United States of America v. Elving Madera-Rivera

United States Court of Appeals
For the First Circuit
No. 17-1319
UNITED STATES OF AMERICA,
Appellee,
v.
ELVING MADERA-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, Chief Judge,
Boudin and Kayatta, Circuit Judges.
Rafael F. Castro Lang on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Julia M. Meconiates, Assistant United
States Attorney, on brief for appellee.
August 2, 2018

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BOUDIN, Circuit Judge. Elving Madera-Rivera ("Madera")
was the architect of a cocaine trafficking conspiracy, using the
mails and commercial airlines to send kilogram quantities of the
drug via Puerto Rico into the continental United States. Madera
recruited and paid the couriers, using contacts in the continental
United States to make arrangements for distribution of the cocaine
after it arrived.
Madera was indicted with fourteen co-defendants on June
26, 2013, and charged with one count of conspiracy to possess five
kilograms or more of cocaine with intent to distribute. 21 U.S.C.
§§ 841, 846. He then sought bail and, when it was denied, filed
an emergency motion, describing an enlarged spleen, low platelet
levels, and Hepatitis C; the latter caused him to suffer from
chronic liver ailments, including liver cirrhosis. 1 The government
ultimately agreed to support Madera’s bail motion, at least for a
period.
As the case progressed, Madera rejected, for reasons
that are disputed, the government’s proffered plea agreement and
instead entered a straight guilty plea. Madera says that the
government required as a condition of the plea bargain that he
waive any right to seek continued bail for medical treatment
1 Madera's principal and reply briefs--not filed under
seal--cite to and directly quote materials from his sealed
appendix, including medical records, effectively inviting resort
by anyone else.

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pending sentencing. The government denies this happened, arguing
instead that Madera's decision to enter a straight plea was a
strategic one to allow him to contest other issues.
After Madera pled guilty, the court held sentencing
hearings to determine the amount of cocaine to attribute to Madera,
U.S.S.G. § 2D1.1(c) (U.S. Sentencing Comm'n 2014), his precise
role in the conspiracy, id. § 3B1.1, and the offense level decrease
for his acceptance of responsibility, id. § 3E1.1. The court held
Madera responsible for seventy-seven kilograms of cocaine, id.
§ 2D1.1(c)(3), and found that he was a leader of the conspiracy,
id. § 3B1.1(a). The court granted a three-level decrease for
acceptance of responsibility. Id. § 3E1.1(a)-(b).
Madera then sought a downward departure under
U.S.S.G. § 5H1.4 (and also requested a variance--an issue we
address below). Section 5H1.4 states:
Physical condition . . . may be relevant in
determining whether a departure is warranted,
if the condition . . . individually or in
combination with other offender
characteristics, is present to an unusual
degree and distinguishes the case from the
typical cases covered by the guidelines. An
extraordinary physical impairment may be a
reason to depart downward . . . .
Madera argued that his life was in danger and would
assuredly be shortened by a guidelines sentence, since prison
facilities would be unable to fully address his medical needs.
See United States v. Herman, 848 F.3d 55, 59 (1st Cir. 2017).

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The government pressed for a within-guidelines sentence and said
that "nothing presented" indicated that the Bureau of Prisons
("BOP") was incapable of providing appropriate medical treatment.
The court's final tally was a total offense level of
thirty-five, entailing a guidelines range of 168 to 210 months.
U.S.S.G. ch. 5, pt. A. The court ultimately imposed a 180-month
sentence.
During the last hearing, the court said that it
understood--from whom or what is not clear--that Madera’s health
condition, "serious as it is, can be adequately treated and handled
during his incarceration." The court urged that Madera be sent to
the Butner Federal Correction Institution in North Carolina--a
prison known for its medical facilities and requested by defense
counsel.
Madera now seeks a remand and a sentence at the mandatory
minimum of ten years. 21 U.S.C. § 841(b)(1)(A). He relies on his
doctor, Barbara Rosado Carrion, who reported that Madera "has a
reduced survival and shorten[ed] life expectancy ([five] years or
less) in the absence of liver transplantation." Madera also
challenges the court's refusal to impose a variant sentence below
the guidelines range.
The standard for review of a denial of a downward
departure depends, as with most claims of error on appeal, on the
nature of the issue pressed by the appellant--which may be a

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straight issue of law, an issue of fact, or one (for example) that
contests the judge's disposition on a matter of discretion, usually
on the ground that discretion was abused. Madera's claim here is
first that the guideline regarding extraordinary physical
impairment, U.S.S.G. § 5H1.4, would have permitted the judge to
depart downward in his case; second that the medical evidence
indicated that he needed a liver transplant within five years or
else would die; and third that it was an abuse of discretion to
deny the reduction of his sentence to the mandatory minimum of ten
years.
The first proposition is at least plausible; the second
might have been debated, yet the government declined to do so at
this time; but our rejection of the appeal rests on the flawed
reasoning that underlies Madera's "abuse of discretion" argument.
A ten-year sentence does nothing to respond to the supposed peril
Madera faces, namely, death within five years without a transplant.
Madera's doctor prescribed routine testing on a permanent basis
and Madera has not sufficiently demonstrated that the major federal
prison medical facilities would be incapable of providing such
treatment. 2 Only Madera's need for a transplant exceeds the
2 Dr. Carrion wrote in part:
Mr. Madera needs to be followed closely by a
liver specialist every [three] to [four]
months with blood work[up] that includes [a]
liver profile, coagulation profile and CBC.
Medical assessment should include evaluation

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mundane. And Madera's requested reduced sentence of ten years
would do nothing to address the threat of death within five.
Further, if Madera's condition worsens and the
government denies or unduly delays a transplant, the remedy would
be injunctive relief under the Eighth Amendment. See Estelle v.
Gamble, 429 U.S. 97, 104 (1976); Kosilek v. Spencer, 774 F.3d 63,
82-84 (1st Cir. 2014) (en banc). In sum, a sentence at the
mandatory minimum would not mitigate the risk Madera faces and the
remedy would likely be a constitutional claim that the defendant
has not made.
Madera also argues that the court erred at sentencing
when it failed to make a "specific finding" as to whether he
suffered from an "extraordinary physical impairment,"
U.S.S.G. § 5H1.4. This circuit has not required such a finding
and anyway the government did not question Madera's condition or
challenge his doctor's grave medical assessment. Cf. Fed. R. Crim.
P. 32(i)(3)(B) (a sentencing court must rule on any "controverted
matter" at sentencing or determine that a ruling is unnecessary).
What was disputed was whether Madera's patently dire condition
for the presence of fluid retention, ascites,
jaundice or gastrointestinal bleeding. . . .
In addition, [Madera] needs surveillance for
liver cancer every [six] months with [a]
dedicated liver ultrasound or three phase[] CT
scan plus AFP (alpha-fetoprotein) tumor
marker. He should get vaccinated against
hepatitis A and hepatitis B . . . .

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warranted a downward departure and, for the reasons stated, the
court's negative decision was not error.
This brings us to Madera's argument for a downward
variance. Madera claims that the district court failed to give
appropriate weight to the section 3553(a) factors, 18 U.S.C.
§ 3553(a), and that a variant downward sentence to the ten-year
minimum was "more than justified." Madera cites his need for
medical care, the non-violent nature of the offense, his status as
a first-time offender, his history of stable employment, and
avoidance of sentencing disparities among co-defendants.
But the district court heard these arguments at
sentencing. And after explicitly stating that it had "considered
all [of the section 3553(a)] sentencing factors," the court
referred to relevant circumstances including, for example,
Madera's age, education, medical condition, and lack of criminal
history. See United States v. Ruiz-Huertas, 792 F.3d 223, 227
(1st Cir. 2015).
Madera's argument, then, is essentially a disagreement
with the court's weighing of these factors; but appraising and
comparing such factors is an exercise "largely within the
[sentencing] court's informed discretion." United States v.
Clogston, 662 F.3d 588, 593 (1st Cir. 2011). Further, some factors
that Madera suggests deserved more weight were justifiably
balanced by others: Madera's status as a first-time offender, for

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instance, was likely offset by the fact that he was the leader of
a heavily-orchestrated drug conspiracy.
Madera also claims that a variance was warranted because
of the government's supposedly improper conditioning of the plea
offer on Madera agreeing to forego bail. Madera cites as evidence
only an e-mail between his own two attorneys based on an alleged
prior discussion with the prosecutor. Indeed, the government at
multiple points consented to Madera's release on bail for medical
examination or treatment. Absent substantial evidence that the
condition was ever actually imposed, the district court's failure
to entertain such a claim is well-justified.
Lastly, Madera asserts that his sentence was
substantively unreasonable. For the reasons already set forth,
Madera's within-guideline sentence of 180 months was both
plausibly reasoned and within the universe of reasonable
sentences. See United States v. Alejandro-Rosado, 878 F.3d 435,
440 (1st Cir. 2017).
Affirmed.

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