FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Carmen Consuelo Cerezo, U.S. District
F. Castro Lang 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, Boudin and Kayatta, Circuit Judges.
BOUDIN, Circuit Judge.
Madera-Rivera ("Madera") was the architect of a
cocaine trafficking conspiracy, using the mails and
commercial airlines to send kilogram quantities of the drug
via Puerto Rico into the continental United States. Madera
recruited and paid the couriers, using contacts in the
continental United States to make arrangements for
distribution of the cocaine after it arrived.
was indicted with fourteen co-defendants on June 26, 2013,
and charged with one count of conspiracy to possess five
kilograms or more of cocaine with intent to distribute. 21
U.S.C. §§ 841, 846. He then sought bail and, when
it was denied, filed an emergency motion, describing an
enlarged spleen, low platelet levels, and Hepatitis C; the
latter caused him to suffer from chronic liver ailments,
including liver cirrhosis. The government ultimately agreed to
support Madera's bail motion, at least for a period.
case progressed, Madera rejected, for reasons that are
disputed, the government's proffered plea agreement and
instead entered a straight guilty plea. Madera says that the
government required as a condition of the plea bargain that
he waive any right to seek continued bail for medical
treatment pending sentencing. The government denies this
happened, arguing instead that Madera's decision to enter
a straight plea was a strategic one to allow him to contest
Madera pled guilty, the court held sentencing hearings to
determine the amount of cocaine to attribute to Madera,
U.S.S.G. § 2D1.1(c) (U.S. Sentencing Comm'n 2014),
his precise role in the conspiracy, id. §
3B1.1, and the offense level decrease for his acceptance of
responsibility, id. § 3E1.1. The court held
Madera responsible for seventy-seven kilograms of cocaine,
id. § 2D1.1(c)(3), and found that he was a
leader of the conspiracy, id. § 3B1.1(a). The
court granted a three-level decrease for acceptance of
responsibility. Id. § 3E1.1(a)-(b).
then sought a downward departure under U.S.S.G. § 5H1.4
(and also requested a variance--an issue we address below).
Section 5H1.4 states:
Physical condition . . . may be relevant in determining
whether a departure is warranted, if the condition . . .
individually or in combination with other offender
characteristics, is present to an unusual degree and
distinguishes the case from the typical cases covered by the
guidelines. An extraordinary physical impairment may be a
reason to depart downward . . . .
argued that his life was in danger and would assuredly be
shortened by a guidelines sentence, since prison facilities
would be unable to fully address his medical needs. See
United States v. Herman, 848 F.3d 55,
59 (1st Cir. 2017). The government pressed for a
within-guidelines sentence and said that "nothing
presented" indicated that the Bureau of Prisons
("BOP") was incapable of providing appropriate
court's final tally was a total offense level of
thirty-five, entailing a guidelines range of 168 to 210
months. U.S.S.G. ch. 5, pt. A. The court ultimately imposed a
the last hearing, the court said that it understood--from
whom or what is not clear--that Madera's health
condition, "serious as it is, can be adequately treated
and handled during his incarceration." The court urged
that Madera be sent to the Butner Federal Correction
Institution in North ...