               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit


No. 15-1423

                            UNITED STATES,

                               Appellee,

                                    v.

                      EDUARDO PÉREZ-FIGUEROA,

                       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,
                Stahl and Barron, Circuit Judges.


     Rafael F. Castro Lang on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Julia M. Meconiates, Assistant United States
Attorney, on brief for appellee.


                            August 9, 2016
             BARRON, Circuit Judge.             Eduardo Pérez-Figueroa appeals

the sentence he received after he pleaded guilty to conspiracy to

commit money laundering and drug trafficking.                   We affirm.

                                          I.

             Pérez    pleaded    guilty      to   conspiracy     to    possess     with

intent to distribute cocaine, in violation of 21 U.S.C. §§ 846,

841(a)(1),     841(b)(1)(A)(ii),         and      conspiracy     to   commit       money

laundering,    in    violation     of   18      U.S.C.    §   1956(h).       The    drug

trafficking conspiracy involved the transportation of cocaine from

Saint Maarten, Netherlands Antilles, to both Puerto Rico and the

continental    United     States.         The     money    laundering       conspiracy

involved     the     concealment    of       drug    trafficking       proceeds       as

legitimate income derived from winning the Puerto Rico lottery.

             Pérez    entered    the     pleas      on    January     14,    2014,    in

connection with a plea agreement.                 The agreement recommended a

sentencing range, based on a calculation of the applicable range

under the version of the Guidelines then in effect, of 168 to 210

months' imprisonment (assuming a criminal history category of I

for Pérez).

             At the sentencing hearing, the District Court calculated

a sentencing range, under the version of the Guidelines then in

effect, of 135 to 168 months' imprisonment.                      In doing so, the

District Court applied "Amendment 782" to the Guidelines, which

became effective on November 1, 2014 and which "reduced by two


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levels the base offense level for many drug offenses."                       United

States v. Vaughn, 806 F.3d 640, 643 (1st Cir. 2015).                         Pérez

requested a sentence of 84 months' imprisonment, which was below

both   the    amended   Guidelines       range     and    the   minimum   sentence

prescribed by statute.           This request was based, in part, on a

motion that Pérez had filed with the District Court prior to

sentencing, concerning his pre-sentence detention.

             The District Court ultimately denied Pérez's request and

sentenced him to 156 months in prison -- a sentence 12 months below

the top end of the applicable Guidelines range. The District Court

sentenced Pérez to a term of supervised release of seven years on

the drug trafficking count, above the five-year term prescribed by

the Guidelines, see 21 U.S.C. § 841(b)(1)(A); U.S.S.G. § 5D1.2 &

cmt. 6, and to a term of supervised release of three years on the

money laundering count, to be served concurrently.

             Although   there     was    a     waiver-of-appeal     provision    in

Pérez's      plea   agreement,    the        government    concedes   that     this

provision was not triggered because the District Court did not

sentence Pérez in accordance with the terms of the plea agreement.

We thus turn to Pérez's challenges.

                                         II.

             We start with two challenges that Pérez makes that

pertain to U.S.S.G. §5K1.1 ("5K1.1").              Neither has merit.




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            Pérez first contends that the District Court erred in

concluding that it had no 5K1.1 motion before it when it imposed

the sentence.      The government contends that, due to cursory

briefing, Pérez has waived any contention that the District Court

erred in this regard.        But even if we assume that there was no

waiver, Pérez's claim fails.

            Our review of Pérez's contention is only for plain

error,1 see United States v. Ríos-Hernández, 645 F.3d 456, 462 (1st

Cir. 2011), and Pérez's contention can only succeed if the motion

that Pérez filed constituted a "motion of the government" within

the meaning of 5K1.1.        But Pérez provides no authority for the

strange proposition that his own motion constitutes a "motion of

the government" under 5K1.1.         See Wade v. United States, 504 U.S.

181, 185-86 (1992) (describing the decision to file a 5K1.1 motion

as   one   committed   to   the     "prosecutor's     discretion"   (emphasis

added)); see also United States v. Ayarza, 874 F.2d 647, 653 (9th

Cir. 1989) (noting, in holding that 5K1.1 does not violate a

defendant's constitutional right to due process, that "it is

rational for Congress to lodge some sentencing discretion in the

prosecutor, the only individual who is" in a position to make the

necessary    assessment     under    the   relevant    provision    (emphases


      1Pérez's arguments below were based on what he perceived to
be the government's failure to follow through on its promise to
file a 5K1.1 motion, and not on the District Court's failure to
treat his motion as a bona fide 5K1.1 motion.


                                     - 4 -
added)). Accordingly, this challenge clearly fails. United States

v. Morosco, 822 F.3d 1, 21 (1st Cir. 2016) (finding no plain error

where defendant cited no authority and this Court knew of no

authority that supported defendant's argument).

          Pérez's other argument regarding 5K1.1 is no stronger.

He contends that the District Court erred in rejecting his claim

at sentencing that the prosecutor's decision not to file a 5K1.1

motion was based on an "unconstitutional motive" in violation of

Wade, 504 U.S. at 185-86.2   Because Pérez has preserved this claim,

we review for abuse of discretion, according de novo review to

questions of law and clear error review to questions of fact.   See

United States v. Mulero-Algarín, 535 F.3d 34, 39 (1st Cir. 2008).

          The prosecutor explained the reasons for the decision

not to file a 5K1.1 motion, which the court largely accepted.

Given that Pérez does not challenge the court's findings on appeal,

and given that those findings provide an adequate basis for the

prosecutor's decision, Pérez has not shown that the prosecutor

acted improperly in declining to file a 5K1.1 motion.   See Mulero-

Algarín, 535 F.3d at 40 (concluding that the government could


     2 Pérez also contends that the decision was improper because
it was "not rationally related to any legitimate Government[al]
end." Wade, 504 U.S. at 186. We have made clear, however, that
"[a] motive not rationally related to any legitimate governmental
purpose comes within the compass of th[e] prohibition [against
grounding the decision not to file a 5K1.1 motion in an
unconstitutional motive]." United States v. Mulero-Algarín, 535
F.3d 34, 39 (1st Cir. 2008).


                                - 5 -
withhold a similar motion in view of the defendant's initial

"minimization"       of   his   role    in     the   offense,   even     though   the

defendant later "trie[d] to correct his retinency" (citing United

States v. Licona-López, 163 F.3d 1040, 1044 (8th Cir. 1998) ("[T]he

government does not act irrationally in refusing to file" such a

motion     for   a   defendant     who       has     been   untruthful    with    the

authorities.))); United States v. Davis, 247 F.3d 322, 323, 328

(1st Cir. 2001) (affirming District Court's conclusion that no

Wade     violation    occurred     where        defendant    complied     with    the

requirements in some respects but "was admittedly reticent" in

others).     We thus cannot say that the District Court abused its

discretion in denying Pérez's Wade-based challenge.

                                         III.

            Pérez also argues that his sentence is unreasonable,

both procedurally and substantively.                 We address each contention

in turn.

                                          A.

            When reviewing a sentence for procedural reasonableness,

"we must 'ensure that the district court committed no significant

procedural error, such as failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,

selecting a sentence based on clearly erroneous facts, or failing

to     adequately     explain     the        chosen     sentence--including        an


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explanation for any deviation from the Guidelines range.'"            United

States v. Ayala-Vazquez, 751 F.3d 1, 29 (1st Cir. 2014) (quoting

Gall v. United States, 552 U.S. 38, 51 (2007)).          "We make use of

a 'multi-faceted' abuse of discretion standard to make these

determinations," id. (quoting United States v. Leahy, 668 F.3d 18,

21 (1st Cir. 2012)).     We find no error under that standard.

             Pérez first contends that the District Court, when

evaluating the impact of Amendment 782 to the Guidelines on Pérez's

sentence, see Vaughn, 806 F.3d at 643 (providing that Amendment

782 "reduced by two levels the base offense level for many drug

offenses"), erred by not considering the factors outlined in

U.S.S.G. §1B1.10 cmt. 1(B).      But those factors apply only when the

defendant did not receive the benefit of an amendment to the

Guidelines    because    the   defendant    was   sentenced   before     the

amendment became effective.      See U.S.S.G. §1B1.10(a)(1).      Because

Pérez was sentenced after Amendment 782 became effective, Pérez's

invocation of U.S.S.G. §1B1.10 is misplaced.

          Pérez   also    contends   that   the   District    Court    erred

procedurally by failing to consider certain allegedly mitigating

factors that he identifies.      But that is not so.

          The District Court reasonably found that Pérez's lack of

prior drug use actually cut against Pérez.           The District Court

explained that Pérez was not "selling drugs because he need[ed]

the money to pay for drug addiction" but was instead "doing it for


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financial profit," even though he was "well aware of the damages

that it causes to society."

           The District Court also considered Perez's conduct while

detained, but, after making relevant findings, did not give him as

much credit as requested.        As Pérez challenges none of these

findings on appeal, he has provided us with no basis for concluding

that the District Court did not adequately consider his conduct

while detained.3

           The District Court also considered the other factors

that Pérez points to on appeal as warranting a lower sentence in

his case -- namely, Pérez's (in his view, minimal) criminal history

and prior employment -- and determined that they did not, when

weighed against the aggravating factors in this case, warrant a

sentence   lower   than   156   months.4   Thus,   Pérez's   procedural

challenge fails.


     3 Pérez does contend that the District Court made a "clearly
erroneous factual determination." But the determination to which
Pérez refers, which relates to Pérez's own smuggling of contraband
into the detention facility, is not one upon which the District
Court relied at sentencing.
     4 Pérez notes that the District Court did not explicitly
address that Pérez "did not encounter any disciplinary actions"
during his pretrial detention.    But the District Court was not
required to make express reference to every aspect of Pérez's
background that could have bearing on Pérez's sentence. See United
States v. Suárez-González, 760 F.3d 96, 102 (1st Cir. 2014)
("Bearing in mind that a sentencing court need not explicitly
address every consideration that enters into its decisional
calculus, we are satisfied that the court below sufficiently
weighed the section 3553(a) factors." (citation omitted)).


                                  - 8 -
                                         B.

              When     reviewing        a       sentence      for      substantive

reasonableness, we consider whether the sentence is supported by

a "plausible sentencing rationale" and reflects a "defensible

result."      Ayala-Vazquez, 751 F.3d at 32 (quoting United States v.

Pol-Flores, 644 F.3d 1, 4-5 (1st Cir. 2011)).                 Our review is for

abuse of discretion.       Id.

              The District Court did give less weight to the mitigating

factors to which Pérez points than he contends was warranted.                   But

the District Court's decision to weigh these factors as it did was

a reasonable one, given the aggravating factors involved in this

case, such as the scope and complexity of the money laundering and

drug    trafficking    conspiracies.           See   United   States     v.   Colón-

Rodríguez, 696 F.3d 102, 108 (1st Cir. 2012).                  We thus conclude

that the within-Guidelines sentence of 156 months that the District

Court imposed is indeed supported by "a plausible sentencing

rationale" and yielded "a defensible result."                  United States v.

Martin, 520 F.3d 87, 96 (1st Cir. 2008). Accordingly, the sentence

is not unreasonable and the District Court did not abuse its

discretion in imposing it.

                                         IV.

              In Pérez's last challenge, he contends that the District

Court plainly erred by not giving him advance notice that it was

going    to   impose   a   term    of    supervised     release     on   the    drug


                                        - 9 -
trafficking count that was two years above the term prescribed by

the Guidelines.   See 21 U.S.C. § 841(b)(1)(A); U.S.S.G. §5D1.2 &

cmt. 6. Such notice must be given, however, only when the District

Court imposes what is known as an upward departure, rather than

merely an upward variance.   See United States v. Guzmán-Fernández,

___ F.3d ___, 2016 WL 3082191, at *4 n.5 (1st Cir. June 1, 2016)

(indicating that advance notice is required for a departure but

not a variance); see also United States v. Oquendo-García, 783

F.3d 54, 56 (1st Cir. 2015) (providing that a departure "refers to

specific deviations imposed in accordance with a statute or a

specific guidelines provision," while a variance "exist[s] as a

result of the advisory nature of the guidelines"). And here, Pérez

has not shown -- at least with the clarity required on plain error

review -- that the District Court departed rather than varied.

See Morosco, 822 F.3d at 21.   Accordingly, this challenge fails as

well.

                                 V.

          For the reasons given, we affirm.




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