               Not for publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit


No. 15-1711

                    UNITED STATES OF AMERICA,

                               Appellee,

                                    v.

                        EDGAR CANCEL-ZAPATA,

                       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,
              Stahl and Thompson, Circuit Judges.


     Juan M. Masini-Soler for appellant.
     Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, and Francisco A. Besosa-Martínez, Assistant
United States Attorney, with whom Rosa Emilia Rodríguez-Vélez,
United States Attorney, was on brief, for appellee.


                             May 13, 2016
            STAHL, Circuit Judge.    Dr. Edgar Cancel-Zapata played a

central role in a conspiracy which, through the submission of false

Medicare claims, succeeded in defrauding the government of some

$750,000.    After Cancel-Zapata pled guilty to a single count of

aggravated identity theft, the district court sentenced him to a

prison term of one year and one day.         Cancel-Zapata now appeals,

challenging his sentence as substantively unreasonable.

            This case raises intriguing questions about the scope of

our jurisdiction and about the enforceability of waivers of the

right to seek appellate relief.      But, as we explain, we need not

answer   either    of   these   questions.     Rather,   after   careful

consideration, we find the sentence imposed to be reasonable and,

thus, we AFFIRM.

                         I. Facts & Background1

             Located in Puerto Rico, Olympic Medical Equipment was

in the business of procuring durable medical equipment for Medicare

beneficiaries.     Olympic's owner and president, Jaime Sepúlveda-

Concepción, devised a basic but apparently successful scheme. With

the help of his sales coordinator, Mario Reyes-Cruz, Sepúlveda-

Concepción created false equipment orders, which he submitted to




     1 In light of Cancel-Zapata's guilty plea, we recount the
facts as established by the plea agreement, the change-of-plea
colloquy, the presentence report, and the sentencing transcript.
United States v. King, 741 F.3d 305, 306 (1st Cir. 2014).
                                  - 2 -
Medicare for reimbursement.         To effectuate the scheme, Sepúlveda-

Concepción and Reyes-Cruz enlisted the help of two doctors, Cancel-

Zapata   and   Sonia   Guzmán-Silvagnoli,       who    were    responsible        for

completing false patient progress notes, prescriptions, and other

paperwork intended to make the equipment orders appear legitimate.

Between 2007 and 2010, the conspirators submitted a total of some

1,150 false claims, resulting in the government's disbursement of

$747,461.31, a portion of which was paid to Cancel-Zapata in the

form of kickbacks.

           These     four   individuals      were    named    in    an    indictment

charging, inter alia, conspiracy to commit health care fraud

(18   U.S.C.   §§    1347   and   1349)   and   aggravated         identity    theft

(18 U.S.C. § 1028A(a)(1)). In June 2014, Cancel-Zapata pled guilty

to a single count of aggravated identity theft pursuant to a plea

agreement.      In    exchange,    the    government    agreed       to    drop   the

remaining charges against him, and the parties also agreed to

jointly recommend a sentence of twenty-four months, representing

the applicable mandatory minimum.           See 18 U.S.C. § 1028A(a)(1).

           Later, in December 2014, the government filed a motion

seeking a downward departure.             See U.S.S.G. § 5K1.1.               Citing

Cancel-Zapata's "substantial" assistance in furtherance of its

investigation, the government urged the district court to impose

a sentence of one year and one day.                 Then, in April 2015, the

government sought yet another downward departure.                         This time,
                                     - 3 -
citing Cancel-Zapata's ongoing assistance, his role as a doctor in

the community, and his poor health, the government urged the

district court to impose a sentence of just six months.

           At a sentencing hearing conducted in May 2015, the

district   court   accepted    the    government's   initial     request   to

sentence Cancel-Zapata to a prison term of one year and one day.

However, citing the "nature of the offense," Cancel-Zapata's "key

role," and the significant monetary losses involved, the district

court declined to grant a further reduction.

                              II. Discussion

      A.   Jurisdiction and Appellate Waiver

           Before we reach the merits of Cancel-Zapata's claim that

his sentence is substantively unreasonable, we first contend with

two antecedent issues raised by the government.                  First, the

government claims that we lack jurisdiction to hear this appeal

because Cancel-Zapata's sentence is not subject to review under

the   narrow   grant   of   jurisdiction     contemplated   in   18   U.S.C.

§ 3742(a).2    Indeed, because Cancel-Zapata's sentence fell below

the applicable mandatory minimum, there is some basis for the

government's jurisdictional skepticism.           See United States v.




      2Section 3742(a) allows a defendant to appeal a sentence
under a limited set of circumstances, such as where the sentence
was "imposed in violation of law" or "as a result of an incorrect
application of the sentencing guidelines."
                                     - 4 -
Anonymous Defendant, 629 F.3d 68, 74 & n.1 (1st Cir. 2010) (noting

that reasonableness review applies to "virtually the entire gamut

of   sentences    imposed      under    the     advisory    guidelines,"    except

"sentences imposed pursuant to a statute that contains a mandatory

minimum term of imprisonment").           But, because we are faced with a

thorny question of statutory jurisdiction and because Cancel-

Zapata's claim may be easily decided on its merits in favor of the

government,      we   may    presume,    without     deciding,     that   we   have

jurisdiction.     See Bullard v. Hyde Park Sav. Bank (In re Bullard),

752 F.3d 483, 485 n.1 (1st Cir. 2014), aff'd sub nom. Bullard v.

Blue Hills Bank, 135 S. Ct. 1686 (2015).

             The government next argues that Cancel-Zapata is barred

from challenging his sentence by virtue of an appellate waiver

provision contained in his plea agreement.             Therein, Cancel-Zapata

waived the right to appeal his sentence, provided that it was

imposed "in accordance with the terms and conditions" of the

parties' joint recommendation for a twenty-four-month sentence.

The parties dispute whether Cancel-Zapata's sentence of one year

and one day is subject to the waiver.                On the one hand, as the

government    fairly        argues,    Cancel-Zapata       in   fact   received   a

sentence more favorable than the one contemplated in the plea

agreement.    See United States v. González-Colón, 582 F.3d 124, 129

(1st Cir. 2009) ("A district court that imposes a sentence lower

than that recommended by the plea agreement . . . cannot in any
                                        - 5 -
sense be said to have exceeded the 'terms and conditions' of the

agreement.").   But, on the other hand, a sentence of one year and

one day is no doubt materially different than a sentence of twenty-

four months.    See United States v. Santiago-Burgos, 750 F.3d 19,

23 (1st Cir. 2014) (noting that appellate waivers must be construed

in light of "basic contract interpretation principles").       Yet here

too, we need not decide the issue because the case is easily

resolved on its merits.    See United States v. Salas-Fernández, 620

F.3d 45, 47 (1st Cir. 2010) ("We see no need to plunge into these

murky waters . . . . Because this appeal is easily resolved on the

merits, we have the luxury of being able to bypass the [appellate

waiver] issue today.").    We thus presume, again without deciding,

that the waiver does not foreclose Cancel-Zapata's appeal.

     B.   Substantive Reasonableness

          Although Cancel-Zapata did not preserve his substantive

reasonableness claim, we assume, favorably to him, that it is

subject to abuse of discretion review.       United States v. Ruiz-

Huertas, 792 F.3d 223, 228 (1st Cir. 2015).           "A sentence is

substantively reasonable so long as it rests on a 'plausible

sentencing rationale' and embodies a 'defensible result.'"         Id.

(quoting United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)).

Proving   substantive     unreasonableness   is   a   "heavy    lift,"

particularly where, as here, the sentence imposed is below both


                                - 6 -
the guideline range and the applicable mandatory minimum.                 Id. at

228-29.

            Cancel-Zapata claims that his sentence is substantively

unreasonable because the district court failed to give adequate

consideration    to     a   host   of     mitigating   factors,     namely,    his

cooperation      with       the     authorities,        his     acceptance      of

responsibility, his lack of any criminal history, his poor health,

and his role in the community as a physician.                 Cancel-Zapata also

assigns error to the district court's failure to consider the fact

that his codefendant, Dr. Guzmán-Silvagnoli, benefitted from a

pretrial diversion program, while he did not.3

            Cancel-Zapata's claims are belied by the sentencing

transcript,    which    reveals     that     the   district     court   expressly

considered each and every one of the mitigating factors that he

identifies.     In imposing the sentence, the district court twice

described Cancel-Zapata as a first-time offender, and expressly

referenced his "volunteer medical work in the community" and the

"various medical conditions for which he is receiving treatment."

The district court next discussed Cancel-Zapata's "acceptance of

criminal    responsibility"        and    the    "substantial    assistance"   he

provided.     Finally, the district court considered, but rejected,



     3 Cancel-Zapata's brief also refers to recent executive and
congressional efforts to reduce the sentences of non-violent drug
offenders. We find this reference both undeveloped and inapposite.
                                         - 7 -
Cancel-Zapata's comparison to Dr. Guzmán-Silvagnoli, noting that

there was "no equivalence" because Guzmán-Silvagnoli had been

named in just one of the indictment's fourteen counts. Ultimately,

weighing these factors, as well as "the nature of the offense,"

Cancel-Zapata's "key role," and the extensive monetary losses

involved, the district court settled on a sentence of one year and

one day.

           In light of the district court's express consideration

of the mitigating factors Cancel-Zapata has identified, his claim

of substantive unreasonableness amounts to little more than an

effort to "substitute his judgment for that of the sentencing

court."    United States v. Clogston, 662 F.3d 588, 593 (1st Cir.

2011).     Such second guessing is well beyond the pale of our

reasonableness review.   See Ruiz-Huertas, 792 F.3d at 228.   While

Cancel-Zapata may wish the district court had accorded more weight

to the mitigating factors and reduced his sentence even further

below the mandatory minimum, he has failed to demonstrate that his

sentence is anything but reasonable.    See Clogston, 662 F.3d at

593 ("That the sentencing court chose not to attach to certain of

the mitigating factors the significance that the appellant thinks

they deserved does not make the sentence unreasonable.").

                          III. Conclusion

           Having indulged the assumptions (but not having decided)

that we have jurisdiction to hear the case and that the appellate
                               - 8 -
waiver does not apply, we find that Cancel-Zapata's sentence is

substantively reasonable.   We thus AFFIRM.




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