the mitigating factors the significance that the
appellant thinks they deserved does not make [his] sentence

Outcome: We need go no further. For the reasons elucidated above,
the challenged sentence is Affirmed

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