          United States Court of Appeals
                     For the First Circuit
No. 15-1418

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                     WILFREDO GARAY-SIERRA,

                      Defendant, Appellant.



           APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF PUERTO RICO
         [Hon. Francisco A. Besosa, U.S. District Judge]



                             Before

                 Torruella, Selya, and Thompson,
                         Circuit Judges.



     Kendys Pimentel Soto and Kendys Pimentel Soto Law Office on
brief for appellant.
     Leslie R. Caldwell, Assistant Attorney General, Sung-Hee Suh,
Deputy Attorney General, Amanda B. Harris, Attorney, Criminal
Division, Appellate Section, United States Department of Justice,
Rosa Emilia Rodríguez–Vélez, United States Attorney, Nelson Pérez–
Sosa, Assistant United States Attorney, Chief, Appellate Division,
and Kelly Zenón-Matos, Assistant United States Attorney, on brief
for appellee.



                         August 5, 2016
            THOMPSON, Circuit Judge.

                                   Stage Setting

            A grand jury indicted Wilfredo Garay-Sierra (Garay) for

carjacking a "Mitsubishi Nativa," with intent to cause death and

serious bodily harm, see 18 U.S.C. § 2119(2), and carrying and

brandishing       a    firearm    during    a     crime    of    violence,    see   id.

§ 924(c)(1)(A)(ii).             Pursuant to a binding plea agreement, see

Fed. R. Crim. P. 11(c)(1)(C), Garay pled guilty to carjacking and

to possessing — but not brandishing — the firearm.1

            In projecting Garay's total offense level, the parties

(among    other       things)    agreed    to     a    series    of   enhancements    —

including, pertinently, a 4-level enhancement because a victim of

the   carjacking       suffered     "serious          bodily    injury."     See    USSG

§ 2B3.1(b)(3)(B).2          The parties did not agree on a particular

guideline sentencing range for the carjacking count.                       But they did

agree that Garay would recommend a 40-month prison sentence, and

that the government would recommend a sentence within the to-be-



      1Because Garay pled guilty, we pull the background info from
the plea agreement, the unchallenged parts of the presentence
report ("PSR"), and the transcripts from the relevant court
hearings. See, e.g., United States v. Romero–Galindez, 782 F.3d
63, 65 n.1 (1st Cir. 2015).
      2We refer to the November 2014 edition of the sentencing
guidelines, the version in effect at the time of sentencing. See
United States v. Sepúlveda-Hernández, 817 F.3d 30, 32 n.1 (1st
Cir. 2016).
                                          - 2 -
calculated      sentencing     range.        Because     Garay      accepted

responsibility for possessing a firearm, the parties also agreed

to recommend the mandatory-minimum sentence of 60 months in prison

— the mandatory-minimum sentence for brandishing a firearm is 84

months, by the way.     See 18 U.S.C. § 924(c)(1)(A)(i), (ii).           The

parties also agreed that the sentences had to run consecutively.

And Garay agreed to waive his right to appeal if the judge

"accept[ed]" the agreement and "sentenc[ed] him according to its

terms, conditions, and recommendations."

             The probation office's PSR recommended (among other

things) that Garay get the 4-level enhancement for the carjacking

count, noting that "the victims suffered serious bodily injury."

Skipping over details not relevant to the issues on appeal, we

note that the PSR then suggested that the judge use a 70-87 month

sentencing    range   for    this   count.   The   PSR   also    incorrectly

indicated that 84 months — section 924(c)'s mandatory minimum for

brandishing — applied.       Neither party objected to the PSR.

             At the sentencing hearing — and consistent with the plea

agreement — Garay's counsel asked the judge for a 40-month prison

term on the carjacking count, saying his client's youth, being a

father, struggles with drug addiction and depression, and below-

average IQ justified a downwardly-variant sentence.             Living up to

the terms of the agreement, the government asked for a sentence

                                    - 3 -
within the range for that count. And both Garay and the government

asked for the 60-month mandatory minimum for the firearm crime.

           After listening to the parties' sentencing pitches, the

judge accepted the PSR's calculations for the counts — i.e., the

judge adopted the PSR's 70-87 month sentencing range for the

carjacking count and the mandatory minimum of 84 months for the

firearm count.       The judge then ran through the relevant sentencing

factors,      see     18   U.S.C.       §     3553(a),       including    Garay's

characteristics and history (his youth, drug addiction, limited

intellectual        capacity,   bouts       with     depression,     etc.),    the

seriousness of the offense (noting, for example, that an accomplice

of Garay had sexually assaulted one of the carjacked victims in

Garay's presence), plus the need to deter criminal conduct, protect

the   public,   promote     respect     for    the    law,    and   deliver   just

punishment.     And when all was said and done, the judge imposed a

within-guidelines prison sentence of 70 months for the carjacking

crime, and a consecutive 84-month prison sentence for the firearm

crime.

           From this 154-month sentence, Garay appeals.                  He first

argues that the appeal waiver provision in his plea agreement is

not enforceable, noting for example that the judge's sentence for

the firearm offense (84 months) differed from what the parties

recommended in the agreement (60 months).              He then argues that the

                                      - 4 -
70-month prison stint for the carjacking offense is procedurally

unreasonable — first, because the judge wrongly concluded that the

serious-bodily-injury enhancement applied and second, because the

judge   neither   adequately   considered   factors   favoring   a     lower

sentence    nor   satisfactorily    explained   the   reasons    for    the

sentence.    And last he argues that because he pled guilty to

possessing a firearm rather than brandishing a firearm, the judge

botched matters by sentencing him for brandishing a firearm (again,

brandishing carries a higher mandatory minimum than possessing).

            For its part, the government agrees with Garay that,

when it comes to the firearm count, the judge reversibly erred in

imposing a sentence for brandishing a gun.        And when it comes to

the carjacking count, the government says, we should enforce the

waiver-of-appeal clause because the sentence imposed by the judge

jibed with the parties' recommendation — but even if it did not,

the government adds, the judge erred neither in applying the

serious-bodily-injury enhancement nor in explaining the sentence's

length.

            Garay argues in reply that because the judge did not

follow "all" of the plea agreement's terms (because the judge chose

a sentence for the firearm count that exceeded the parties'

recommendation), "the waiver of appeal is inapplicable in toto."

And to the extent there is any ambiguity about the way in which

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the appeal-waiver clause works, he says that we should interpret

the provision to let "the appeal . . . proceed."

                                  Waiver

          We opt not to referee the appeal-waiver dust-up: because

we can easily deal with Garay's sentencing-error claims, we will

assume "[f]or ease of analysis" that the appeal-waiver proviso

"does not bar the maintenance of this appeal."          See United States

v. Dávila–Tapia, 491 Fed. App'x 197, 198 (1st Cir. 2012); see also

United States v. Sánchez–Maldonado, 737 F.3d 826, 827–28 (1st Cir.

2013).

                         Carjacking Sentence

          As   the   parties    acknowledge,    we   must   review   Garay's

procedural-reasonableness claims for plain error (rather than for

abuse of discretion), because he did not raise them below.               So

Garay "must show (1) error, (2) plainness, (3) prejudice, and

(4) an outcome that is a miscarriage of justice or akin to it,"

United States v. Edelkind, 467 F.3d 791, 797 (1st Cir. 2006) — a

difficult-to-meet    standard    that   "is    not   appellant   friendly,"

United States v. Bermúdez–Meléndez, No. 14-2209, 2016 WL 3525423,

at *2 (1st Cir. June 28, 2016).

                                Enhancement

          We start with Garay's claim that the judge stumbled by

enhancing his carjacking sentence under the serious-bodily-injury

                                   - 6 -
enhancement.   See USSG § 2B3.1(b)(3)(B).      This enhancement applies

if "any victim sustained . . . Serious Bodily Injury." Id. Serious

bodily   injury   "occur[s]    if   the     offense   involved   conduct

constituting criminal sexual abuse under 18 U.S.C. § 2241 or § 2242

or any similar offense under state law." USSG § 1B1.1 cmt. n.1(L).3

That is our case.    According to the unobjected-to facts in the

PSR, Garay drove the car around while a carjacking cohort —

referred to as "Minor 1" — sat in the back seat with one of the

carjacked victims, put his fingers in her vagina, and forced her

to perform oral sex on him (him being Minor 1).             Given this

concatenation of circumstances, we find no plain error in the

judge's decision to apply this enhancement.

                              Explanation

          Garay argues for the first time on appeal that the judge

inadequately explained the thinking behind the carjacking sentence




     3 Broadly speaking, § 2241 criminalizes aggravated sexual
abuse, and § 2242 criminalizes sexual abuse — both of which require
causing another to engage in a sexual act. The key elements of
§ 2241 are "knowingly caus[ing] another person to engage in a
sexual act . . . by threatening or placing that other person in
fear that any person will be subjected to death, serious bodily
injury, or kidnapping; or attempt[ing] to do so." § 2241(a)(2).
And the key elements of § 2242 are "knowingly . . . caus[ing]
another person to engage in a sexual act by threatening or placing
that other person in fear (other than by threatening or placing
that other person in fear that any person will be subjected to
death, serious bodily injury, or kidnapping) . . . or attempt[ing]
to do so." § 2242(1).
                                 - 7 -
and insufficiently considered his "personal characteristics and

his participation in the offense," factors, he says, that justified

a lighter sentence.    We do not buy it.

           It perhaps goes without saying — though we say it anyway

— that sentencers must consider the relevant § 3553(a) factors.

But they "need not give each factor equal billing."             United States

v. Denson, 689 F.3d 21, 28 (1st Cir. 2012).           And when it comes to

explaining the reasons for a sentence, "brevity" must not be

mistaken for "inattention" — especially so when, as here, the

sentence falls within guideline range.            United States v. Dávila–

González, 595 F.3d 42, 48 (1st Cir. 2010) (quoting United States

v. Turbides–Leonardo, 468 F.3d 34, 40 (1st Cir. 2006)).

           Shifting from the general to the specific, we repeat

what Garay's judge did:     As we said earlier, the judge discussed

Garay's   characteristics    and    history   —    e.g.,   his    young   age,

fatherhood status, battles with drug addiction and depression, and

intellectual deficiencies, the very factors that Garay said called

for a variant sentence.     The judge also considered the seriousness

of the offense — mentioning (among other things) how one of Garay's

carjacking collaborators had sexually attacked a female victim in

Garay's presence.      And the judge emphasized that any sentence

imposed had to advance certain purposes, like respect for the law,

just   punishment,    deterrence,    and    protection     of    the   public.

                                    - 8 -
Critically too, any holes in the judge's reasoning — and we don't

see any, frankly — can be plugged by "comparing what was argued by

the parties or contained in the [PSR] with what the judge did."

United States v. Ocasio–Cancel, 727 F.3d 85, 91 (1st Cir. 2013)

(quoting United States v. Jiménez–Beltre, 440 F.3d 514, 519 (1st

Cir. 2006) (en banc)); cf. United States v. Colón de Jesús, No.

15-1962, 2016 WL 4056033, at *3 (1st Cir. July 29, 2016).     Given

what we have said, this facet of Garay's procedural-reasonableness

claim is a nonstarter too.

            Still hoping to persuade us otherwise, Garay argues that

the fact that he did not attack anyone should have counted in his

favor.   The argument implies that he was an innocent bystander in

all this.     But his chauffeuring Minor 1 around while Minor 1

sexually abused the female victim in the backseat, for example,

does not put Garay in the innocent-bystander category.

            As before, we find no procedural error — certainly no

plain procedural error.4




     4 To the extent Garay suggests 70 months is substantively
unreasonable — in a single, unilluminating sentence, he hints that
the judge may have created a sentencing disparity between him and
"other participants in the offense" — the suggestion is waived by
"perfunctory" treatment. United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990).
                                - 9 -
                            Firearm Sentence

            Section 924(c)(1)(A) clearly says that a conviction for

possessing a firearm "during and in relation to any crime of

violence" triggers a 60-month mandatory minimum prison sentence,

while a conviction for brandishing a firearm triggers an 84-month

mandatory minimum prison term.       See 18 U.S.C. §§ 924(c)(1)(A)(i),

(ii).    The indictment, remember, charged Garay with carrying and

brandishing a firearm.      But Garay pled guilty only to possessing

a firearm.    And the parties jointly recommended that the judge

impose a 60-month sentence for the firearm count.           Nevertheless,

and without a peep of protest from the parties, the judge concluded

at sentencing that "[b]ecause the weapon was brandished, the

minimum term of imprisonment for [the firearm count] is 84 months."

Given controlling caselaw, see, e.g., Alleyne v. United States,

133 S. Ct. 2151, 2162-63 (2013), the judge plainly erred in this

instance.

                                  Wrap Up

            For   the   reasons   recorded   above,   we   affirm   Garay's

sentence on the carjacking count, vacate his sentence on the

firearm count, and remand for resentencing.5




     5 The judgment on appeal says that Garay pled guilty to
brandishing    a   firearm,   in    violation    of   18    U.S.C.
§ 924(c)(1)(A)(ii). On remand, the judge should amend the judgment
to reflect that Garay pled guilty to possessing a firearm, in
violation of 18 U.S.C. § 924(c)(1)(A)(i).
                                  - 10 -
