Petition for Writ of Certiorari — Hilton Rios-Rivera, Petitioner v. United States
Supreme Court briefApr 8, 2019
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Case: 15-2116
Document: 00117386639
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Date Filed: 01/09/2019
Entry ID: 6224470
United States Court of Appeals
For the First Circuit
No. 15-2116
UNITED STATES OF AMERICA,
Appellee,
v.
HILTON RÍOS-RIVERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, Chief U.S. District Judge]
Before
Howard, Chief Judge,
Thompson and Barron, Circuit Judges.
Alejandra Bird Lopez for appellant.
Julia M. Meconiates, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, were on brief for appellee.
January 9, 2019
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HOWARD, Chief Judge.
Date Filed: 01/09/2019
Entry ID: 6224470
Hilton Ríos-Rivera pled guilty to
transporting a minor to a hotel in Puerto Rico with the intent to
engage in criminal sexual activity with her, in violation of the
Mann Act, 18 U.S.C. § 2423(a).
After accepting his plea, the
district court sentenced Ríos to an above-guidelines incarcerative
term of 216 months.
Ríos now challenges both Congress's authority
to criminalize his conduct and the district court's sentence.
For
the reasons discussed below, we affirm Ríos's conviction and his
sentence.
I.
The parties do not dispute the events leading to this
prosecution.
Rico.
All of the material conduct took place within Puerto
In early April 2013, Ríos, a fifty-year-old man, met the
fourteen-year-old victim at a bar where he was performing with his
band.
While the victim's mother was in the restroom, he gave the
victim his band's compact disc and his business card and asked her
to contact him.
The following day, the victim's mother discovered
a text message from Ríos on her daughter's phone.
She called Ríos
to inform him of her daughter's age and warned him not to contact
her daughter again.
Despite those admonitions, Ríos continued
contacting the victim.
In one conversation, Ríos asked the victim
if she was fourteen, to which the victim responded affirmatively.
In a subsequent conversation on April 8, 2013, Ríos asked the
victim where she went to school.
The victim told Ríos the name of
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her middle school, and he arranged to pick her up during her lunch
period the next day.
On April 9, 2013, Ríos drove to the victim's middle
school.
The middle school had a sign clearly labeling it as such,
and its students wore school uniforms.
Ríos met the victim at a
gas station across the street from her school and took her to a
motel, where he had sexual intercourse with her.
this behavior the next day.
Ríos repeated
On April 11, at 8:00 a.m., Ríos once
more met the victim at the gas station near her middle school.
He
again took her to a motel where he had sexual intercourse with her
and then dropped her off at 3:00 p.m. at the bus stop near her
house.
After an investigation, in August 2013 the Puerto Rican
authorities charged Ríos with three counts of sexual assault.
In
February 2014, a federal grand jury indicted Ríos for three
violations
of
transport[ing]"
§
a
2423(a),
minor
"in
which
any
prohibits
commonwealth,
"knowingly
territory
or
possession of the United States, with intent that the individual
engage . . . in any sexual activity for which any person can be
charged with a criminal offense."
a
plea
agreement
with
the
Before trial, Ríos entered into
government.
In
exchange
for
the
government dropping two counts of the three-count indictment, Ríos
pled guilty to one count and waived his right to appeal so long as
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the district court sentenced him within a certain range calculated
in accordance with the sentencing guidelines.
The district court calculated the sentencing guidelines
range as the plea agreement suggested, but declined to sentence
Ríos within that range.
It found that Ríos's statements at
sentencing were "geared to minimize his responsibility."1
During
his
mother
hearing,
Ríos
protested
that
misrepresented her age to him.
the
victim
and
her
These assertions contradicted not
only the victim's and her mother's statements to the probation
officer, but also the recitations in the plea agreement.
district
court
investigation
also
expressed
report
revealed
concern
that
Ríos
The
that
the
presentence
had
been
previously
charged with five counts of sexually assaulting his stepdaughter,
although he ultimately pled guilty to one count of aggravated
assault.
Further, the district court noted that one of Ríos's
neighbors told probation officers that Ríos "always [had] young
girlfriends who looked to be 18 or 19 years of age."
The district
court also cited what it characterized as Ríos's manipulative
behavior and the government's unrebutted evidence that the victim
suffered psychological harm as a result of it.
After considering
this evidence in light of the 18 U.S.C. § 3553(a) sentencing
1
The district court followed the plea agreement's
recommendation to reduce Ríos's offense level by three levels for
acceptance of responsibility, pursuant to U.S.S.G. §3E1.1(b).
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factors, the district court announced that it would "depart" from
the sentencing guidelines' recommendation and sentence Ríos to 196
months.
Shortly afterward, the court corrected a mathematical
error in its initial calculation and clarified that Ríos was
sentenced to 216 months, which was "in essence . . . a variance of
2.5 years."
Ríos timely appealed.
the
constitutionality
of
his
For the first time, he challenges
conviction
on
the
grounds
that
Congress lacked the authority to enact § 2423(a) and that the
statute
impermissibly
violation
of
the
discriminates
equal
protection
Amendment's Due Process Clause.
against
Puerto
component
of
Ricans
the
in
Fifth
He also claims that his sentence
was procedurally and substantively unreasonable.
II.
As an initial matter, Ríos has forfeited his challenges
to the constitutionality of § 2423(a).
After his indictment, Ríos
agreed to plead guilty without ever contesting the indictment in
the district court.
Ríos cannot point to any instances in the
record where he so much as hinted at the constitutional arguments
he seeks to raise here.
Moreover, his plea agreement does not
refer to any potential constitutional qualms.
At the time that Ríos lodged this appeal, in our circuit
this conduct would waive -- not forfeit -- Ríos's right to argue
on appeal that § 2423(a) is unconstitutional.
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See, e.g., United
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States v. Martinez-Martinez, 69 F.3d 1215, 1224 (1st Cir. 1995).
But
the
Supreme
Court's
decision
in
Class
v.
United
States
established that such challenges are not waived by a guilty plea
alone.
138 S. Ct. 798, 803 (2018) (citing Blackledge v. Perry,
417 U.S. 21 (1974) (allowing challenge to vindictive prosecution
to proceed after guilty plea); Menna v. New York, 423 U.S. 61
(1975) (per curiam) (permitting double jeopardy claim after guilty
plea)).
Because the government conceded in a Federal Rule of
Appellate Procedure 28(j) letter that Class permits Ríos to raise
his
arguments
that
his
prosecution
is
unconstitutional,
we
may
his
consider them below.
Nevertheless,
even
if
Ríos
object
to
prosecution's constitutionality for the first time on appeal, his
decision not to press these arguments before the district court
effects a forfeiture, even after Class.
In Class, the Supreme
Court only decided that a guilty plea alone does not waive claims
that the government could not "constitutionally prosecute" the
defendant.
138 S. Ct. at 804 (quoting Menna, 423 U.S. at 62 n.2).
Nowhere in Class did the Court say that a defendant could never
forfeit such "Blackledge-Menna" claims.
It had no need to reach
the forfeiture issue because the defendant in Class had moved in
the
district
court
to
dismiss
his
indictment
on
the
same
constitutional grounds that he then sought to raise on appeal.
138 U.S. at 802. Class therefore does not require us to reconsider
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our prior case law and excuse a defendant's failure to preserve
Blackledge-Menna
arguments
below.
See
United
States
v.
Stefanidakis, 678 F.3d 96, 99 (1st Cir. 2012) (finding forfeited
appellant's
double
jeopardy
claim
and
applying
plain
error
review).
Blackledge-Menna
claims
are
not
objections
to
the
court's Article III jurisdiction, and are thus not of the type
that we review de novo whenever they are brought.
See United
States v. Cordero, 42 F.3d 697, 699 (1st Cir. 1994).
Rather, such
claims
prosecute
relate
to
the
government's
authority
to
defendant, not to the court's authority to adjudicate a case.
a
See
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998)
("[T]he absence of a valid (as opposed to arguable) cause of action
does not implicate subject-matter jurisdiction, i.e., the courts'
statutory or constitutional power to adjudicate the case."); see
also United States v. De Vaughn, 694 F.3d 1141, 1152–53 (10th Cir.
2012) (observing that if the Supreme Court had resolved Blackledge
and Menna on jurisdictional grounds then the Court would have
dismissed them for lack of subject matter jurisdiction).
Furthermore, to the extent that the Class Court said
anything about this issue, it suggested that Blackledge-Menna
claims are nonjurisdictional. For instance, the Class Court relied
on the fact that the advisory committee notes to Federal Rule of
Criminal Procedure 11(a)(2) indicate that both jurisdictional and
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Blackledge-Menna
requirements.
claims
are
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not
Date Filed: 01/09/2019
subject
Class, 138 S. Ct. at 806.
to
its
Entry ID: 6224470
preservation
If Blackledge-Menna
claims were jurisdictional, then their specific inclusion -- both
in
the
advisory
surplusage.
committee
notes
and
in
Class
--
would
be
See Nat'l Ass'n of Mfrs. v. Dep't of Def., 138 S. Ct.
617, 632 (2018); In re Montreal, Me. & Atl. Ry., Ltd., 799 F.3d 1,
9 (1st Cir. 2015).
United States v. DiSanto does not require a different
conclusion.
86 F.3d 1238 (1st Cir. 1996).
There, we assumed for
the
argument
novo
sake
of
that
we
review
de
an
unpreserved
challenge to the statute of conviction's constitutionality.
at 1244.
Id.
We later described that assumption as dicta and held
that constitutional challenges of the type that Ríos presents do
not relate to the court's jurisdiction.
See United States v.
Carrasquillo-Peñaloza, 826 F.3d 590, 593 n.3 (1st Cir. 2016) ("[T]o
the extent that DiSanto suggests that a constitutional challenge
to a statute of conviction is jurisdictional, it is dicta.").
Prior panel decisions generally bind us unless a Supreme Court
opinion, en banc ruling, or statute undermines the panel decision.
Williams v. Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir. 1995).
And,
as
explained
above,
Class
does
not
contradict
our
characterization of DiSanto in Carrasquillo-Peñaloza.
At least one other circuit, the Sixth Circuit, has
reckoned
with
Class's
impact
on
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unpreserved
constitutional
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challenges, and that court's interpretation of Class comports with
ours.
See United States v. Bacon, 884 F.3d 605, 610-11 (6th Cir.
2018) (applying plain error review to a constitutional challenge
raised for the first time on appeal); cf. United States v. St.
Hubert, 909 F.3d 335, 339, 341, 344-46 (11th Cir. 2018) (applying
de novo review to a preserved constitutional challenge after an
unconditional guilty plea).
Because nothing in Class undermines
the application of our forfeiture doctrine here, we apply it to
Ríos's unpreserved constitutional arguments.
III.
Ríos's constitutional arguments cannot surmount the high
bar of plain error review applicable to forfeited claims.
To show
plain error, the appellant must meet a demanding four-prong test.
United States v. Padilla, 415 F.3d 211, 218 (1st Cir. 2005) (en
banc).
In particular, Ríos cannot show "clear or obvious" error
for any of his constitutional arguments, and he thus falters at
the test's second prong.
(1st Cir. 2016).
an
For an error to be clear and obvious, we require
"'indisputable'
precedent.'"
United States v. Pabon, 819 F.3d 26, 34
error
by
the
judge
'given
controlling
United States v. Morosco, 822 F.3d 1, 21 (1st Cir.
2016) (quoting United States v. Correa-Osorio, 784 F.3d 11, 22
(1st Cir. 2015)).
Here, Ríos makes two constitutional claims.
First, he
asserts that Puerto Rico's commonwealth status precludes Congress
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from relying on its plenary authority to govern territories under
the Territorial Clause.
See U.S. Const. art IV, § 3, cl. 2.
Ríos
contends that Congress was required to promulgate § 2423(a) under
a different enumerated power and that the only power that might
justify it, the authority to regulate interstate and international
commerce, does not.
See U.S. Const. art I, § 8, cl. 3.
Yet he
identifies no precedent ruling out Congress's authority to rely on
the Territorial Clause to legislate for Puerto Rico; in fact, Ríos
invites
us
to
answer
constitutional law.
what
is
at
best
an
open
question
of
As such, it was not plainly erroneous for the
district court to have concluded that § 2423(a) was a valid
exercise of the Territorial Clause.2
Second, Ríos suggests that the Mann Act's different
treatment of conduct occurring wholly within Puerto Rico from that
occurring wholly within one of the fifty states violates the equal
protection component of the Fifth Amendment's Due Process Clause.
He urges us to disregard Supreme Court precedent applying rational
basis review to such claims and to instead apply heightened
2 None of the cases mentioned by the parties that discuss
Puerto Rican "sovereignty" applied that concept to decide
constitutional questions about Congress's powers.
See, e.g.,
United States v. Quinones, 758 F.2d 40, 42 (1st Cir. 1985). We do
not address whether the dicta in those cases is correct, except to
observe that those cases do not explain how the statutes enabling
and approving the Puerto Rican Constitution bind future
Congresses, notwithstanding the principle that normal-course
legislation generally may be repealed by future Congresses. See
United States v. Winstar Corp., 518 U.S. 839, 872-74 (1996).
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scrutiny. See Harris v. Rosario, 446 U.S. 651 (1980) (per curiam);
Califano v. Torres, 435 U.S. 1, 4-5 (1978) (per curiam).
We
decline the invitation; it cannot be obvious error for a district
to fail to apply, sua sponte, a doctrine that would be inconsistent
with Supreme Court precedent.
In the alternative, Ríos argues that § 2423(a) fails
rational
basis
review
because
it
prohibits
only
intrajurisdictional transportation of a minor for the purpose of
committing a sex crime within "any commonwealth, territory, or
possession," but not a state.
Congress does not plainly lack
plenary power under the Territorial Clause to criminalize certain
intrajurisdictional activity in those jurisdictions simply because
it may not do so under the Commerce Clause within the fifty states.
See United States v. Morrison, 529 U.S. 598, 617-18 (2000).
Ríos
does not seriously challenge the notion that Congress may have
limited the Mann Act's applicability within the fifty states
because it implicitly recognized potential constitutional limits
on its power.
Indeed, Ríos argues that "the federal government
has no general police . . . power" and that Congress could not
criminalize this conduct within any one of the fifty states.
He
simply asserts that § 2423(a) is irrational because Congress never
explained its justification for treating trafficking within Puerto
Rico differently from interstate trafficking.
But there is no
requirement that Congress state its reasons for enacting a statute
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in order for it to survive rational basis review.
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See U.S. R.R.
Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980).
Because Ríos has not
shown
his
a
clear
or
obvious
error,
both
of
constitutional
challenges fail.3
IV.
Nor do Ríos's sentencing arguments warrant relief.
We
generally review preserved claims of error in the district court's
imposition of a sentence "under a deferential abuse-of-discretion
standard."
United States v. Fuentes-Echevarria, 856 F.3d 22, 25
(1st Cir. 2017) (quoting United States v. Martin, 520 F.3d 87, 92
(1st Cir. 2008)).
The district court's legal conclusions receive
de novo review, while we evaluate its fact-finding for clear error.
United States v. Rossignol, 780 F.3d 475, 477 (1st Cir. 2015).
We turn first to Ríos's procedural challenge.
outset,
we
objection.
note
that
Ríos
forfeited
any
possible
At the
procedural
Despite having ample opportunity to take exception to
the district court's sentence at his sentencing hearing, Ríos did
not.
The district court recited the sentencing factors and the
evidence that it considered before it pronounced Ríos's sentence.
Ríos did not object during that recitation.
Moreover, after
announcing Ríos's sentence, the district court asked if there was
Ríos does not argue that § 2423(a) fails rational basis
review because it is motivated by animus. See United States v.
Windsor, 570 U.S. 744, 770 (2013). As a result, he has waived any
such argument.
3
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"[a]nything else" counsel wished to discuss, and defense counsel
replied, "That is all." Consequently, Ríos forfeited his arguments
that the district court failed to provide him with notice of a
possible departure sentence or to follow a departure guideline.
See United States v. Perretta, 804 F.3d 53, 57 (1st Cir. 2015).
Accordingly, we review Ríos's challenge for plain error.
Ríos
posits
that
the
district
court
committed
a
procedural error because it failed to provide him with "reasonable
notice" before imposing a departure sentence.
P. 32(h).
See Fed. R. Crim.
He asserts that the district court improperly issued an
above guidelines sentence based on his criminal history category's
failure
to
convictions.
misguided.
adequately
See
represent
U.S.S.G.
the
seriousness
§4A1.3(a)(1).
This
of
his
past
assertion
is
Recently, we observed that there is no discernible
difference between departure and variance sentences.
See United
States v. Santini-Santiago, 846 F.3d 487, 489-90 (1st Cir. 2017).
Before United States v. Booker, 543 U.S. 220 (2005), district
courts needed to justify deviations from the guidelines by citing
a departure provision.
See Santini-Santiago, 846 F.3d at 490
(citing Booker, 543 U.S. at 259-60). After Booker, district courts
can rely on the 18 U.S.C. § 3553(a) sentencing factors instead.
Because the guidelines' departure provisions fit neatly into the
§ 3553(a) sentencing factors, we have noted that Rule 32(h)
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currently "serves no substantive purpose at all."
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See Santini-
Santiago, 846 F.3d at 490.
Ríos protests that at least where, as here, the district
court said that it would "depart" -- as opposed to vary -- from
the sentencing guidelines, the district court must hew to Rule
32(h).
Nevertheless, we need not resolve whether the district
court had to comply with Rule 32(h) or §4A1.3 here because the
district
court
imposed
a
variant
sentence,
not
a
departure
sentence.
Ríos asks us to focus on one fact in isolation, the
district court's stray use of the word "depart."
But it is clear
in context that the district court misspoke and corrected itself.
Immediately before announcing its intention to "depart" from the
guidelines, the district court analyzed the § 3553(a) factors.
Subsequently, in the course of correcting its calculation of the
sentence's length, the district court pronounced that the sentence
was "in essence . . . a variance."
See United States v. Nelson,
793 F.3d 202, 206-07 (1st Cir. 2015) (characterizing an above
guidelines sentence as a variance despite district court's stray
use of the word "depart").
Therefore, the district court gave a
variant sentence and had no need to follow Rule 32(h) or §4A1.3.
Next, Ríos contends that his sentence was substantively
unreasonable.
Ríos
failed,
as
he
did
for
his
procedural
reasonableness claim, to object to the substantive reasonableness
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of his sentence during his sentencing hearing.
As we have before,
we
must
decline
to
resolve
whether
a
defendant
preserve
a
substantive challenge to his sentence, and we assume, favorably to
Ríos, that he was not required to do so.
See United States v.
Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir. 2015).
We accordingly review the substantive reasonableness of
Ríos's sentence under the abuse-of-discretion framework recited
above.
Ríos contends that his 216-month (eighteen years) sentence
was disproportionate for two reasons.
First, he posits that his
conduct was less severe than the prototypical Mann Act violation
(i.e. border-crossing human trafficking).
Second, he suggests
that some states punish conduct similar to his with significantly
shorter prison terms.4
to
the
district
Ríos's reasons are unconvincing.
court's
sentencing
determinations
We defer
and
affirm
sentences that are based on "a plausible sentencing rationale" and
that reflect "a defensible result."
F.3d 87, 96 (1st Cir. 2008).
United States v. Martin, 520
Moreover, when a district court
chooses to impose a variant sentence, we only require that its
"plausible rationale . . . justif[ies] a variance of the magnitude
For the first time in his reply brief, Ríos argues that his
sentence was substantively unreasonable because the district court
calculated his offense level using the guideline applicable to
interjurisdictional human trafficking as opposed to the guideline
for statutory rape. Compare U.S.S.G. §2G1.3, with §2A3.2. We do
not address this argument because arguments raised only in reply
are waived. United States v. Hall, 557 F.3d 15, 20 n.3 (1st Cir.
2009).
4
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in question."
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See United States v. Gallardo-Ortiz, 666 F.3d 808,
812 (1st Cir. 2012) (quoting Martin, 520 F.3d at 91). In reviewing
a variant sentence, we consider the variance's magnitude but will
not conclude from the variance's size alone that the sentence was
substantively unreasonable.
Instead, we "give due deference to
the district court's decision that the § 3553(a) factors, on a
whole, justify the extent of the variance." Gall v. United States,
552 U.S. 38, 51 (2007).
As such, we have upheld a sentence "well-above the top"
of the guidelines range where the district court cited "the
seriousness of the defendant's criminal conduct, the defendant's
past history and likelihood of recidivism, and the need for
deterrence."
(1st
Cir.
United States v. Flores-Machicote, 706 F.3d 16, 25
2013);
see
also
Gallardo-Ortiz,
666
F.3d
at
817
(reasoning that the district court's weighing of the § 3553(a)
factors could not provide grounds for finding a substantially
above-guidelines sentence substantively unreasonable).
Here, the district court provided a plausible rationale
and a defensible result.
It noted Ríos's seeming lack of remorse
and his decision to downplay his criminal activity.
court
also
cited
Ríos's
past
aggravated
The district
assault
stemming from his alleged rapes of his stepdaughter.
conviction
Furthermore,
the district court considered Ríos's manipulative behavior to
persuade the victim to engage in sexual activity. Ríos's arguments
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do not undermine the plausibility of this reasoning; they at most
only show that the "universe of reasonable sentencing outcomes"
may include a shorter sentence.
See Ruiz-Huertas, 792 F.3d at
229.
Ríos insists that other jurisdictions' shorter sentences
for similar conduct shows the substantive unreasonableness of his
sentence.
Far from it.
Ríos cites no case indicating that
sentences in other jurisdictions set a baseline for the substantive
reasonableness of federal sentences.
And even if we assumed that
they do -- a problematic assumption -- Ríos fails to acknowledge
that many jurisdictions impose similar or longer sentences than
the sentence that he received.
Compare, e.g., Cal. Penal Code §
261.5(d) (permitting sentence up to four years), with Mass. Gen.
Laws ch. 265, § 23A (mandating a minimum sentence of ten years
with
a
maximum
of
life).5
Accordingly,
Ríos's
sentence
was
substantively reasonable.
V.
For the foregoing reasons, we AFFIRM Ríos's conviction
and sentence.
Ríos's brief cites a different Massachusetts statute that
imposes a three-year maximum incarcerative sentence. See Mass.
Gen. Laws ch. 272, § 4. Rhode Island penalizes conduct analogous
to Ríos's conduct more harshly than Massachusetts does. See R.I.
Gen. Laws §§ 11-37-8.1, 8.2 (minimum of twenty-five years, maximum
of life).
5
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