          United States Court of Appeals
                     For the First Circuit


No. 17-1688

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                   JONATHAN GONZÁLEZ-BARBOSA,

                      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

                       Howard, Chief Judge,
                Lipez and Barron, Circuit Judges.


     Marie L. Cortés Cortés for appellant.
     Antonio L. Pérez-Alonso, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Francisco A. Besosa-Martínez, Assistant
United States Attorney, were on brief for appellee.


                          April 8, 2019
            HOWARD,    Chief   Judge.     Appellant     Jonathan1    González-

Barbosa appeals his incarcerative sentence of 97 months, claiming

that the district court erred in calculating his Criminal History

Category    under     the   Sentencing    Guidelines,     because    a   prior

conviction was "relevant conduct" and therefore not for an offense

that was separate from his present conviction.                González also

challenges his sentence as procedurally unreasonable based on

sentence disparities and an inadequate explanation by the judge.

            Discerning no error by the district court, we affirm the

sentence.

                                I. BACKGROUND

            In 2010, González was indicted along with twenty-seven

others   for   conspiring      to   possess   with   intent   to    distribute

controlled substances within 1000 feet of the Columbus Landing

Public Housing Project in Mayaguez, Puerto Rico, in violation of

21 U.S.C. §§ 846 and 860.           The indictment listed González as a

seller in the conspiracy, which lasted between 2002 and 2010.

González pled guilty and was sentenced to 60 months of imprisonment

followed by 8 years of supervised release.

            While serving his supervised release term, González was

arrested again in July 2016.        This time, he and thirty-nine others



     1 Parts of the record, including the 2016 indictment and the
change of plea and sentencing hearing transcripts, refer to the
appellant as "Johnatan González-Barbosa."


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were indicted for violations of § 846 and other crimes between

2010 and 2016.     These other crimes included aiding and abetting in

the possession with intent to distribute cocaine base, cocaine,

and marijuana within 1000 feet of the Columbus Landing Public

Housing Project, as well as conspiracy to possess firearms in

furtherance of a drug trafficking offense.         Again, González pled

guilty.

           Under    the   plea   agreement,   González   was   to   be   held

responsible for at least 500 grams but less than 2 kilograms of

cocaine.   He also admitted to acting as a drug point owner and a

runner in the conspiracy.         The parties agreed that he would be

assigned a base offense level (BOL) of 24, as well as a two-level

enhancement for protected location, a two-level enhancement for a

leadership role in the offense, and a three-level reduction for

acceptance of responsibility for a total offense level (TOL) of

25. As provided in the Sentencing Guidelines, González's guideline

sentencing range (GSR) would be determined by taking his TOL and

his Criminal History Category (CHC) and plotting them on the

guidelines table.      The plea agreement made no stipulation as to

González's CHC, but made a joint recommendation of 72 months'

imprisonment "if Defendant's CHC is I to III."

           The Presentence Investigation Report (PSR) prepared by

the United States Probation Office mirrored the plea agreement's

guidelines calculation, but added a two-level enhancement for the


                                   - 3 -
foreseeable possession of a firearm during the offense, as provided

by U.S.S.G. § 2D1.1(b).       The PSR therefore assigned González a TOL

of 27.    With respect to González's CHC, the PSR added three points

for his prior conviction relating to the 2002-2010 conspiracy and

two points because the instant offense was committed during a term

of supervised release.       Consequently, the PSR recommended a CHC of

III.     With a TOL of 27 and CHC of III, the PSR calculated the GSR

to be 87 to 108 months.

             González objected to the PSR's firearms enhancement,

arguing that the TOL should be 25 as stipulated in the plea

agreement.      He   also   asserted    that   his   participation    in   the

conspiracy was limited, because he was incarcerated for most of

the duration of the 2010-2016 conspiracy.            González made no other

objections to the PSR.           The U.S. Probation Officer rejected

González's objections and left the PSR sentencing calculations

unchanged.

             At González's sentencing hearing, the district court

first imposed a sentence of 18 months' imprisonment for the

violation of supervised release.         Turning to the sentence for the

2010-2016 conspiracy, the court noted that it had reviewed the

plea agreement, the PSR, González's sentencing memorandum, and his

objection to the firearms enhancement.               After the court heard

arguments    about   the    firearms   enhancement    and   the   recommended

sentence of 72 months, it accepted the PSR-recommended guideline


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sentencing     range   of     87    to    108   months'   imprisonment.       After

discussing the various § 3553(a) factors, the district court

imposed   a    sentence      of    97    months'   imprisonment    to   be   served

consecutively to González's 18-month revocation sentence.                      This

appeal followed.

                                    II. ANALYSIS

              Before   us,    González      argues   that   the   district    court

committed procedural error when it calculated the GSR to be 87 to

108 months.     González claims that it was error to count his prior

conspiracy conviction in calculating his CHC because the prior

conviction was part of the same common scheme or plan as the

instant conviction and therefore was "relevant conduct" under

U.S.S.G. § 1B1.3.      He further contends that the district court did

not adequately state on the record why it chose to sentence him

above the 72 months recommended by the plea agreement and that the

court again erred procedurally by giving him a disparately higher

sentence compared to some of his co-defendants.2                   Each of these

arguments is futile.

              As a threshold matter, the government maintains that

because González did not state these objections before the district

court, they should be deemed waived and therefore unreviewable.


     2 Although González asserts that he is making a substantive
challenge to his sentence, all of his arguments are procedural,
and, regardless, his challenge would fail even under an abuse of
discretion review.


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In our circuit, "[a] party waives a right when he intentionally

relinquishes or abandons it."         United States v. Orsini, 907 F.3d

115, 119 (1st Cir. 2018) (alteration in the original) (quoting

United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002)).

This is distinct from when a party fails to timely assert a right,

which results in a forfeiture.               Rodriguez, 311 F.3d at 437.

Forfeited issues can be reviewed for plain error.             Id.    González's

challenges fail under either standard.

              To prevail on plain error review, González must show (1)

that an error occurred, (2) which was clear or obvious, and which

both    (3)   affected   his    substantial   rights,   and    (4)    seriously

impaired the fairness, integrity, or public reputation of the

judicial proceedings.          United States v. Fuentes-Echevarria, 856

F.3d 22, 25 (1st Cir. 2017).        We review each of his challenges in

turn.

                                      A.

              González first argues that the 2002-2010 conspiracy was

part of the instant offense and therefore his sentence for that

conspiracy should not have counted as a "prior sentence" under the

Sentencing Guidelines.           See U.S.S.G. § 4A1.2 (2016).             Under

Application Note 1 to § 4A1.2, "'[p]rior sentence' means a sentence

imposed prior to sentencing on the instant offense, other than a

sentence for conduct that is part of the instant offense." § 4A1.2

n.1. It further states that "[c]onduct that is part of the instant


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offense means conduct that is relevant conduct to the instant

offense under the provisions of §1B1.3."          Id.    That provision, in

turn, states that "relevant conduct" determinations shall be based

on:

        [A]ll acts and omissions committed, aided, abetted,
        counseled, commanded, induced, procured, or willfully
        caused by the defendant . . . that occurred during the
        commission of the offense of conviction, in preparation
        for that offense, or in the course of attempting to avoid
        detection   or   responsibility   for   that   offense[.]
        U.S.S.G. § 1B1.3(a)(1).

González asserts that because the 2002-2010 conspiracy involved

the same modus operandi, location, co-conspirators, dates, and

statute     as   the   2010-2016    conspiracy,   his    prior   offense   was

"relevant conduct" to the instant offense and his sentence for the

prior conviction should not qualify as a "prior sentence" for

purposes of his CHC calculation.

             However, González's darts are blunted by § 4A1.2(a)(2),

which     instructs     that   "[p]rior   sentences     always   are   counted

separately if the sentences were imposed for offenses that were

separated by an intervening arrest (i.e., the defendant is arrested

for the first offense prior to committing the second offense)."

González does not deny that his offenses were separated by an

intervening arrest, and he thus cannot escape the clear command of

this provision.        He was arrested in 2010 for his participation in

the 2002-2010 conspiracy.          After his release from imprisonment in

2014, he then engaged in additional criminal conduct.             Indeed, at


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his second sentencing, González emphasized that his participation

in the 2010-2016 conspiracy did not commence until after he began

his supervised release.       Moreover, as the government points out,

Application Note 5(C) of § 1B1.3 provides abundant clarity:

      Example[]: (1) The defendant was convicted for the sale
      of cocaine and sentenced to state prison. Immediately
      upon release from prison, he again sold cocaine to the
      same person, using the same accomplices and modus
      operandi. The instant federal offense (the offense of
      conviction) charges this latter sale. In this example,
      the offense conduct relevant to the state prison
      sentence is considered as prior criminal history, not as
      part of the same course of conduct or common scheme or
      plan as the offense of conviction.

The   similarity   between    this    example    and    the   facts    here   is

unmistakable.      There being no question that González received

sentences for offenses that were separated by an intervening

arrest, his first sentence was correctly counted as a prior

sentence.

                                      B.

            González next argues that the district court did not

adequately explain its reasoning for the sentence in open court as

required by 18 U.S.C. § 3553(c).             See United States v. Robles-

Alvarez, 874 F.3d 46, 52 (1st Cir. 2017) ("A sentencing court

commits procedural error, and thus abuses its discretion, by, among

other   things,    'failing    to     adequately       explain   the    chosen

sentence.'" (quoting Gall v. United States, 552 U.S. 38, 51

(2007))).   The adequacy of the sentencing court's explanation



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depends heavily on context.       See Rita v. United States, 551 U.S.

338, 356 (2007).         The district court is required to "set forth

enough to satisfy the appellate court that [it] has considered the

parties' arguments and has a reasoned basis for exercising [its]

own legal decisionmaking authority."           Id.     "A sentence that falls

inside a properly calculated guideline sentencing range requires

lesser degree of explanation than those that fall outside the

[GSR]."    United States v. Crespo-Rios, 787 F.3d 34, 39 (1st Cir.

2015) (internal quotation marks and alterations omitted).

              Here, after hearing arguments from both sides regarding

the recommended sentence, the district court stated that it was

accepting the guideline range recommended in the PSR.              This meant

that the court was beginning with a GSR of 87 to 108 months.                 The

court then proceeded to discuss its consideration of the § 3553

factors,      including    González's     age,       dependents,   employment,

education, health, upbringing, lack of a father-figure, history of

drug   use,    life   goals,   criminal       history,    and   likelihood    of

recidivism.     The court took particular note of the fact that after

González's     release    following    his    first    sentence,   instead    of

following his mother to Florida, he took over her former role as

a leader in the drug trafficking conspiracy at Columbus Landing.

The court also noted that González had been illegally accessing

phones or similar devices while in prison, as evidenced by his




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social media postings at the time.          Based on these factors, the

district court imposed a sentence of 97 months.

          González contends that the court needed to explicitly

state why it was imposing a "variant" sentence above the 72 months

recommended by the plea agreement.         But the sentence imposed was

not variant; it was right in the middle of the GSR, as explained

clearly by the district court.       The district court also clearly

explained the reasoning behind the GSR it was applying when it

opted to include the firearms enhancement in the TOL. The district

court's explanation of the sentence was sufficient.                 See United

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

("While the court ordinarily should identify the main factors upon

which it relies, its statement need not be either lengthy or

detailed.").     González has shown no error in the district court's

explanation.

                                    C.

          Lastly,     González     argues       that     his   sentence      is

procedurally unreasonable because he was given a longer sentence

than   certain    co-defendants   who    were     also    charged     in   both

conspiracies. González specifically identifies two co-defendants,

Roderick Perez-Gonzalez and Axel Bolta-Diaz.              Each of them pled

guilty to participating in the instant conspiracy and received

sentences of 72 months. This disparity, González argues, is purely

arbitrary and therefore error.


                                  - 10 -
             Judges are directed to 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). While "this provision is primarily aimed at national

disparities," United States v. Reyes-Santiago, 804 F.3d 453, 467

(1st Cir. 2015) (international quotation marks omitted), it also

"permits     consideration        of    disparities     among   co-defendants."

United States v. Robles-Alvarez, 874 F.3d 46, 52 (1st Cir. 2017).

Courts frequently reject disparity claims, however, when appealing

defendants        ignore     material    differences      between     their    own

circumstances and those of their co-defendants, Reyes-Santiago,

804 F.3d at 467.

             By     his     own    admission,     González's        circumstances

materially differ from those of the highlighted co-defendants.

Although it is true that each was charged in the instant case and

in the prior conspiracy, Bolta-Diaz was not assessed a leadership

enhancement       and     Perez-Gonzalez    was   not    assessed    a    firearms

enhancement.       González received both enhancements.              In sentence

disparity claims, a defendant must compare apples to apples.

United States v. Mateo-Espejo, 426 F.3d 508, 514 (1st Cir. 2005).

Without    showing      appropriate     comparators,     Gonzalez's      disparity

challenge cannot proceed.

             González argues further that his sentence enhancements

were disparately and unreasonably assessed by the district court,


                                        - 11 -
when the underlying conduct engaged in by his co-defendants was no

different than his.         In particular, González posits that the

district court's rationale for assessing a two-point firearms

enhancement was that he had returned to the conspiracy as a drug

point owner, yet the court failed to apply the same enhancement to

Perez-Gonzalez, who was also a drug point owner.               The district

court,   however,   noted    that   González's    Probation    Officer      had

recommended the enhancement, that Gonzalez was "one of the two

main leaders" of the conspiracy along with his brother, and that

González's "right-hand man," his brother, had been photographed

carrying   firearms.     Additionally,       González   concedes     that   the

record contains no information regarding Bolta-Diaz's or Perez-

Gonzalez's criminal histories.         Neither does the record contain

their sentencing hearing transcripts.           Because González does not

show that there was an arbitrary disparity between him and a

similarly-situated co-defendant that was clear or obvious, this

appeal cannot succeed.

                             III. CONCLUSION

           For   the   foregoing     reasons,    we   AFFIRM   the   sentence

imposed by the district court.




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