          United States Court of Appeals
                       For the First Circuit

No. 13-1046

                     UNITED STATES OF AMERICA,

                             Appellee,

                                 v.

                      GUSTAVO CASTRO-CAICEDO,

                       Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Mark L. Wolf, U.S. District Judge]



                               Before

                        Lynch, Chief Judge,
                 Selya and Barron, Circuit Judges.




     Chauncey B. Wood, with whom Wood & Nathanson, LLP was on
brief, for appellant.
     Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
     James L. Brochin, Jennifer H. Wu, Marques S. Tracy, Laura E.
Sedlak, Paul, Weiss, Rifkind, Wharton & Garrison LLP, and Barry C.
Scheck, Karen A. Newirth, Innocence Project, Inc., on brief for
Innocence Project, Inc., amicus curiae in support of appellant.



                         December 24, 2014
            BARRON, Circuit Judge.            Gustavo Castro-Caicedo appeals

his conviction and sentence for participating in a conspiracy that

sought to send cocaine from Colombia to the United States.                          His

primary objection is that federal agents used a highly suggestive

means to prompt a member of the conspiracy to identify him as a

confederate,      and   thus     that    the    government's          use    of     the

identification at trial violated his constitutional right to due

process.    Castro-Caicedo also challenges the admission of other

testimony under the Federal Rules of Evidence.                     And, finally, he

argues that his sentence was unreasonably lengthy. But although the

record shows the District Court was justified in finding that the

means used to obtain the identification were problematic, we find

the record also supports the District Court's well-considered

judgment that there was reason enough to credit the identification

to permit a jury to decide its worth.             Because we see no merit in

Castro-Caicedo's remaining challenges -- each of which he raises for

the first time on appeal -- we affirm both the conviction and the

sentence.

                                        I.

            Following    an     investigation        by   a    Drug       Enforcement

Administration      (DEA)      task   force    and   cooperating       elements      of

Colombian law enforcement agencies, Castro-Caicedo, a Colombian

national,   was     indicted     in     Massachusetts         on    one     count   of

participating in a conspiracy to import cocaine to the United


                                        -2-
States, or to manufacture and distribute cocaine for importation to

the United States.           21 U.S.C. §§ 952(a), 959(a), 960(b)(1)(B).                  At

trial,      the    conspiracy's          leader   testified   that    the       conspiracy

involved, in part, transporting tens of kilograms of cocaine from

Cali,       a    city   in   Colombia,       to     the   Colombian      port    city    of

Buenaventura, from where it would be sent by ship to the Bahamas.

The government also put forth evidence to show Castro-Caicedo helped

organize some of those shipments out of Buenaventura from at least

2007 to 2009.

                 To prove the further allegation that the conspiracy

sought      to    ensure     the       cocaine    would   reach   this    country,      the

government        presented        a    variety    of   evidence,   both    direct      and

circumstantial. Castro-Caicedo's challenge to his conviction takes

aim at only certain portions of this evidence, and we tailor our

recitation of the facts accordingly.

                 Castro-Caicedo's lead challenge is to one piece of direct

evidence: the testimony of an informant we will call "J.D."1                            J.D.

used to be a seaman on a container ship based out of Freeport,

Bahamas that often called at Buenaventura, Colombia. Federal agents

first spoke with J.D. about his participation in a cocaine smuggling

operation in 2009.            In 2012, a little more than a month before


        1
          We assign these initials to identify the informant "in
light of concerns about the safety of cooperating witnesses raised
by the Committee on Court Administration and Case Management of the
Judicial Conference of the United States."       United States v.
Etienne, ___ F.3d ___, 2014 WL 5462541, at *1 n.1 (1st Cir. 2014).

                                             -3-
trial, J.D. first told the agents that more than four years before

he met twice with a person known to him then only as the owner of

a home in the city of Buenaventura.         J.D. told the agents that,

through those two meetings, he and the owner of that house reached

an agreement to ship certain quantities of cocaine to the United

States.

              Federal agents then showed J.D. eleven photographs, three

of which depicted other members of the conspiracy and the last of

which was an image of Castro-Caicedo.         Upon seeing that picture,

J.D. identified it as depicting the owner of the house and thus the

person with whom he had struck the deal.

              Castro-Caicedo moved to suppress the identification prior

to   trial.      He   argued   the   presentation   of   the   photographs

impermissibly cued J.D. to pick out Castro-Caicedo's picture.          And

he further argued that, by then, too much time had passed since

J.D.'s last encounter with the person he purported to identify for

the identification to be reliable enough to overcome the taint of

that impermissibly suggestive display of photographs.             He thus

argued the use of the identification at trial would violate his

constitutional right to due process.

              The District Court disagreed.    It found the photographs

had been assembled in a manner that was unduly suggestive.         But the

District Court also found the identification was still reliable

enough to put to the jury.


                                     -4-
             Castro-Caicedo         did    not   raise   his   other   evidentiary

challenges at trial.         He thus presses them for the first time on

appeal.

             The   first     of    these    unpreserved    objections    concerns

testimony about two large seizures of cocaine shipments in Colombia

in 2008, one of 875 kilograms of cocaine and the other of 500

kilograms.    The government introduced the testimony to support its

contention there was a cocaine conspiracy to join, that coded

conversations      between        conspirators     (including    Castro-Caicedo)

referred to cocaine trafficking, and that the conspiracy was of such

scope that it must have aimed to send cocaine to the United States.

             Castro-Caicedo contends he had no direct tie to either

shipment, and the government concedes the point.                  Castro-Caicedo

thus argues that, under the Federal Rules of Evidence, the testimony

was either irrelevant or unduly prejudicial and that his conviction

should be reversed in consequence.

             Castro-Caicedo's other unpreserved evidentiary objection

concerns a Colombian police officer's testimony about a polygraph

test he took upon joining the DEA task force.                     In addition to

testifying about a recorded call mentioning the 500-kilogram seizure

discussed above, this officer also testified about a number of other

recorded calls involving Castro-Caicedo and others who pled guilty

to involvement in the conspiracy.                 Castro-Caicedo contends the

officer's testimony about the polygraph led jurors to give undue


                                           -5-
weight to his credibility. Castro-Caicedo thus argues the admission

of this polygraph testimony violated the Federal Rules of Evidence

and requires reversal of the conviction.

           Finally, Castro-Caicedo challenges his sentence.    Here,

too, he presses an argument he makes for the first time to us.

Castro-Caicedo contends the 300-month prison    sentence he received

is unreasonable.    He argues the District Court unjustifiably varied

upward from the sentence suggested by the Sentencing Guidelines and,

in doing so, imposed a sentence that far surpasses the length of the

sentences given to other members of the conspiracy, including its

purported leader.

           We use this same order of presentation to address the

merits of each challenge.

                                  II.

           J.D.'s identification purported to offer direct evidence

that Castro-Caicedo participated in the cocaine conspiracy and that

the conspiracy intended to send cocaine to the United States --

evidence, in other words, that directly supported the conspiracy

charge set forth in the indictment.     Typically, juries weigh the

reliability of evidence, including eyewitness identifications. But

when the government uses highly suggestive means to elicit an

eyewitness identification, there may be reason to depart from that

norm.




                                  -6-
                In     such    a   case,   there       is   a   real    concern    the

identification will be mistaken, or at least will result from the

suggestive means the government used to prompt the witness rather

than from the witness's memory of having encountered the person

identified.          And the Supreme Court has made clear that very concern

may arise if "the police display to the witness only the picture of

a single individual who generally resembles the person he saw, or

if they show him the pictures of several persons among which the

photograph of a single such individual recurs or is in some way

emphasized."          Simmons v. United States, 390 U.S. 377, 383 (1968).

                Because, in such circumstance, the government's own

choice     to        use   a    suggestive       prompt     casts   doubt    on    the

identification's           reliability,        the   Constitution      may   bar   the

government from benefitting from the problematic means used to

elicit that information.            Perry v. New Hampshire, 132 S. Ct. 716,

726 (2012).          Thus, upon a defendant's showing the government used

unduly suggestive means to obtain an eyewitness identification, the

government must show why the identification should be put to the

jury despite its tainted origins.                Neil v. Biggers, 409 U.S. 188,

199 (1972); United States v. Jones, 689 F.3d 12, 17 (1st Cir. 2012).

                In assessing a district court's ruling on such questions,

we review the findings of fact for clear error and the conclusions

of   law   de    novo,        allowing   for    some   "reasonable     latitude    for

case-specific decisions" applying law to fact.                  Jones, 689 F.3d at


                                           -7-
18.   Applying that standard, we conclude the District Court did not

err   in    finding     that,   although    the   government   presented     the

photographs in an unduly suggestive way, the government had met its

burden of showing the jury should still be allowed to consider

J.D.'s identification.

                                       A.

                We start with what the record shows about what led the

federal agents to show J.D. the photographs in the first place.               In

April      of   2009,   federal   agents    convinced   J.D.   to   become    a

confidential informant.         In that role, J.D. told the agents about

cocaine shipments from Colombia to the Bahamas.

                An agent testified that J.D. did not at that time

specifically mention having met with an owner of a house in

Buenaventura, that such a person was involved in those cocaine

shipments, or that this person reached an agreement with J.D. to

send cocaine to the United States.          But during a follow-up meeting

with a federal prosecutor and investigator in August 2012, the

agents testified, J.D. did for the first time specifically mention

meeting such a person, that person's involvement with the shipments,

and the deal they reached.

                And while J.D. did not at that time provide the name of

this person, he did offer a description of him.            Testimony showed

J.D. described him as being between five feet eight inches and five

feet ten inches tall, about fifty years old, and having a dark


                                      -8-
complexion, a "sagging . . . belly," a limp, and limited English

facility.

            The prosecutor and investigator then,     impromptu, showed

J.D. a number of photographs on the prosecutor's laptop.              J.D.

testified he initially told the prosecutor and investigator he would

not be able to identify the person with whom he had met.              The

investigator, by contrast, testified J.D. said he might be able to

recognize some individuals from the conspiracy.

            The   investigator   prefaced   the   presentation   of    the

photographs by telling J.D. he might not recognize anyone in the

photographs, he need not identify any specific photograph or person,

and he should identify someone appearing in one of the photographs

only if he was certain he knew who was depicted.         J.D. saw each

photograph sequentially, and he did not know at the outset how many

he would see by the end.

            The prosecutor and investigator ultimately showed J.D.

eleven photographs.    The set included a picture of Castro-Caicedo

at the end, preceded by ten photos of other men, including three

members of the conspiracy.

            The District Court found this presentation concerning,

explaining that it was not "of a conventional sort" and that "[i]t

wasn't assembled to meet the standards of a typical photo array."

The District Court found especially troubling that there were "not

a number of people of Mr. Castro-Caicedo's age or appearance" and


                                  -9-
that "4 of the 11 are people who have been charged in this case and

three of whom have pled guilty." And it ruled, in the end, that the

display was "impermissibly suggestive."

           Whether or not the inclusion of the conspirators was

itself problematic, cf. United States v. Hilario-Hilario, 529 F.3d

65, 71 (1st Cir. 2008) (assuming but not deciding that a photo

lineup that grouped conspirators together was unduly suggestive),

the record supports the District Court's conclusion that there were

not "a number of people of Mr. Castro-Caicedo's age or appearance."

The photograph of Castro-Caicedo appears to depict a person far

older and with darker skin than any other person in the set.   He is

also the only person in the set whose sagging belly is shown.

Moreover, Castro-Caicedo is depicted in a striking yellow and blue

striped shirt while the others wore more muted garb.

           The assembly of photographs thus raises the concern that

its design cued J.D. to pick out that photograph in particular. See

United States v. DeCologero, 530 F.3d 36, 62 (1st Cir. 2008) (noting

that undue suggestion depends on "whether the photo array included,

as far as was practicable, a reasonable number of persons similar

in appearance to the suspect"); United States v. Lau, 828 F.2d 871,

876 (1st Cir. 1987) (characterizing Simmons, 390 U.S. at 383-84, as

holding that "police should avoid emphasizing picture of suspect in

photographic identification").     And thus the District Court was

justified in finding the photographs had been shown to J.D. in a


                                 -10-
manner so suggestive it gave rise to the risk of an unreliable

identification.      See Simmons, 390 U.S. at 383 (The danger of an

incorrect identification "will be increased if the police display

to the witness only the picture of a single individual who generally

resembles the person he saw, or if they show him the pictures of

several   persons    among     which   the    photograph       of   a    single   such

individual recurs or is in some way emphasized.").

                                        B.

           Nonetheless, the District Court went on to rule the

identification    was   sufficiently         reliable    to    permit     a   jury   to

consider it.     And because the record supports that judgment, too,

we decline to disturb it.

           The      District    Court    reached        this    conclusion        after

considering the five factors that much precedent makes relevant to

an overall determination about the reliability of an identification

that has been prompted by unduly suggestive means.                      Those factors

are:

           [T]he opportunity of the witness to view the
           criminal at the time of the crime, the
           witness' degree of attention, the accuracy of
           the witness' prior description of the
           criminal, the level of certainty demonstrated
           by the witness at the confrontation, and the
           length of time between the crime and the
           confrontation.

Biggers, 409 U.S. at 199-200.

           As to the first factor, the record supports the District

Court's finding that J.D. "had a good opportunity to view" Castro-

                                       -11-
Caicedo over "about" an hour and a half in direct conversation in

close quarters.     J.D. testified his container ship twice docked in

Buenaventura in late 2007 and early 2008.      He further testified he

met each time with the man he purported to identify in close

proximity in the man's house, for "[p]robably less than an hour" in

the first meeting and "less than thirty minutes" in the second.

That is a total period of time we have previously described as

providing "ample time to view the defendant," United States v.

Flores-Rivera, 56 F.3d 319, 330 (1st Cir. 1995), and a period

exceeding the half hour Biggers thought a "considerable period of

time," 409 U.S. at 200.

             J.D.'s testimony also supports the District Court's

conclusion    on   the   second   factor:   J.D.   was   "paying   careful

attention" to Castro-Caicedo during these meetings.         Not only did

J.D. testify to that very fact, but his testimony about the context

of those meetings supports it:       J.D. testified he was meeting with

coconspirators to forge a deal about a drug shipment.         See United

States v. Drougas, 748 F.2d 8, 27-28 (1st Cir. 1984) (concluding

that cooperating witness in drug smuggling operation had incentive

and opportunity to pay close attention to coconspirator who was also

a state trooper).

             Castro-Caicedo speculates J.D. may have been drunk during

the first meeting because J.D. testified the owner offered him a

beer.   But J.D. never testified he took the offer or consumed any


                                    -12-
alcohol.   Indeed, J.D. testified he countered by asking for coffee.

Nothing in the record thus would compel an inference J.D. was

intoxicated and could not have paid the close attention the District

Court found. Castro-Caicedo also asserts J.D. was distracted during

the second meeting because J.D. testified he was using the internet

at the outset of the meeting while others fetched cocaine.    But the

District Court found J.D. was paying close attention during both

meetings, and the fact that J.D. used the internet before his

discussions with the owner in the second meeting does not render

that finding clearly erroneous.

            The District Court found that the third factor favored

the use of the identification, as J.D.'s prior description was

"quite consistent" with Castro-Caicedo's actual characteristics.

That prior description was not so precise or unusual to make it

proper for the government to present photographs containing only one

matching it.   Compare DeCologero, 530 F.3d at 62 ("[The defendant]

has no unusual features that might complicate the search for others

with similar appearances, yet the other photos in the array were not

of men who looked similar to [him] . . . ."), with United States v.

Holliday, 457 F.3d 121, 126 (1st Cir. 2006) ("[T]he defendant's

appearance was so unusual that '[i]t would be unreasonable to expect

the police to find pictures of eight other men who not only shared

his age, weight, hairstyle, and ethnicity, but in addition had a

similar    pattern   of   facial   discoloration.'"   (alteration   in


                                   -13-
original)).       And    the    correlation       between    a   witness's        prior

description and the accuracy of that witness's later identification

may be weaker than commonly thought and might sometimes be negative.

See Massachusetts Supreme Judicial Court Study Group on Eyewitness

Evidence, Report and Recommendation to the Justices 65 (2013).                      But

given the high degree of attention and substantial opportunity to

observe that the District Court found the witness had here, the

"case-specific" judgment the District Court made on this factor

merits "reasonable latitude," Jones, 689 F.3d at 18, and is not

clearly wrong.

            The record does not clearly support the District Court's

finding that the fourth factor -- the eyewitness's certainty -- also

favored the use of the identification. For while the District Court

found J.D. was "quickly certain" in identifying Castro-Caicedo, the

record    supports      the    judgment    J.D.     was     quick    to    make    the

identification, but not necessarily that he expressed any view as

to his level of certainty.            But the lack of clarity on that point

matters little.      J.D.'s certainty is at best a neutral factor, and

here there is no indication of J.D.'s lack of certainty. See Jones,

689 F.3d at 18 ("[T]he witness' lack of confidence is certainly a

reliable warning sign, while the presence of confidence is probably

closer to a neutral factor.").

            And   finally,      the    record   comports      with   the    District

Court's   finding    about     the    relatively     limited     import     in    this


                                        -14-
particular case of the fifth factor, concerning the lapse of time

prior to the identification.           That lapse was lengthy -- four and a

half years.      But while we have said "a five-year gap between the

crime and the photographic identification is very much greater than

would ordinarily be permissible to find an . . . identification

reliable,"      Drougas, 748 F.2d at 28; see also Biggers, 409 U.S. at

201    ("[A]    lapse    of    seven   months   between         the   rape    and    the

confrontation . . . would be a seriously negative factor in most

cases."), we have permitted an identification to go before the jury

where the identification came "nearly seven years" after the witness

observation when "the other reliability criteria were sufficiently

persuasive," Flores-Rivera, 56 F.3d at 331.               In particular, we have

upheld a district court's denial of a motion to suppress where the

witness had "between one and two hours" to observe the suspect and

had special reason to pay close attention.                Id. at 330-31; see also

Drougas, 748 F.2d at 28 (holding that a five-year gap was outweighed

by a coconspirator identification that was based on "considerable"

opportunity to observe).          We find no reason to reach a different

result here, given the District Court's findings, supported by the

record, regarding the circumstances of the substantial contacts

between J.D. and the person he later identified as Castro-Caicedo.

               On appeal, Castro-Caicedo does raise for the first time

an    additional   set    of    arguments     for   why    we    should      doubt   the

identification -- namely, that recent social science research


                                       -15-
reveals the perils of crediting an eyewitness's memory.                         The

Innocence Project, as amicus, agrees.

            But Castro-Caicedo did not raise these arguments below.

If he had, the District Court could have weighed them in deciding

Castro-Caicedo's motion to suppress -- assuming the District Court

did not implicitly do so on its own. Castro-Caicedo also could have

presented   the    same    arguments    to    the    jury   or   asked    for   jury

instructions      noting   those   possible         concerns     with    eyewitness

identifications.       See Jones, 689 F.3d at 20 (permitting jury

instructions).     But Castro-Caicedo took advantage of none of these

opportunities to make his case.          And the general survey of social

science research he now presents for the first time on appeal offers

us no reason to reject the specific and detailed findings made below

about the distinguishing features, and hence reliability, of this

particular identification.

                                       III.

            Castro-Caicedo also complains the District Court admitted

testimony regarding two seizures of cocaine to which he had no

direct tie -- and the government concedes there was no such direct

link.   Castro-Caicedo thus argues the testimony was irrelevant or

substantially more prejudicial than probative and should not have

been admitted.     Fed. R. Evid. 401, 402, 403.

            But even when evidentiary challenges of this sort are

preserved, we are disinclined to find a District Court has abused


                                       -16-
its discretion in assessing the relevance or unduly prejudicial

nature of testimony. United States v. Lyons, 740 F.3d 702, 718 (1st

Cir. 2014).     We are even less willing to do so when, as here, the

defendant failed to object below, and we may then reverse only if

the error is plain.       United States v. Burdulis, 753 F.3d 255, 263

(1st Cir. 2014) (We "requir[e] the appellant to show that the error,

if any, was 'clear or obvious,' 'affected his substantial rights,'

and   'seriously      impaired    the     fairness,     integrity,     or   public

reputation of judicial proceedings.'" (quoting United States v.

Mardirosian, 602 F.3d 1, 11 (1st Cir. 2010))).

              Here, the challenged testimony about one of the seizures

-- consisting of 875 kilograms of cocaine, of which the leader of

the   conspiracy     allegedly    owned       60   kilograms   --   furthered    the

government's contention that there was a conspiracy to ship cocaine

that Castro-Caicedo could have joined. That testimony also provided

context for decoding the recorded conversations between the alleged

leader   of    the   conspiracy   and     a    coconspirator    discussing      that

seizure.      And, by doing so, the testimony aided the government in

its effort to show that coded conversations involving Castro-Caicedo

and others were, indeed, about cocaine trafficking.                 Finally, this

testimony, by showing the large quantity of drugs dealt in by the

conspiracy's leader, linked to the government's contention that the

goal of the conspiracy was to send cocaine to the United States, as




                                        -17-
other testimony suggested about two-thirds of South American cocaine

goes there.

           The challenged testimony about the other seizure --

consisting of 500 kilograms of cocaine -- indicated one of the

coconspirators thought the DEA had seized the cocaine.      (It was

actually seized by a Colombian law enforcement agency.)   Thus, this

testimony assisted the government in advancing its theory that the

conspirators intended to reach the U.S. market.

           As precedent supports the relevance of this kind of

evidence, see United States v. Díaz-Arias, 717 F.3d 1, 20-22 (1st

Cir. 2013), and the District Court properly instructed the jury that

Castro-Caicedo could be convicted only for his own state of mind and

behavior, not for those of another, no further description of the

challenged testimony's value is necessary to insulate it from

Castro-Caicedo's late-breaking claims about lack of relevance and

undue prejudice.2

                                IV.

           Castro-Caicedo also challenges testimony from a Colombian

police officer about a polygraph test he took to join the DEA task

force. In his testimony, the officer stated the polygraph was given


     2
          Castro-Caicedo also argues on appeal that these shipments
are irrelevant and unduly prejudicial for the further reason they
actually were part of an entirely separate conspiracy for which he
was not charged. But Castro-Caicedo has not carried his burden on
plain error review of showing that the shipments were obviously
part of a separate conspiracy, and thus we need not consider how
his argument would fare if he had made such a showing.

                               -18-
"to make sure that the people working with the specialized group are

the best possible on the team."              That officer then went on to

testify   about    a    large   seizure      of    cocaine    belonging   to   a

coconspirator and phone calls between Castro-Caicedo and other

coconspirators.

           On appeal, Castro-Caicedo concedes he did not object to

this testimony below.       But he argues allowing it was plain error.

He   references   the   concern    we   have      expressed   about   polygraph

evidence, see United States v. Mare, 668 F.3d 35, 42 (1st Cir. 2012)

("This is the latest in a growing line of cases that ought to

suggest, if not a per se rule, then at least a code of best practice

for the virtuous prosecutor: polygraph evidence, even that dealing

with matters other than the actual results of an examination, is

usually   more    trouble   than   it   is    worth.");      United   States   v.

Rodríguez-Berríos, 573 F.3d 55, 73 (1st Cir. 2009) (observing that

"[p]olygraph results are rarely admissible at trial" due to concerns

about their reliability and prejudicial effect), and he relies on

precedent from another circuit that raises the particular concern

that such testimony may constitute improper vouching or bolstering

of a witness's credibility.        See United States v. Ross, 703 F.3d

856, 875-76 (6th Cir. 2012).

           The officer, however, made reference to the polygraph

test only in passing, and the government did not bring it up again

during testimony or in closing arguments.            Castro-Caicedo has thus


                                    -19-
not met the high burden required to show the testimony caused the

prejudice necessary to warrant reversal on plain error review,

especially considering the government's other evidence, including

J.D.'s identification. See United States v. Rodriguez, 525 F.3d 85,

96 (1st Cir. 2008) ("The determination of whether [erroneously

admitted] testimony was harmful [under the plain error test] demands

a panoramic, case-specific inquiry considering, among other things,

the   centrality   of   the   tainted    material,   its   uniqueness,   its

prejudicial impact, the uses to which it was put during the trial,

the relative strengths of the parties' cases, and any telltales that

furnish clues to the likelihood that the error affected the fact-

finder's resolution of a material issue." (internal quotation marks

omitted)).

                                    V.

             Finally, Castro-Caicedo objects that his 300-month prison

sentence is unreasonable because it unjustifiably varies upward from

the guideline (and statutory mandatory minimum) sentence of 240

months, and the far-shorter sentences of his coconspirators.3             We

normally review substantive reasonableness challenges for an abuse



      3
          Castro-Caicedo also objects that his 300-month prison
sentence unreasonably deviated from the range of 168 to 210 months
that would have applied under the Sentencing Guidelines but for the
statutory mandatory minimum.    But he does not dispute that the
minimum applied because of his prior conviction for a felony drug
offense. 21 U.S.C. §§ 851, 960(b)(1). And because the 240-month
minimum exceeded the otherwise-applicable guideline range, the 240-
month minimum became the guideline sentence. U.S.S.G. § 5G1.1(b).

                                   -20-
of discretion. United States v. Politano, 522 F.3d 69, 72 (1st Cir.

2008).    But because Castro-Caicedo failed to raise these objections

in the court below, we review them only for plain error.                     United

States v. Tavares, 705 F.3d 4, 33 (1st Cir. 2013).

               When deviating from the Guidelines sentencing range, a

sentencing judge must give reasons "rooted either in the nature and

circumstances of the offense or the characteristics of the offender.

In such a situation, the factors deemed relevant by the sentencing

court must add up to a plausible rationale for the sentence imposed

and must justify a variance of the magnitude in question."                   United

States    v.   Flores-Machicote,     706    F.3d    16,   21   (1st   Cir.    2013)

(internal quotation marks and citations omitted).                 And here the

District Court did offer such reasons and supply such a rationale.

               The District Court concluded Castro-Caicedo's offense was

"very serious" because his business was sending "large quantities"

of cocaine from Colombia to the United States, with "devastating

effect[s] on individuals, on families, on neighborhoods, on cities,

states, and all of the United States."             See 18 U.S.C. § 3553(a)(1),

(a)(2)(A).        The   District   Court    also    concluded    Castro-Caicedo

required an upward variance to deter him from future criminal acts

and to protect the public, due to his several prior convictions for

serious offenses and his failure to accept any responsibility during

allocution for his present or past crimes. See id. § 3553(a)(2)(B),

(C).     And the District Court saw no aspects of Castro-Caicedo's


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history   or    individual   characteristics        that   warranted    a     lower

sentence.      See id. § 3553(a)(1).

            Castro-Caicedo's other challenge to his sentence is no

stronger. He complains his sentence is "more than four times longer

than the sentence of any of the other co-conspirator[s,] including

the leader [of the conspiracy]."                 He acknowledges all of the

coconspirators      pled   guilty    and    several    cooperated      with    the

government, but he argues that "these factors still do not justify

the district court's sentence."        Our precedent, however, indicates

otherwise, United States v. Ayala-Vazquez, 751 F.3d 1, 34 (1st Cir.

2014) (plea); United States v. Mateo-Espejo, 426 F.3d 508, 514 (1st

Cir.   2005)     (cooperation),     and,    as    we   have   explained,       "[a]

well-founded claim of disparity . . . assumes that apples are being

compared to apples."       Mateo-Espejo, 426 F.3d at 514.        Having failed

to show he is plainly similarly situated to those who received

lesser sentences, his unpreserved disparity claim must fail.

            For these reasons, we affirm Castro-Caicedo's conviction

and sentence.




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