United States of America v. Jorge Reverol-Rivera

United States Court of Appeals
For the First Circuit
No. 12-1991
UNITED STATES OF AMERICA,
Appellee,
v.
JORGE REVEROL-RIVERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Howard, Stahl, and Barron,
Circuit Judges.
Liza L. Rosado-Rodríguez, Research and Writing Specialist,
with whom Eric Alexander Vos, Federal Public Defender, Héctor E.
Guzmán-Silva, Jr., Federal Public Defender, Hector L. Ramos-Vega,
Assistant Federal Public Defender, Supervisor, Appeals Section, and
Vivianne M. Marrero, Assistant Federal Public Defender, Supervisor,
Appeals Section, were on brief, for appellant.
Tiffany V. Monrose, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.
February 20, 2015

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BARRON, Circuit Judge. Jorge Reverol-Rivera and an
accomplice both pled guilty to importing cocaine to the United
States. In this appeal, Reverol challenges the District Court's
decision to give him a much longer sentence than his accomplice,
even though both piloted the boat used to import the cocaine.
Because the sentencing disparity between these co-defendants was
reasonably justified by the difference in culpability that the
District Court expressly found, we affirm the sentence.
I.
Reverol and an accomplice piloted a small boat to a
rendezvous with another boat in international waters and then back
towards Puerto Rico. After the two men entered United States
territorial waters, law enforcement agents boarded the boat and
discovered what was later confirmed to be 148.5 kilograms of
cocaine. 1
Pursuant to an agreement, see Fed. R. Crim. P.
11(c)(1)(A), (B), Reverol pled guilty to importing (and aiding and
abetting his accomplice in importing) into the United States at
least five kilograms of a substance containing cocaine. 21 U.S.C.
§§ 952(a), 960(a)(1), 960(b)(1)(B); 18 U.S.C. § 2. The government
1 "Since this appeal trails in the wake of a guilty plea, we
draw the facts from the plea agreement, the change-of-plea
colloquy, the undisputed portions of the presentence investigation
report . . . , and the transcript of the disposition hearing."
United States v. Rivera-González, -- F.3d --, 2015 WL 234774, at *1
(1st Cir. 2015).
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and Reverol agreed to "recommend a sentence at the lower end of the
applicable advisory guideline range." 2
The Sentencing Guidelines recommend a range of sentences
based on two variables. See U.S.S.G. § 5A. The first variable is
the offense level, expressed as a point value determined initially
by the seriousness of the offense and then adjusted upward or
downward to account for aggravating or mitigating factors. See id.
§ 2 introductory cmt. The second variable is the defendant's
criminal history. See id. § 4A1.1.
The statement of facts that accompanied the plea
agreement stipulated that Reverol "captained the vessel" that
transported the cocaine. The plea agreement's recommended
guidelines calculation, however, did not apply the guideline that
enhances a defendant's offense level by two points "[i]f the
defendant unlawfully imported or exported a controlled substance
under circumstances in which . . . the defendant acted as a pilot,
copilot, captain, navigator, flight officer, or any other operation
officer aboard any craft or vessel carrying a controlled
substance." U.S.S.G. § 2D1.1(b)(3)(C). The government also
promised not to seek further enhancements.
2 The agreement also contained a clause waiving Reverol's
appeal rights if the District Court sentenced Reverol "according to
[the agreement's] terms, conditions and recommendations." Because
the District Court departed from the agreement's recommended
calculation under the Sentencing Guidelines, this waiver does not
preclude our review of this case. See Rivera-González, __ F.3d __,
2015 WL 234774, at *2.
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The pre-sentence report, independently prepared by a
probation officer, contained its own recommended guidelines
calculation. See Fed. R. Crim. P. 32(d). The report took a
different approach and applied the captain enhancement. The report
based the enhancement on the factual stipulation in the plea
agreement regarding Reverol's duties on the boat.
At the sentencing hearing, the government, like Reverol,
"st[oo]d by th[e] plea agreement." That approach led the
government to inform the District Court at sentencing that 108
months in prison -- the lower bound of the 108- to 135-month
guidelines range for Reverol that the government, based on the plea
agreement, calculated without using the captain enhancement --
"would be sufficient punishment for this defendant even though he
did undertake duties of captaining the boat." The government also
argued that any sentence higher than 108 months would create an
unjustified disparity with his accomplice's already-imposed
sentence.
Reverol's accomplice, who the record indicates shared the
same criminal history category as Reverol, had pled guilty in a
straight plea without a formal agreement. The accomplice had then
received a sentence of 63 months in prison. That sentence was at
the lower end of the accomplice's guidelines sentencing range of 63
to 78 months. In calculating that range, the district court did
not apply the captain enhancement but did apply a deduction for the
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accomplice's having played a minor role in the crime. U.S.S.G.
§ 3B1.2(b).
At sentencing, both the government and Reverol stated
that the accomplice shared some piloting duties on the boat and
thus could have received the same captain enhancement. The
government explained, however, that the government's version of the
facts in the accomplice's plea colloquy did not mention that the
accomplice shared captaining duties. The government also explained
that the plea agreement with Reverol did include the description of
Reverol's duties as captain "because he in fact was the ultimate
person responsible for captaining the vessel" even if, in practice,
the duties were shared. The government argued, however, that a
sentence of 108 months for Reverol, compared to one of 63 months
for his accomplice, would be about the right punishment
differential and that a higher sentence for Reverol would be
unjustified. For his part, Reverol also argued that he should
receive a two-point deduction to cancel out the effects of the
captain enhancement, though he conceded that he did not meet the
requirements for a substantial assistance deduction, see id.
§ 5K1.1, and he did not identify any other guideline that would
permit such a deduction. 3
3 Reverol thus mischaracterizes the record when he states
in his opening brief on appeal that he argued to the District Court
that he deserved "a two-level departure for substantial
assistance."
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The District Court followed the lead of the pre-sentence
report rather than the plea agreement and included the two-point
captain enhancement in calculating Reverol's guidelines sentencing
range. The District Court then sentenced Reverol to 135 months in
prison, which was the lower end of the 135- to 168-month guidelines
range that the District Court calculated.
The District Court explained that the sentence was
"sufficient but not greater than necessary." Addressing the
disparity argument, the District Court concluded that Reverol's
higher sentence was justified by his greater culpability. The
District Court found that the accomplice was "a last minute
replacement recruited by . . . Reverol . . . the day before the
scheduled pickup," and that Reverol transported the accomplice to
the boat, had primary responsibility for captaining the vessel,
read the geolocation system, and "knew the pickup location." The
District Court also explained that neither the government nor
Reverol "provided any concrete information to the Court regarding
the extent of Reverol[-]Rivera's assistance to the United States,
or its contents" to qualify for a substantial-assistance deduction.
Reverol then brought this appeal.
II.
Reverol challenges the procedural and substantive
reasonableness of his sentence. Because Reverol preserved these
challenges, we review the discretionary sentence determinations for
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abuse of discretion, findings of fact for clear error, and
conclusions of law de novo. United States v. Rivera-González, __
F.3d __, 2015 WL 234774, at *2 (1st Cir. 2015).
Reverol first argues that the District Court imposed a
procedurally unreasonable sentence because it "failed to adequately
consider" his arguments, including the disparity argument, in favor
of a 108-month sentence. But the record clearly reveals the
opposite. See United States v. Ayala-Vazquez, 751 F.3d 1, 31-32
(1st Cir. 2014) (concluding that district court adequately
considered disparity argument by noting that disparate sentences
were justified where co-defendants pled guilty and were thus not
similarly situated to defendant who went to trial).
And so we turn to Reverol's substantive challenge.
Reverol argues that the District Court's 135-month sentence, though
within the guidelines range, was substantively unreasonable in
light of the accomplice's 63-month sentence. Reverol concedes that
he was more culpable than his accomplice. He argues, however, that
his greater culpability would merit only a 108-month sentence, and
that any sentence above that would create too much of a disparity
with the sentence his accomplice received.
When imposing a sentence, a district court must consider
"the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct." 18 U.S.C. § 3553(a)(6). We have said that
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§ 3553(a)(6) is primarily concerned with national disparities.
See, e.g., United States v. Dávila-González, 595 F.3d 42, 49 (1st
Cir. 2010). But we have also examined arguments, like Reverol's,
that a sentence was substantively unreasonable because of the
disparity with the sentence given to a co-defendant. See, e.g.,
id. at 49-50 (contrasting co-defendant who pled to defendant who
did not); United States v. Mateo-Espejo, 426 F.3d 508, 514 (1st
Cir. 2005) (contrasting co-defendant's "prompt and full
cooperation" with defendant's "belated and grudging cooperation"). 4
In performing such review, we have made clear that
differences in culpability can justify disparate sentences among
co-defendants. United States v. Rivera-Maldonado, 194 F.3d 224,
236 (1st Cir. 1999). And here, the District Court expressly found
that Reverol was significantly more culpable than his accomplice,
pointing to his accomplice's last-minute addition to the operation
and subordinate role at sea, Reverol's arrangement for the
accomplice's participation, and Reverol's ultimate responsibility
for captaining the ship (including, unlike the accomplice, knowing
the rendezvous location and guiding the boat using geolocation
technology).
4 The government argues that we held in Ayala-Vazquez, 751
F.3d at 32, that co-defendant disparity need not be considered at
all. But Ayala-Vazquez established only that the fact that one co-
defendant pled guilty while the other went to trial may justify a
disparity in their sentences. Id.
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Reverol asserts that 108 months was the highest sentence
that could be justified given the lower sentence the accomplice
received. But given that the record supports the District Court's
determination that Reverol and the accomplice were not equally
culpable, we find nothing in this record to indicate that the
District Court abused its discretion in concluding that the 135-
month sentence was justified by Reverol's individual level of
culpability. See Rivera-González, -- F.3d --, 2015 WL 234774, at
*6 ("In most cases, there is not a single appropriate sentence but,
rather, a universe of reasonable sentences."); United States v.
Martin, 520 F.3d 87, 96 (1st Cir. 2008) ("[T]he linchpin of a
reasonable sentence is a plausible sentencing rationale and a
defensible result.").
Our conclusion is not disturbed by the fact that the
government and Reverol recommended 108 months as the highest
sentence that could be justified by Reverol's greater culpability.
The District Court was not bound by the jointly recommended
sentence, see Rivera-González, __ F.3d __, 2015 WL 234774, at *5-6,
and the District Court identified in some detail aspects of the
role Reverol played that reasonably support its conclusion that his
actions warranted a sentence of the length imposed.
We thus affirm the District Court's sentence.
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