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First Circuit Vacates Sentence Containing 20-Year Upward Variance Because District Court Failed to Provide Case-Specific Factors or Rationale for Such a Large Variance

by Richard Resch

The U.S. Court of Appeals for the First Circuit vacated Jadnel Flores-Nater’s 30-year prison sentence containing a 20-year upward variance because the District Court failed to provide the required case-specific rationale to justify an upward variance of that magnitude.

On June 8, 2018, Flores-Nater together with four fellow gang members kidnapped W.G.E. and drove him to an area of Barrazas, Carolina, Puerto Rico. During the ride, gang members told Flores-Nater “Llego tu dia” (translated: “Your day has come”) and handed him a revolver. Upon arrival at Barrazas, Flores-Nater shot W.G.E. in the head, and then, several of the gang members also shot him. W.G.E. died from his injuries.

Authorities apprehended Flores-Nater on August 3, 2020. He was ultimately charged with (1) one count of kidnapping resulting in death; (2) one count of using, carrying, brandishing, or discharging a firearm in furtherance of a crime of violence; and (3) one count of using, carrying, or discharging a firearm in furtherance of a crime of violence causing murder.

Flores-Nater entered into a plea agreement with the Government in which he agreed to plead guilty to Count (2). In exchange for his guilty plea, the Government dismissed the other two counts as well as all charges in a separate but related case against Flores-Nater. As part of the plea agreement, the parties agreed to jointly recommend a 25-year prison sentence.

The U.S. District Court for the District of Puerto Rico accepted the plea agreement. The presentence investigation report (“Report”) showed a Guidelines sentence for the offense of conviction of 120 months imprisonment – the mandatory minimum. Both parties accepted the Report. Flores-Nater filed a sentencing memorandum stating that, due to the “unique case and surrounding circumstances,” he agreed that a 25-year prison sentence was “fair and just punishment for his offenses” despite the fact it was “way above the statutory minimum” and Guidelines sentence of 10 years’ imprisonment.

The District Court accepted the Guidelines calculation in the Report and stated that it had considered the sentencing factors provided in 18 U.S.C. § 3553(a) together with Flores-Nater’s sentencing memorandum. The District Court acknowledged the joint sentencing recommendation, but then without elaborating, it declared: “the sentence recommended by the parties does not reflect the seriousness of the offense, does not promote respect for the law, does not protect the public from further crimes by Mr. Flores, and does not address the issues of deterrence and punishment.” Without any further explanation, the District Court imposed a 30-year prison sentence, which amounted to a 20-year upward variance from the mandatory minimum and Guidelines recommendation. Flores-Nater timely appealed, arguing that the sentence imposed is substantively unreasonable.

The Court began its analysis by observing that appellate review of claims asserting sentencing error typically involves a two-step inquiry. United States v. Matos-de-Jesus, 856 F.3d 174 (1st Cir. 2017). The first step is to determine whether the sentence is procedurally reasonable, and then, the second step is to determine whether it is substantively reasonable. United States v. Clogston, 662 F.3d 588 (1st Cir. 2011); see also Gall v. United States, 552 U.S. 38 (2007) (federal sentences must be substantively reasonable). Notably, Flores-Nater does not claim that his sentence is procedurally unreasonable, so the inquiry proceeds directly to whether it is substantively reasonable, the Court stated. See United States v. de Jesus, 831 F.3d 39 (1st Cir. 2016).  

The Court explained that reasonableness in sentencing is a variable concept, United States v. Martin, 520 F.3d 87 (1st Cir. 2008), with “no one reasonable sentence in any given case but, rather, a universe of reasonable sentencing outcomes.” Clogston. In order to determine whether a specific sentence fits within that broad universe, courts “look for the hallmarks of a substantively reasonable sentence: ‘a plausible sentencing rationale and a defensible result.’” United States v. Diaz-Lugo, 963 F.3d 145 (1st Cir. 2020) (quoting Martin).

District Courts are required to explain upward variances when imposing a sentence. See United States v. Ortiz-Perez, 30 F.4th 107 (1st Cir. 2022); see also Gall. The more the imposed sentence deviates from the Guidelines range, the greater the District Court’s “burden to offer a sound justification for the sentence imposed,” United States v. Montero-Montero, 817 F.3d 35 (1st Cir. 2016), and the more compelling the justification for the upward variance must be. United States v. Guzman-Fernandez, 824 F.3d 173 (1st Cir. 2016).  

Turning to the present case, the Court noted that the District Court imposed a sentence that is 20 years longer than the Guidelines recommend, yet the District Court failed to provide any case-specific factors or rationale to justify such a large variance. The only attempt to do so, according to the Court, was the District Court’s declaration that “the sentence recommended by the parties does not reflect the seriousness of the offense….” However, the Court determined that the attempt thoroughly fails to provide the required rationale to justify such a large upward variance because it is a generic statement, not case specific, and simply reiterates the § 3553(a)(2) considerations without applying them to the facts of this case. See United States v. Rivera-Berrios, 968 F.3d 130 (1st Cir. 2020) (justification for upward variance must be connected to “individual characteristics of either the offender or the offence of conviction”).

Because the sentencing record is devoid of any specific factors or rationale upon which the District Court based the upward variance, the Court concluded that “meaningful appellate review is frustrated.” See United States v. Garcia-Perez, 9 F.4th 48 (1st Cir. 2021). Thus, the Court held the that the District Court failed to provide “a plausible sentencing rationale” required of such a large upward variance in the sentence imposed.

Accordingly, the Court vacated the sentence and remanded for resentencing. See: United States v. Flores-Nater, 2023 U.S. App. LEXIS 6636 (1st Cir. 2023).

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