          United States Court of Appeals
                       For the First Circuit


No. 15-2275

                      UNITED STATES OF AMERICA,

                              Appellee,

                                 v.

                        JAYSON RENTAS-MUÑIZ,

                        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

              Lynch, Selya and Kayatta, Circuit Judges.


     Maria Soledad Ramirez-Becerra and Maria Soledad-Ramirez
Becerra Law Office on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and John A. Mathews II, Assistant United States
Attorney, on brief for appellee.


                            April 3, 2018
             SELYA,     Circuit    Judge.      Defendant-appellant         Jayson

Rentas-Muñiz pleaded guilty to conspiring to possess with intent

to distribute cocaine base (crack cocaine) and to possessing a

firearm in furtherance of a drug-trafficking crime.                  The district

court sentenced him to a 202-month term of immurement on the drug-

conspiracy charge and a sixty-month term of immurement on the

firearms charge, stipulating that those prison terms would run

consecutive to one another and to the undischarged portions of

multiple Puerto Rico sentences that he was then serving.                   Before

us,   the    appellant    primarily    challenges    the      district    court's

determination to run the federal sentences consecutive to the

Puerto      Rico   sentences      previously    imposed.        After     careful

consideration, we affirm.

I.    BACKGROUND

             Since this appeal follows a guilty plea, we draw the

relevant facts from the plea agreement (the Agreement), the change-

of-plea     colloquy,    the   undisputed     portions   of    the    presentence

investigation report (PSI Report), and the sentencing transcript.

See United States v. Nuñez, 852 F.3d 141, 143 (1st Cir. 2017);

United States v. Dávila-González, 595 F.3d 42, 45 (1st Cir. 2010).

             The appellant is no stranger to the judicial system.

Going back in time, he was convicted in Puerto Rico of attempted

aggravated burglary in 2000, robbery and unlicensed use of a weapon

in 2002, and conspiracy against a judicial officer in 2006.                    He


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continued to operate on the wrong side of the law and, by 2012,

had become engaged in a conspiracy to distribute cocaine, crack

cocaine, heroin, and marijuana in and around Ponce, Puerto Rico.

During this phase of his criminal career, the appellant sold drugs,

served as an enforcer for the drug ring, and assisted in the

storage of contraband.       Separately, he was involved (on November

30, 2012) in the premeditated murder of a high-school student,

Juan Ruiz-Vega.

           These    chickens   ultimately     came   home    to   roost:     the

appellant was charged in the Puerto Rico courts and convicted of

a laundry list of crimes.       He was sentenced to multiple terms of

imprisonment,1 including ninety-nine years for murder, ten years

for   attempted    murder,   thirty   years   for    the    unlawful   use    of

firearms, and one year for the unlawful distribution and possession

of controlled substances.       These sentences were ordered to run

consecutive to one another.

           On September 4, 2013, a federal grand jury in the

District of Puerto Rico charged the appellant — who was then

incarcerated in consequence of his state crimes — with conspiring




      1Although Puerto Rico is not a state, sentences imposed by
Puerto Rico courts are treated the same as sentences imposed by
state courts for most federal sentencing purposes.      See United
States v. Román-Díaz, 853 F.3d 591, 594 n.1 (1st Cir. 2017); United
States v. Carrasco-De-Jesús, 589 F.3d 22, 24-25, 27 (1st Cir.
2009).    For ease in exposition, we henceforth refer to the
appellant's Puerto Rico sentences as state sentences.


                                  - 3 -
to possess with intent to distribute in excess of 280 grams of

cocaine    base   and    detectable     amounts     of    cocaine,   heroin,   and

marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (count

1) and possessing a firearm in furtherance of a drug-trafficking

crime, in violation of 18 U.S.C. § 924(c) (count 2).                     About two

months later, the appellant pleaded guilty to both counts pursuant

to   the   Agreement.      As    part    of   the   Agreement,     the   appellant

stipulated to having handled between 112 and 196 grams of crack

cocaine,    and   both    sides     agreed      that     the   appellant's   drug-

distribution convictions in the Puerto Rico courts should be

considered overt acts with respect to the federal drug-conspiracy

charge.    The parties jointly recommended a sixty-month sentence on

count one to run consecutive to a sixty-month mandatory minimum

sentence on count two.          The Agreement did not address whether the

federal sentences should run consecutive to or concurrent with the

state sentences.

            The parties agree that the November 2014 edition of the

sentencing guidelines applies in this case.                Using that version of

the guidelines, the PSI Report recommended that the appellant's

base offense level be adjusted upward to reflect his involvement

in Ruiz-Vegas's murder — an adjustment that would have yielded a

guideline sentencing range of 360 to 480 months. See USSG §§2A1.1,

2D1.1(d)(1).      At the disposition hearing, the district court

declined to treat the Ruiz-Vega murder as relevant conduct, see


                                        - 4 -
id. §1B1.3, and therefore eschewed the murder cross-reference.

But since the appellant had at least two prior felony convictions

for crimes of violence, the court concluded that he was a career

offender, see id. §4B1.1 — a determination that resulted in a

guideline range of 262 to 327 months.                  The court proceeded to

impose a below-the-range sentence of 202 months on count one and

a mandatory minimum sentence of sixty months on count two, with

these sentences to run consecutive to one another and to the

undischarged portions of the state sentences.

             This   timely   appeal     ensued.        Although   the    Agreement

contains a waiver-of-appeal provision, the government concedes —

as it must — that this appeal falls outside the margins of that

provision.

II.   ANALYSIS

             The appellant does not challenge the district court's

finding that he was a career offender, nor does he challenge any

other aspect of the district court's calculation of his guideline

sentencing range.        He trains his fire instead on the district

court's decision to run his federal sentences consecutive to his

undischarged state sentences.

             The    appellant's   challenge       to    the   district     court's

imposition of a consecutive sentence on the firearms offense is

easily   dispatched.         Although    a    sentencing      court     often   has

discretion to determine whether to run a sentence consecutively or


                                      - 5 -
concurrently, see 18 U.S.C. §§ 3553(a), 3584; see also USSG §5G1.3,

that is not true with respect to the appellant's firearms offense.

The statute of conviction underlying that offense requires a

consecutive sentence.       See 18 U.S.C. § 924(c).       This statutory

requirement      "removes    the    discretion     to    run   sentences

concurrently."     Dean v. United States, 137 S. Ct. 1170, 1177

(2017).   Accordingly, the court below had no choice but to run the

term of imprisonment on the firearms count consecutive to any other

term of imprisonment, whether state or federal.         See United States

v. Gonzales, 520 U.S. 1, 11 (1997).

           This leaves the federal sentence on the drug-conspiracy

charge.   The appellant claims that it was procedural error for the

district court to run that sentence consecutive to the undischarged

state sentences. Because this claim of error was not raised below,

our review is for plain error.2     See United States v. Ruiz-Huertas,

792 F.3d 223, 226 (1st Cir. 2015).         Under this rigorous standard,

the appellant must show "(1) that an error occurred (2) which was

clear or obvious and which not only (3) affected [his] substantial

rights, but also (4) seriously impaired the fairness, integrity,


     2 Based on certain statements made at the sentencing hearing,
the government invites us to find that the appellant waived this
claim of error. See United States v. Washington, 434 F.3d 7, 11
(1st Cir. 2006) (holding that waived arguments cannot be considered
on appeal); United States v. Rodriguez, 311 F.3d 435, 437 (1st
Cir. 2002) (same). We decline to take up this invitation: even
assuming that the claim of error was not waived, it nonetheless
fails.


                                   - 6 -
or public reputation of judicial proceedings."                      United States v.

Duarte, 246 F.3d 56, 60 (1st Cir. 2001).

              In    this    instance,    we    discern    no        error,    plain      or

otherwise.         With respect to offenses like the offense underlying

the drug-conspiracy count, Congress left open the question of

whether      a     particular     sentence     should    run        concurrent     with,

partially concurrent with, or consecutive to an undischarged state

sentence.          See     18   U.S.C.   §    3584(a).         In    making      such    a

determination, the district court must give consideration to the

factors enumerated in 18 U.S.C. § 3553(a), including the applicable

sentencing guidelines and policy statements.                    See id. § 3584(b);

United States v. Carrasco-De-Jesús, 589 F.3d 22, 27 (1st Cir.

2009).       Of particular pertinence for present purposes is USSG

§5G1.3, which addresses situations (like this one) where the

defendant is subject to undischarged state sentences.

              This guideline provision advises that a federal sentence

be imposed to run concurrent with an undischarged state sentence

when   the       state   sentence   is   for     an   offense       that   constitutes

"relevant conduct" with respect to the offense of conviction.                           See

USSG §5G1.3(b)-(c); United States v. Román-Díaz, 853 F.3d 591, 598

(1st Cir. 2017).           In drug-trafficking cases, "relevant conduct"

includes all acts and omissions "that were part of the same course

of conduct or common scheme or plan as the offense of conviction."

USSG §1B1.3(a)(2).          Where the acts or omissions comprise unrelated


                                         - 7 -
conduct, the district court enjoys discretion to run the federal

sentence "concurrently, partially concurrently, or consecutively

to the prior undischarged [state] term of imprisonment to achieve

a reasonable punishment for the instant offense."     Id. §5G1.3(d).

          The appellant contends that section 5G1.3(b) applies

here.   To prevail on this contention, he must show "that [he]

satisfies each and every element of the guideline."    United States

v. Vélez-Soto, 804 F.3d 75, 78 (1st Cir. 2015) (alteration in

original) (quoting Carrasco-De-Jesús, 589 F.3d at 27). This means,

among other things, that he must show that the undischarged state

sentences resulted from an offense or offenses that constitute

relevant conduct with respect to the federal offense of conviction.

See United States v. Figueroa-Figueroa, 791 F.3d 187, 192 (1st

Cir. 2015) (citing USSG §5G1.3 cmt. n.2(A)).

          In an effort to make this showing, the appellant submits

that all of his undischarged state sentences relate to offenses

comprising relevant conduct with respect to his federal drug-

conspiracy conviction.   To this end, he relies heavily on the fact

that the Agreement denominates the state drug crimes as overt acts

in the federal conspiracy.

          But this proves too little: the drug crimes form only a

tiny part of the underpinnings of the state sentences that the

appellant is currently serving.   They account for only one year of

the 140 years to which the appellant was sentenced.    With respect


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to the non-drug crimes, the Agreement is silent; it does not

specify any of those crimes as overt acts of the federal drug

conspiracy.   Moreover, the record offers no convincing explanation

as to why any, let alone all, of the non-drug crimes should be

regarded as part of the same course of conduct, common scheme, or

plan as the federal offense of conviction.           The appellant had the

burden of proof on this issue, and he did not carry it.

            The bottom line is that the appellant's situation cannot

be viewed as a seamless whole but, rather, demands the application

of two different rules.       While the state drug crimes constitute

relevant conduct vis-á-vis the federal offense of conviction, the

same cannot be said for the state non-drug crimes (the murder,

attempted   murder,    and   firearms    offenses).       Simply    put,   the

appellant has not carried his burden of showing that the state

non-drug    crimes    come   within     the    relevant   conduct    rubric.

Consequently, the state sentences based on the latter crimes

dictate the application of a different rule.           See USSG §5G1.3(d).

            The Sentencing Commission has anticipated this type of

hybrid scenario.      An application note to the relevant guideline

instructs that when "a defendant may be subject to multiple

undischarged terms of imprisonment that seemingly call for the

application    of    different   rules,"      the   sentencing   court     "may

exercise its discretion in accordance with subsection (d) to

fashion a sentence of appropriate length and structure it to run


                                   - 9 -
in any appropriate manner to achieve a reasonable punishment for

the instant offense."     Id. §5G1.3 cmt. n.4(D); see, e.g., United

States v. Rogers, 521 F.3d 5, 12 (1st Cir. 2008) (applying this

instruction).     Because this is such a case, our inquiry thus

reduces to whether the district court's decision to run the federal

drug-conspiracy sentence consecutive to the undischarged state

sentences was within the compass of the court's discretion.

             Here, the sentencing court accurately determined the

applicable    guideline   range   and    analyzed   the   section   3553(a)

factors with scrupulous care.           Among other things, the court

considered the appellant's age, his sordid criminal history, the

length of the sentences imposed by the Puerto Rico courts, the

nature and seriousness of the federal offense of conviction, the

appellant's multiple roles in the drug ring, and the concomitant

federal firearms conviction.3           After weighing these and other

relevant factors, the court opted to impose a below-the-range

sentence, but decreed that this downwardly variant sentence should

run consecutive to the undischarged state sentences (which were

almost exclusively for unrelated conduct).           Given the sprawling

nature of the drug ring, the appellant's versatile roles as a




     3It is of no moment that the district court did not explicitly
reference section 5G1.3. "What counts is not whether a sentencing
court explicitly mentions a guideline provision but, rather,
whether the court correctly applied that provision." Román-Díaz,
853 F.3d at 598 n.7.


                                  - 10 -
seller of narcotics, an enforcer, and a warehouseman, the violence

that characterized the drug-trafficking activities and what the

district court described as the drug ring's "war" for territorial

dominance, the appellant's career offender status (which included

convictions for murder and attempted murder), the obvious need for

incapacitation and deterrence, and the complexities inherent in

this sentencing determination, we cannot say that the district

court's decision to impose a consecutive sentence was an abuse of

discretion.

            The appellant proffers one last claim of error: he

attempts    to    challenge   the   substantive   reasonableness   of   his

sentence.        The standard of review for unpreserved claims of

substantive reasonableness is "somewhat blurred."          Ruiz-Huertas,

792 F.3d at 228.         Here, however, we can safely bypass this

uncertainty and assume, favorably to the appellant, that abuse of

discretion review applies.          See, e.g., United States v. Márquez-

García, 862 F.3d 143, 147 (1st Cir. 2017); Ruiz-Huertas, 792 F.3d

at 228.

            In the case at hand, the district court imposed a

sentence on the drug-conspiracy count (202 months) that fell below

the bottom of the guideline range.4           We have made pellucid that


     4 Although the appellant's challenge is undifferentiated, we
limit our discussion to the sentence imposed on the drug-conspiracy
count. After all, the sixty-month sentence imposed on the firearms
count was a mandatory minimum sentence required by statute. See


                                     - 11 -
"[i]t is a rare below-the-range sentence that will prove vulnerable

to a defendant's claim of substantive unreasonableness."              United

States v. King, 741 F.3d 305, 310 (1st Cir. 2014).         This is not so

rare a case: the 202-month sentence seems modest when measured

against the gravity of the offense and the appellant's historical

involvement in criminal activity.

             The appellant implicitly concedes this point.           He does

not so much as hint that the length of his downwardly variant

federal drug-conspiracy sentence is unreasonable.            Instead, he

focuses narrowly on the fact that the court chose to run the drug-

conspiracy     sentence     consecutive    to   the   undischarged     state

sentences.     He was 35 years old when sentenced, and in his view

there is no actuarial likelihood that he will survive the state

sentences.    Building on this foundation, he contends that running

the federal drug-conspiracy sentence consecutive to the state

sentences renders the former substantively unreasonable.

             As we have explained, the court below was authorized to

impose the drug-conspiracy sentence concurrent with, partially

concurrent     with,   or   consecutive    to   the   undischarged     state

sentences.    See 18 U.S.C. § 3584; USSG §5G1.3(d).        Typically, the

exercise of such authority is reviewed for abuse of discretion.

United States v. Rivera-González, 776 F.3d 45, 48 (1st Cir. 2015);



18 U.S.C. § 924(c). So, too, running that sentence consecutive to
the state sentences was dictated by statute. See id.


                                  - 12 -
Carrasco-De-Jesús, 589 F.3d at 26.                       In this instance, we already

have       determined       that   the        district     court   did   not     abuse   its

discretion          in    choosing       to    run   the     drug-conspiracy      sentence

consecutive to the undischarged state sentences.                              Seen in this

light, a challenge for lack of substantive reasonableness is an

awkward fit: it is difficult to imagine how a decision to run a

sentence consecutively can be a proper exercise of a sentencing

court's       discretion,          yet     render      the    sentence        substantively

unreasonable under section 3553(a).5                      Cf. United States v. Berry,

565 F.3d 332, 342 (6th Cir. 2009) (noting that a challenge to a

sentencing court's decision to impose a consecutive sentence is

not        easily        classified       under      the     rubric      of     substantive

reasonableness).

               When all is said and done, though, we need not tackle

the question of whether the decision to impose a consecutive

sentence may ever be within the sentencing court's discretion and

still render the sentence substantively unreasonable.                           A party who

challenges the substantive reasonableness of a sentence bears the

burden of persuasion.                See United States v. Clogston, 662 F.3d



       5
      In some instances, of course, the imposition of a consecutive
sentence may implicate Eighth Amendment concerns.       See United
States v. Rivera-Ruperto, 884 F.3d 25, 26 (1st Cir. 2018) (Barron,
J., concurring in order denying rehearing en banc). Inasmuch as
the appellant makes no claim that his sentence was so
disproportionate as to render it unconstitutional, we need not
address this issue.


                                              - 13 -
588, 593 (1st Cir. 2011).       The appellant has not carried this

burden: it is evident that the district court wanted to ensure

that   the   drug-conspiracy   sentence   produced   a   long   period   of

incapacitation, and (on this record) the status of the state

sentences is largely unknown. We cannot tell, for example, whether

any of those sentences are still under judicial review or are open

to petitions for post-conviction relief.         Nor do we know what

prospects there may be for parole or commutation.           We therefore

reject the claim of substantive unreasonableness as unproven.

III.   CONCLUSION

             We need go no further. For the reasons elucidated above,

the judgment of the district court is



Affirmed.




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