          United States Court of Appeals
                     For the First Circuit


No. 17-1319

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                      ELVING MADERA-RIVERA,

                      Defendant, Appellant.


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

       [Hon. Carmen Consuelo Cerezo, U.S. District Judge]


                             Before

                       Howard, Chief Judge,
               Boudin and Kayatta, Circuit Judges.


     Rafael F. Castro Lang 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.




                         August 2, 2018
          BOUDIN, Circuit Judge.   Elving Madera-Rivera ("Madera")

was the architect of a cocaine trafficking conspiracy, using the

mails and commercial airlines to send kilogram quantities of the

drug via Puerto Rico into the continental United States.    Madera

recruited and paid the couriers, using contacts in the continental

United States to make arrangements for distribution of the cocaine

after it arrived.

          Madera was indicted with fourteen co-defendants on June

26, 2013, and charged with one count of conspiracy to possess five

kilograms or more of cocaine with intent to distribute.   21 U.S.C.

§§ 841, 846.   He then sought bail and, when it was denied, filed

an emergency motion, describing an enlarged spleen, low platelet

levels, and Hepatitis C; the latter caused him to suffer from

chronic liver ailments, including liver cirrhosis.1 The government

ultimately agreed to support Madera’s bail motion, at least for a

period.

          As the case progressed, Madera rejected, for reasons

that are disputed, the government’s proffered plea agreement and

instead entered a straight guilty plea.     Madera says that the

government required as a condition of the plea bargain that he

waive any right to seek continued bail for medical treatment


     1   Madera's principal and reply briefs--not filed under
seal--cite to and directly quote materials from his sealed
appendix, including medical records, effectively inviting resort
by anyone else.


                              - 2 -
pending sentencing.   The government denies this happened, arguing

instead that Madera's decision to enter a straight plea was a

strategic one to allow him to contest other issues.

          After Madera pled guilty, the court held sentencing

hearings to determine the amount of cocaine to attribute to Madera,

U.S.S.G. § 2D1.1(c) (U.S. Sentencing Comm'n 2014), his precise

role in the conspiracy, id. § 3B1.1, and the offense level decrease

for his acceptance of responsibility, id. § 3E1.1.        The court held

Madera responsible for seventy-seven kilograms of cocaine, id.

§ 2D1.1(c)(3), and found that he was a leader of the conspiracy,

id. § 3B1.1(a).     The court granted a three-level decrease for

acceptance of responsibility.      Id. § 3E1.1(a)-(b).

          Madera    then    sought    a   downward     departure    under

U.S.S.G. § 5H1.4   (and    also   requested   a   variance--an   issue   we

address below).    Section 5H1.4 states:

          Physical condition . . . may be relevant in
          determining whether a departure is warranted,
          if the condition . . . individually or in
          combination      with     other      offender
          characteristics, is present to an unusual
          degree and distinguishes the case from the
          typical cases covered by the guidelines. An
          extraordinary physical impairment may be a
          reason to depart downward . . . .

          Madera argued that his life was in danger and would

assuredly be shortened by a guidelines sentence, since prison

facilities would be unable to fully address his medical needs.

See United States v. Herman, 848 F.3d 55, 59 (1st Cir. 2017).


                                  - 3 -
The government pressed for a within-guidelines sentence and said

that "nothing presented" indicated that the Bureau of Prisons

("BOP") was incapable of providing appropriate medical treatment.

            The court's final tally was a total offense level of

thirty-five, entailing a guidelines range of 168 to 210 months.

U.S.S.G. ch. 5, pt. A.      The court ultimately imposed a 180-month

sentence.

            During   the   last    hearing,   the   court    said   that   it

understood--from whom or what is not clear--that Madera’s health

condition, "serious as it is, can be adequately treated and handled

during his incarceration."        The court urged that Madera be sent to

the Butner Federal Correction Institution in North Carolina--a

prison known for its medical facilities and requested by defense

counsel.

            Madera now seeks a remand and a sentence at the mandatory

minimum of ten years.      21 U.S.C. § 841(b)(1)(A).        He relies on his

doctor, Barbara Rosado Carrion, who reported that Madera "has a

reduced survival and shorten[ed] life expectancy ([five] years or

less) in the absence of liver transplantation."                 Madera also

challenges the court's refusal to impose a variant sentence below

the guidelines range.

            The standard for review of a denial of a downward

departure depends, as with most claims of error on appeal, on the

nature of the issue pressed by the appellant--which may be a


                                    - 4 -
straight issue of law, an issue of fact, or one (for example) that

contests the judge's disposition on a matter of discretion, usually

on the ground that discretion was abused.         Madera's claim here is

first       that   the   guideline   regarding   extraordinary   physical

impairment, U.S.S.G. § 5H1.4, would have permitted the judge to

depart downward in his case; second that the medical evidence

indicated that he needed a liver transplant within five years or

else would die; and third that it was an abuse of discretion to

deny the reduction of his sentence to the mandatory minimum of ten

years.

              The first proposition is at least plausible; the second

might have been debated, yet the government declined to do so at

this time; but our rejection of the appeal rests on the flawed

reasoning that underlies Madera's "abuse of discretion" argument.

A ten-year sentence does nothing to respond to the supposed peril

Madera faces, namely, death within five years without a transplant.

Madera's doctor prescribed routine testing on a permanent basis

and Madera has not sufficiently demonstrated that the major federal

prison medical facilities would be incapable of providing such

treatment.2        Only Madera's need for a transplant exceeds the


        2   Dr. Carrion wrote in part:
              Mr. Madera needs to be followed closely by a
              liver specialist every [three] to [four]
              months with blood work[up] that includes [a]
              liver profile, coagulation profile and CBC.
              Medical assessment should include evaluation


                                     - 5 -
mundane.   And Madera's requested reduced sentence of ten years

would do nothing to address the threat of death within five.

           Further,    if   Madera's     condition   worsens   and   the

government denies or unduly delays a transplant, the remedy would

be injunctive relief under the Eighth Amendment.          See Estelle v.

Gamble, 429 U.S. 97, 104 (1976); Kosilek v. Spencer, 774 F.3d 63,

82-84 (1st Cir. 2014) (en banc).          In sum, a sentence at the

mandatory minimum would not mitigate the risk Madera faces and the

remedy would likely be a constitutional claim that the defendant

has not made.

           Madera also argues that the court erred at sentencing

when it failed to make a "specific finding" as to whether he

suffered    from      an    "extraordinary     physical     impairment,"

U.S.S.G. § 5H1.4.     This circuit has not required such a finding

and anyway the government did not question Madera's condition or

challenge his doctor's grave medical assessment. Cf. Fed. R. Crim.

P. 32(i)(3)(B) (a sentencing court must rule on any "controverted

matter" at sentencing or determine that a ruling is unnecessary).

What was disputed was whether Madera's patently dire condition



           for the presence of fluid retention, ascites,
           jaundice or gastrointestinal bleeding. . . .
           In addition, [Madera] needs surveillance for
           liver cancer every [six] months with [a]
           dedicated liver ultrasound or three phase[] CT
           scan plus AFP (alpha-fetoprotein) tumor
           marker.    He should get vaccinated against
           hepatitis A and hepatitis B . . . .


                                 - 6 -
warranted a downward departure and, for the reasons stated, the

court's negative decision was not error.

             This brings us to Madera's argument for a downward

variance.     Madera claims that the district court failed to give

appropriate weight to the section 3553(a) factors, 18 U.S.C.

§ 3553(a), and that a variant downward sentence to the ten-year

minimum was "more than justified."                  Madera cites his need for

medical care, the non-violent nature of the offense, his status as

a first-time offender, his history of stable employment, and

avoidance of sentencing disparities among co-defendants.

             But     the   district       court   heard    these   arguments      at

sentencing.        And after explicitly stating that it had "considered

all    [of   the    section    3553(a)]     sentencing     factors,"     the   court

referred     to     relevant     circumstances       including,    for    example,

Madera's age, education, medical condition, and lack of criminal

history.      See United States v. Ruiz-Huertas, 792 F.3d 223, 227

(1st Cir. 2015).

             Madera's argument, then, is essentially a disagreement

with the court's weighing of these factors; but appraising and

comparing     such     factors    is   an    exercise     "largely     within     the

[sentencing]       court's     informed     discretion."      United     States   v.

Clogston, 662 F.3d 588, 593 (1st Cir. 2011). Further, some factors

that    Madera      suggests    deserved     more    weight   were     justifiably

balanced by others:        Madera's status as a first-time offender, for


                                       - 7 -
instance, was likely offset by the fact that he was the leader of

a heavily-orchestrated drug conspiracy.

            Madera also claims that a variance was warranted because

of the government's supposedly improper conditioning of the plea

offer on Madera agreeing to forego bail.                Madera cites as evidence

only an e-mail between his own two attorneys based on an alleged

prior discussion with the prosecutor.               Indeed, the government at

multiple points consented to Madera's release on bail for medical

examination or treatment.          Absent substantial evidence that the

condition was ever actually imposed, the district court's failure

to entertain such a claim is well-justified.

            Lastly,      Madera    asserts         that     his    sentence     was

substantively unreasonable.         For the reasons already set forth,

Madera's     within-guideline      sentence        of     180   months   was   both

plausibly     reasoned    and     within     the        universe   of    reasonable

sentences.     See United States v. Alejandro-Rosado, 878 F.3d 435,

440 (1st Cir. 2017).

            Affirmed.




                                     - 8 -
