          United States Court of Appeals
                     For the First Circuit


No. 16-1222

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

       DELFIN ROBLES-ALVAREZ, a/k/a El Indio, a/k/a Delfo,

                      Defendant, Appellant.


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

        [Hon. Juan M. Perez-Gimenez, U.S. District Judge]


                             Before

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


     Osvaldo Carlo-Linares, with whom Carlo Law Office, LLC was on
brief, for appellant.
     Mariana E. Bauzá-Almonte, Assistant United States Attorney,
Chief, Appellate Division, with whom Rosa Emilia Rodríguez-Vélez,
United States Attorney, and Julia M. Meconiates, Assistant United
States Attorney, were on brief, for appellee.


                        October 18, 2017
          HOWARD, Chief Judge. Defendant-Appellant Delfin Robles-

Alvarez appeals his convictions and sentence stemming from his

participation in a large-scale cocaine trafficking conspiracy.            We

reject the appellant's two claims of trial error, and therefore

affirm his convictions.     However, because the district court did

not address the appellant's potentially persuasive argument in

favor of a sentence varying from the advisory guideline range, we

vacate his sentence.

                                   I.

          According    to   the   evidence   presented     at    trial,   the

appellant became involved in drug trafficking through his cousin

Orlando Robles-Ortiz.       Robles-Ortiz himself began trafficking

drugs at the invitation of his co-worker Ivan Ortega.                Robles-

Ortiz and Ortega imported cocaine into Puerto Rico from Santo

Domingo, St. Thomas, St. Martin, Tortola, and Antigua. When Ortega

passed away in 2005, Robles-Ortiz's role escalated.             He contacted

Eduardo   Pérez-Figueroa,    another      associate   of   Ortega's,      and

proposed an operation to smuggle 105 kilograms of cocaine into

Puerto Rico from Antigua.

          The night before his scheduled departure, Robles-Ortiz

met with the appellant, explained the details of the upcoming trip,

and offered him the chance to participate. The appellant accepted.

The two traveled to Antigua by boat, purchased 105 kilograms of

cocaine, and transported it back to Puerto Rico.                During their


                                  - 2 -
return trip, Robles-Ortiz and the appellant stopped in St. Martin

to meet with Enrique Rodríguez, Ortega's former supplier.             Robles-

Ortiz offered Rodríguez his services, and the two agreed to speak

again once Robles-Ortiz arrived in Puerto Rico.

            Within days of his return from Antigua, Robles-Ortiz

began making smuggling trips to St. Martin, working with both Pérez

and Rodríguez.       Robles-Ortiz completed approximately twenty of

these voyages prior to his 2012 arrest, and the appellant joined

him on more than ten.          On average, the group imported about 100

kilograms of cocaine on each trip.             The members of the conspiracy

also engaged in a variety of schemes to launder the proceeds of

these smuggling operations.

            Ultimately, the appellant was arrested and charged with

conspiracy to distribute narcotics, see 21 U.S.C. §§ 959(a),

960(a)(3)    &    (b)(1)(B),    963;    conspiracy    to   import   controlled

substances, see 21 U.S.C. §§ 952(a), 960(a)(1) & (b)(1)(B), 963;

and conspiracy to launder monetary instruments, see 18 U.S.C.

§ 1956(h).       The indictment specifically alleged a conspiracy to

import cocaine from St. Martin.            It did not mention the Antigua

smuggling incident.      After a four-day trial, the jury convicted

the appellant on all counts.           The appellant moved for judgment of

acquittal pursuant to Fed. R. Crim. P. 29, arguing that the

government had presented insufficient evidence to support the

charges, but the district court denied that motion.


                                       - 3 -
              The Presentence Investigation Report prepared by the

probation      officer    indicated      that     the     appellant's     guideline

sentencing range was life imprisonment.              The appellant agreed that

this calculation was procedurally correct, but he also argued for

a downward variance to avoid sentencing disparities among co-

defendants.      The appellant represented that his co-conspirators

were    all    sentenced        to   between    forty-six     and   210     months'

imprisonment.       The court nonetheless imposed a life sentence,

without so much as mentioning the disparity argument.                   This timely

appeal followed.

                                         II.

              The appellant presses three arguments on appeal:                  (1)

that    the    trial     evidence      was     insufficient    to   support     his

convictions;     (2)     that    the   district    court    erred   in    admitting

evidence of his participation in the drug smuggling expedition to

Antigua; and (3) that his life sentence was procedurally and

substantively unreasonable.            We address each of these contentions

in turn.

A.     Sufficiency of the Evidence

              We review the sufficiency of the evidence supporting the

appellant's convictions de novo, viewing the evidence "in the light

most favorable to the jury's verdict."                  United States v. Rivera-

Donate, 682 F.3d 120, 133 (1st Cir. 2012) (citation omitted).                   In

conducting this inquiry, we do not "assess the credibility" of


                                        - 4 -
witnesses because "that is a role reserved for the jury."                        Id. at

134-35 (citation omitted).

              The appellant's sufficiency argument is a narrow one.

He does not contend that the government's evidence, if believed,

lacked probative value in support of the charges.                          Rather, the

appellant     argues    that    Robles-Ortiz's         testimony     was    "the    only

evidence" that the two cousins took the drug smuggling voyages

together.     Even accepting the appellant's dubious characterization

of the government's proof, this argument overlooks our express

holding   that       "the    uncorroborated     testimony       of   a     cooperating

accomplice may sustain a conviction so long as that testimony is

not facially incredible."            United States v. Torres-Galindo, 206

F.3d   136,    140    (1st    Cir.   2000).       As    we     perceive     no   facial

incredibility in Robles-Ortiz's testimony, this evidence alone

would have been sufficient to support the jury's verdict.

              Moreover,      contrary    to     the    appellant's         claim,    the

government did provide the jury with significant corroboration of

Robles-Ortiz's narrative.            Perhaps most notably, it introduced

into evidence the appellant's passport bearing several stamps in

and out of St. Martin during the relevant timeframe.                        Additional

corroboration        included   audiotapes      of     phone    calls    between    the

appellant and other conspirators, evidence of the appellant's

extravagant purchases, and the testimony of another co-conspirator

that the appellant was involved in the smuggling scheme.


                                        - 5 -
B.    Rule 404(b)

              The appellant next takes issue with the admission of

evidence relating to his participation in the drug smuggling trip

to Antigua.        Prior to trial, the government filed notice of its

intent to introduce this evidence as "inextricably intertwined

with" and "intrinsic to" the charged conspiracy or, alternatively,

pursuant to Fed. R. Evid. 404(b).         The district court allowed the

evidence to be admitted, commenting that it was "neither intrinsic

nor 404(b)," but instead represented "the start of the [charged]

conspiracy."       We review this ruling for abuse of discretion.            See

United States v. Aguilar-Aranceta, 58 F.3d 796, 798 (1st Cir.

1995).

              Rule 404(b) prohibits the use of prior bad acts evidence

"to   prove    a   person's   character   in   order   to   show"   action    in

conformity therewith.         Fed. R. Evid. 404(b).     We have previously

held that evidence "concern[ing] matters intrinsic to the crime

charged" does not "trigger" this provision. United States v. Mare,

668 F.3d 35, 39 (1st Cir. 2012).               Such "intrinsic" evidence

includes "the necessary description of the events leading up to"

the charged crime.       United States v. Souza, 749 F.3d 74, 84 & n.2

(1st Cir. 2014); see also United States v. Green, 617 F.3d 233,

247 (3d Cir. 2010) (explaining that evidence is admissible for

purpose of "allowing the jury to understand the circumstances

surrounding the charged crime" or "completing the story").


                                    - 6 -
            Here, the district court did not abuse its discretion in

admitting evidence of the Antigua smuggling trip because such

evidence was intrinsic to the charged conspiracy.            Clearly, the

meeting between the appellant, Robles-Ortiz, and Rodríguez in St.

Martin, during which the group discussed "the possibility of

becoming partners in a drug smuggling operation," was "part of the

necessary description of the events leading up to" the crime.

Souza, 749 F.3d at 84.      Absent this evidence, the jury could have

been left wondering about how the various co-conspirators came

together.    And, in turn, evidence of the appellant's and Robles-

Ortiz's participation in a drug smuggling trip to Antigua not only

explained why they were passing through St. Martin, but also why

Rodríguez would have trusted the pair and decided to go into

business with them.       Cf. United States v. Green, 698 F.3d 48, 55

(1st Cir. 2012) ("[I]n a conspiracy case, evidence of other bad

acts . . . can be admitted to explain the background, formation,

and   development    of     the   illegal    relationship,       and,    more

specifically, to help the jury understand the basis for the co-

conspirators' relationship of mutual trust." (citation omitted)).

            Even assuming, contrary to the above analysis, that Rule

404(b)   applies,   the   district   court   still   did   not   abuse    its

discretion in admitting evidence of the appellant's participation

in the Antigua trip.        Rule 404(b) expressly states that, while

evidence of "other act[s] is not admissible to prove" criminal


                                  - 7 -
propensity, such evidence may be introduced "for another purpose"

provided that reasonable notice is given.          Fed. R. Evid. 404(b).

Our circuit applies a two-part test to determine the admissibility

of evidence under Rule 404(b).           "First, the trial judge must

determine whether the evidence in question is offered for any

purpose other than solely to prove that the defendant had a

propensity to commit the crime in question."            Aguilar-Aranceta, 58

F.3d at 798. If this "special relevance" is established, the court

must then apply Rule 403 "to determine whether the probative value

of the evidence is 'substantially outweighed by the danger of

unfair prejudice.'"       Id. (quoting Fed. R. Evid. 403).

             Here, the appellant appears to concede that evidence of

his participation in the Antigua trip held special relevance.

Indeed, the Antigua evidence was clearly relevant to prove his

intent to join the drug trafficking conspiracy.                 Without it,

defense counsel may have argued that the appellant's mere presence

with Robles-Ortiz on the voyages was not sufficient to support a

conviction.    See id. at 799 ("[W]e have held that it is within the

judge's discretion to permit the government to introduce evidence

of prior similar offenses to demonstrate the unlikeliness that the

defendant was merely an innocent and unknowing bystander.").

             Turning to the second prong of the Aguilar-Aranceta

test, the district court did not abuse its discretion in finding

that   the    probative    value   of   the   Antigua    evidence   was   not


                                    - 8 -
substantially     outweighed    by    the     danger    of    unfair     prejudice.

Indeed,   the    government    presented      evidence       of   the    appellant's

participation in at least ten additional smuggling trips of similar

magnitude.      In this context, the evidence of the Antigua trip was

hardly inflammatory.

C.   Sentencing

             Lastly, we consider the appellant's challenge to his

life sentence.       In doing so, we follow a familiar "bifurcated"

review process, assessing, in turn, the procedural and substantive

reasonableness of the sentence.             United States v. Ayala-Vazquez,

751 F.3d 1, 29 (1st Cir. 2014) (citation omitted).                        Here, our

inquiry ends at the first stage.             In the unique circumstances of

this case, the district court's failure to address, or even

acknowledge, the appellant's potentially persuasive argument for

a    downward      variance    renders        the      sentence         procedurally

unreasonable.1

             The appellant's district court sentencing memorandum

focused on 18 U.S.C. § 3553(a)(6)'s directive that sentencing

judges    consider    "the     need    to     avoid     unwarranted         sentence

disparities among defendants with similar records who have been


      1Because we vacate the appellant's sentence on this basis,
we need not rule on his separate procedural argument that the
district court failed to recognize the advisory nature of the
sentencing guidelines. The same is true of his contention that
the court failed to accord sufficient weight to various purportedly
mitigating factors.


                                      - 9 -
found guilty of similar conduct."                  While this instruction "is

primarily      aimed     at    national      disparities,"     it     also   permits

consideration of disparities among co-defendants.                     United States

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

omitted).    In the present case, the appellant requested a downward

variance from the guideline sentence of life imprisonment, citing

the   fact   that      his    six   co-conspirators    received       incarcerative

sentences ranging from forty-six to 210 months.                 Moreover, Robles-

Ortiz, who represented the bottom of that range, was "the leader

of the organization" and recruited the appellant to participate.

At the subsequent sentencing hearing, defense counsel renewed this

disparity argument and expressly referenced the memorandum.                       The

court ultimately sentenced the appellant to life imprisonment

without so much as mentioning the disparity issue.

             A sentencing court commits procedural error, and thus

abuses   its    discretion,         by,   among    other    things,    "failing    to

adequately explain the chosen sentence."                   Gall v. United States,

552 U.S. 38, 51 (2007); see also 18 U.S.C. § 3553(c) (requiring

that the sentencing judge "state in open court the reasons for its

imposition of the particular sentence").                   The precise nature of

this explanation requirement depends heavily on context.                     See Rita

v. United States, 551 U.S. 338, 356 (2007) ("The appropriateness

of brevity or length, conciseness or detail, when to write, what

to say, depends upon circumstances.").                The district court must,


                                          - 10 -
however, "set forth enough to satisfy the appellate court that

[it] has considered the parties' arguments and has a reasoned basis

for exercising his own legal decisionmaking authority."    Id.   This

requirement is not onerous in the "typical case" where application

of the guidelines is straightforward.      Id. at 357.     In those

circumstances, "a court's reasoning can often be inferred by

comparing what was argued by the parties or contained in the pre-

sentence report with what the judge did."        United States v.

Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en banc),

abrogated on other grounds by Rita, 551 U.S. at 346.   By contrast,

where the defendant "presents nonfrivolous reasons for imposing a

different sentence, . . . the judge will normally go further and

explain why he has rejected those arguments."    Rita, 551 U.S. at

357.

          Several other circuits have held, consistent with the

Supreme Court's guidance, that a sentencing judge may commit

procedural error warranting remand by failing to explain its

rejection of an argument for a downward variance.         See United

States v. Pietkiewicz, 712 F.3d 1057, 1062 (7th Cir. 2013) (finding

procedural error where the district court denied a variance request

"without explanation"); United States v. Smith, 541 F. App'x 306,

308 (4th Cir. 2013) (vacating sentence where "the court failed

. . . to provide sufficient explanation for its decision to reject

[the defendant's] request for a variance"); United States v.


                              - 11 -
Wallace, 597 F.3d 794, 804 (6th Cir. 2010) (holding sentence

procedurally unreasonable where the district court "did not make

even a cursory mention of the disparity" cited by the defendant).

Moreover, our court has previously, albeit in a split decision,

vacated a sentence where the district judge failed to respond to

the defendant's argument for a downward variance to avoid disparity

among co-defendants.      See United States v. Cirilo-Muñoz, 504 F.3d

106, 107 (1st Cir. 2007).

            Here, the appellant presented a potentially forceful

disparity argument.       He was sentenced to life imprisonment, while

Robles-Ortiz, who was the leader of the conspiracy, recruited the

appellant    to   join,    and   participated   in   significantly   more

smuggling runs, received only forty-six months.        Moreover, despite

the appellant's repeated attempts to bring this disparity to the

court's attention, the sentencing judge did not even provide a

cursory explanation for its rejection of his argument.          In these

unique circumstances, the court's failure to even mention the

disparity issue renders the appellant's sentence procedurally

unreasonable.2


     2 In arguing for affirmance, the government cites language
from our opinion in Ayala-Vazquez suggesting that, where the
sentencing court states that it has considered the 18 U.S.C.
§ 3553(a) factors, we may "presume" that it applied § 3553(a)(6)'s
directive to avoid unwarranted disparities. 751 F.3d at 31. The
government's reliance on this precedent is misplaced for two
reasons. First, the purported disparity at issue in Ayala-Vazquez
was less significant than the one cited here. The defendant in


                                  - 12 -
              Because we conclude that the district court committed

procedural      error,        we        need   not     assess      the    substantive

reasonableness of the appellant's sentence.                   See United States v.

Prange, 771 F.3d 17, 37 n.8 (1st Cir. 2014).                  We do, however, note

that, as a general matter, "a defendant is not entitled to a

lighter sentence merely because his co-defendants received lighter

sentences."      Reyes-Santiago, 804 F.3d at 467 (citation omitted).

And   here,    the   appellant          concedes     two   "material     differences"

between his circumstances and those of his co-defendants:                      he did

not (1) plead guilty, see United States v. Rodríguez-Lozada, 558

F.3d 29, 45 (1st Cir. 2009); or (2) cooperate with the government,

see United States v. Rossignol, 780 F.3d 475, 478 (1st Cir. 2015).

Where   such     material      differences           exist,   we   typically    leave

"[d]eterminations        as        to    the   relative       culpability      amongst

codefendants" to the district judge.                   Ayala-Vazquez, 751 F.3d at

33; see also Cirilo-Muñoz, 504 F.3d at 107 (rejecting argument


that case was sentenced to life imprisonment, but his co-defendants
were sentenced to 108, 132, 156, and 180 months, respectively.
See id. at 28-29. Here, by contrast, Robles-Ortiz, whose level of
participation in the drug trafficking conspiracy by all accounts
exceeded that of his cousin, received an incarcerative sentence of
only forty-six months.     As explained above, the extent of the
required explanation is largely context-specific, so the greater
disparity in the present case called for a more detailed
explication of the court's rationale. Second, despite language
indicating that consideration of a purported sentencing disparity
could be presumed, our opinion in Ayala-Vazquez also made clear
that the district court had, in fact, expressly discussed and
rejected the defendant's contentions on this point. See id. at
31.


                                          - 13 -
that the mere "fact of the sentence disparity . . . itself

establishe[d]     that     the       sentence      [wa]s      unreasonable").

Accordingly, we express no opinion as to the appropriate sentence

on   remand,   instead   leaving     that     determination    to    the   sound

discretion of the district court.

                                      III.

           For the foregoing reasons, we AFFIRM the appellant's

convictions,    but   VACATE   his    sentence    and   remand      for   further

proceedings consistent with this opinion.




                                     - 14 -
