Petition for Writ of Certiorari — Jonathan Kemuel Fargas-Reyes, Petitioner v. United States
Supreme Court briefOct 6, 2025
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No.
Sn the Supreme Court of the GAnited States
JONATHAN KEMUEL FARGAS-REYES, PETITIONER,
Uv.
UNITED STATES OF AMERICA, RESPONDENT.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
APPENDIX
TABLE OF APPENDIX
Appendix A
Opinion, United States Court of Appeals for
the First Circuit, United States v. Fargas-
Reyes, Nos. 23-1502 & 23-1503 (Jan. 10,
ZOQD) ..cececcecrsavscvscccvavascccvaseccsenecs Appx-la
Appendix B
Order denying Petition for Rehearing,
United States Court of Appeals for the First
Circuit, United States v. Fargas-Reyes, Nos.
23-1502 & 23-1503 (Jul.8, 2025).... Appx-16a
Appendix C
Judgment, United States District Court for
the District of Puerto Rico, United
States v. Fargas-Reyes, No. 22-CR-040-01
(FAB) (May 26, 2028) ...........c cee Appx-18a
Appendix D
Judgment, United States District Court for
the District of Puerto Rico, United
States v. Herrera-Cruz, No. 22-CR-040-02
(FAB) (Mar. 7, 2028) ...........c..c00 Appx-25a
Appendix E
Transcript of Sentencing Hearing, United
States District Courtfor the District of
Puerto Rico, United States ov. Fargas-
Reyes, No. 22-CR-040-01 (FAB) (ul. 18,
la
Appendix A
264
UNITED STATES of America,
Appellee,
Vv.
Jonathan Kemuel FARGAS-REYES,
Defendant, Appellant.
Nos. 23-1502, 23-1503
United States Court of Appeals,
First Circuit.
January 10, 2025
Background: Defendant pled guilty and
was convicted in the United States District
Court for the District of Puerto Rico,
Francisco A. Besosa, Senior District
Judge, to illegally possessing firearms and
ammunition as a convicted felon, and was
sentenced to 120 months imprisonment,
well above recommended range and because defendant’s conduct violated his supervised release for his earlier unlawfulgun-possession crime, he was sentenced to
an additional 24 months in prison. Defendant appealed his sentence.
Holdings: The Court of Appeals, Thompson, Circuit Judge, held that:
(1) Government did not breach plea agreement by allegedly advocating for a
higher-than-bargained-for sentence
above agreed upon 57-71 months imprisonment;
(2
Ww
judge adequately explained upwardly
variant 120-months new-crime sentence;
(3) any error was harmless in judge’s sentencing comment when he stated that
defendant stepping out of vehicle, leaying his girlfriend and two minors in
vehicle with weapons, ammunition, and
magazines, appeared to be veiled attempt not to be charged with firearms
possession; and
(4) defendant’s 120-months above-guidelines sentence did not. produce an un-
125 FEDERAL REPORTER, 4th SERIES
warranted sentencing disparity compared with his girlfriend.
Affirmed.
1. Criminal Law ©1139
Court of Appeals reviews de novo
whether the government breached a plea
agreement, i.e., without deference to the
district judge’s ruling on this legal issue.
2. Criminal Law 1139
Court of Appeals reviews de novo
whether the government breached a plea
agreement only for preserved claims, i.e.,
claims the defendant raised in the court
below.
3. Criminal Law @=1030(1)
Unpreserved claims, if not waived
(one waives a claim by intentionally relinquishing or abandoning it), receive plainerror review, a notoriously difficult standard to satisfy.
4, Criminal Law ¢-1030(1)
To win on plain-error review, a defendant must show not just an error but an
error that is obvious, meaning an indisputable error under controlling law, such that
the judge should have acted without counsel’s prompting, which affects the defendant’s substantial rights, meaning the error influenced the proceeding’s outcome,
and which would seriously damage the
fairness, integrity, or public perception of
the judicial system if the Court of Appeals,
using its discretion, does not fix it.
5. Criminal Law ¢1042.8(1),
1158.34
Court of Appeals reviews a sentence’s
procedural and substantive reasonableness
for abuse of discretion, with underlying
factfindings inspected for clear error, only
if the defendant objected below; otherwise,
assuming the arguments are not waived,
plain-error review applies.
1156.2,
2a
Appendix A
US. v. FARGAS-REYES
265
Cite as 125 F.4th 264 (1st Cir. 2025)
6. Criminal Law ¢273.1(2)
Plea agreements are like contracts.
7. Criminal Law ¢273.1(2)
When prosecutors agree to make sentencing suggestions as part of a plea
agreement, they must carry out their part
of the bargain by making the promised
recommendation.
8 Criminal Law €=273.1(2)
Being held to the most meticulous
standards of both promise and performance, prosecutors must do more than pay
lip service to their obligations when prosecutors agree to make sentencing suggestions as part of a plea agreement.
9. Criminal Law ¢273.1(2)
Sentencing and Punishment 57
Prosecutor’s duty to honor their plea
agreement pledges in making sentencing
suggestions does not occur in a vacuum;
they must answer the judge’s questions
forthrightly, also if the agreement lets
them request a sentence within a range
that’s stiffer than the defense’s request,
they must tell the judge why their higher
sentence is better and when performing
these duties, they need not sugar-coat the
facts.
10. Criminal Law ¢273.1(2)
Sentencing and Punishment 57
Government did not breach plea
agreement by allegedly effectively advocating for a higher-than-bargained-for sentence above the agreed upon 57-71 months
imprisonment for illegally possessing firearms and ammunition as a convicted felon;
defendant’s breach theory alleged that
even though plea agreement let parties
request a sentence anywhere from 57-71
months, and even though Government did
request 71 months, the prosecutor did not
tailor her pitch to push back on probation’s
range of 70 to 87 months and thus her
spotlighting certain aggravating facts to
supposedly secure a sentence at the higher
end of the plea agreement’s range effectively voiced support for a sentence at the
high end of probation’s range, however,
defendant pointed to no plea agreement
language obliging prosecutor to adjust her
pitch to probation’s suggested range. 18
U.S.C.A. § 8553(a).
11. Sentencing and Punishment ¢~930
Sentence is procedurally unreasonable
if the judge miscalculated the guidelines
range, did not consider the relevant statutory sentencing factors, picked a sentence
based on clearly erroneous facts, or did not
adequately explain the ultimate choice. 18
USS.C.A. § 35538(a).
12. Criminal Law ¢1043(3), 1130(5)
Defendant waived claim for appellate
review challenging the judge applying stolen-firearm sentencing enhancement after
probation indicated that one of defendant’s
guns was reported as stolen weapon in
FBI’s National Crime Information Center
(NCIC), alleging database was unreliable,
in prosecution for illegally possessing firearms and ammunition as convicted felon;
defendant protested in the trial court to
the stolen-firearm enhancement alleging
he did not know about a firearm being
stolen and that Government had not proven he had knowledge of the firearm’s status as stolen when he possessed it and
used recent Supreme Court case Rehaif v.
United States, 588 U.S. 225, 189 S.Ct.
2191, to allege enhancement was only
available if prosecutors showed that he
knew the gun was stolen, however, in appellate brief defendant faulted Government
for not proving that NCIC info was reliable, and defendant failed to tie claim to
plain error standard. 18 U.S.C.A.
§ 922(g)(1); U.S.8.G. § 2K2.1(b)(4)(A).
13. Sentencing and Punishment ¢=2262
Remedy for a defendant who seeks
resentencing under a retroactive Sentenc-
3a
Appendix A
266
ing Guidelines amendment is to file a motion in the district court.
14. Sentencing and Punishment ¢=372,
373
Judge must explain in open court the
reasons for the imposition of a particular
sentence, but the explanation’s adequacy
depends on the case’s complexity. 18
US.C.A. § 3558(c).
15. Sentencing and Punishment ¢—373
In explaining the reasons for the imposition of a particular sentence, the judge
should set forth enough to satisfy the
Court of Appeals that he has considered
the parties’ arguments and has a reasoned
basis for exercising his own legal decisionmaking authority.
16. Sentencing and Punishment ¢=373
In explaining the reasons for the imposition of a particular sentence, a judge
using statutory sentencing factors already
included in a guidelines range to impose an
outside-the-range sentence must say what
makes those factors worthy of extra
weight. 18 U.S.C.A. § 3553(¢).
17. Sentencing and Punishment €=373
Judge adequately explained the upwardly variant 120-months new-crime sentence would advance just punishment, deterrence, public protection, and respect for
the law, as required for the procedural
reasonableness of his sentence for illegally
possessing firearms and ammunition as a
convicted felon; judge noted that he knew
few weapons more dangerous than a machinegun, judge specifically stressed how
defendant possessed two machineguns, another pistol, one drum magazine, six highvapucity magazines, and 173 rounds of ammunition only three months after leaving
prison on supervised release for another
machinegun-possession crime, neither sentencing provisions used to calculate range
accounted for substantial quantities of am-
125 FEDERAL REPORTER, 4th SERIES
munition or multiple high-capacity magazines, and provisions that added criminalhistory status points to defendant’s newcrime sentence and provided the range for
his revocation sentence did not account for
his committing another gun crime so soon
after his prison release. 18 U.S.C.A.
§ 3553(a); USSG. §§ 2K2.1(a)(8),
2K2.1(b)(1)(A), 4A1.1(d), 7B1.4(a).
18. Sentencing and Punishment ¢-66
Weapons ¢343
Case facts may be deemed atypical,
and therefore support an above-guidelines
sentence, when a defendant possesses significantly more ammunition or magazines
than in a typical case, for purposes of
sentencing defendant for illegal possession
of a firearm by a convicted felon. 18
US.C.A. § 924(a)(2).
19. Criminal Law ©1177.3(2)
Any error was harmless in judge’s
sentencing comment when he stated that
defendant stepping out of vehicle, leaving
his girlfriend and the two minors in the
vehicle with the weapons, the ammunition,
and the magazines, appeared to be a veiled
attempt not to be charged with firearms
possession, in sentencing defendant for illegally possessing firearms and ammunition as a convicted felon; transcript showed
that what propelled defendant’s sentence
was his possessing two machineguns, 1
pistol, and 173 rounds of different-caliber
ammunition mere months into a supervised-release term for an earlier machinegun-possession crime, and the record did
not indicate the judge’s veiled-attempt
comment even arguably affected the sentence. U.S.S.G. §§ 2K2.1(a)(3),
2K2.1(b)(1)(A).
20. Sentencing and Punishment 56
Weapons ©343
Defendant’s 120-months above-guidelines sentence for illegally possessing fire-
4a
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U.S. vy. FARGAS-REYES
267
Cite as 125 F.4th 264 (1st Cir. 2025)
arms and ammunition as a convicted felon
did not produce an unwarranted sentencing disparity compared with his girlfriend’s
37-months within-guidelines sentence after
machine guns, magazines, and ammunition
were found in their vehicle after police
attempted to stop them; girlfriend was
subject to a lower applicable guidelines
sentencing range than defendant, and defendant, unlike his girlfriend, did his
crimes while on supervised release. 18
U.S.C.A. § 3553(a); U.S.S.G. §§ 2K2.1(a)(3),
2K2.1(b)(1)(A).
21. Criminal Law ¢>1130(5)
Defendant waived for appellate review
any argument attempting to contest the
procedural reasonableness of his revocation sentence after he was convicted, while
on supervised release, for illegally possessing firearms and ammunition as a convicted felon; in a few spots in his opening brief
defendant blamed the judge of not passably explaining the two upwardly variant
sentences but never developed those casual remarks.
22. Sentencing and Punishment ¢=32
Sentence is substantively unreasonable if the judge acted too harshly given
the totality of the circumstances.
23. Sentencing and Punishment ¢=40
Because there is more than one reasonable sentence in just about every case,
reversal will result only if the term falls
outside the vast universe of reasonable
sentencing outcomes.
24, Criminal Law €1130(5)
Defendant waived for appellate review
challenge to the substantive reasonableness of his 24-months revocation sentence,
following his conviction for illegally possessing firearms and ammunition as a convicted felon while he was on supervise
1. The major background events are undisputed unless otherwise noted (we simplify the
release; defendant’s opening brief’s statement of the case section said that he objected in the trial court to the substantive
reasonableness of his 24-months revocation
sentence but failed to brief the issue in his
briefs argument section.
APPEALS FROM THE UNITED
STATES DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO [Hon.
Francisco A. Besosa, U.S. District Judge]
Jackson Whetsel, with whom Rachel
Brill, Federal Public Defender, Franco L.
Pérez-Redondo, Assistant Public Defender,
Supervisor, Appellate Section, and Alejandra Bird-Lépez, Assistant Public Defender, were on brief, for appellant.
Ethan A. Sachs, with whom W. Stephen
Muldrow, United States Attorney, Mariana
E. Bauzé-Almonte, Assistant United States
Attorney, Appellate Chief, and Maarja T.
Luhtaru, Assistant United States Attorney, were on brief, for appellee.
Before Montecalvo, Thompson, and
Aframe, Circuit Judges.
THOMPSON, Circuit Judge.
PREFACE
Jonathan Fargas-Reyes is a repeat firearms offender. Read on to learn more
about his brushes with the law and why we
can’t vacate his sentences for committing
another gun crime and for violating an
earlier supervised release.
HOW THE CASE GOT HERE !
Back in September 2021, Fargas (as
we'll now call him, per Spanish-naming
customs) pled guilty to unlawfully possessing a Glock pistol changed to fire as a
details here rather aggressively, adding more
info later as needed for specific issues).
ba
Appendix A
268
machinegun. See 18 U.S.C. §$ 922(0). A
federal judge sentenced him to 33 months
in prison plus 8 years of supervised release” He started supervised release in
November 2021. But he didn’t stay out of
trouble for very long.
Jump ahead only a few months, to January 2022. Puerto Rico police spied Fargas
outside a house he shared with girlfriend
Mary Herrera-Cruz (officers had heard he
had a stolen Hyundai Tucson there). He
was packing a pistol in his waistband and
holding an AK-47-looking rifle in his right
hand. Standing next to Herrera’s Kia Rio,
Fargas popped open the hatchback, put
the AK-47 in a duffel bag and the pistol in
a backpack, and dropped them both in the
rear area before closing the door.
Herrera then walked over with her two
young daughters. And everyone — Herrera (driver’s seat), Fargas (front passenger’s seat), and the girls (back seats) —
got in the Kia. Fargas pulled a ski mask
with eyeholes down over his face. Herrera
drove off.
The police tried to stop them. But Herrera kept right on going. Following a short
chase, Fargas stuck his arms out the car’s
window. Herrera stopped the Kia. And
2. Supervised release and the conditions on
that release help “criminal defendants and
the public alike by facilitating sooner rather
than later” the offenders’ ‘re-entry into society.’ See United States v. Shultz, 733 F.3d
616, 624 (6th Cir. 2013); see also United
States v. Siegel, 753 F.3d 705, 708 (7th Cir.
2014) (stating that “[rleducing recidivism is
the main purpose of supervised release,
though some of the conditions of supervised
release are intended to help the released prisoner adjust to life on the outside even if there
is no worry that without them he would be
likely to commit crimes’’).
3. For anyone needing a refresher on how a
federal district judge approaches sentencing,
here it is. Using the now-advisory federal sentencing guidelines (Fargas’s judge used the
125 FEDERAL REPORTER, 4th SERIES
Fargas got out. Not ready (apparently) to
give herself up, Herrera sped away.
After arresting Fargas, the police again
raced after Herrera. Spotting her Kia on
the side of the road, officers watched her
fling the duffel bag into some bushes. She
then closed the hatchback, got behind the
wheel, and tried again to shake them. But
she hit a barrier and then another vehicle
(with the two girls still seated in the back
of the Kia).
The police arrested Herrera too. And
their search of the recovered duffel bag
and backpack revealed 2 Glock pistols
modified to fire as machineguns, 1 AK-47
pistol, 1 drum magazine, 6 high-capacity
magazines, and 173 rounds of assortedcaliber ammo.
Indicted federally on firearms-related
charges, Fargas and Herrera signed plea
agreements with the government. Fargas — in February 2023 — pled guilty to
illegally possessing firearms and ammunition as a convicted felon. See 18 U.S.C.
§ 922(g)(1). And Herrera — two months
earlier, in December 2022 — pled guilty to
aiding and abetting a convicted felon in
illegally possessing firearms and ammunition. See id.; see also 18 U.S.C. § 2.
We'll have plenty to say later about
what happened at sentencing.’ But for now
2021 guidelines edition, the one in effect at
the time of sentencing), the judge sets the
defendant's
base offense level — i.2., a point score for a
specified offense or group of offenses. The
[judge] then make[s] adjustments for any
aggravating or mitigating factors in the defendant’s case, thus arriving at a total offense level. The [judge] also assign[s] points
based on the defendant's criminal history —
points that get converted into various criminal history categories, designated by Roman numerals I through VI. Armed with
this info, the judge turns to the guidelines’s
sentencing table. And by plotting the defendant’s total offense level along the table’s
vertical axis and his criminal history category along the table’s horizontal axis, the
6a
Appendix A
US. v. FARGAS-REYES
269
Cite as 125 F.4th 264 (1st Cir. 2025)
i?s enough to note the following. The
judge gave Fargas 120 months in prison
for the new crime (the statutory max), well
above both the parties’ recommended
range (57 to 71 months, with Fargas requesting 57 months and the government
requesting 71 months) and the judge’s calculated range (70 to 87 months, which
mimicked probation’s suggested range).‘
Because Fargas’s conduct violated his supervised release for his earlier unlawfulgun-possession crime, the judge gave him
an additional 24 months in prison (8
months above the uncontested 15-to-21-
months range) for that infraction — to be
served consecutively. The judge sentenced
Herrera to 87 months in prison for her
crime, well above both the parties’ recommended range (18 to 24 months) but at the
very bottom of the judge’s calculated
range (87 to 46 months, which mirrored
probation’s suggested range).®
On appeal, Fargas (the only defendant
before us) accuses the government of
judge ends up with an advisory prison
range. From there, the judge sees if any
departures are called for, considers various
sentencing factors [listed in 18 U.S.C.
§ 3553(a)], and determines what sentence
(whether within, above, or below the suggested range) seems appropriate.
United States v. Martinez-Benitez, 914 F.3d 1,
2 n.2 (1st Cir. 2019) (citations omitted). As for
the § 3553(a) factors, there are seven of them.
Factor one is “the nature and circumstances of the offense and the history and
characteristics of the defendant.”’ 18 U.S.C.
§ 3553(a)(1). Factor two is
the need for the sentence ... (A) to reflect
the seriousness of the offense, to promote
respect for the law, and to provide just
punishment for the offense; (B) to afford
adequate deterrence to criminal conduct;
(C) to protect the public from further
crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical
care, or other correctional treatment in
the most effective manner.
Id. § 3553(a)(2). Factor three is “the kinds
of sentences available.” Id. § 3553(a)(3).
breaching the plea agreement and criticizes the judge for selecting procedurally
and substantively unreasonable sentences
(we affirmed Herrera’s sentence in an unpublished judgment and so discuss her
ease details only on a need-to-know basis).
STANDARDS OF REVIEW
[1-4] We review de novo whether the
government breached a plea agreement
(2.e., without deference to the district
judge’s ruling on this legal issue). See, e.g.,
United States v. Almonte-Numiez, 771 F.3d
84, 89 (1st Cir. 2014). But we do so only for
preserved claims (i.¢., claims the defendant
raised in the court below). See id. Unpreserved claims — if not waived (one waives
a claim by intentionally relinquishing or
abandoning it) — receive plain-error review, a notoriously difficult standard to
satisfy. See, e.g., id; see also United
States v. Olano, 507 U.S. 725, 738, 118
S.Ct. 1770, 123 L.Ed.2d 508 (1998). To win,
Factor four is the guidelines. Id.
§ 3553(a)(4). Factor five is ‘‘any pertinent
policy statement ... issued by the [slentencing [c]ommission.” Id, § 3553(a)(5).
Factor six is “the need to avoid unwarranted sentence disparities.” Id. § 3553(a)(6).
And factor seven is ‘‘the need to provide
restitution to any victims.” Id. § 3553(a)(7).
United States v. Correa-Osorio, 784 F.3d 11,
28 n.24 (Ist Cir. 2015); see also Rita v. United
States, 551 U.S. 338, 347-48, 127 S.Ct. 2456,
168 L.Ed.2d 203 (2007). The probation office
prepares a “‘presentence investigation report”
to help the judge in the sentencing process.
We'll just call that document (commonsensically if somewhat unimaginatively) the ‘‘report’ the rest of the way.
4. A sentence like Fargas’s — one that’s above
the recommended guidelines range — is often
referred to as an above-guidelines sentence or
as an upwardly variant sentence. We'll use
the two terms (or something similar) interchangeably.
5. The same judge sentenced both Fargas and
Herrera.
7a
Appendix A
270
a defendant must show not just an error
but an error that’s obvious (meaning an
indisputable error under controlling law,
such that the judge should’ve acted without counsel’s prompting), which affects the
defendant’s substantial rights (meaning
the error influenced the proceeding’s outcome), and which would seriously damage
the fairness, integrity, or public perception
of the judicial system if we (using our
discretion) don’t fix it. See, e.g., Puckett v.
United States, 556 U.S. 129, 185, 129 S.Ct.
1423, 173 L.Ed.2d 266 (2009); United
States v. Sansone, 90 F.4th 1, 7, 8 (st Cir.
2024); United States v. McCullock, 991
F.3d 318, 317 (1st Cir. 2021); United States
vy. Montafiez-Quifones, 911 F.3d 59, 63-64
(Ast Cir. 2018).
[5] Conversely, we review a sentence’s
procedural and substantive reasonableness
for abuse of discretion — with underlying
factfindings inspected for clear error —
only if the defendant objected below. See,
e.g., United States v. Razo, 782 F.3d 81, 36
(Ist. Cir. 2015). Otherwise — assuming the
arguments aren’t waived — plain-error review applies. See, e.g., United States v.
Lépez-Felicie, 109 F.4th 51, 57 (st Cir.
2024).
PLEA-BREACH CLAIM
[6-9] First up is the plea-breach issue,
starting with some legal basics. Plea
agreements are like contracts. See, e.g.,
United States v. O’farrill-Lépez, 991 F.3d
45, 48 (1st Cir. 2021). So when prosecutors
agree to make sentencing suggestions,
they “must carry out [their] part of the
bargain by making the promised recommendation[s].” See United States v. Benchimol, 471 U.S. 453, 456, 105 9.Ct. 2108,
85 L.Hid.2d 462 (1985). Being held “to the
most meticulous standards of both promise and performance,” they must do more
than pay “lip service” to their obligations.
See United States v. Lessard, 35 F.4th 87,
125 FEDERAL REPORTER, 4th SERIES
42 (1st Cir. 2022) (cleaned up and emphasis added) (first quoting United States v.
Clark, 55 F.3d 9, 14 (1st Cir. 1995), and
then quoting Almonte-Nufez, 771 F.3d at
89). But their duty to “honor” their pleaagreement pledges doesn’t occur in a “vacuum.” See United States v. Colén-Rosario,
921 F.3d 306, 312 (1st Cir. 2019). They
must “answer the [judge’s] questions
forthrightly,” for example. See id. Also if
the agreement lets them request a sentence within a range that’s “stiffer” than
the defense’s request, they must tell the
judge “why [their] higher sentence” is better. See Lessard, 385 F.4th at 43 (cleaned
up). And when performing “these duties,”
they needn’t “sugar-coat the facts” either.
See Colén-Rosario, 921 F.3d at 312.
[10] Moving from generalities to specifies, we inspect the language of Fargas’s
plea agreement. One key provision says
that he and the government agreed —
“after due consideration of the relevant
factors” cataloged in § 35538(a) (see our
footnote 3) — that they would “request” a
prison term within the range “of 57-71
months.” Another says that they agreed
that “any recommendation by either party
for a term of imprisonment below or above
the stipulated sentence recommendation
will constitute a material breach of the
[p]lea [a]lgreement.” And yet another says
that he agreed that the to-be-imposed sentence “will be determined solely by the
(judge],” who’s “not required to accept”
the parties’ “recommended [sentencing]
calculations.”
Sort of building off this document, Fargas reasons that the government broke the
agreement “by effectively advocating for”
a higher-Lhau-barpained-for sentence. His
logic — as we grasp it — goes something
like this. (1) 71 months is the top of the
parties’ “57-71 months” suggested range.
(2) By the time of sentencing, however,
probation had recommended a 70-87-
8a
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Cite as 125 F.4th 264 (1st Cir. 2025)
months range. (3) Probation’s analysis —
unlike the parties’ — included (i) a stolengun sentencing enhancement because the
National Crime Information Center’s database listed one of the Glocks as stolen; (ii)
a criminal-history enhancement because he
“committ[ed] the instant offense while under a criminal justice sentence,” known in
sentencing parlance as a status-points adjustment; and (iii) a possible upward variance based partly on probation’s view that
the guidelines didn’t account for the 1
drum magazine, 6 high-capacity magazines, and 178 bullets recovered.® (4) Objecting to these aspects of probation’s appraisal, Fargas requested a 57-months
sentence — the lowest suggested sentence
under the agreement. (5) But in requesting
71 months — the highest suggested sentence under the agreement — the prosecutor “emphasizled] aggravating facts,” without modifying her “pitch[ ]” to probation’s
recently proposed 71-87-months range.
And “given the context,” her “arguments
read as reasons” — made with knowing
winks and nods — “to drive the sentence
upward within” probation’s calculated
“range” and “even beyond” (or so his thesis wraps up).’
Commendably, Fargas correctly concedes that he must show plain error because he didn’t push that argument below.
But faced with what looks to be a “90-
degree climb,” he can’t scale plain error’s
6. Just as an fyi, we discuss the subjects identified in romanettes (i)-(iii) later in the opinion
as well.
7. Fargas also argues that the government's
backing probation’s suggestion that a stolenfirearm adjustment should apply and that the
amount of ammo could justify an upward
variance worked a breach of the agreement.
We think not. Our read of the transcript convinces us that the prosecutor simply answered
the judge’s questions when asked — she
didn’t push for the adjustment and made no
bones that “we did not consider this as part of
the plea agreement’’ but that the government
challenging heights. See United States v.
Takesian, 945 F.8d 558, 562 (1st Cir. 2019).
Knowing that “[t]he simplest way” to
handle an issue “is often the best” way, see
Stor/Gard, Inc. v. Strathmore Ins. Co., 717
F.3d 242, 248 (1st Cir. 2018) (quotation
marks omitted), we needn’t linger. “Not all
breaches will be clear or obvious,” our
judicial superiors tell us. See Puckett, 556
US. at 148, 129 8.Ct. 1428. Which is why
plain error’s second prong — requiring the
complaining party to flag an undeniable
mistake — often has “ ‘bite’ in plea-agreement cases.” See id. The very gist of Fargas’s breach theory is that even though the
agreement let the parties request a sentence anywhere from 57 to 71 months, and
even though the government did request
71 months, the prosecutor didn’t tailor her
“pitch[ |” to push back on _ probation’s
range of 70 to 87 months and so her
spotlighting certain aggravating facts to
supposedly secure a sentence at the “higher end” of the plea agreement’s range
“effectively voiced support for a sentence
at the high[] end” of probation’s range
“and beyond.” But he points to no pleaagreement language obliging the prosecutor to adjust her “pitch[ ]” to probation’s
suggested range in the way he claims she
had to. And he points to no binding authority finding a breach in the specific circumstances of his case.* Which plainly won’t do
“will not go against the plea agreement” and
that “our recommendation will still maintain
what the plea agreement states.” And she
replied ‘‘[nJo”’ when defense counsel asked —
after a back-and-forth with the judge — about
whether the government was suggesting that
the amount of ammo “is a factor to upwardly
vary.” So what she said ‘did not cross the
line into forbidden terrain.” See Almonte-Nufiez, 771 F.3d at 90.
8. Fargas is wrong if he thinks United States v.
Cortés-Lépez, 101 F.4th 120 (1st Cir. 2024),
fills that gap. Cortés-Lépez held that because
the parties’ joint recommendation of 24
9a
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272
on plain-error review. See, e.g., McCullock,
991 F.3d at 317.8
Because that’s enough to decide the
breach issue, we needn’t — indeed,
mustn't — address any other breach-related arguments. See United States v. Leach,
89 F4th 189, 201 (1st Cir. 2023) (noting
that the panel “start[ed] — and
end[ed]” — its analysis “at the second step
of [the plain-error] framework” (emphasis
added)); see also PDK Lab’ys Inc. v. DEA,
362 F.8d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring
in the judgment) (explaining that “if it is
not necessary to decide more, it is necessary not to decide more”).
PROCEDURAL-REASONABLENESS
CLAIMS
[11] Next up is the procedural-reasonableness issue. For the uninitiated, a sentence is procedurally unreasonable if the
months of probation differed so drastically
from probation’s recommendation of 78 to 97
months in prison, the government had to offer
“some minimal explanation” for “such a
seemingly off-kilter, well-below guidelines
recommendation” — with its failure not to do
so being “tantamount to a repudiation of the
[plea] agreement.” Id. at 133. United States v.
Acevedo-Osorio, 118 F.4th 117 (1st Cir.
2024) — another case Fargas relies on — is
cut from similar cloth. After noting that the
parties jointly agreed to recommend 120
months in prison even though the guidelines
prison range was 292 to 365 months, Acevedo-Osorio held that the government had to,
but didn’t, give “‘at least a ‘minimal explanation’’”’ for “ ‘such a dramatic downward variation.’ ’’ See id. at 132 (quoting Cortés-Lépez,
101 F.4th at 132, 133); see also id, at 132-33
(stressing that despite the glaring difference
between the plea agreement and the calculated sentencing range — the prosecution's proposal “was, in raw terms, fourteen years less
than the minimum sentence called for by the
(gluidelines, and, in relative terms, less than
half as long’ — the government's lack of
explanation for such ‘‘a startingly lenient’
proposal left the “inevitably skeptical” judge
in the dark about “why, in the government's
125 FEDERAL REPORTER, 4th SERIES
judge miscalculated the guidelines range,
didn’t consider the relevant § 3553(a) factors, picked a sentence based on clearly
erroneous facts, or didn’t adequately explain the ultimate choice. See, e.g., Gall v.
United States, 552 U.S. 38, 51, 128 S.Ct.
586, 169 L.Ed.2d 445 (2007).
New-Crime Sentence
Fargas offers lots of reasons why he
thinks the upwardly variant 120-months
new-crime sentence isn’t procedurally reasonable. But none of his complaints merits
relief (we discuss them in the order that
makes sense to us).
Stolen Firearm
[12] The judge applied a stolen-firearm
enhancement after probation indicated
that one of Fargas’s Glocks “was reported
as a stolen weapon” in the FBI’s National
view, the sentence was proper’). Fargas’s situation — involving a plea agreement with a
proposed range of 57 to 71 months, a probation report with a suggested range of 70 to 87
months, and a government request of 71
months — is, however, night-and-day different.
9. Fargas’s reliance on United States v. Gonczy, 357 F.3d 50 (1st Cir. 2004), and cases
inspired by Gonczy, doesn’t help his cause.
The government there agreed to recommend
a sentence at the low end of the guidelines
range. Id. at 51. The judge at sentencing calculated a range of 70 to 87 months. Id. at 51.
And the prosecutor did recommend 70
months. Id. But after describing how the defendant had (among other things) “ruined
many lives,’ she argued that he “at a minimum deserves what the guidelines provide for
and those are his just des[slerts.” Id. at 53-54,
In other words, despite agreeing to endorse a
low-end guidelines-range sentence, the prosecutor argued that the entire guidelines
range — covering 17 months — represented
the “minimum” amount of time he deserved.
Nothing like that happened here, however.
Which removes Fargas’s case from Gonczy’s
compass.
10a
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US. v. FARGAS-REYES
273
Cite as 125 F.4th 264 (1st Cir. 2025)
Crime Information Center (NCIC for
short) database.!° See USSG
§ 2K2.1(b)(4)(A) (telling judges to up the
offense level by two if the defendant “possessed” a “stolen” firearm). Fargas objected to that enhancement in the district
court, but on grounds entirely different
from his arguments on appeal.
Fargas protested below that he didn’t
know “about a firearm being stolen” until
probation filed its report. And from there
he insisted that he couldn’t be “expos[ed]”
to that enhancement because the government hadn’t proven that he had “knowledge” of the firearm’s “status” as “stolen”
when he possessed it (the defense told the
judge that there’s a “guidelines commentary” that undercut the “argument” but
that the “commentary is contrary to the
law”). His theory pivoted on a then-recent
Supreme Court case, Rehaif v. United
States, 588 U.S. 225, 189 S.Ct. 2191, 204
L.Ed.2d 594 (2019). By way of background
(and as Fargas’s situation shows), convicted felons can’t possess firearms. See 18
U.S.C. § 922(g)(1). And anyone who
“knowingly violates” that ban may be imprisoned up to 10 years (the sentence Fargas got). See 18 U.S.C. § 924(a)(2) (emphasis added). Construing these provisions,
10. FBI of course is short for the Federal
Bureau of Investigation.
11. Again, remember that the judge used the
2021 version of the sentencing guidelines.
12. Discussing United States y. Parlor, 2 F.4th
807 (9th Cir. 2021) — after saying our Bryant
opinion establishes binding precedent on the
issue — Fargas (responding to the government’s brief) admits that other circuits have
held that NCIC reports can provide “‘ |sufficient evidence showing that [a] []gun was
stolen,” particularly where “the government's
evidence was uncontroverted.” See id. at 814;
see also United States v. Saunders, 572 F.
App’x 816, 817-18 (11th Cir. 2014) (holding
that “{t]he district court did not clearly err in
imposing the two-level enhancement for a sto-
Rehaif held that the government must,
prove not only that a defendant “knew he
possessed a firearm” — but that the defendant also knew “that he” is a convicted
felon “when he possessed it.” See 588 U.S.
at 227, 139 S.Ct. 2191. And Fargas said in
his sentencing memo and at sentencing
that Rehaif’s “logic” means he could only
get the enhancement if prosecutors
showed that he knew the gun was stolen
when he had it (which, he continues, prosecutors never did).
Swapping out that argument for something new on appeal, Fargas now faults the
government for not proving that the NCIC
info was reliable enough to support the
enhancement. See United States v. Bryant,
571 F.8d 147, 155 (ist Cir. 2009) (ruling
that “it was simply not enough for the
district court to have relied on the government’s recitation of the [NCIC and other
database] sources [about a prior conviction] cited in [probation’s report] without
any additional inquiry into the reliability of
these sources”).” Tellingly, his appellate
briefs never invoke Rehaif, despite the
starring role Rehaif played below for him.
Which helps drive home how his knowledge-centric argument to the judge isn’t
len firearm” because the NCIC reports (which
included ‘‘the firearms’ serial numbers”) had
“sufficient indicia of reliability to support the
probable accuracy of the fact that at least one
of [defendant's] firearms was reported stolen” ~— and also ruling that the lower court
“did not plainly err by failing to make explicit
findings of fact regarding the reports’ reliability” because (among other things) “NCIC reports are generally recognized as reliable,
making the reliability of the evidence apparent from the record”), He tries to downplay
these decisions by, for example, claiming they
“contain{] virtually no analysis.” But for
present purposes none of this matters: given
that we (spoiler alert) are about to rule
against Fargas on waiver, we leave for another day (without expressing our view) the knotty
question of the NCIC’s reliability.
lla
Appendix A
274
the same as his reliability-centrie argument to us.
And that’s a big deal. By débuting this
reliability-based claim on appeal, Fargas
must run the plain-error gauntlet. See,
eg., United States v. Soto-Soto, 855 F.3d
445, 448 n.1 (1st Cir. 2017) (stating that
“[tlo preserve a claim of error for appellate review, an objection must be sufficiently specific to call the district court’s
attention to the asserted error”). But he
doesn’t tie his claim to that exacting standard. Which means he’s waived the claim.
See, e.g., United States v. Cruz-Ramos,
987 F.8d 27, 40 (1st Cir. 2021).
Status Points
[13] Fargas writes that after his sentencing the federal sentencing commission
retroactively amended the guidelines to
“eliminate[ ] the two ‘[s]tatus [p]oints’”
that elevated his criminal-history score.
See USSG Supp. to App. C, Amend. 821 at
234-36 (Nov. 1, 2023); USSG Supp. to App.
C, Amend. 825 at 260-61 (Nov. 1, 2023).¥
And he asks us to remand his case for
resentencing under this amended provision. But “[t]he remedy for a defendant
who seeks resentencing under a retroactive guideline[s] amendment is to file a
motion in the district court.” United States
v. Jones, 778 F.3d 375, 390 (1st Cir. 2015).
So we reject his invite without prejudice to
his “right to file a motion in the district
court seeking this relief.” See id.
Explanation
Pushing a preserved argument, Fargas
claims that the judge inadequately explained the upward variance — a type of
13. The sentencing commission, by the way, is
“a nonelected body within the judicial
branch” that “continually update[s]’” the
guidelines to encourage “ ‘better sentencing
practices’ and ‘uniformity in the sentencing
process.'"’ See United States v. Flores-Gonzalez, 86 F.4th 399, 419, 423 n.13 (1st Cir.
125 FEDERAL REPORTER, 4th SERIES
issue familiar to us from other sentencing
cases (though one that’s not always easy to
resolve despite being familiar).
[14-16] Some legal rules of thumb. A
judge must explain “in open court the reasons for [the] imposition of [a] particular
sentence.” 18 U.S.C. § 3553(c). But the
explanation’s adequacy depends (unsurprisingly) on the case’s complexity. See,
eg. Rita, 551 U.S. at 356, 127 S.Ct. 2456
(observing that “[t]he appropriateness of
brevity or length, conciseness or detail,
when to write, what to say, depends upon
circumstances”). The judge “should set
forth enough to satisfy [us] that he has
considered the parties’ arguments and has
a reasoned basis for exercising his own
legal decisionmaking authority.” See id.;
see also Gall, 552 U.S. at 50, 128 S.Ct. 586
(remarking that a judge “must adequately
explain the chosen sentence to allow for
meaningful appellate review and to promote the perception of fair sentencing”).
“Sometimes the circumstances will call for
a brief explanation; sometimes they will
call for a lengthier explanation,” Rita, 551
USS. at 357, 127 S.Ct. 2456 — an aboveguidelines sentence (which we have here)
requires more of an explanation than a
within-guidelines sentence, for instance,
see Gall, 552 U.S. at 50, 128 S.Ct. 586. And
sometimes the “context and the record”
clarify the reasons underlying the judge’s
decision. See Rita, 551 U.S. at 357, 359,
127 8.Ct. 2456. Last (but hardly least), a
judge using factors already included in a
guidelines range to impose an outside-therange sentence must say what makes those
factors worthy of extra weight. See, e.g.,
2023) (equally divided en banc court)
(Thompson, joined by Barron, C.J., and Montecalvo, J.) (quoting United States v. Booker,
543 U.S. 220, 263, 125 S.Ct. 738, 160 L.Ed.2d
621 (2005)), cert. denied, No. 23-7165, —
US. , 145 S.Ct. 181, — L.Ed.2d ——
(U.S. Oct. 7, 2024).
12a
Appendix A
US. v. FARGAS-REYES
275
Cite as 125 F.4th 264 (Ist Cir. 2025)
United States v. Leach, 89 F.4th 189, 197
(1st Cir. 2023).
[17] Now on to what Fargas’s judge
said. Having read the key papers (Fargas’s
memo, probation’s report, and Fargas’s objections to that report), and having then
heard counsel’s concerns in person, the
judge ruled that only an above-guidelines
sentence could advance just punishment,
deterrence, public protection, and respect
for the law — each a § 3553(a) factor (see
our footnote 3) “that help[s] guide” a
judge’s sentencing “discretion.” See United
States v. Tanco-Pizarro, 892 F.3d 472, 476
(1st Cir. 2018). Noting that he knew “few
weapons ... more dangerous” than a machinegun, the judge tied his choice to casespecific matters — specifically stressing
how Fargas possessed 2 machineguns (the
modified Glock pistols), plus 1 AK-47 pistol, plus 1 drum magazine, plus 6 highcapacity magazines, plus 178 rounds of
ammo (in different calibers) only “three
months” after leaving prison on supervised
release for another machinegun-possession
crime (emphasis in quoted part ours)."
14. Fargas (recall) began his supervised release for the earlier gun crime in November
2021 and committed the current gun crime in
January 2022. So it seems the judge got
“three months” by counting November 2021
as month #1, December 2021 as month #2,
and January 2022 as month #3.
15. Leaving no argument unturned, Fargas
claims that because having a gun usually involves having bullets and magazines, it’s fair
to expect that a defendant in a typical illegalgun possession case will have some ammo
and magazines too. True enough. See United
States v. Rivera-Berrios, 968 F.3d 130, 133,
135 (1st Cir. 2020) (holding that possessing
36 rounds of ammo and 2 high-capacity magazines ‘‘was entirely consistent with simple
possession of a machine gun’’). But case facts
“may be deemed atypical, and therefore support an above-guideline[s] sentence, when a
defendant possesses significantly more ammu-
[18] A disappointed Fargas criticizes
the judge for not saying why he based the
above-guidelines sentence on factors —
guns, ammo, and new crime done during
supervised release — already (supposedly)
included in the guidelines calculus. The
criticism misses the mark, however. USSG
§ 2K2.1(a)(3) — which sets the base-offense level — contemplates possession of
just 1 machinegun. USSG
§ 2K2.1(b)(1)(A) — which enhanced that
level — contemplates a bunch of “fire-
arms,” not (as here) a bunch of machineguns. See United States v. Ortiz-Vidot, No.
20-1719, 2021 WL 5863422, at *8 (st Cir.
Dec. 10, 2021). And neither provision “account[s] for ... substantial quantities of
ammunition” or “multiple high-capacity
magazines.” See United States v. Bruno-
Campos, 978 F.3d 801, 806 (1st Cir. 2020);
see also United States v. Diaz-Lugo, 963
F.3d 145, 156 (1st Cir. 2020) (affirming an
above-guidelines sentence where the relevant guideline accounted for only 1 of defendant’s 2 guns and none of his 4 highcapacity magazines).” On top of that
USSG §§ 4A1.1(d) and 7B1.4(a) — which
(respectively) added the criminal-history
nition or magazines than in a typical case.”
United States v. Rosario-Merced, 109 F.4th
77, 83 (Ist Cir. 2024). And while judges
shouldn’t pick sentences “just by counting
bullets,” see id., the problem for Fargas is
that we've affirmed above-guidelines terms
for defendants possessing less ammo than he
possessed (that is, lower amounts sufficed for
the upward variances), see United States v.
Rivera-Santiago, 919 F.3d 82, 83, 85-86 (1st
Cir. 2019) (ruling that possessing 127 rounds
of ammo and 5 magazines (2 of which were
high-capacity) ‘‘differentiate[d]’’ the defendant’s crime from the typical ‘‘felon-in-possession offense contemplated by the guidelines”);
see also Rosario-Merced, 109 F.4th at 84 (collecting similar cases). Fargas seems to wish
the law were otherwise. But like all threejudge panels, we are bound by the law as it is.
See, e.g., San Juan Cable LLC v. P.R. Tel. Co.,
612 F.3d 25, 33 (1st Cir. 2010).
13a
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276
status points to Fargas’s new-crime sentence and provided the range for his revocation sentence — don’t account for his
committing another gun crime so soon after his prison release, “facts [that] remove
[his] case from the heartland of the applicable guideline[s] provisions.” See Diaz-
Lugo, 963 F.3d at 155."
What we've said also distinguishes Fargas’s case from cases like Rivera-Berrios.
As “the driving force behind [an] upward
variance,” the judge there seemingly “relied on nothing beyond the mere fact that
the offense of conviction involved a machine gun,” see 968 F.3d at 135 — that is,
he zeroed in on no “special characteristic
attributable either to the offender or to the
offense of conviction” that “remove[d]” the
“ease from the mine-run” of cases covered
by the guidelines, see id. at 137. But by
“consider[ing]” Fargas’s “machinegun possession ... alongside other, case-specific
jactors” — as the preceding two paragraphs show — the judge here avoided the
kind of reversible error present there (despite Fargas’s contrary view). See United
States v. Polaco-Hance, 103 F.4th 95, 101
(ist Cir. 2024) (emphasis added); see also
United States v. Carmona-Alomar, 109
F Ath 60, 75 (ist Cir. 2024).
16. As for Fargas’s claim that the judge gave
“no explanation” for why the short time between the release and the new offense mattered, we say this. The judge focused laserlike on how Fargas did the same kind of
crime as before just “three months’’ after his
release. See United States v. Pedroza-Orengo,
817 F.3d 829, 834 (Ist Cir. 2016) (affirming
an above-guidelines sentence for a firearms
crime where the judge “highlighted the fact
that [the defendant] had committed the instant offense within a year of his release from
incarceration for a prior firearms offense’’),
And the judge’s comments came on the heels
of his mentioning how the sentence must mirror the gravity of the crime plus support fair
punishment, deterrence, public safety, and respect for the law — thus linking Fargas’s case
125 FEDERAL REPORTER, 4th SERIES
Unsupported Speculation
[19] Moving on, Fargas (emphasis
ours) brings up the judge’s sentencing
comment — made while discussing the
seriousness of the crime — that
[alfter a short pursuit, Mr. Fargas put
his arms out of the passenger side win-
dow and the vehicle came to a stop and
Mr. Fargas stepped out of the vehicle,
leaving his girlfriend, the two minors in
the vehicle, with the weapons, the ammunition, and the magazines, in what
appears to be a veiled attempt not to be
charged with firearms possession.
According to Fargas, no “reliable record
evidence” supports the judge’s “veiled at-~
tempt” conclusion. But even assuming he
preserved the issue, his argument fails
because any error — if error there was
(and we don’t suggest there was) — is
harmless. See, e.g., United States v. Tavares, 705 F.8d 4, 26-27 (1st Cir. 2018)
(pointing out that “[aJn error is harmless if
it ‘did not affect the district court’s selection of the sentence imposed’” (quoting
Williams v. United States, 503 U.S. 198,
208, 112 S.Ct. 1112, 117 L.Ed.2d 341
(1992))). The transcript shows that what
propelled Fargas’s sentence was his possessing 2 machineguns, 1 AK-47 pistol, and
173 rounds of different-caliber ammo mere
to sentencing’s goals. See United States v.
Vargas-Garcia, 794 F.3d 162, 166 (1st Cir.
2015) (ruling that ‘“[wlhere the record permits a reviewing court to identify both a discrete aspect of an offender’s conduct and a
connection between that behavior and the
aims of sentencing, the sentence is sufficiently
explained to pass muster under [§] 3553(c)’
(quoting United States v. Fernandez-Cabrera,
625 F.3d 48, 54 (1st Cir. 2010))); see also
Uniled States v. Gonzalez-Flores, 988 F.3d
100, 102 (ist Cir. 2021) (holding that the
defendant’s “previous crimes” and ‘“‘troubling
patterns’ — including “weapons involvement,” for instance — indicate that ‘‘sentencing factors, like public protection and deterrence, point in favor of a longer sentence’’),
14a
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US. v. FARGAS-REYES
277
Cite as 125 F.4th 264 (1st Cir. 2025)
months into a supervised-release term for
an earlier machinegun-possession crime. If
more were needed, the judge’s written
“statement of reasons” also jibes with his
sentencing remarks. See United States v.
Martin, 520 F.3d 87, 93 (1st Cir. 2008)
(signaling that we can consider the judge’s
“written statement of reasons” as part of
our reasonableness review). This means
the record doesn’t indicate that the judge’s
veiled-attempt comment even “arguably affected the sentence.” See United States v.
Graham, 976 F.3d 59, 62 (1st Cir. 2020)
(quoting United States v. Alphas, 785 F.3d
775, 780 (ist Cir. 2015)). Which is why we
put this in the harmless category. See id.
Disparity
[20] Fargas makes one last procedural-reasonableness challenge. Hyping another preserved argument, he insists that
his 120-months above-guidelines sentence
produced an unwarranted sentencing disparity compared with girlfriend Herrera’s
37-months within-guidelines sentence (the
need to sidestep unjustified sentencing disparities is a § 8558(a) concern (see our
footnote 3)). As he tells it, the record
“reveal[s]” no reason for treating him
more harshly than Herrera. To get anywhere, he needs to present a true applesto-apples comparison. See, eg. United
States v. Bedini, 861 F.3d 10, 21 (1st Cir.
2017). But this he can’t do because, for
example (and as the government notes
without correction), Herrera “was subject
to a lower applicable [g]uidelines sentencing range” than he was. See id.; see generally United States v. Rivera-Gonzalez, 626
(quoting United States v. Wallace, 578
F.3d 82, 97 (1st Cir. 2009))). Fargas —
unlike Herrera — did his crimes while on
supervised release (conceding at sentencing “that responsibility is different between defendants in this case,” Fargas’s
counsel noted that Herrera is “a first. offender”). See United States v. Cordero-
Velazquez, No. 21-1956, 124 F.4th 44, 58
(ist Cir. Dec. 23, 2024) (holding that the
co-defendants weren’t proper comparators
where (among other reasons) the appellant
“was a prohibited person under the guidelines” — and so subject to a higher offense
level — and his co-defendant wasn’t). And
despite what he seemingly believes, United
States v. Robles-Alvarez, 874 F.3d 46 (1st
Cir. 2017), doesn’t help him, for a simple
reason: because he and she aren’t “fair
congeners,” see United States v. Rivera-
Morales, 961 F.3d 1, 20 (1st Cir. 2020), he
hasn’t presented even a “potentially forceful” disparity argument that might require
reversal, see id. (distinguishing — after
quoting — Robles-Alvarez on a similar
basis).
Revocation Sentence
[21] Fargas’s opening brief might be
read as trying to contest the procedural
reasonableness of his revocation sentence
as well, seeing how in a few spots he
blames the judge of not passably explaining the “two upwardly variant sentences”
(emphasis ours). But he never develops
those casual remarks, thus waiving any
argument he might have had, see, e.g.,
United States v. Zannino, 895 F.2d 1, 17
F.3d 639, 648 (1st Cir. 2010) (underscoring
that “[ulnless two ‘identically situated defendants’ receive different sentences from
the same judge, which may be a reason for
concern, our general rule of thumb is that
a ‘defendant is not entitled to a lighter
sentence merely because his co-defendant[] received [a] lighter sentence |’ ”
(citation omitted and emphasis added)
(ist Cir. 1990) — a point the government
made in its answering brief, without any
contradiction from Fargas in his reply
brief.
SUBSTANTIVE-REASONABLENESS
CLAIMS
[22,23] Last up is the substantive-reasonableness issue. For the legal novices
lda
Appendix A
278
out there, a sentence is substantively unreasonable if the judge acted too harshly
given the “totality of the circumstances.”
See Gall, 552 U.S. at 51, 128 S.Ct. 586. But
because there’s more than one reasonable
sentence in just about every case, reversal
will result only if the term falls outside the
vast “universe of reasonable sentencing
outcomes.” See United States v. Bermtdez-Meléndez, 827 F.3d 160, 167 (1st Cir.
2016); see also Tanco-Pizarro, 892 F.3d at
483 (explaining that a sentence is substantively reasonable if the judge’s “reasoning
is plausible and the result is defensible”).
New-Crime Sentence
Starting with the 120-months new-crime
sentence, Fargas’s preserved arguments
basically mimic his just-rebuffed procedural-reasonableness claims (that the judge
inadequately explained the sentence, for
example, and created an unwarranted disparity between Fargas’s sentence and
Herrera’s). But these claims fare no better
repackaged as substantive-reasonableness
issues. See United States v. Tosi, 897 F.3d
12, 15 (1st Cir. 2018) (rejecting substantive-reasonableness arguments that “essentially rehash [defendant’s] already-rejected procedural-reasonableness claims”);
see also United States v. Rodriguez-Torres, 939 F.3d 16, 43 (1st Cir. 2019) (similar).
Revocation Sentence
[24] As for the 24-months revocation
sentence, Fargas’s opening brief’s “statement of the case” section says that he
objected below to the “substantive reasonableness” of that term. But he waived any
argument he might have had by not briefing the issue “in [his] brief’s argument
section.” See Britto v. Prospect Chartercare SJHSRI, LLC, 909 F.3d 506, 514 (1st
Cir. 2018); see also Bos. Exee. Helicopters,
125 FEDERAL REPORTER, 4th SERIES
LLC v. Maguire, 45 F.4th 506, 520 (1st
Cir. 2022).
FINAL WORDS
We affirm Fargas’s sentences, but without prejudice to his right to seek resentencing on the new crime under the guideline amendment discussed above.
© & KEY NUMBER SYSTEM
aums
NATIONAL TRUST FOR HISTORIC
PRESERVATION; Friends of the
Frank J. Wood Bridge, Plaintiffs, Appellants,
Historic Bridge Foundation; Waterfront Maine, Brunswick,
LLC, Plaintiffs,
v.
PETER PAUL MONTGOMERY BUT-
TIGIEG, in his official capacity as
Secretary of the United States Department of Transportation; Shailen
Bhatt, in his official capacity as Administrator, Federal Highway Administration; Todd Jorgensen, in his
official capacity as Administrator,
Federal Highway Administration
Maine Division; Bruce Van Note, in
his official capacity as Commissioner, Maine Department of Transportation, Defendants, Appellees.
No. 24-1138
United States Court of Appeals,
First Circuit.
January 10, 2025
Background: Pro-preservation groups
filed suit against Federal Highway Administration (FHWA), claiming violation of
16a
Appendix B
Case: 23-1502 Document: 00118310134 Page: 1 Date Filed: 07/08/2025
Nos.
United States Court of Appeals
For the First Circuit
23-1502
23-1503
UNITED STATES,
Appellee,
v.
JONATHAN KEMUEL FARGAS-REYES,
Defendant - Appellant.
Before
Barron, Chief Judge,
Thompson, Gelpi,’ Montecalvo, Rikelman, and Aframe
Circuit Judges.
ORDER OF COURT
Entered: July 8, 2025
Entry ID: 6734130
Pursuant to First Circuit Internal Operating Procedure X(C), the petition for rehearing en
banc has also been treated as a petition for rehearing before the original panel. The petition for
rehearing having been denied by the panel of judges who decided the case, and the petition for
rehearing en banc having been submitted to the active judges of this court and a majority of the
judges not having voted that the case be heard en banc, it is ordered that the petition for rehearing
and petition for rehearing en banc be denied.
By the Court:
Anastasia Dubrovsky, Clerk
cc: Mariana E. Bauza Almonte, Alberto R. Lopez Rocafort, Maarja Tiganik Luhtaru, Corinne
Cordero-Romo, Joseph L. Russell, Daniel J. Olinghouse, Richard Vance Eaton, Ethan A. Sachs,
* Judge Gelpi is recused and did not participate in the consideration of this matter.
17a
Appendix B
Case: 23-1502 Document: 00118310134 Page:2 Date Filed: 07/08/2025 Entry ID: 6734130
Rachel Brill, Alejandra Ysabel Bird Lopez, Jestis Abel Hernandez-Garcia, Franco L. Pérez-
Redondo, Ivan Santos-Castaldo, Jackson Boyd Whetsel, Kelly Zenon-Matos, Carmen Coral
Rodriguez-Morales
18a
Appendix C
Case 3:22-cr-00040-FAB Document 110 Filed 05/26/23 Page 1 of 7
AO 245B (Rev, 09/19) Judgment in a Criminal Case
Sheet 1
UNITED STATES DISTRICT COURT
District of Puerto Rico
UNITED STATES OF AMERICA JUDGMENT IN A CRIMINAL CASE
v. )
JONATHAN KEMUEL FARGAS-REYES Case Number: 3:22-CR-0040-01 (FAB)
USM Number: 52562-069
) AFPD Ivan Santos-Castaldo, Esq.
) ‘Defendant’s Attorney
THE DEFENDANT:
W| pleaded guilty to count(s) _ Two (2s) on February 6, 2023
] pleaded nolo contendere to count(s)
which was accepted by the court.
L] was found guilty on count(s)
after a plea of not guilty.
The defendant is adjudicated guilty of these offenses:
Title & Section Nature of Offense Offense Ended Count
18 USC § 922(g)(1), and 924(a)(8) Prohibited Person in Possession of Firearms and Ammunition: Convicted Felon 1/26/2022 Two (2s)
The defendant is sentenced as provided in pages 2 through 7 of this judgment. The sentence is imposed pursuant to
the Sentencing Reform Act of 1984.
L] The defendant has been found not guilty on count(s)
MCount(s) One (1s) Mf is [J are dismissed on the motion of the United States.
.,,_ lt is ordered that the defendant must notify the United States attorney for this district within 30 cays of any change of name, residence,
or mailing address until all fines, restitution, costs, and special assessments imposed by this judgmentare fully paid? If ordered to pay restitution,
the defendant must notify the court and United States attorney of material changes in economic circumstances.
5/26/2023
Date of Imposition of Judgment
/S/ FRANCISCO A. BESOSA
Signature of Judge
FRANCISCO A. BESOSA, Senior U.S. DISTRICT JUDGE
Name and Title of Judge
5/26/2023
Date
19a
Appendix C
Case 3:22-cr-00040-FAB Document 110 Filed 05/26/23 Page 2 of 7
AO 245B (Rev. 09/19) Judgment in Criminal Case
Sheet 2 — Imprisonment
Judgment — Page 2 of 7
DEFENDANT: JONATHAN KEMUEL FARGAS-REYES
CASE NUMBER: 3:22-CR-0040-01 (FAB)
IMPRISONMENT
The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned for a
total term of:
One Hundred Twenty (120) months.
Wj The court makes the following recommendations to the Bureau of Prisons:
-- That defendant be designated to Lewisburg, Allenwood, Marianna or Danbury to serve the term of imprisonment.
-- That the defendant be allowed to participate in the following Courses: Plumbing, Heating and Air Conditioner
Installation and Service, Home repairs courses and Electrical courses, the 500 hours for drug/alcohol treatment if he
qualifies. Finally, that the defendant who is fluent in English be allowed to teach English to other inmates.
VW The defendant is remanded to the custody of the United States Marshal.
L] The defendant shall surrender to the United States Marshal for this district:
LC] at Oam 0 pm. on
[] as notified by the United States Marshal.
[] The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:
C] before 2 p.m. on
[] as notified by the United States Marshal.
C1 as notified by the Probation or Pretrial Services Office.
RETURN
I have executed this judgment as follows:
Defendant delivered on to
at , with a certified copy of this judgment.
UNITED STATES MARSHAL
By
DEPUTY UNITED STATES MARSHAL
20a
Appendix C
Case 3:22-cr-00040-FAB Document 110 Eiled 05/26/23 Page 3 of 7
AO 24SB (Rev. 09/19) Judgment in a Criminal Case
Sheet 3 — Supervised Release
Judgment—Page a i of
DEFENDANT: JONATHAN KEMUEL FARGAS-REYES
CASE NUMBER: 3:22-CR-0040-01 (FAB)
SUPERVISED RELEASE
Upon release from imprisonment, you will be on supervised release for a term of:
Three (3) years under the following mandatory, standard, and Special/Additional Conditions of Supervision.
MANDATORY CONDITIONS
You must not commit another federal, state or local crime.
You must not unlawfully possess a controlled substance.
©
_¥
3. You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of release from
imprisonment and at least two periodic drug tests thereafter, as determined by the court.
C) The above drug testing condition is suspended, based on the court's determination that you
pose a low risk of future substance abuse. (check if applicable)
4, C You must make restitution in accordance with 18 U.S.C. §§ 3663 and 3663A or any other statute authorizing a sentence of
restitution. (check if applicable)
5. M You must cooperate in the collection of DNA as directed by the probation officer. (check if applicable)
6. CL] You must comply with the requirements of the Sex Offender Registration and Notification Act (34 U.S.C. § 20901, et seq.) as
directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in the location where you
reside, work, are a student, or were convicted of a qualifying offense. (check if applicable)
7, [ You must participate in an approved program for domestic violence. (check if applicable)
You must comply with the standard conditions that have been adopted by this court as well as with any other conditions on the attached
page.
21a
Appendix C
Case 3:22-cr-00040-FAB Document 110 Filed 05/26/23 Page 4 of 7
AO 245B (Rev. 09/19) | Judgment in a Criminal Case
Sheet 3A — Supervised Release
Judgment—Page 4 of _ ot
DEFENDANT: JONATHAN KEMUEL FARGAS-REYES
CASE NUMBER: 3:22-CR-0040-01 (FAB)
STANDARD CONDITIONS OF SUPERVISION
As part of your supervised release, you must comply with the following standard conditions of supervision. These conditions are imposed
because they establish the basic expectations for your behavior while on supervision and identify the minimum tools needed by probation
officers to keep informed, report to the court about, and bring about improvements in your conduct and condition.
1. You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of your
release from imprisonment, unless the probation officer instructs you to report to a different probation office or within a different time
frame.
2. After initially reporting to the probation office, you will receive instructions from the court or the probation officer about how and
when you must report to the probation officer, and you must report to the probation officer as instructed.
3. You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission from the
court or the probation officer.
You must answer truthfully the questions asked by your probation officer.
You must live at a place approved by the probation officer. If you plan to change where you live or anything about your living
arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the change. If notifying
the probation officer in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72
hours of becoming aware of a change or expected change.
6. You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation officer to
take any items prohibited by the conditions of your supervision that he or she observes in plain view.
7. You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses you from
doing so. If you do not have full-time employment you must try to find full-time employment, unless the probation officer excuses
you from doing so. If you plan to change where you work or anything about your work (such as your position or your job
responsibilities), you must notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10
days in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of
becoming aware of a change or expected change.
8. You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone has been
convicted of a felony, you must not knowingly communicate or interact with that person without first getting the permission of the
probation officer.
9. If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.
10. ‘You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything that was
designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as nunchakus or tasers).
11. You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant without
first getting the permission of the court.
12. Ifthe probation officer determines that you pose a risk to another person (including an organization), the probation officer may
require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the
person and confirm that you have notified the person about the risk.
13. You must follow the instructions of the probation officer related to the conditions of supervision.
we
U.S. Probation Office Use Only
A U.S. probation officer has instructed me on the conditions specified by the court and has provided me with a written copy of this
judgment containing these conditions. For further information regarding these conditions, see Overview of Probation and Supervised
Release Conditions, available at: www.uscourts.gov.
Defendant's Signature Date
22a
Appendix C
Case 3:22-cr-00040-FAB Document 110 Filed 05/26/23 Page 5 of 7
AO 245B (Rev. 09/19) Judgment in a Criminal Case
Sheet 3B — Supervised Release
Judgment—Page 5 of 7
DEFENDANT: JONATHAN KEMUEL FARGAS-REYES
CASE NUMBER: 3:22-CR-0040-01 (FAB)
ADDITIONAL SUPERVISED RELEASE TERMS
1. He shall observe the standard conditions of supervised release recommended by the United States Sentencing Commission and
adopted by this Court.
2. He shall not commit another Federal, state, or local crime.
3. He shall not possess firearms, ammunitions, destructive devices, explosives, or any other dangerous weapons.
4. He shall participate in transitional and reentry support services, including cognitive behavioral treatment services, under the guidance
and supervision of the Probation Officer. Mr. Fargas shall participate in the services until satisfactorily discharged by the service
provider, with the approval of the Probation Officer.
5. He shall provide the probation officer access to any financial information upon request.
6. He shall submit himself and his property, house, residence, vehicles, papers and effects, computers and other electronic
communication or data storage devices or media to a search, at any time, with or without a warrant, by the probation officer, and if
necessary, with the assistance of any other law enforcement officer but only in the lawful discharge of the supervision functions of the
probation officer, who must have a reasonable suspicion of unlawful conduct or of a violation of a condition of supervised release. The
probation officer may seize any electronic communication or electronic device or medium which will be subject to additional forensic
investigation or analysis. Failure to permit a search and seizure may be grounds for revocation of supervised release. Mr. Fargas shall
warn any other resident or occupant that his premises may be subject to searches pursuant to this condition.
7. He shall cooperate in the collection of a DNA sample, as directed by the Probation Officer, pursuant to the Revised DNA Collection
Requirements, and Title 18, U.S. Code Section 3563(a)(9).
8. He shall not possess or use controlled substances unlawfully, and shall submit to a drug test within 15 days of release from
imprisonment; after his release, Mr. Fargas shall submit to random drug testing, not less than 3 samples during the supervision period,
but not to more than 104 samples each year, in accordance with the Drug Aftercare Program Policy of the United States Probation
Office, as has been approved by this Court. if the illegal use of controlled substances is detected in any sample, Mr. Fargas shall
participate in an inpatient or an outpatient substance abuse treatment program, for evaluation or treatment, as arranged by the probation
officer; payment shall be based on his ability to pay or the availability of payments by third parties, as approved by the Court.
23a
Appendix C
Case 3:22-cr-00040-FAB Document110 Filed 05/26/23 Page 6 of 7
AO 245B (Rev, 09/19) Judgment in a Criminal Case
Sheet 5 — Criminal Monetary Penalties
Judgment — Page 6 of f
DEFENDANT: JONATHAN KEMUEL FARGAS-REYES
CASE NUMBER: 3:22-CR-0040-01 (FAB)
CRIMINAL MONETARY PENALTIES
The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6.
Assessment Restitution Fine AVAA Assessment* JVTA Assessment**
TOTALS $ 100.00 $ 0.00 $ 0.00 $ 0.00 $ 0.00
[] The determination of restitution is deferred until . An Amended Judgment in a Criminal Case (AO 245C) will be
entered after such determination.
[] The defendant must make restitution (including community restitution) to the following payees in the amount listed below.
If the defendant makes a partial payment, each payee shall receive an approximately pro ortioned payment, unless specified otherwise in
the priority order or percentage payment column below. However, pursuant to 18 U.S.C. § 3664(i), all nonfederal victims must be paid
before the United States is paid.
Name of Payee Total Loss*** Restitution Ordered Priority or Percentage
TOTALS $ 0.00 $ 0.00
[] Restitution amount ordered pursuant to plea agreement $
LC] The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before the
fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on Sheet 6 may be subject
to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).
C1 _ The court determined that the defendant does not have the ability to pay interest and it is ordered that:
(1 the interest requirement is waived forthe [ fine (1 restitution.
(1 theinterest requirement forthe [1] fine (1 restitution is modified as follows:
* Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018, Pub. L. No. 115-299.
** Justice for Victims o Hhicinat 3 Act of 2015, Pub. L. No. 114-22.
*** Findings for the total amount of losses are caus under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on
or after September 13, 1994, but before April 23, 1996.
24a
Appendix C
Case 3:22-cr-00040-FAB Document 110 Filed 05/26/23 Page 7 of 7
AO 245B (Rev, 09/19) Judgment in a Cnminal Case
Sheet 6 — Schedule of Payments
Judgment— Page 7 of 7
DEFENDANT: JONATHAN KEMUEL FARGAS-REYES
CASE NUMBER: 3:22-CR-0040-01 (FAB)
SCHEDULE OF PAYMENTS
Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties is due as follows:
A &_ Lump sum payment of $ 100.00 due immediately, balance due
C] _ not later than , or
(1 inaccordance with 1] C, OF D, CG E,or C1 F below; or
B_ LJ Payment to begin immediately (may be combined with (IC, L1D,or [FF below); or
C 1 Payment in equal (e.g., weekly, monthly, quarterly) installments of $ over a period of
(e.g., months or years), to commence _ _ (e.g., 30 or 60 days) after the date of this judgment; or
D (1 Payment in equal (e.g., weekly, monthly, quarterly) installments of $ over a period of
(e.g., months or years), to commence (e.g., 30 or 60 days) after release from imprisonment to a
term of supervision; or
E (Payment during the term of supervised release will commence within (e.g., 30 or 60 days) after release from
imprisonment. The court will set the payment plan based on an assessment of the defendant’s ability to pay at that time; or
F (Special instructions regarding the payment of criminal monetary penalties:
Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is due during
the period of imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons’ Inmate
Financial Responsibility Program, are made to the clerk of the court.
The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.
O Joint and Several
Case Number . ;
Defendant and Co-Defendant Names Joint and Several Corresponding Payee,
(including defendant number) Total Amount Amount if appropriate
[1 The defendant shall pay the cost of prosecution.
LJ The defendant shall pay the following court cost(s):
MV] The defendant shall forfeit the defendant’s interest in the following property to the United States:
one (1) black AK-47 pislal, caliber 7.62, bearing serial number Z-92-099064, loaded with a drum style magazine containing 57, 7.62 caliber ammunition and one round in the chamber, Glock pistol, Model 21, caliber .45,
bearing serial number SYX86B, modified to shoot more than one round of ammunition, wilhout manual reloading by a single function of the trigger, loaded with a high capacity magazine containing 27, .45 caliber
ammunition and one round in the chamber, one (1) high capacity magazine containing 21, .45 caliber ammunition; one (1) Glock pistol, Model 22, caliber 40 bearing seriai number BUSF448, modified.to shoot more
than one round of ammunition, without manual reloading by a single function of the trigger, loaded with a high capacity magazine containing 21, .40 caliber ammunilion and one found in the chamber; 1 high-capacity
magazine containing 20, .40 caliber ammunition; one (1) high-capacily magazine containing 13, .40 caliber ammunition; one (1) high-capacity magazine containing sleven .40 caliber ammunition.
Payments shall be apeilied in the following order: (1) assessment, 2) restitution principal, (3) restitution interest, (4) AVAA assessment,
(5) fine principal, (6) fine interest, (7) community restitution, (8) JVTA assessment, (9) penalties, and (10) costs, including cost of
prosecution and court costs.
| 25a
Appendix D
Case 3:22-cr-00040-FAB Document 98 Filed 03/07/23 Page 1 of 7
AO 245B (Rev, 09/19) | Judgment in a Criminal Case
Sheet 1
UNITED STATES DISTRICT COURT
District of Puerto Rico
UNITED STATES OF AMERICA JUDGMENT IN A CRIMINAL CASE
v. )
MARY CHELLY HERRERA-CRUZ Case Number: 3:22-CR-040-02 (FAB)
USM Number: 83771-509
) Melanie Carrillo-Jiménez, Esq.
) Defendant’s Attomey _
THE DEFENDANT:
WM pleaded guilty to count(s) Two (2s) on December 5, 2022 _
C] pleaded nolo contendere to count(s) ee ee
which was accepted by the court.
L] was found guilty on count(s) ee ee
after a plea of not guilty.
The defendant is adjudicated guilty of these offenses:
Title & Section Nature of Offense Offense Ended Count
18 USC § 922(g)(1), 924(a)(2) and 2 Aiding and abetting a prohibited person in the possession of firearms. 1/26/2022 Two (2s)
The defendant is sentenced as provided in pages 2 through 7 of this judgment. The sentence is imposed pursuant to
the Sentencing Reform Act of 1984.
C1 The defendant has been found not guilty on count(s)
v4 Count(s) Three (3s) [Mf is Clare dismissed on the motion of the United States.
... It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name, residence,
or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution,
the defendant must notify the court and United States attorney of material changes in economic circumstances.
3/7/2023
Date of Imposition of Judgment
/S/ FRANCISCO A. BESOSA
Signature of Judge
FRANCISCO A. BESOSA, Senior U.S. DISTRICT JUDGE
Name and Title of Judge 7
3/7/2023
Date
26a
Appendix D
Case 3:22-cr-00040-FAB Document 98 Filed 03/07/23 Page 2 of 7
AO 245B (Rev. 09/19) Judgment in Criminal Case
Sheet 2 — Imprisonment
Judgment — Page 2 of 7
DEFENDANT: MARY CHELLY HERRERA-CRUZ
CASE NUMBER: | 3:22-CR-040-02 (FAB)
IMPRISONMENT
The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned for a
total term of:
Thirty-Seven (37) months.
Wi The court makes the following recommendations to the Bureau of Prisons:
-- That defendant be designated to an institution in the state of Florida to serve the term of imprisonment.
-- That the defendant be allowed to participate in vocational training courses, English as second language courses and
the 500 hours of drug/alcohol treatment, if she qualifies.
¥1 The defendant is remanded to the custody of the United States Marshal.
(1 The defendant shall surrender to the United States Marshal for this district:
LC] at 0 am. [] pm. on
CL] as notified by the United States Marshal.
L] The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:
[1 before 2 p.m. on
L] as notified by the United States Marshal.
L] as notified by the Probation or Pretrial Services Office.
RETURN
I have executed this judgment as follows:
Defendant delivered on _ to
at , with a certified copy of this judgment.
UNITED STATES MARSHAL _
By =
DEPUTY UNITED STATES MARSHAL
27a
Appendix D
Case 3:22-cr-00040-FAB Document 98 Filed 03/07/23 Page 3 of 7
AO 245B (Rev. 09/19) Judgment in a Criminal Case
Sheet 3 — Supervised Release
Judgment—Page 3 of 7
DEFENDANT: MARY CHELLY HERRERA-CRUZ
CASE NUMBER: 3:22-CR-040-02 (FAB)
SUPERVISED RELEASE
Upon release from imprisonment, you will be on supervised release for a term of:
WN
7.
Three (3) years, under the following mandatory, standard, and Special/Additional Conditions of Supervision.
MANDATORY CONDITIONS
You must not commit another federal, state or local crime.
You must not unlawfully possess a controlled substance.
You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of release from
imprisonment and at least two periodic drug tests thereafter, as determined by the court.
CL The above drug testing condition is suspended, based on the court's determination that you
pose a low risk of future substance abuse. (check if applicable)
LC You must make restitution in accordance with 18 U.S.C. §§ 3663 and 3663A or any other statute authorizing a sentence of
restitution. (check if applicable)
M You must cooperate in the collection of DNA as directed by the probation officer. (check if applicable)
CL] You must comply with the requirements of the Sex Offender Registration and Notification Act (34 U.S.C. § 20901, et seq.) as
directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in the location where you
reside, work, are a student, or were convicted of a qualifying offense. (check if applicable)
C] You must participate in an approved program for domestic violence. (check if applicable)
You must comply with the standard conditions that have been adopted by this court as well as with any other conditions on the attached
page.
. 28a
Appendix D
Case 3:22-cr-00040-FAB Document 98 Filed 03/07/23 Page 4 of 7
AO 245B (Rev. 09/19) | Judgment in a Criminal Case
Sheet 3A — Supervised Release
Judgment—Page _ 4 of 7
DEFENDANT: MARY CHELLY HERRERA-CRUZ
CASE NUMBER: 3:22-CR-040-02 (FAB)
STANDARD CONDITIONS OF SUPERVISION
As part of your supervised release, you must comply with the following standard conditions of supervision. These conditions are imposed
because they establish the basic expectations for your behavior while on supervision and identify the minimum tools needed by probation
officers to keep informed, report to the court about, and bring about improvements in your conduct and condition.
1.
ve
13.
You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of your
release from imprisonment, unless the probation officer instructs you to report to a different probation office or within a different time
frame.
After initially reporting to the probation office, you will receive instructions from the court or the probation officer about how and
when you must report to the probation officer, and you must report to the probation officer as instructed.
You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission from the
court or the probation officer.
You must answer truthfully the questions asked by your probation officer.
You must live at a place approved by the probation officer. If you plan to change where you live or anything about your living
arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the change. If notifying
the probation officer in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72
hours of becoming aware of a change or expected change.
You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation officer to
take any items prohibited by the conditions of your supervision that he or she observes in plain view.
You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses you from
doing so. If you do not have full-time employment you must try to find full-time employment, unless the probation officer excuses
you from doing so. If you plan to change where you work or anything about your work (such as your position or your job
responsibilities), you must notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10
days in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of
becoming aware of a change or expected change.
You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone has been
convicted of a felony, you must not knowingly communicate or interact with that person without first getting the permission of the
probation officer.
If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.
You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything that was
designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as nunchakus or tasers).
You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant without
first getting the permission of the court.
If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may
require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the
person and confirm that you have notified the person about the risk.
You must follow the instructions of the probation officer related to the conditions of supervision.
U.S. Probation Office Use Only
A U.S. probation officer has instructed me on the conditions specified by the court and has provided me with a written copy of this
judgment containing these conditions. For further information regarding these conditions, see Overview of Probation and Supervised
Release Conditions, available at: www.uscourts.gov.
Defendant's Signature Date
[OCR skipped on page(s) 31-73]
[Read from a scan; the first 30 pages.]
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.