          United States Court of Appeals
                      For the First Circuit


No. 15-1234

                     UNITED STATES OF AMERICA,

                             Appellee,

                                v.

              ENGLIS PÉREZ, t/n ENGLIS EDUARDO PÉREZ,

                       Defendant, Appellant.


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

        [Hon. Jay A. García-Gregory, U.S. District Judge]


                              Before

                     Kayatta, Selya and Stahl,
                          Circuit Judges.


     Michael R. Hasse on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Thomas F. Klumper, Assistant United States Attorney,
Senior Appellate Counsel, on brief for appellee.



                          April 22, 2016
            SELYA, Circuit Judge.               This sentencing appeal embodies

four discrete claims of error.             Having scrutinized these claims in

light of the record as a whole, we affirm the appellant's sentence.

I.   BACKGROUND

            The critical facts are largely uncontested.                       Defendant-

appellant    Englis         Pérez,    a   Dominican          national,   journeyed      to

Venezuela in early 2014 to undertake a cocaine-smuggling venture.

Shortly after midnight on March 4, 2014, federal authorities

intercepted       a   30-foot     speedboat       —    operating     without       lights,

powered by two outsized outboard engines, and equipped with 23

extra fuel tanks — that had left port in Venezuela and was

approaching the coast of Puerto Rico.                      The vessel was carrying 38

bales,    which       contained      in   the   aggregate        approximately       1,056

kilograms of cocaine.

            Only two persons were aboard the vessel when it was

intercepted: the appellant and an individual later identified as

Gregorio Rodríguez.          A federal grand jury sitting in the District

of Puerto Rico returned a six-count indictment against the pair,

charging them with conspiracy to import 5 or more kilograms of

cocaine    into       the   United    States,         in    violation    of   21    U.S.C.

§§ 952(a), 960, and 963 (count 1); conspiracy to possess with

intent to distribute 5 kilograms or more of cocaine, in violation

of 21 U.S.C. §§ 841(a)(1) and 846 (count 2); aiding and abetting

in the possession with intent to distribute 5 kilograms or more of


                                          - 2 -
cocaine, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1)

(count 3); aiding and abetting in the importation of 5 kilograms

or more of cocaine, in violation of 18 U.S.C. § 2 and 21 U.S.C.

§§ 952 and 960 (count 4); conspiracy to possess with intent to

distribute 5 or more kilograms of cocaine on board a vessel subject

to the jurisdiction of the United States, in violation of 46 U.S.C.

§§ 70502(c)(1)(D), 70503(a)(1), 70504(b)(1) and 70506(a) and (b)

(count 5); and aiding and abetting in the possession with intent

to distribute 5 kilograms or more of cocaine on board a vessel

subject to the jurisdiction of the United States, in violation of

18 U.S.C. § 2 and 46 U.S.C. §§ 70502(c)(1)(D), 70503(a)(1),

70504(b)(1)   and   70506(a)   (count   6).   Although   the   appellant

originally maintained his innocence, he shortly entered a straight

guilty plea to all six counts of the indictment.

          Following the preparation of a presentence investigation

report and some related skirmishing, the district court convened

the disposition hearing on January 27, 2015.        The November 2014

edition of the sentencing guidelines controlled. See United States

v. Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. 1990).         The court

calculated the appellant's guideline sentencing range (GSR) as

135-168 months and imposed a sentence at the bottom of that range:

135 months.   This timely appeal ensued.




                                 - 3 -
II.    ANALYSIS

            In    this    case,    the     appellant        challenges        both    the

procedural underpinnings and the substantive reasonableness of his

sentence.    Overall, claims of sentencing error are reviewed for

abuse of discretion.        See Gall v. United States, 552 U.S. 38, 51

(2007); United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008).

With    respect    to    procedural       claims,     however,      the       abuse-of-

discretion standard of review is not monolithic.                    Within it, "we

assay the district court's factfinding for clear error and afford

de novo consideration to its interpretation and application of the

sentencing guidelines."           United States v. Flores-Machicote, 706

F.3d 16, 20 (1st Cir. 2013).

            Against      this    backdrop,     we    turn    to   the     appellant's

asseverational array. Because a reviewing court, in the sentencing

context, should first address claims of procedural error, see

Martin, 520 F.3d at 92, we start there.

                            A.    Mitigating Role.

            The appellant asserts that the district court committed

procedural error when it refused to reduce his GSR to compensate

for the appellant's role in the offense.              This claim was preserved

below and, thus, our review is for clear error.                   See United States

v. Garcia, 954 F.2d 12, 16 (1st Cir. 1992).

            USSG §3B1.2(b) provides for reducing a defendant's base

offense   level    by    two     levels   if   the    defendant         was    a     minor


                                      - 4 -
participant in the criminal activity.      The appellant argues that

he was entitled to the benefit of this adjustment,1 which would

have lowered his GSR (and, presumably, his sentence).          We do not

agree.

          A defendant who seeks a mitigating role adjustment bears

the burden of proving, by a preponderance of the evidence, that he

is entitled to the downward adjustment.         See United States v.

Vargas, 560 F.3d 45, 50 (1st Cir. 2009).       "To qualify as a minor

participant, a defendant must prove that he is both less culpable

than his cohorts in the particular criminal endeavor and less

culpable than the majority of those within the universe of persons

participating    in   similar   crimes."   United    States   v.   Torres-

Landrúa, 783 F.3d 58, 65 (1st Cir. 2015) (quoting United States v.

Santos, 357 F.3d 136, 142 (1st Cir. 2004)).          Here, we need go no

further than the first prong of this two-part test.

          Role-in-the-offense       determinations     are    notoriously

fact-specific.    See United States v. Meléndez-Rivera, 782 F.3d 26,

28 (1st Cir. 2015); United States v. Rosa-Carino, 615 F.3d 75, 81

(1st Cir. 2010).      In this instance, the district court explicitly

found, as a matter of fact, that the two participants in the

smuggle (the appellant and Rodríguez) were "equally culpable."


    1 The appellant originally sought a four-level decrease in his
offense level arguing that his role in the offense was no more
than minimal.   See USSG §3B1.2(a).    However, he abandoned that
position below.


                                  - 5 -
This finding is not clearly erroneous: the two men traveled first

to Colombia and then to Venezuela, specifically to undertake the

unlawful voyage; they shared the work at sea en route to Puerto

Rico; and the appellant's special skill set as a mechanic was

essential to the success of the venture.             The fact that Rodríguez

was deemed the "captain" of the craft does not undermine the

sentencing court's finding that they were equal partners in the

criminal activity.      See, e.g., United States v. Bravo, 489 F.3d 1,

11 (1st Cir. 2007).

            We have said before that "absent a mistake of law,

battles over a defendant's status . . . will almost always be won

or lost in the district court."              United States v. Graciani, 61

F.3d 70, 75 (1st Cir. 1995).          This case is no exception.

            In an effort to blunt the force of this reasoning, the

appellant advances two arguments.               First, he says that "the

district    court    summarily   declined      to   grant   the     [minor   role]

adjustment without outlining any reasoning for its decision." This

statement    is     simply   wrong:    the    district      court    entertained

extensive argument on this very point and explained its reasoning

in some detail.      The court mentioned the large quantity of drugs,

the trust that the drug owners obviously placed in the appellant,

and the appellant's expertise in "how to handle the boat."                   That

the appellant resists the district court's explanation for the




                                      - 6 -
"equal culpability" finding is not a basis for holding that the

finding is unexplained.

          The appellant also makes a hierarchical argument.          He

submits that he is a minor participant in the criminal activity,

broadly defined, because he played a bit part when compared to

those unidentified individuals who "owned" the drugs and those

unidentified     individuals   who   presumably   were    prepared   to

distribute them in the United States.

          This argument is unavailing.    When two persons undertake

to transport by themselves a large quantity of drugs in a long and

hazardous voyage at sea, it is not clear error for a sentencing

court to regard each as a principal and refuse to grant any

mitigating role adjustment.2     See United States v. Zakharov, 468

F.3d 1171, 1181 (9th Cir. 2006); United States v. Coneo-Guerrero,

148 F.3d 44, 50-51 (1st Cir. 1998).

              That ends this aspect of the matter.       Where there is

more than one plausible view of the circumstances, "the sentencing

court's choice among supportable alternatives cannot be clearly

erroneous."     United States v. Ruiz, 905 F.2d 499, 508 (1st Cir.

1990).


    2 Here, moreover, the district court's choice to define the
criminal activity narrowly was consistent with the indictment,
which focused on the voyage and the interception of the vessel.
Consistent with this focus, the facts of record do not deal either
with the provenance of the drugs or with the ultimate plans for
their retail distribution.


                                 - 7 -
                           B.    Failure to Explain.

             Congress has directed every sentencing court to "state

in open court the reasons for its imposition of the particular

sentence."      18 U.S.C. § 3553(c).        Though the court's explanation

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

Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 2006), the explanation

given   should     "identify     the    [relevant]     factors   driving   [the

sentencing] determination." United States v. Sepúlveda-Hernández,

___ F.3d ___, ___ (1st Cir. 2016) [No. 15-1293, slip op. at 5];

see United States v. Ruiz-Huertas, 792 F.3d 223, 226-27 (1st Cir.),

cert. denied, 136 S. Ct. 258-59 (2015).

             The appellant argues that the court below forsook this

duty. Since the appellant did not preserve any such claim of error

in the district court, our review is for plain error.              See United

States v. Montero-Montero, ___ F.3d ___, ___ (1st Cir. 2016) [No.

15-1405, slip op. at 3].          To establish plain error, an appellant

must show "(1) that an error occurred (2) which was clear or

obvious   and      which   not   only    (3)    affected   the   [appellant's]

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

integrity, or public reputation of judicial proceedings."                United

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

             The   appellant's     argument     is   puzzling.    He   alleges,

without qualification, that "the district court failed to explain

its reasons for the 135-month sentence it imposed."                    Yet, the


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sentencing     transcript    belies       this    allegation.         The     court

explicitly      stated      that        "[t]he        guideline      computations

satisfactorily     reflect    the       components      of    this   offense     by

considering its nature and circumstances. . . ."                  The court went

on to note that it had "considered the other sentencing factors

set forth in Title 18, U.S. Code [§] 3553." The court also referred

to the appellant's "personal history and characteristics . . . as

well as . . . the nature of the circumstances under which [he] was

hired to perform this job."

             After alluding to the "elements of the offense and [the

appellant's] participation in the same," the court stated that it

was taking into account "the need to promote respect for the law,

protect the public from further crimes by defendant, the need to

address issues of deterrence and punishment, as balanced together

with the personal history and characteristics of defendant."                    In

the end, the court concluded "that a sentence in this case at the

lower end of the guideline range would be a sentence that is just

and not greater than necessary."

             Where, as here, the court imposes a sentence that comes

within the GSR, "the burden of adequate explanation is lightened."

Montero-Montero,    slip     op.   at    4.      We    hold   that   the    court's

explanation was sufficient to satisfy this lightened burden and to

explicate its within-the-range sentence. There was no error, plain

or otherwise.


                                    - 9 -
                              C.    National Disparity.

            Citing 18 U.S.C. § 3553(a)(6), the appellant next argues

that his sentence was "disproportionate to others found guilty of

the same or similar conduct."             This argument is unpersuasive.

            Section      3553(a)(6)       instructs     a     sentencing        court    to

consider "the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of

similar conduct."            This provision is aimed, generally, at the

minimization       of        sentencing       disparities        among     defendants

nationwide.       See Martin, 520 F.3d at 94.                 Because the appellant

did not raise this claim of error below, our review is for plain

error.   See Duarte, 246 F.3d at 60.

            We    see    nothing      resembling       plain    error     here.         The

appellant   presents         this    argument    in    hortatory        terms    without

developing any relevant factual foundation.                   The lack of developed

argumentation is fatal to the claim. See United States v. Zannino,

895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a

perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived.").

                        D.    Substantive Reasonableness.

            The    appellant's         last    claim     of     error    targets        the

substantive reasonableness of his sentence. The standard of review

is murky.        See Ruiz-Huertas, 792 F.3d at 228 & n.4 (noting

uncertainty about whether a claim that a sentence is substantively


                                        - 10 -
unreasonable must be preserved below).             Rather than resolving the

question, we assume — favorably to the appellant — that our review

of this claim is for abuse of discretion. Even so, the appellant's

challenge fails.

                 A sentence will survive a challenge to its substantive

reasonableness as long as it rests on a "plausible sentencing

rationale" and reflects a "defensible result."              Martin, 520 F.3d

at 96.           "A challenge directed at substantive reasonableness is

usually a heavy lift, and reversal is 'particularly unlikely when

. . . the sentence imposed fits within the compass of a properly

calculated [guideline sentencing range].'" Ruiz-Huertas, 792 F.3d

at 228-29 (quoting United States v. Vega-Salgado, 769 F.3d 100,

105 (1st Cir. 2014) (omission and alteration in original)).

                 So it is here: as recounted above, the district court

articulated an eminently plausible rationale for the sentence.

Moreover — given the parameters of the GSR, the large quantity of

drugs involved, and the appellant's vital role in the smuggle — a

135-month sentence is defensible.

                 The appellant's main argument in support of his plaint

that       his    sentence   is   substantively   unreasonable   is   that   his

coconspirator, Rodríguez, received a much lighter sentence (48

months).3         But at the time the appellant was sentenced — January


       3
      Although the appellant's briefs assert that Rodríguez was
sentenced to 46 months' imprisonment, the court docket indicates


                                       - 11 -
27, 2015 — Rodríguez's case was still pending.              Rodríguez was not

sentenced until March 10, 2015, roughly six weeks after the

appellant was sentenced.         The fact that the disparity argument, as

made to us, could not have been made to the sentencing court

creates a curious anomaly.         Cf. Cahoon v. Shelton, 647 F.3d 18, 29

(1st Cir. 2011) (warning that a party cannot expect to obtain

relief from an appellate court that he never sought in the trial

court); Beaulieu v. U.S. IRS, 865 F.2d 1351, 1352 (1st Cir. 1989)

(same).

            Here, however, we need not grapple with this anomaly.

That the appellant and Rodríguez received different sentences

tells us nothing about which of those sentences varies from the

norm; and the limited record available to us suggests that there

are   reasons    why   a   sentencing   judge     could   have   seen   the   two

situations      as   quite   different.4     These       uncertainties,   taken

together,    preclude      any   finding   that    the    appellant's   within-

guidelines sentence is substantively unreasonable.




that Rodríguez was sentenced to 48 months. See United States v.
Rodríguez, Crim. Case No. 3:14-cr-00182 (D.P.R. Mar. 10, 2015).

      4
      Unlike the appellant, Rodríguez pleaded guilty to only a
single count of the indictment; he did not enter a straight plea
but, rather, pleaded guilty pursuant to a negotiated plea agreement
(the terms of which are not summarized in the appellant's brief or
elsewhere in the sentencing record); and there is some indication
in the record that Rodríguez may have been experiencing medical
complications that influenced the duration of his sentence.


                                    - 12 -
III.   CONCLUSION

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

the appellant's sentence is



Affirmed.




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