Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit

No. 15–2126

                     UNITED STATES OF AMERICA,

                                Appellee,

                                     v.

                       RICARDO TORRES-RIVERA,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

         Hon. Aida M. Delgado-Colón, U.S. District Judge


                                  Before

                  Torruella, Selya, and Kayatta,
                          Circuit Judges.


     Darla J. Mondou and Mondou Law Office on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Nelson Pérez-Sosa, Assistant United States
Attorney, on brief for appellee.


                          September 21, 2016
          KAYATTA, Circuit Judge.   In August 2013, Ricardo Torres-

Rivera and eighteen others were indicted and charged with violating

federal law by participating in a broad conspiracy to import heroin

into Puerto Rico.    Torres-Rivera agreed to plead guilty, and the

parties recommended a sentence to the district court on the low

end of the applicable guidelines range of 87 to 108 months'

imprisonment.   The government also certified to the district court

that Torres-Rivera met the requirements for safety-valve relief

under 18 U.S.C. § 3553(f), and because the district court accepted

the government's certification, Torres-Rivera was exempt from the

otherwise-applicable statutory 120-month minimum sentence.      The

district court nonetheless sentenced Torres-Rivera to 120 months

in prison, twelve months more than the top of the guidelines range.

          Torres-Rivera now appeals, arguing that the sentence the

district court imposed was both procedurally and substantively

unreasonable.   It was neither, so we affirm.

                           I.   Background

          In May 2015, Torres-Rivera agreed to plead guilty to two

criminal counts.    The first, count two of the indictment, charged

him with violating 21 U.S.C. §§ 952(a) and 963 by conspiring to

import drugs into the United States.    The second, count three of

the indictment, charged him with violating 18 U.S.C. § 1956 by

participating in a conspiracy to launder the proceeds of the

criminal enterprise.


                                - 2 -
            In the plea agreement, the parties agreed to recommend

a   term   of   imprisonment   on    the   lower    end   of   the   applicable

guidelines sentencing range, which they determined was 108 to 135

months'    imprisonment.       The    agreement      warned    Torres-Rivera,

however, that count two carried a statutory ten-year (120-month)

mandatory minimum sentence.          The agreement also stipulated that

the district court was neither party to nor bound by the agreement,

and that the sentencing decision was ultimately within the district

court's discretion.1

            During   the   change    of    plea    hearing,    the   government

described the evidence it would present against Torres-Rivera were

the case to proceed to trial:

                 As   to   Count   2   as   to   [Torres-
            Rivera], . . . to begin with Your Honor this
            case commenced with a Title 3 that started in
            Col[o]mbia.   So basically the evidence that
            we have here, among other evidence is wire
            recordings.   In this case all of the three
            defendants [pleading guilty at the change of
            plea hearing] were recorded . . . .

                 The participation of Mr. Torres in this
            conspiracy was basically he worked for
            [defendant] number 1, for Mr. Hernando Mar[í]n
            Echeverri.    He was recorded communicating
            with Mr. Mar[í]n and other codefendants trying
            to coordinate the smuggling, the importation,
            transportation and distribution of the heroin
            into Puerto Rico. There is also evidence that
            Mr. Torres coordinated also the transfer of

      1The plea agreement additionally included an appellate
waiver. The parties agree, however, that the waiver does not bar
this appeal because Torres-Rivera's sentence exceeded the parties'
jointly stipulated range.


                                     - 3 -
            drug   proceeds          from     Puerto      Rico     into
            Col[o]mbia.

            At   sentencing,         the     district     court      accepted      the

government's     certification        that     Torres-Rivera       qualified       for

sentencing relief under 18 U.S.C. § 3553(f).                This "safety valve"

provision requires a court to disregard an applicable statutory

minimum    sentence    if    the    court    finds   at    sentencing      that   the

defendant   meets     five    specified      criteria,     one    being    that    the

defendant "was not an organizer, leader, manager, or supervisor of

others in the offense."           18 U.S.C. § 3553(f)(4).         In accepting the

government's certification, the district court so found.                          This

resulted in a reduction in Torres-Rivera's final offense level,

making his guidelines sentencing range 87 to 108 months.

            The district court nevertheless imposed a sentence of

120 months' imprisonment, explaining that although the statutory

minimum did not apply, Torres-Rivera's high-level involvement in

the conspiracy and his position as the direct link between its

participants and its leader justified an upward departure from the

guidelines range.         Curiously, the district court justified its

decision    to   impose      an    above-guidelines       sentence    in   part     by

explaining that it believed Torres-Rivera "could have received a

two level enhancement under section 3B1.1."                   This enhancement,

known as the "aggravating role" enhancement, calls for an upward

adjustment to a defendant's offense level where the defendant is



                                       - 4 -
an "organizer, leader, manager, or supervisor" of others in the

offense.    U.S.S.G. § 3B1.1(c).         An application note accompanying

this enhancement provides:

            To qualify for an adjustment under this
            section, the defendant must have been the
            organizer, leader, manager, or supervisor of
            one or more other participants.     An upward
            departure may be warranted, however, in the
            case of a defendant who did not organize,
            lead,    manage,    or    supervise   another
            participant, but who nevertheless exercised
            management responsibility over the property,
            assets,   or   activities    of   a  criminal
            organization.

U.S.S.G. § 3B1.1 cmt. n.2.

            Citing    this    application      note,   the   court    found   that

Torres-Rivera's role in the offense justified an upward departure.

The court explained that Torres-Rivera's participation in the

conspiracy was "extensive [as] to all five drug trafficking events

upon which this case is based," and that he appeared "to have safe

kept money to be sent to Col[o]mbia[,] and those monies of course

were the illegal proceeds of the narcotics that were being moved."

Accordingly, Torres-Rivera was sentenced to 120 months in prison,

the "12 extra months from the 108" being "granted as an upward

departure    for     the     reasons    [the    district     court]    mentioned

concerning his managerial role and the significance of the same in

terms of the equation and the five drug trafficking events to which

the conspiracy is extended."




                                       - 5 -
          Torres-Rivera objected to his sentence and made an oral

motion for reconsideration, challenging the court's finding that

he served in a managerial role in the conspiracy.              The district

court reiterated that it "didn't assign the adjustment as manager,"

but rather was "alluding to his responsibility within the entire

scheme and the conspiracy."        Reconsideration was denied, and this

appeal followed.

                             II.    Discussion

          Because Torres-Rivera objected to his sentence in the

district court, we review the sentence's reasonableness for abuse

of discretion.     United States v. King, 741 F.3d 305, 307–08 (1st

Cir. 2014) (citing Gall v. United States, 552 U.S. 38, 51 (2007)).

Under this standard, we first consider whether the court committed

any procedural error "such as 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)).         If no procedural error occurred,

we   review   to   ensure    that    the    district   court    imposed   a

"substantively reasonable sentence," the "hallmarks" of which "are

a plausible sentencing rationale and a defensible result."           United

States v. Díaz-Bermúdez, 778 F.3d 309, 313 (1st Cir. 2015) (quoting

Martin, 520 F.3d at 96).


                                    - 6 -
            Torres-Rivera contends that the district court committed

procedural error by relying on the application note to § 3B1.1 in

handing down an above-guidelines sentence.         He argues that the

note implies that a court may apply the § 3B1.1 enhancement even

where the government concededly lacks evidence to demonstrate the

defendant    is   eligible   for     it,   undermining    this   court's

longstanding rule that to apply the aggravating role enhancement,

"[i]t is not enough . . . that the defendant merely controlled,

organized, or managed criminal activities; rather, he must instead

control, organize, or manage criminal actors."        United States v.

Flores-de-Jesús, 569 F.3d 8, 34 (1st Cir. 2009) (quoting United

States v. Ofray-Campos, 534 F.3d 1, 40 (1st Cir. 2008)).         Torres-

Rivera thus essentially argues that it is procedural error to

increase a defendant's sentence based on his mere management of

assets or activities, especially where such increase results in

the same sentence the court might have imposed by applying a

§ 3B1.1 enhancement.

            To be sure, had the district court applied the § 3B1.1

enhancement in this case, it would quite clearly have erred.         Only

moments before finding that Torres-Rivera "could have received a

two level enhancement" for being the organizer, leader, manager,

or   supervisor   of   the   conspiracy,    the   court   accepted   the

government's certification that he was eligible for safety-valve

relief in part due to his being none of these things.       And, to the


                                   - 7 -
extent    the    district    court's    finding     was   that   Torres-Rivera

exercised management responsibilities over the "property, assets,

or   activities"      of   the   criminal      enterprise,    this    court     has

repeatedly held that such finding "is not a valid basis for an

offense    level    enhancement      under    § 3B1.1."      United    States   v.

Prange, 771 F.3d 17, 35 (1st Cir. 2014); see, e.g., United States

v. Ramos-Paulino, 488 F.3d 459, 464 (1st Cir. 2007) (noting that

the application note itself "makes it pellucid that the management

of criminal activities (as opposed to the management of criminal

actors) may ground an upward departure but not an upward role-in-

the-offense adjustment").

            But the district court opted for a departure, not an

enhancement.       Accordingly, the question before us is not whether,

applying    de     novo    review,     "the    sentencing     court    erred     in

interpreting or applying the guidelines," but rather whether its

factual findings were clearly erroneous or its judgment calls were

the result of an abuse of discretion.            United States v. Santiago-

González, 825 F.3d 41, 48 (1st Cir. 2016).            Torres-Rivera insists

his sentence is procedurally unreasonable on both of these bases.

For the following reasons, we disagree.

            First,     the   record     provides    ample    support    for     the

district court's factual findings as to both Torres-Rivera's role

in the conspiracy and the extent of his involvement.                     Torres-

Rivera contends that the district court erroneously found he was


                                       - 8 -
an "employer," a role which has no definition in the guidelines or

statute and which the court did not explain.                  But the court did

not so find; rather, it acknowledged the government's distinction

between Marín-Echeverri, the leader of the conspiracy, and Torres-

Rivera and Armando Rivera-Ortiz, the two participants whom the

government called "employers" due to their roles as non-leaders

overseeing      the   activities      of   other    members    of    the   criminal

enterprise.         The court found that Torres-Rivera "acted as a

manager    on    behalf       of   [Marín-Echeverri,     the     leader    of    the

conspiracy,] making sure that his instructions were executed."

             More     importantly,     the    district   court      observed     that

receipts concerning checks used to launder the proceeds of the

drug smuggling operation were seized from Torres-Rivera.                         The

district   court       also    observed      that   Torres-Rivera      managed    or

controlled the proceeds of the conspiracy by virtue of the nature

of his role as the local overseer in charge of safekeeping the

money and facilitating its transfer to Colombia.                    In response to

Torres-Rivera's oral motion for reconsideration, the district

court noted that Torres-Rivera "safe kept proceeds" for the leader

of the conspiracy, Marín-Echeverri, and "safe kept evidence of the

money orders of Western Union of the payments being transferred."

Torres-Rivera does not dispute that he exercised this control, and

no countervailing evidence in the record suggests that the district

court's finding was clearly erroneous.


                                       - 9 -
           Torres-Rivera also contends that the district court's

finding that he "extensive[ly]" participated in all five of the

drug   trafficking   events   at   issue    was   erroneous     because   "the

government stated it had no proof that [he] was involved in all

five events."     This, too, is a misrepresentation of the record.

At sentencing, the government told the district court that it could

not say precisely how involved Torres-Rivera was in each of the

five individual drug trafficking events, but it had evidence that

Torres-Rivera and Marín-Echeverri communicated with one another

"on numerous occasions throughout the conspiracy."                   In other

words, the government stated not that it lacked any proof of

Torres-Rivera's    involvement,    but     that   its   proof    consisted   of

circumstantial rather than direct evidence.             That circumstantial

evidence showed that Torres-Rivera was charged with overseeing

criminal activities in Puerto Rico and, contemporaneous with all

five drug trafficking events, was in continuous and frequent

contact with the conspiracy's leader.         In light of this evidence,

it was not clearly erroneous to find that Torres-Rivera was

significantly involved in all of the trafficking at issue.

           Second, it is not an abuse of discretion to depart from

the sentencing guidelines range where the record suggests that the

defendant managed property, assets, or activities.              This court has

long recognized the continuing vitality of the application note's

directive that an "upward departure may be warranted" where a


                                   - 10 -
person who does not qualify for a § 3B1.1 enhancement "nevertheless

exercised management responsibility over the property, assets, or

activities of a criminal organization."                See, e.g., Prange, 771
F.3d   at   35    (noting    that    a   court's    finding   that   a   defendant

"exercised management responsibilities over the property, assets

or activities" of the enterprise "may warrant an upward departure"

(emphasis omitted)); Ofray-Campos, 534 F.3d at 41 n.11; Ramos-

Paulino, 488 F.3d at 464; see also United States v. Cali, 87 F.3d
571, 580 (1st Cir. 1996) ("Section 3B1.1 departures are clearly

encouraged       by   the   Commission.       The    language   of   Application

Note 2 . . . endorses management of assets as a permissible basis

for upward departure.").            The district court did not procedurally

err.

             Finally, Torres-Rivera argues that even if the district

court committed no procedural error, his sentence is substantively

unreasonable.         The substantive reasonableness inquiry "focuses on

the duration of the sentence in light of the totality of the

circumstances."         Del Valle-Rodríguez, 761 F.3d at 176.             Torres-

Rivera contends that the district court committed reversible error

because in the end, its impetus for imposing an above-guidelines

sentence was the "moral conflict" it felt about giving the same

sentence to Torres-Rivera as to lower-level participants in the

conspiracy.




                                         - 11 -
          This argument fails as well.       "[T]he linchpin of a

reasonable sentence is a plausible sentencing rationale and a

defensible result," United States v. Flores-Machicote, 706 F.3d
16, 25 (1st Cir. 2013) (quoting Martin, 520 F.3d at 92) (alteration

in original) (citation omitted), both of which are present here.

First, the district court provided ample justification for its

decision to impose an upward departure.    See Del Valle-Rodríguez,
761 F.3d at 176 ("Where . . . a court imposes a sentence above the

GSR, it must justify the upward variance.").      It considered the

seriousness of the criminal conduct, the defendant's personal

characteristics, and the nature, scope, and structure of the

conspiracy, and it ultimately based its decision on uncontroverted

evidence that Torres-Rivera managed assets and activities of the

criminal enterprise.   Observing that the guidelines contemplate

departures based on such evidence, the district court provided a

plausible explanation for the sentence it chose to impose.

          That   explanation   and   the   resulting   sentence   are

defensible in light of the totality of the circumstances.    Torres-

Rivera's principal complaint with the sentence he received is that

it was based not only on his conduct and personal characteristics,

but also on the district court's desire to impose a harsher

sentence on him than less involved members of the conspiracy.     But

"judges are directed by statute to consider 'the need to avoid

unwarranted sentencing disparities among defendants with similar


                               - 12 -
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)).        Conversely, "district courts

have discretion, in appropriate cases, to align codefendants'

sentences somewhat in order to reflect comparable degrees of

culpability -- at least in those cases where disparities are

conspicuous and threaten to undermine confidence in the criminal

justice system."    Martin, 520 F.3d at 94.

          At    sentencing,   the   district   court   noted   that   it

sentenced a low-level participant in the conspiracy to 108 months'

imprisonment.    The court then explained that it had a "problem

with this type of plea agreement where everyone ends up in the

same category" because it failed to properly assess each member's

role in the criminal enterprise, creating a "moral conflict" in

the court's sentencing process.     Justifying its decision to impose

a 120-month sentence on Torres-Rivera in this way was not error;

indeed, it reflected the court's concern for consistency and

fairness in sentencing.

          Because     Torres-Rivera's       sentence    was     neither

procedurally nor substantively unreasonable, we affirm.




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