            United States Court of Appeals
                          For the First Circuit


No. 15-2322

                         UNITED STATES OF AMERICA,

                                 Appellee,

                                    v.

                          JONATHAN ORTIZ-TORRES,

                           Defendant, Appellant.


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

              [Hon. Gustavo A. Gelpí, U.S. District Judge]


                                  Before

                           Howard, Chief Judge,
                  Dyk*   and Thompson, Circuit Judges.


     Vivian Shevitz on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Julia M. Meconiates, Assistant United
States Attorney, on brief for appellee.


                             October 13, 2017




     *Of   the Federal Circuit, sitting by designation.
              PER CURIAM.     Defendant-Appellant Jonathan Ortiz-Torres

appeals his 560-month sentence, entered pursuant to a guilty plea,

for brandishing and discharging firearms during a crime of violence

in violation of 18 U.S.C. § 924(c)(1)(A) and (j).                  Ortiz and his

co-defendants embarked on a plan to rob two Puerto Rico Department

of Natural Resources officers of their firearms.                 Ortiz attempted

to take one guard's gun and, in the ensuing struggle, he shot the

guard.     In response, a second guard began shooting at Ortiz and

one of his co-defendants.           The conspirators returned fire, and a

bullet from Ortiz struck and killed the second guard.                      At this

point, Ortiz turned his attention back to the first guard, who

remained on the ground, wounded.                "Believing the guard" to be

"moving in a threatening manner, Ortiz shot him in the head or

neck area killing him."

              Ortiz's plea agreement stipulated that he would receive

a three-level reduction of his offense level for acceptance of

responsibility       under    U.S.S.G.       §3E1.1.     Accounting       for    this

downward      adjustment,    the    parties     agreed   that    the     applicable

guideline sentencing range ("GSR") was 292-365 months.                     But the

plea agreement also expressly provided that both parties were free

to   "argue    for   an   appropriate     sentence,      notwithstanding"        this

range.   Indeed, the government specifically "reserve[d] its right

to   argue    for    a   sentence    above    the   suggested"    GSR.      At    the

sentencing     hearing,      the    government      exercised    that    right    and


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recommended an incarcerative term of at least 500 months.                  The

district court agreed that a variance was appropriate and sentenced

Ortiz to 560 months' imprisonment.

            On appeal, Ortiz raises two narrow challenges to his

sentence.    First, he contends that the government breached the

plea agreement by arguing at the sentencing hearing that Ortiz

"had not accepted responsibility."             Second, Ortiz suggests that

his and his co-defendant's sentences were "unduly disparate."

Because both of Ortiz's claims fail on the merits, we assume,

favorably to him, that they are preserved for appeal.

            Applying de novo review, see United States v. Almonte-

Nuñez, 771 F.3d 84, 89 (1st Cir. 2014), we find no breach of the

plea agreement.       The government never so much as mentioned the

acceptance of responsibility credit at the sentencing hearing.

Ortiz   nonetheless     asserts   that   the    prosecutor's   reference   to

Ortiz's     lack   of     remorse    undermined      his   acceptance       of

responsibility.    But, rather than an attempt to renege on the plea

deal, the government's contention on this issue was simply part of

its rationale for requesting an upward variance.               "It is well

established" that "lack of remorse" is a relevant consideration in

this context that can support an upward variance in sentencing,

even if there is an acceptance of responsibility by the defendant.

United States v. Santiago-González, 825 F.3d 41, 50 n.13 (1st Cir.

2016); see also United States v. Cruzado-Laureano, 527 F.3d 231,


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236-37 (1st Cir. 2008).1        In any event, the court ultimately found

a "clear acceptance of responsibility" and, accordingly, applied

the downward adjustment.

             Ortiz    next    argues    that    his   560-month    sentence     is

substantively unreasonable, in light of his co-defendant's 380-

month sentence.       In short, we perceive no abuse of discretion by

the district court.      See United States v. Reverol-Rivera, 778 F.3d

363, 366-67 (1st Cir. 2015).           As an initial matter, a defendant is

not entitled to a lighter sentence merely because a co-defendant

received one.    See United States v. Dávila-González, 595 F.3d 42,

50 (1st Cir. 2010).           Indeed, there is a panoply of "material

differences" that may justify a purported disparity. United States

v. Reyes-Santiago, 804 F.3d 453, 467 (1st Cir. 2015).                  We have

repeatedly     held    that    one     such    distinguishing     factor   is   a

defendant's relative culpability.             See, e.g., Reverol-Rivera, 778

F.3d at 366; United States v. Rivera-Maldonado, 194 F.3d 224, 236

(1st Cir. 1999).       Here, the sentencing judge expressly relied on

the fact that Ortiz, not his co-defendant, shot and killed both

victims.      The court was especially troubled by Ortiz's fatal




     1  To the extent that Ortiz separately argues that the
government breached the plea agreement by referring to his filing
of a motion to suppress, that claim also fails. The prosecutor
never argued or implied that the suppression motion affected
Ortiz's entitlement to acceptance of responsibility credit.
Indeed,   she   ultimately    agreed   with   defense   counsel's
characterization of the suppression issue.


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shooting of the injured guard lying on the ground, which it

characterized as "extremely shocking."   The district court was

well within its broad discretion to conclude that this conduct

rendered Ortiz more culpable than his co-defendant and, in turn,

justified a significantly longer term of incarceration.

          For the foregoing reasons, we AFFIRM Ortiz's sentence.




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