          United States Court of Appeals
                     For the First Circuit


No. 13-1793

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                      MIKE GRACIANI-FEBUS,

                      Defendant, Appellant.


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

          [Hon. José A. Fusté, U.S. District Judge]



                             Before

                    Thompson, Lipez, and Barron,
                         Circuit Judges.



     Irma R. Valldejuli on brief for appellant.
     Rosa Emilia Rodríguez-Velez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and John A. Matthews II, Assistant United States
Attorney, on brief for appellee.



                         August 28, 2015
           LIPEZ, Circuit Judge.       Appellant Mike Graciani-Febus was

sentenced to 360 months imprisonment for his involvement in a

racketeering drug enterprise that resulted in the murder of two

innocent bystanders. On appeal, he argues that the court failed to

avoid an unwarranted sentence disparity when it imposed a higher

sentence on him in comparison to the sentences imposed on his co-

defendants. He also argues his sentence should be vacated because

the district court failed to adjust his sentence to reflect the six

months he served for a state drug offense. Because we find that

appellant's sentence was not unjustly disparate, and that the

district court properly calculated appellant's sentence pursuant to

U.S.S.G. § 5G1.3, we affirm.

                                       I.

A. Statement of Facts1

           Graciani-Febus was a member of a criminal organization in

the   metropolitan   area   of   San    Juan,    Puerto   Rico   called   La

Organizacion de Narcotraficantes Unidos ("Organization of United

Drug Traffickers"), known as "La ONU."          La ONU controlled all drug

sales within several public housing projects and regularly engaged

in violent acts to protect and expand its control over drug points.

In his role within La ONU, appellant participated in a conspiracy

      1
       Because appellant pled guilty pursuant to a plea agreement,
the relevant facts are taken from the plea agreement, unchallenged
portions of the presentence investigation report, and the change of
plea and sentencing hearings. See United States v. Dávila-González,
595 F.3d 42, 45 (1st Cir. 2010).

                                   -2-
to possess with intent to distribute large quantities of drugs. In

furtherance of this conspiracy, appellant served as a seller and

enforcer for La ONU, carrying weapons to protect drug points in the

housing projects, and committing several shootings in furtherance

of drug sales.

          On July 7, 2010, appellant, along with other members of

La ONU, participated in a shootout with a rival drug-trafficking

organization   from   Jardines   de   Paraíso   at   the   Trujillo   Alta

Expressway during which two bystanders, Blanca Nanette de los

Santos Barbosa and Manuel Medina Rivera, were killed. Six-hundred

rounds of ammunition were fired. The shots that killed the victims

came from the area where appellant and other members of La ONU were

shooting. Appellant admitted that he participated in the shootout

in an attempt to maintain and expand his position within La ONU.

          In June 2011, appellant was arrested by the Commonwealth

of Puerto Rico and charged with possession with the intent to

distribute controlled substances, in violation of Article 401 of

the Puerto Rico Controlled Substances Act, P.R. Laws Ann. tit. 24,

§ 2401. He was sentenced to four years imprisonment.

B. Procedural History

          Six months after his sentencing on the Commonwealth

charge, appellant was charged with thirty-two co-defendants in a

thirty-three count indictment brought by a grand jury in the




                                  -3-
District    of   Puerto   Rico.2   Count   One   charged   appellant   with

knowingly and intentionally conspiring to violate the Racketeer

Influenced and Corrupt Organizations Act ("RICO") in violation of

18 U.S.C. § 1962(d), by engaging in narcotics distribution and acts

of violence, including murder and attempted murder. Appellant pled

guilty to Count One pursuant to a plea agreement.

            At his sentencing hearing, appellant argued that his

prior state conviction for possession with intent to distribute

controlled substances constituted relevant conduct for the charged

conspiracy and that his sentence should be reduced to reflect the

six months he already had served for that conviction. The district

court rejected that argument, noting that the prior state offense

was not the basis for increasing appellant's offense level. The

district court imposed a sentence of 360 months imprisonment,3 to

run concurrently with appellant's state sentence. Judgment was

entered on May 21, 2013. Appellant filed a timely notice of appeal.

                                     II.

A. Sentence Disparity

            Appellant argues that in sentencing him to 360 months,

the district court imposed a sentence that was unjustifiably long

in comparison to those imposed on his co-defendants, whom he argues


     2
         Appellant was charged in seven of the 33 counts.
     3
      Based on a total offense level of 40, and a Criminal History
Category of II, the Guidelines sentencing range is 324 to 405
months.

                                    -4-
were more culpable generally in the RICO drug enterprise and, in

particular, with respect to the July 7 murders. He asserts that the

district court failed to provide any explanation for the disparate

sentencing.4

          Appellate review of a sentence is a two-step process.

United States v. Politano, 522 F.3d 69, 72 (1st Cir. 2008). We

first decide if the district court made any procedural errors "such

as failing to calculate (or improperly calculating) the Guidelines

range, treating the Guidelines as mandatory, failing to consider

the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the

chosen sentence - including an explanation for any deviation from

the Guidelines range." Id. (alteration in original) (quoting Gall

v. United States, 552 U.S. 38, 51 (2007)).         Where the district

court has committed no such error, we evaluate "the substantive

reasonableness of the sentence actually imposed and review the

sentence for abuse of discretion." Id.

          In determining an appropriate sentence, a district court

is directed by statute to consider various factors, including "the

nature and circumstances of the offense and the history and

characteristics   of   the   defendant,"   "the   kinds   of   sentences


     4
      Appellant correctly asserts that the waiver of appeal clause
contained in his plea agreement is inapplicable. Appellant waived
his right to appeal if the court sentenced him within the 240- to
348-month range. Because he was sentenced to 360 months, the waiver
of appeal provision does not apply.

                                  -5-
available,"   "the       kinds   of   sentence   and   the   sentencing   range

established" by the Sentencing Guidelines, and "the need to avoid

unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct." 18 U.S.C.

§ 3553(a). While an appraisal of sentencing disparity "primarily

targets disparities among defendants nationally," United States v.

McDonough, 727 F.3d 143, 165 (1st Cir. 2013), district courts "have

discretion, in appropriate cases, to align codefendants' sentences

somewhat in order to reflect comparable degrees of culpability,"

Martin v. United States, 520 F.3d 87, 94 (1st Cir. 2008).

          Where      a    defendant     receives   a   sentence   within    the

Guidelines range, the district court's explanation of the sentence

need not "be precise to the point of pedantry," United States v.

Turbides–Leonardo, 468 F.3d 34, 40 (1st Cir. 2006), and "brevity is

not to be confused with inattention," id. at 42; see also Rita v.

United States, 551 U.S. 338, 356 (2007) ("[W]hen a judge decides

simply to apply the Guidelines to a particular case, doing so will

not necessarily require lengthy explanation.").

          Imposing a sentence within the Guidelines, the district

court considered appellant's role in the murder of two innocent

bystanders:

          THE COURT: I have discussed with you the
          particulars of the case here. I have discussed
          here what really motivates the sentence, the
          killing of two innocent victims, a single
          mother police officer, young woman with small
          kids who is reporting to work in Hato Rey West

                                        -6-
             Precinct here in Hato Rey, leaving home early
             in the morning to make a miserable check,
             miserable salary as a police officer. And she
             gets caught in the middle of this firing
             between competing gangs in the middle of the
             expressway   and    gets   murdered,   killed
             instantly, along with another person in
             another car who happened to be a librarian.
             People who had no ax to grind in this thing.
             Completely   innocent    people.   Completely
             innocent people.


             Appellant argues that the district court abused its

discretion    when   it   sentenced    two    co-defendants       to   terms    of

imprisonment twelve months shorter than he received. Three co-

defendants pled guilty pursuant to an identical plea agreement,

each agreeing to a sentence recommendation between 240 and 348

months. Appellant contends he had a lesser role within La ONU and

less criminal responsibility than two of those co-defendants, Luis

Joel Rosario Santiago and Carlos O'Neill Serrano, because they

participated in the murder of another individual, in addition to

the murders of the two innocent bystanders, and the same level of

culpability as the third co-defendant, Angel Garcia Velasquez, who

received 348 months.5

             The record demonstrates that the district court did in

fact consider appellant's specific role in the context of the whole

case and imposed the sentence accordingly:




     5
       Santiago was sentenced          to    348   months   and    Serrano     was
sentenced to 365 months.

                                      -7-
            THE COURT: You have to look - you have to look
            that this is a huge case. Certain individuals
            for this same type of conduct went to trial.
            They are going to be sentenced by me or by
            Judge Smith, probably me. I have sentenced
            others. And I have to look at the whole
            picture. And I have a good idea of where
            everybody fits in this. And I cannot in good
            judgment    and    conscience    follow    the
            recommendation. I am not going to impose a
            life term. I am not going to make a variance
            for life. I am not going to impose 404 months
            or 405 months, but I cannot do what you're
            asking me to do . . . . [Appellant] admits the
            participation. And he admits he did it to
            maintain and increase his position in the
            organization.


The court went on to state that "[a]ny human being, any human

being, whether you have a fifth grade [level of education]6 or

whatever you have, must have some sort of internal light that tells

you that this is totally wrong. . . .        Anybody who leaves 600

shells of spent ammunition of various calibers, including AK-47s,

in the place, in the scene of a dual murder like this one, I think

that demonstrates a complete disregard for human life, and a

complete disregard for civility. . . . My assessment is he was one

of those who participated in the brutal murder of two innocent

human beings that had no reason to die . . . ."

            Significantly,   appellant's   co-defendants     were   not

similarly situated. Although they were also responsible for the

killing of two innocents, his co-defendants all had a CHC of I.



     6
         Appellant had a fifth-grade level of education.

                                 -8-
Appellant had a CHC of II. The applicable Guidelines range for CHC

II is 324 to 405 months. The applicable Guidelines range for CHC I

is 292 to 365.       We have previously held that a difference in

criminal history is a reasonable basis upon which a sentencing

court can impose differing sentences. See United States v. Pierre,

484 F.3d 75, 90 (1st Cir. 2007) (holding that appellant was not

similarly   situated      to   his    co-defendants    because,      among   other

reasons,    his    "criminal          history     included       incidents    that

distinguished him from his co-conspirators"); see also United

States v. Saez, 444 F.3d 15, 18 (1st Cir. 2006) (holding that a

sentencing disparity explained by material differences in various

defendants' criminal histories was not "unwarranted" within the

meaning of 18 U.S.C. § 3553(a)(6)). Furthermore, in imposing its

sentence, the court noted that appellant had a CHC of II and

stated, "I make reference to my comments on criminal history and on

brushes with the law, because truly the Criminal History Category

II is not representative of what this man's history has been in the

context of encounters with the law."

            That   Luis    Joel      Rosario    Santiago   and    Carlos   O'Neill

Serrano participated in the murder of a third individual, a rival

gang member, is certainly reprehensible, but the court seemed more

focused on the fact that the co-defendants shared responsibility

for killing two innocent people. What differentiated appellant from

the co-defendants was his higher CHC. That CHC affects sentencing


                                        -9-
both in the starting point for choosing a reasonable sentence --

the Guidelines -- and in evaluating the § 3553(a) factors. See 18

U.S.C.   §     3553(a)(1)   (directing   courts   to   consider   the

"circumstances of the offense and the history and characteristics

of the defendant").

             The sentencing transcript thus reveals that the district

court evaluated appellant's particular role in the conspiracy and

the murders, his prior criminal conduct, arrived at its within-the-

Guidelines sentence in reliance on that evaluation, and provided an

adequate explanation of its sentence. Accordingly, the sentence is

both substantively and procedurally reasonable. See United States

v. Carrasco-de-Jesús, 589 F.3d 22, 30 (1st Cir. 2009) (stating that

"a sentencing court's ultimate responsibility is to articulate a

plausible rationale and arrive at a sensible result"). There was no

unwarranted disparity in the sentence imposed.

B. Sentence Adjustment to Reflect Time Served for State Conviction

             Appellant contends that the district court committed a

procedural error when it refused to apply U.S.S.G. § 5G1.3 and

adjust his sentence to credit the six months he had already served

for his state drug charge.

             We review de novo appellant's argument that the district

court erred when it declined to reduce his sentence by six months.

See United States v. Serunjogi, 767 F.3d 132, 142 (1st Cir. 2014)




                                 -10-
(stating          that     we   review       de   novo      the    sentencing      court's

interpretation or application of the Guidelines).

                  The applicable version of Guidelines § 5G1.3(b) provides

for an adjustment of an appellant's sentence if: "[1] a term of

imprisonment resulted from another offense that is relevant conduct

to the instant offense . . . and [2] that [other offense] was the

basis       for    an    increase   in   the      offense    level   for     the   instant

offense."7 The record and the Sentencing Guidelines reveal that

appellant's prior state conviction was not the basis for an

increase in the offense level for the instant offense and, hence,

the district court did not err in failing to credit his time

served.

                  The guideline for an 18 U.S.C. § 1962(d) offense is found

in U.S.S.G. § 2E1.1(a)(2), which states that offenses involving

unlawful conduct relating to RICO have the base offense level

applicable to the underlying racketeering activity. Because the

underlying activity at issue here is possession with intent to

distribute          controlled      substances       in    violation    of    21   U.S.C.

§ 841(a)(1), the applicable guideline is U.S.S.G. § 2D1.1. The

cross reference for this section provides that if a victim was

killed under circumstances that would constitute murder under 18

U.S.C.       §     1111,    U.S.S.G.     §    2A1.1       (First   Degree    Murder)    is



        7
       Appellant was sentenced in May 2013. The November 2012
version of the Guidelines therefore applies.

                                              -11-
applicable. U.S.S.G. § 2D1.1(d)(1). Section 2A1.1 specifies a base

offense level of 43. Appellant accepted responsibility for his

involvement in the criminal activity, and he thus received a three

level adjustment pursuant to U.S.S.G. §§ 3E1.1(a) and (b), giving

him a total offense level of 40.

          Appellant's   offense    level   was   thus   based   on   his

participation in the murders of Blanca Nanette de los Santos

Barbosa and Manuel Medina Rivera. The district court was correct in

finding U.S.S.G. § 5G1.3 inapplicable because appellant's prior

state conviction for drug distribution had no impact on his offense

level.

                                   III.

          In arriving at its 360-month sentence, the district court

made an individualized assessment of appellant's role in the

conspiracy and murders, imposed its sentence in reliance on that

assessment, and provided an adequate explanation for its sentence.

Furthermore, the district court did not err when it declined to

adjust appellant's sentence to reflect the six months he had served

for his state drug conviction. Accordingly, we affirm its judgment.



          So ordered.




                                  -12-
