FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO Hon. Gustavo A. Gelpí, U.S. District Judge
Shevitz on brief for appellant.
Emilia Rodríguez-Vélez, United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, and Julia M. Meconiates,
Assistant United States Attorney, on brief for appellee.
Howard, Chief Judge, Dyk [*] and Thompson, Circuit Judges.
Jonathan Ortiz-Torres appeals his 560-month sentence, entered
pursuant to a guilty plea, for brandishing and discharging
firearms during a crime of violence in violation of 18 U.S.C.
§ 924(c)(1)(A) and (j). Ortiz and his co-defendants
embarked on a plan to rob two Puerto Rico Department of
Natural Resources officers of their firearms. Ortiz attempted
to take one guard's gun and, in the ensuing struggle, he
shot the guard. In response, a second guard began shooting at
Ortiz and one of his co-defendants. The conspirators returned
fire, and a bullet from Ortiz struck and killed the second
guard. At this point, Ortiz turned his attention back to the
first guard, who remained on the ground, wounded.
"Believing the guard" to be "moving in a
threatening manner, Ortiz shot him in the head or neck area
plea agreement stipulated that he would receive a three-level
reduction of his offense level for acceptance of
responsibility under U.S.S.G. §3E1.1. Accounting for
this downward adjustment, the parties agreed that the
applicable guideline sentencing range ("GSR") was
292-365 months. But the plea agreement also expressly
provided that both parties were free to "argue for an
appropriate sentence, notwithstanding" this range.
Indeed, the government specifically "reserve[d] its
right to argue for a sentence above the suggested" GSR.
At the sentencing hearing, the government exercised that
right and recommended an incarcerative term of at least 500
months. The district court agreed that a variance was
appropriate and sentenced Ortiz to 560 months'
appeal, Ortiz raises two narrow challenges to his sentence.
First, he contends that the government breached the plea
agreement by arguing at the sentencing hearing that Ortiz
"had not accepted responsibility." Second, Ortiz
suggests that his and his co-defendant's sentences were
"unduly disparate." Because both of Ortiz's
claims fail on the merits, we assume, favorably to him, that
they are preserved for appeal.
de novo review, see United States v.
Almonte-Nuñez, 771 F.3d 84, 89 (1st Cir. 2014),
we find no breach of the plea agreement. The government never
so much as mentioned the acceptance of responsibility credit
at the sentencing hearing. Ortiz nonetheless asserts that the
prosecutor's reference to Ortiz's lack of remorse
undermined his acceptance of responsibility. But, rather than
an attempt to renege on the plea deal, the government's
contention on this issue was simply part of its rationale for
requesting an upward variance. "It is well
established" that "lack of remorse" is a
relevant consideration in this context that can support an
upward variance in sentencing, even if there is an acceptance
of responsibility by the defendant. United States v.
Santiago-González, 825 F.3d 41, 50 n.13 (1st Cir.
2016); see also United States v. Cruzado-Laureano,
527 F.3d 231, 236-37 (1st Cir. 2008). In any event, the court
ultimately found a "clear acceptance of
responsibility" and, accordingly, applied the downward
next argues that his 560-month sentence is substantively
unreasonable, in light of his co-defendant's 380-month
sentence. In short, we perceive no abuse of discretion by the
district court. See United States v. Reverol-Rivera,
778 F.3d 363, 366-67 (1st Cir. 2015). As an initial matter, a
defendant is not entitled to a lighter sentence merely
because a co-defendant received one. See United States v.
Dávila-González, 595 F.3d 42, 50 (1st Cir.
2010). Indeed, there is a panoply of "material
differences" that may justify a purported disparity.
United States v. Reyes-Santiago, 804 F.3d 453, 467
(1st Cir. 2015). We have repeatedly held that one such
distinguishing factor is a defendant's relative
culpability. See, e.g., Reverol-Rivera, 778
F.3d at 366; United States v. Rivera-Maldonado, 194
F.3d 224, 236 (1st Cir. 1999). Here, the sentencing judge
expressly relied on the fact that Ortiz, not his
co-defendant, shot and killed both victims. The court was
especially troubled by Ortiz's fatal shooting of the
injured guard lying on the ground, which it characterized as
"extremely shocking." The district court was well
within its broad discretion to conclude that this conduct
rendered Ortiz more culpable than his co-defendant and, in
turn, justified a significantly longer term of incarceration.
foregoing reasons, we AFFIRM Ortiz's sentence.
[*]Of the Federal Circuit, sitting by