          United States Court of Appeals
                     For the First Circuit


No. 17-1757

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                     FRANCISCO REYES-GOMEZ,

                      Defendant, Appellant.


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

        [Hon. Juan M. Pérez-Giménez, U.S. District Judge]


                             Before

                    Lynch, Stahl, and Lipez,
                         Circuit Judges.


     Mariángela Tirado-Vales on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and B. Kathryn Debrason, Assistant United
States Attorney, on brief for appellee.


                          June 11, 2019
             LIPEZ, Circuit Judge. Defendant Francisco Reyes-Gomez

claims on appeal that the sentence imposed by the district court

was substantively unreasonable.              Although the sentencing judge

found that Reyes-Gomez qualified for the safety valve exception to

the 120-month mandatory minimum sentence, he nonetheless imposed

a 135-month term of imprisonment.            We affirm.

                                        I.

             Reyes-Gomez   pled    guilty     to   conspiracy   to   import   a

controlled substance (Count One), 21 U.S.C. §§ 952(a), 960(a)(1)

& (b)(1)(B), 963, and unlawful entry into the United States (Count

Five), 8 U.S.C. § 1325(a)(1).            He faced a 120-month mandatory

minimum term of imprisonment for Count One.

             Reyes-Gomez   and    the   government    entered   into   a   plea

agreement, which included the following "Sentence Recommendation"

provision:

             After due consideration of the relevant
             factors enumerated in Title 18, United States
             Code, Section 3553(a), the parties reserve the
             right to recommend a sentence [of] 120 months
             for COUNT ONE. For COUNT FIVE, the parties
             will recommend a sentence of six months to run
             concurrent with the sentence imposed in COUNT
             ONE.
             NOTE: The defendant recognizes that COUNT ONE
             carries a statutory minimum sentence of one
             hundred twenty (120) months.

The plea agreement also contained a waiver-of-appeal provision:

             The defendant knowingly and voluntarily waives
             the right to appeal the judgment and sentence
             in this case, provided that the defendant is


                                    - 2 -
          sentenced in accordance with the terms and
          conditions   set   forth   in   the    Sentence
          Recommendation   provisions   of    this   Plea
          Agreement.

The parties subsequently agreed to a plea agreement supplement,

which stated, in relevant part:

          The   provisions   in   this   Plea   Agreement
          Supplement     override     any     conflicting
          provisions in the Plea Agreement.

          . . . [I]f the defendant complies with the
          requirements of [U.S.S.G.] 5C1.2 and 18
          [U.S.C. §] 3553(f), and is deemed otherwise
          eligible, the statutory minimum would not
          apply and the offense level would be subject
          to an additional two level reduction for an
          adjusted offense level of 31. In that case,
          the parties would be free to recommend a
          sentence within the applicable guideline range
          for a total offense level [of] 31 when
          combined with the defendant's criminal history
          category as determined by the Court.

          The law referenced in the plea agreement supplement is

the so-called "safety valve" provision of the sentencing statute.

The safety valve allows a defendant to avoid a mandatory minimum

sentence and reduces the defendant's total offense level when the

defendant satisfies certain mitigating factors.1        See 18 U.S.C.

§ 3553(f); U.S.S.G. § 5C1.2.


     1 Under the then-effective    version   of   the   statute,   the
§ 3553(f) factors were:
          (1) the defendant does not have more than 1
          criminal history point, as determined under
          the sentencing guidelines;
          (2) the defendant did not use violence or
          credible threats of violence or possess a


                               - 3 -
             At the sentencing hearing, the district court found that

Reyes-Gomez qualified for the § 3553(f) safety valve provision.

The court accordingly determined that the 120-month mandatory

minimum did not apply and reduced the defendant's total offense

level   to   31.        Adopting    the    presentence    report's    recommended

criminal history category of I, the district court determined that

the guidelines sentence range was 108 to 135 months. The defendant

asked for a sentence of 108 months, and the government asked for

120   months,      as   it   said   that    it    would   do   in   the   "Sentence

Recommendation" provision of the plea agreement.


             firearm or other dangerous weapon (or induce
             another participant to do so) in connection
             with the offense;
             (3) the offense did not result in death or
             serious bodily injury to any person;
             (4) the defendant was not an organizer,
             leader, manager, or supervisor of others in
             the   offense,  as   determined   under  the
             sentencing guidelines and was not engaged in
             a continuing criminal enterprise, as defined
             in section 408 of the Controlled Substances
             Act; and
             (5) not later than the time of the sentencing
             hearing, the defendant has truthfully provided
             to the Government all information and evidence
             the defendant has concerning the offense or
             offenses that were part of the same course of
             conduct or of a common scheme or plan, but the
             fact that the defendant has no relevant or
             useful other information to provide or that
             the Government is already aware of the
             information shall not preclude a determination
             by the court that the defendant has complied
             with this requirement.


                                          - 4 -
             The court imposed a sentence of 135 months for Count One

and six months to run concurrently for Count Five.                     The court

reasoned that the offense involved significant planning and a large

quantity   of    drugs,    which     demonstrated    the     drug    trafficking

leaders' trust in the defendant.               The court also noted that

documents relating to Reyes-Gomez's prior drug possession arrest

in the Dominican Republic indicated that he "was engaged in other

drug smuggling ventures" and was "not a newcomer to this type of

activity."     This appeal followed.2

                                       II.

             Reyes-Gomez    claims    that    his   135-month       sentence   was

substantively unreasonable.          He argues that a sentence above the

120-month mandatory minimum undermines the purpose of the safety

valve and that the court's reasoning for imposing his sentence was

flawed.

A.   Standard of Review

             We have not yet resolved the question of what standard

of   review     applies    to   an   unpreserved     claim    of     substantive

unreasonableness in sentencing.         United States v. Márquez-García,

862 F.3d 143, 147 (1st Cir. 2017); see also United States v. Ruiz-



      2We bypass the waiver-of-appeal argument raised by the
government because this case is easily resolved against the
defendant on the merits. See United States v. Mangual-Rosado, 907
F.3d 107, 110 (1st Cir. 2018); United States v. Díaz-Rodríguez,
853 F.3d 540, 543-44 (1st Cir. 2017).


                                      - 5 -
Huertas, 792 F.3d 223, 228 (1st Cir. 2015) (noting that six out of

the   seven    circuits     that   had     examined      the    issue      held   that   a

substantive reasonableness claim need not be preserved).3                         So, as

we have done before, we "skirt this murky area, [and] assume,

favorably to the appellant that the abuse-of-discretion standard

applies."        Márquez-García,         862     F.3d    at     147.        Substantive

reasonableness thus hinges on whether the sentencing rationale is

"plausibly reasoned and resulted in a defensible outcome."                        United

States v. Alejandro-Rosado, 878 F.3d 435, 440 (1st Cir. 2017).

              We also note 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     [guideline         sentencing

range].'"     Ruiz-Huertas, 792 F.3d at 228–29 (quoting United States

v. Vega–Salgado, 769 F.3d 100, 105 (1st Cir. 2014)).                              Because

Reyes-Gomez's      135-month       sentence      was    within       the    uncontested

guidelines range, his appeal must overcome this formidable hurdle.

B.    Mitigating Purpose of the Safety Valve

              Reyes-Gomez     contends       that      once    the     district     court

concluded that he qualified for the safety valve, and he thereby



       3The Supreme Court recently granted certiorari on the
question of "[w]hether a formal objection after pronouncement of
sentence is necessary to invoke appellate reasonableness review of
the length of a defendant's sentence." Holguin-Hernandez v. United
States, No. 18-7739 (June 3, 2019).


                                         - 6 -
avoided application of the 120-month mandatory minimum sentence,

it was unreasonable for the district court to impose a guidelines

sentence above the mandatory minimum.       Such a sentence, he argues,

is incompatible with the purpose of the safety valve "to 'mitigate

the harsh effect of mandatory minimum sentences' on first-time,

low-level offenders in drug trafficking schemes."         United States

v. Padilla-Colón, 578 F.3d 23, 30 (1st Cir. 2009) (quoting United

States v. Ortiz-Santiago, 211 F.3d 146, 150 (1st Cir. 2000)).

          As   we   observed   in    Padilla-Colón,   however,   Congress

assumed that the beneficiaries of the safety valve would have

guideline sentence ranges below the mandatory minimums.          Id. at 30

n.3 (citing H.R. Rep. No. 103-460 (1994)).        According to a House

Report, members of Congress were motivated to create the safety

valve by the phenomenon that

          sentence reductions for mitigating factors
          were available to the most culpable, [but]
          they did not operate to the benefit of the
          least culpable, whose guideline sentences
          already fell below the applicable mandatory
          minimums.   In response, the House sought to
          exempt a 'narrow class' of drug defendants --
          those least culpable -- from the mandatory-
          minimum sentencing scheme.

Id.

          If the drug offense at issue involves a large quantity

of drugs, as it does here, that assumption about the "least

culpable" defendants does not apply.        See United States v. De la

Cruz-Gutiérrez, 881 F.3d 221, 227 (1st Cir. 2018) (finding a 120-


                                    - 7 -
month   sentence      substantively    reasonable     where   the     defendant

qualified for the safety valve but had a guidelines range of 108

to 135 months due to the amount of drugs involved).                 Reyes-Gomez

accepted responsibility for 150 to 450 kilograms of cocaine.

Before the safety valve applied, he faced a total offense level of

33, with a criminal history category of I, and a guidelines range

of 135 to 168 months. Although the application of the safety valve

eliminated the 120-month mandatory minimum sentence and reduced

the applicable guidelines range to 108 to 135 months, the safety

valve statute instructs courts to impose a sentence "pursuant to

guidelines"     and    "without   regard       to   any   statutory     minimum

sentence."     18 U.S.C. § 3553(f).           The defendant's argument that

the application of the safety valve converted the mandatory minimum

into a sentencing cap disregards that statutory instruction. Under

the circumstances here, a within-guidelines sentence for a safety

valve-qualifying defendant, even when the sentence exceeds the

mandatory minimum, is a "defensible outcome."

C.   Alleged Reasoning Errors

             Reyes-Gomez also contests the district court's stated

reasoning for the sentence of 135 months.                 He argues that the

court's inference that he had gained the trust of the leaders of

the organization was unreasonable, given that the court also found

that he was not a leader for the purposes of the safety valve.               We

disagree.      The large quantity of drugs for which Reyes-Gomez


                                      - 8 -
accepted responsibility permitted the district court to draw the

inference that he, though not a leader of the organization, was

trusted within the organization.         See De la Cruz-Gutiérrez, 881

F.3d at 227 (holding that the sentencing court reasonably inferred

that the defendant, who participated in a smuggling venture of

more than 150 kilograms of cocaine on a hazardous voyage at sea,

was a trusted person in the organization).

            Reyes-Gomez also argues that the court unreasonably

concluded that he had previously engaged in other drug smuggling

ventures because the record did not indicate the drug quantity in

his prior arrest in the Dominican Republic for drug possession.

This argument misrepresents the uncontested information before the

sentencing judge.

            The operative second-amended presentence report ("PSR")

stated that Reyes-Gomez and two other individuals were arrested in

the Dominican Republic in 2010, following a pursuit at sea.

Relying    on   certified   documents    provided   by   the   U.S.   Drug

Enforcement Administration, the PSR stated that officials seized

14.38 pounds of marijuana that had been tossed from the arrestees'

boat.     Reyes-Gomez's counsel indicated at sentencing that he had

received these documents, and he did not challenge them.

            The district court is free to rely on conduct set forth

in undisputed portions of the PSR at sentencing.          It permissibly

inferred from the large quantity of marijuana involved in this


                                 - 9 -
prior possession charge, as indicated by the certified documents,

that it was not for personal use.     See United States v. Mercer,

834 F.3d 39, 50 (1st Cir. 2016); cf. United States v. Marrero-

Pérez, 914 F.3d 20, 22 (1st Cir. 2019) (holding that courts may

not rely on an arrest without a conviction or other "independent

proof of conduct").

          Affirmed.




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