          United States Court of Appeals
                      For the First Circuit


No. 11-2076

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                    HERNARDO MEDINA-VILLEGAS,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Juan Pérez-Giménez, U.S. District Judge]



                              Before

                     Boudin, Selya and Lipez,
                          Circuit Judges.


     Michael C. Bourbeau and Bourbeau & Bonilla, LLP on brief for
appellant.
     Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Luke Cass, Assistant United States Attorney, on brief
for appellee.



                        November 27, 2012
          SELYA,   Circuit   Judge.    A   jury   convicted   defendant-

appellant Hernardo Medina-Villegas on nine counts growing out of a

conspiracy to commit armed robbery and the unlawful killing of a

guard during the robbery. In an earlier multi-defendant appeal, we

affirmed the appellant's convictions and sentences on eight of the

nine counts. See United States v. Catalán-Roman, 585 F.3d 453, 475

(1st Cir. 2009).   As to the remaining count, however, we affirmed

the appellant's conviction but vacated his sentence in order to

afford him an opportunity to allocute. See id.       At resentencing on

that count, the district court heard the appellant's allocution and

proceeded to reinstate the original sentence of life imprisonment

without the possibility of release.

          The appellant again repairs to this court claiming that

the reimposed sentence is both procedurally and substantively

unreasonable.   In addition, he attempts to raise a double jeopardy

claim that the district court declined to address on remand. After

careful consideration, we affirm.

          Our earlier opinion contains an exegetic discussion of

the background facts, the charges lodged against the appellant, and

the travel of the case, see id. at 457-60, and we assume the

reader's familiarity with that account.       For present purposes, a

sketch suffices.

          A federal grand jury sitting in the District of Puerto

Rico indicted the appellant and others on charges arising out of


                                 -2-
the robbery of an armored truck and the killing of a guard.    After

a trial, the jury convicted the appellant on nine counts.        The

counts pertinent to this appeal are counts eight and nine.     Count

eight charges the appellant with aiding and abetting the use and

discharge of firearms during and in relation to a crime of violence

death resulting.   See 18 U.S.C. §§ 2, 924(j).   Count nine charges

the appellant with aiding and abetting the use and discharge of

firearms during and in relation to a crime of violence.      See id.

§§ 2, 924(c)(1)(A)(iii).   At the time of the original disposition,

the district court sentenced the appellant, inter alia, to life

imprisonment without the possibility of release (count eight) and

a consecutive term of thirty years' imprisonment (count nine).

          On his first appeal, the appellant advanced a broad array

of claims.    With respect to count eight, he argued (among other

things) that the district court had not afforded him an opportunity

to allocute. We found merit in this claim, vacated the sentence on

count eight, and remanded to give the appellant a concinnous

opportunity to allocute.   See Catalán-Roman, 585 F.3d at 475.

          At the resentencing hearing, the appellant asked the

district court to entertain a double jeopardy argument addressed to

count nine.    The court, apparently deeming such an issue to be

beyond the scope of the remand, declined to adjudicate it.   It then

heard the appellant's allocution on count eight and reinstated the

sentence previously imposed.   This timely appeal ensued.


                                -3-
            We start with the sentence imposed on count eight.

Although the appellant's brief is amorphous, we assume, favorably

to    him, that     his    challenge       to   his   sentence    encompasses      both

procedural and substantive grounds.

            We review preserved objections to both the procedural and

substantive reasonableness of a sentence for abuse of discretion.

See Gall v. United States, 552 U.S. 38, 46 (2007); United States v.

Martin, 520 F.3d 87, 92 (1st Cir. 2008).                    "The review process is

bifurcated: we first determine whether the sentence imposed is

procedurally      reasonable         and    then      determine    whether    it    is

substantively reasonable."             United States v. Clogston, 662 F.3d

588, 590 (1st Cir. 2011).

            The appellant's claim of procedural error rests on the

provisions of 18 U.S.C. § 3553. Pertinently, this statute requires

the    sentencing       court   to    consider        the   variety    of   available

sentences, see id. § 3553(a)(3), and to "state in open court the

reasons    for    its     imposition       of   the   particular      sentence,"   id.

§ 3553(c). In this regard, the appellant notes that the jury could

not agree on a life sentence for count eight and, therefore, the

district court had the option to impose a lesser sentence.1                     Given



       1
      The Federal Death Penalty Act provides in relevant part that
when a jury is unable to agree on a sentence of death or life
imprisonment without possibility of release, the court may impose
either a sentence of life imprisonment without possibility of
release or any lesser sentence authorized by law. See 18 U.S.C.
§ 3594.

                                            -4-
this circumstance, he argues that the court's failure either to

state why it did not select a lesser sentence or to explain its

reasons for the reimposed sentence constitutes reversible error.

            This      claim    of   error   comes          late   in    the   day.    At

resentencing, the appellant did not object to the court's failure

to offer an explanation of the reasons underlying the sentence, nor

did   he   object      to     the   proceeding        on    any   related     ground.

Accordingly, his present claim has not been preserved, and our

review is for plain error.           See United States v. Pakala, 568 F.3d

47, 56 (1st Cir. 2009).

            The test for plain error is familiar.                       As we said in

United States v. Duarte, 246 F.3d 56 (1st Cir. 2001), "[r]eview for

plain error entails four showings: (1) that an error occurred (2)

which was clear or obvious and which not only (3) affected the

defendant's substantial rights, but also (4) seriously impaired the

fairness, integrity, or public reputation of judicial proceedings."

Id. at 60.

            It   is    settled      law   that    a    district        court's   failure

adequately to explain a sentence as required by section 3553(c),

without more, is not plain error.                See United States v. Mangual-

Garcia, 505 F.3d 1, 16 (1st Cir. 2007).                    Rather, "a reversal under

plain error review requires a reasonable probability that, but for

the error, the district court would have imposed a different, more

favorable sentence." Id. at 15 (internal quotation marks omitted).


                                          -5-
This is equally true when the claim of error is focused on an

alleged failure to comply with section 3553(a).              See, e.g., United

States v. Guzmán, 419 F.3d 27, 32 (1st Cir. 2005).

            "[T]o establish a reasonable probability of a different

sentence . . . the appellant has the burden of identifying specific

facts that     convince   us   that   the district      court     considered   a

significant improper factor, failed to consider a significant

proper factor,     or   made   a   significant      error    in   balancing the

factors."     Mangual-Garcia, 505 F.3d at 16.          As we explain below,

the appellant has not made such a showing.

            To begin, the appellant's sentence on count eight is

within the Guideline Sentencing Range (GSR) for the offense of

conviction.      This   time   around,      the   district    court   heard   the

appellant's full allocution as well as arguments of counsel.

Moreover, the sentencing judge had presided over the trial and was

intimately familiar with the nuances of the case.                  To cinch the

matter, the appellant has not identified any factors that make it

likely that he would receive a different sentence on remand.2

            The upshot is that, on this record, the likelihood of a

different sentence on remand is an empty hope unsubstantiated by

any plausible rationale.       Accordingly, there is no principled way



     2
       By the same token, our review of the record yields no such
inkling.   As we chronicle in more detail when dealing with the
substantive reasonableness of the sentence, the crime embodied in
count eight was heinous and the appellant's role in it was major.

                                      -6-
that we can find plain error arising out of the district court's

failure    to   effect   literal   compliance    with       the   "explanation"

requirement of section 3553.3

            The appellant next asserts that his sentence on count

eight is substantively unreasonable.           Our consideration of this

claim    starts   with   our   recognition    that    the    sentence   —   life

imprisonment without the possibility of release — falls within the

GSR for the offense of conviction.

            This is an important datum.              As we explained in an

earlier case, challenging a sentence as substantively unreasonable

is a burdensome task — and one that is even more operose where, as

here, the challenged sentence is within a properly calculated GSR.

See Clogston, 662 F.3d at 592-93.            It follows inexorably that a

"defendant who protests his within-the-range sentence on this

ground must adduce fairly powerful mitigating reasons and persuade

us that the district court was unreasonable in balancing pros and

cons."    Id. at 593 (internal quotation marks omitted).             Under this

standard, it is not enough that we, if sitting as a court of first

instance, might have selected a more lenient sentence.               See United

States v. Madera-Ortiz, 637 F.3d 26, 30 (1st Cir. 2011).



     3
       To the extent that the appellant argues that the district
court failed to consider lesser sentencing outcomes, such an
argument is undercut by statements made at the sentencing hearing
by the appellant and his counsel, both of whom attempted to
persuade the district court that the appellant's post-conviction
rehabilitation warranted something other than a life sentence.

                                    -7-
           The    appellant   has   not    come   close   to   crossing   this

threshold.   The offense of conviction is grave.          The day before the

robbery, the appellant carjacked a getaway vehicle and stole from

it a Glock pistol.      He then participated in the robbery of an

armored truck and the murder of a guard assigned to that truck,

using the purloined Glock.      He was the first of the malefactors to

open fire during the confrontation — and he did so at close range.

When, as now, the record makes manifest that an armed defendant

played a leading part in a premeditated robbery of an armored

vehicle, resulting in the death of a guard, a sentence of life

imprisonment cannot plausibly be said to be unreasonable.                 See

United States v. Morales-Machuca, 546 F.3d 13, 25-26 (1st Cir.

2008) (rejecting claim of substantive unreasonableness advanced by

one of the appellant's codefendants who also received a life

sentence).

           This    leaves     the   appellant's     contention     that   his

conviction and sentence on count nine violate the Double Jeopardy

Clause.   See U.S. Const. amend. V.        Some background is helpful to

put this claim into perspective.

           During the first appeal in this case, another defendant

successfully argued that count nine was a lesser included offense

of count eight, thereby constituting a double jeopardy violation.

See Catalán-Roman, 585 F.3d at 472.          The appellant, however, did

not preserve this issue; indeed, we noted that, "[o]ddly," he had


                                     -8-
never "argued that [his] convictions on counts eight and nine

violate double jeopardy."       Id. at 472 n.25.       We therefore declined

to extend the same relief to the appellant as we extended to the

codefendant who raised the issue.           Id.

            At the resentencing hearing, the appellant sought to

interject a belated double jeopardy claim with respect to count

nine.   The district court refused to consider his entreaty.

            Double   jeopardy      "forbids   successive    prosecution     and

cumulative punishment for a greater and lesser included offense."

Brown v. Ohio, 432 U.S. 161, 169 (1977).          Consequently, courts may

not impose multiple punishments for what is essentially the same

offense.    Id. at 165; Allen v. Att'y Gen. of Me., 80 F.3d 569, 572

& n.3 (1st Cir. 1996).          While the appellant's claim of double

jeopardy appears at first blush to fall within this proscription,

there is a rub.

            Here, the appellant's double jeopardy claim was fully

matured and could have been advanced at the time of his first

appeal.     Yet he did not preserve it, and the original panel

dismissed the claim on that basis.          See Catalán-Roman, 585 F.3d at

472 n.25.

            The   law   of   the   case     doctrine   "bars   a   party   from

resurrecting issues that either were, or could have been, decided

on an earlier appeal."       United States v. Matthews, 643 F.3d 9, 12-

13 (1st Cir. 2011).     Hence, a successor appellate panel in the same


                                      -9-
case is normally bound to respect the decision of the original

panel.    Id. at 13.    In this instance, there has been no material

change in the applicable law between the time of the first appeal

and the present time.      The appellant's fleeting reference in his

brief to the "serious injustice" arising out of the claimed double

jeopardy violation is undone by our earlier observation that his

"conviction on count nine does not and cannot affect his sentence,

which is life imprisonment," see Catalán-Roman, 585 F.3d at 472

n.25; and, thus, the normal rule applies. Consequently, the law of

the   case   doctrine   binds   us    to    honor   the   original   panel's

disposition.    We therefore uphold the district court's refusal to

take a fresh look at the double jeopardy claim (without prejudice,

however, to whatever rights the appellant may have to pursue that

claim in a petition brought under 28 U.S.C. § 2255).

             We need go no further.4         For the reasons elucidated

above, we reject the appellant's claims of error.



Affirmed.




      4
       Because no further proceedings are required in the district
court, we do not reach the appellant's request that future
proceedings should be conducted before a different district judge.

                                     -10-
