Petition for Writ of Certiorari — Nycole Amaury Rosario Sánchez, Petitioner v. United States

No. _________

_______________________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

______________________________________________________

Nycole Amaury Rosario Sánchez,

Petitioner,

v.

United States of America,

Respondent

______________________________________________________

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIRST CIRCUIT

______________________________________________________

PETITION FOR A WRIT OF CERTIORARI

_______________________________________________________

Raul S. Mariani-Franco

Counsel of Record

P.O. Box 9022864

San Juan, PR, 00902-2864

Tel.: (787) 620-0038

Fax: (787) 620-0039

marianifrancolaw@gmail.com

Counsel for Petitioner

___________________________________________________________

i

QUESTION PRESENTED

For over 30 years this Honorable Court has emphasized in a series

of cases that youth matter in sentencing. Underpinning the opinions

issued by the Court was a relatively simple concept that “children are

constitutionally different from adults for purposes of sentencing”

because they “have diminished culpability and greater prospects for

reform.” Miller v. Alabama, 567 U.S. 460, 471 (2012). More recently

this High Court in Jones v. Mississippi, 593 U.S. 98, 108(2021) decided

to reaffirm the holding in Miller, supra explaining that the Court in

Miller “repeatedly descried youth as a sentencing factor akin to a

mitigating circumstance.

The First Circuit confirmed the sentence issued in this case treating

Petitioner age and youth circumstances as an aggravating factor.

The question is presented as follows:

Whether youth (minor age) at the time of the commission

of a criminal offense, with its intrinsic characteristics, is

inherently a mitigating factor that must be considered in

sentencing a juvenile defendant.

i

ii

STATEMENT OF RELATED PROCEEDINGS

This case commenced with the filing of an indictment in United States

v. Nycole Amaury Rosario-Sánchez, 22-235 (FAB). An appeal followed in

United States v. Nycole Amaury Rosario-Sánchez, t/n Nyckole Amaury

Rosario-Sánchez, 22-1857.

ii

iii

PARTIES TO THE PROCEEDING

Nycole Amaury Rosario-Sanchez, petitioner on review, was the

movant/appellant below.

The United States of America, respondent on review was the

respondent/appellee below.

iii

iv

TABLE OF CONTENTS

QUESTION PRESENTED………………………………………... ……..i

STATEMENT OF RELATED PROCEEDINGS………………........... ii

.

PARTIES TO THE PROCEEDING………………………………......... iii

TABLE OF CONTENTS……………………………………………......... iv

APPENDIXES……………………………………………………………... vi

TABLE OF AUTHORITIES…………………………………………...… vii

OPINION AND ORDER BELOW…………………………………..........1

STATEMENT OF JURISDICTION……………….…………………......2

STATUTORY PROVISIONS INVOLVED…………………………........2

INTRODUCTION……………………………………………………………2

STATEMENT OF THE CASE……………………………………….........4

A. Factual Background ……………….. ……………………....4

B. Proceedings Below………….………………………..………........7

REASONS FOR GRANTING THE WRIT…………………………... 18

I. Youth at the time of commission of a criminal

offense is a mitigating factor not an aggravating factor

and there exists an intra-circuit split in the First Circuit

Court of Appeals regarding this matter………………… 18

II. The age of youth offenders has traditionally been

understood to be a mitigating factor…………………….. 19

iv

v

III. The district court and appellate court erred by

determining that Petitioner’s age, lack of maturity,

recklessness and impulsivity, associated with his age,

justified a higher sentence. This High Court should

correct this legal mistake which is in conflict with this

Court’s precedents and other Circuits decisions……… 21

CONCLUSION…………………………………………………………... 24

v

vi

APPENDIX

Appendix A

Published Opinion of the United States Court of

Appeals for the First Circuit of July 3, 2025,

United States v. Rosario-Sánchez, 143 F.3d 41 (1st.

Cir. 2025)

Appendix B

Order denying Petition

Rehearing En Banc

Appendix C

Relevant portions of 18 U.S.C. §3553(a) and the

Eight Amendment of the United States

Constitution

vi

for

Rehearing

or

vii

TABLE OF AUTHORITIES

Cases

Atkins v. Virgina,

536 U.S. 304 (2002)……………………………………………

16

Eddings v. Oklahoma,

455 U.S. 104 (1982)……………………………………………

17, 20

Gall v. United States,

536 U.S. 38, 51 (2007) ………………………………………...

8, 13, 17

Graham v. Florida,

560 U.S. 48, 69 (2010)…………………………………………

19

Johnson v. Texas,

509 U.S. 350 (1993)…………………………………………….

17, 20, 22

Jones v. Mississippi,

593 U.S. 98, 108 (2021)…………………………………………

20

Miller v. Alabama,

567 U.S. 460 (2012)……………………………………………

passim

Roper v. Simmons,

543 U.S. 551(2005)…………………………………………….

17, 20

Thompson v. Oklahoma,

487 U.S. 815, 838 (1988)……………………………………...

23

First Circuit Cases

United States v. Flores-Nater,

144 F.4th 56 (1st. Cir. 2025)…………………………………

United States v. Rosario-Sánchez,

vii

passim

viii

143 F.3d 41 (1st. Cir. 2025)…………………………………

passim

United States v. Vázquez,

793 F.Supp. 3d 423 (D.P.R. 2025)…………………………

24

Other Circuit Cases

United States .v Grant,

9 F4th 186 (3rd. Cir. 2021)………………………………….

23

United States v. Jefferson,

816 F.3d 1016, 1020 (8th Cir. 2016)…………………………

22, 23

United States v. Ramsay,

538 F. Supp. 3d 407 (S.D. NYC 2021)………………………

23

Constitution & Statutes

Eight Amendment of the United States Constitution……… passim

18 USC 3553(a)…………………………………………………… passim

28 U.S.C. Sec. 1254(1)……………………………………………

viii

1

PETITION FOR A WRIT OF CERTIORARI

Nycole Amaury Rosario-Sánchez respectfully petitions for a writ of

certiorari to review the decision of the United States Court of Appeals for

the First Circuit, which denied his direct appeal of judgment imposed by

the United States District Court for the District of Puerto Rico

OPINION AND ORDER BELOW

The opinion of the United States Court of Appeals for the First

Circuit affirming the conviction and sentence of the Petitioner was

handed down on July 3 2025. United States v. Rosario-Sánchez, 143 F.3d

41 (1st. Cir. 2025). The Opinion of the First Circuit is attached as

Appendix A.

After the aforementioned opinion was issued by the First Circuit,

Mr. Rosario-Sánchez timely filed a petition for a Petition for Rehearing

or Rehearing En Banc on July 28, 20251. The First Circuit, en banc,

denied the petition on September 23, 2025. The Order denying the

Petition for Rehearing or Rehearing En Banc is attached as Appendix

B.

1 The time for filing of the Petition for Rehearing was enlarged up to and including

July 28, 2025 in a margin order issued by the First Circuit on July 21, 2025.

1

JURISDICTION

The Petitioner requests review of the Judgment of the United

States Court of Appeals for the First Circuit entered on July 3, 2025 and

its denial of his request for Rehearing en banc, entered on September 23,

2025. Accordingly, the Petition is timely filed within 90 days as required

by Rule 13, Rules of the Supreme Court.

This Court has statutory jurisdiction under 28 U.S.C. Sec. 1254(1).

STATUTORY

PROVISIONS INVOLVED

This Petition concerns the interpretation of relevant portions of the

Eight Amendment of the United States Constitution. Also, it concerns

the interpretation of sentencing factors contained at 18 U.S.C. §3553(a).

The relevant Constitutional Amendment and the relevant portions of the

referenced statute are attached in Appendix C.

INTRODUCTION

This Petition seeks review of the United States First Circuit Court

of Appeals’ holding that rejected Mr. Rosario-Sánchez’s request for

review of an incorrect sentence where the district court ignored the

repeated requests made by him to the district court to take account and

2

consider as a mitigating sentencing factor his status as a juvenile at the

time of the criminal offenses. Petitioner not only was 15 years of age

when the events that culminated in a sentencing of 40 years of

imprisonment, but also has multiple physical, educational and

intellectual disabilities. The district court, as well as the First Circuit,

did not properly address Mr. Rosario-Sánchez’s age as a juvenile at the

time of the offense charged and failed to abide by this High Court’s

precedents concerning the need to consider youth as a sentencing factor

under the Eight Amendment to the United States Constitution (“Eight

Amendment”) and 18 U.S.C. §3553(a).

The sentencing court instead of addressing Mr. Rosario-Sánchez’s

juvenile age and the panoply of serious physical and emotional

impairments he has, as mitigating factors, used such factors as

aggravating factors, using the same to justify a harsher sentence for

Petitioner. The First Circuit instead of correcting such evident mistake

chose to ignore it when confirming the lower court’s decision.

Worse, the First Circuit even declined to follow its own precedents

when confronted with the fact that in the same month when it issued its

3

Opinion in this case, it issued another opinion on the same subject matter

vacating a a sentence and judgment because the same sentencing judge

had refused to consider age as a mitigating factor for sentencing.

The First Circuit contradictory use this High Court’s precedents in

this case, United States v. Rosario-Sánchez, supra, issued on July 3, 2025,

draws clear when one compares such opinion to the opinion issued in

United States v. Flores-Nater, 144 F.4th 56 (1st. Cir. 2025) only 11 days

later, on July 14, 2025. These two opinions create an intra-circuit that

should be addressed by this High Court.

STATEMENT OF THE CASE

A. Factual Background

Mr. Rosario Sánchez’s Tragic Youth

Mr. Rosario-Sánchez was born on April 1, 2002 to a drug addicted

prostitute. She used drugs while pregnant and even bragged that she

never visited a doctor or got any pre-partum pregnancy check-up.

Sentencing Memorandum at page 2 (Ddkt. 9) 2. Shortly after being born,

2 “Ddkt” refers to the District Court Docket.

4

Mr. Rosario-Sánchez’s father abandoned her mother, and she faulted him

for that. She never forgave Mr. Rosario-Sánchez for it. (Id.).

Mr. Rosario-Sánchez was born with ambiguous genitalia. PSR at

page 15. (Ddkt. 6). The PSR defined such condition as “[a] rare condition

in which an infant’s external genitals don’t appear to be clearly either

male or female. In a baby with ambiguous genitalia, the genitals may be

completely developed, or the baby may have characteristics of both sexes.

(Id.).

For this condition Mr. Rosario-Sánchez has been subjected to

various surgeries, included for severe hypospadias. The PSR defines this

condition as “[a] rare congenital condition where the opening of the

urethra is on the underside rather than the tip of the penis.” (Id.).

The aforementioned physical impairment unfairly subjected Mr.

Rosario-Sánchez to a lifelong history of physical, verbal and emotional

abuse. His mother verbally wished him dead and bullied him with the

fact that he was neither a boy nor a girl. (Sentencing Memorandum,

Docket 9, at page 3). In fact, Mr. Rosario-Sánchez’s mother abandoned

him when he was a baby giving him to a neighbor, who raised him until

he was four years of age. PSR at page 14. (Ddkt. 6).

5

While those four (4) years provided a better environment to live,

which Mr. Rosario-Sánchez appreciated and valued, his mother took him

away from her neighbor when she decided to move to the State of

Pennsylvania. There Petitioner was removed by Department of Family

affairs, and he went on to live in foster homes until his mother decided to

return to Puerto Rico and brought him with her. (Id.). Upon their return

to Puerto Rico Mr. Rosario-Sánchez endured years of physical and

emotional abuse, saw her mother prostitute herself and saw her using all

types of controlled substance. (Id.).

Others also abused him. For example, his fellow conspirators in the

charged crimes, which included his older brother, “would belittle” Mr.

Rosario-Sánchez because of “his condition related to his manhood, would

laugh at him and harass him, telling him that he needed to be a man.

His brother made fun of him in front of the group, telling them that he

had to sit to urinate as a girl and that he had no penis.” Sentencing

Memorandum at pages 5 and 6. (Ddkt. 9). As to this type of abuse also

see the findings related to how his family mistreated and bullied

Petitioner in the PSR at page 15. (Ddkt. 6).

6

If the aforementioned physical ailments and the concomitant

harassment were not enough, Mr. Rosario-Sánchez, from the moment he

was born, suffered from intellectual disability. He was diagnosed since

his early school years, with a finding of mental retardation. (See

Sentencing Memorandum at Pages 3-4. (Ddkt. 9). Mr. Rosario-Sánchez

also suffers from Major Depressive Disorder, Conduct Disorder and

Impulsive Disorder. PSR at page 15 (Ddkt. 6).

Tragically, prior to his arrest in the instant case he did not receive

any proper psychological or psychiatric treatment. (Id.). In fact, Mr.

Rosario-Sánchez, was first abandoned by his family and then by the

State, who provided no help to him. He was left alone to cope, as he well

as he could with his multiple physical and emotional ailments.

B. Proceedings Below

Mr. Rosario-Sánchez is charged and enters a plea to

multiple criminal counts including two (2) deaths.

Under the aforementioned factual backdrop, when Petitioner was

15 years of age, Mr. Rosario-Sanchez participated with older adults,

including his brother, in a series of tragic events that give rise to this

case. As a result of such events on May 27, 2022, the Petitioner was

7

charged in a Six Count Information that charged him with participating

in a series of robberies and carjacking resulting in the death of A.A.T.

and J.M.R. (Ddtk. 2). On that same day, Mr. Rosario-Sánchez signed a

waiver of indictment by grand jury and executed a plea agreement.

(Ddtk. 1 and 4).

In his plea agreement, Mr. Rosario-Sánchez plead guilty to all

counts included in the Information and stipulated the facts related to the

charged events. (Ddtk. 4).

As described in the Plea Agreement, the Information charged Mr.

Rosario-Sánchez with participating in a series of events that commenced

on January 4, 2018, when he and others robbed money from a food

business called “Pizzeria de Ferna” in Yabucoa, Puerto Rico. During that

robbery Mr. Rosario-Sánchez stole money from the business, brandished

and discharged a firearm wounding one of the employees in the abdomen,

who survived. While fleeing, Mr. Rosario-Sánchez again made use of the

firearm injuring one of the pizzeria clients who also survived. Plea

Agreement page 15, (Ddkt. 4).3

3 The First Circuit recounts the facts in its opinion. United States v. Rosario-Sánchez,

143 F.3d at 44.

8

On January 11, 2018, Mr. Rosario-Sánchez participated with others

in the robbery of food business called “El Invader” in San Juan, Puerto

Rico.

While robbing the business Mr. Rosario-Sánchez discharged a

firearm and an employee died as a result. (Id.). Likewise, on January 13,

2018, Mr. Rosario-Sánchez and others participated in the carjacking of a

KTM 450 motorcycle at a Puma gas station in Santurce, Puerto Rico.

During the incident Mr. Rosario-Sánchez discharged a firearm and the

driver of the motorcycle died as a result of the shots that were fired. (Id.

at page 16).

The next events in the series of crimes for which Mr. RosarioSánchez was charged and convicted occurred on January 14, 2018. That

day, he and others carried out a robbery to a food business called

“Tripletas Mixtas Ruiz” in Cidra, Puerto Rico. During the robbery Mr.

Rosario-Sánchez and his conspirators brandished and discharged

firearms, with one employee dying of the gunshot wounds, while other

employees were wounded from the shots. (Id.). That same day, Mr.

Rosario-Sánchez and others participated in the carjacking of a 2010 gray

Toyota Tacoma in Cidra, Puerto Rico. During such carjacking, one of the

9

participants in the carjacking, not Rosario-Sánchez, shot the driver who

died of the gunshot wounds. (Id. at pages 16-17).

There is no doubt that the aforementioned events are harrowing

and tragic.

Equally tragic and harrowing, however, is Mr. Rosario-

Sánchez’s impossibly difficult short life prior to such events. Such life was

proffered and evidenced to the trial court prior to his sentencing, when

on October 4, 2022 his counsel filed a sentencing memorandum. (Ddkt.

9). As we explained above, the sentencing memorandum graphically

describes a life marked by tragedy. As we will see now, his involvement

in the series of events that brough him before this Court is another

tragedy.

The involvement of Mr. Rosario-Sánchez and others in the

criminal conduct.

It is undisputed that Mr. Rosario-Sánchez did not act alone in any

of the events related to the counts of conviction in this case. Sentencing

Memorandum at page 5. (Ddkt. 9) and PSR at pages 5-6, (Ddkt. 6). The

sentencing court could and should had looked at the participation of

others in the crimes committed by Petitioner, his age and mental,

educational and emotional impairment, to fashion a fair sentence for

10

Petitioner, but it did not. During all the offenses of convictions, Mr.

Rosario-Sánchez was accompanied by adults, who harassed and taunted

him because of his physical and mental conditions. Sentencing

Memorandum at page 5. (Ddkt 9). Worse, the adult conspirators would

entice and promote his participation and violence in the offense. (Id). The

adult conspirators would feed him drugs and pills to keep him involve in

the cycle of violence pertaining to the offenses of conviction. (Id.). All of

these within a backdrop of intellectual disability that allowed these

adults conspirators to manipulate and use Mr. Rosario-Sánchez for their

criminal intentions.

The Sentencing

At sentencing, Mr. Rosario-Sánchez asked for a 240 months (20

years)

sentence.

“[Rosario-Sánchez]

emphasized

his

difficult

circumstances, including his troubled childhood, during which he

suffered abandonment and abuse. He also claimed that he has a

diminished IQ and an intellectual disability, such that he was essentially

a puppet of his co-defendants. In support of these claims, he included

three neuropsychological reports, each of which determined that he has

11

diminished intellectual capacity and severe emotional and intellectual

issues, and also had a brutal upbringing. Finally, he represented that his

co-defendants entered plea agreements for sentencing exposure between

twenty-three and thirty years. While the government did not file a

sentencing memorandum, at sentencing it sought a sentence of thirtyfive years (420 months).” United States v. Rosario, supra at page 45. The

district court rejected both recommendations and sentenced Mr. RosarioSanchez, who committed the instant offense at 15 years of age, to 480

months or 40 years of imprisonment. Id.

The main issue at sentencing and in the appeal was what

consideration Mr. Rosario-Sánchez should be given at sentencing based

on his minor age, limited intellectual capacity and role of adult

conspirators at the time of commission of the offense. While Petitioner

moved the sentencing court to consider these factors, in conjunction with

his apparent manipulation by adults, his requests were ignored. The

First Circuit correctly summarizes the reasons for which the sentencing

court rejected Petitioner’s pleas.

12

The First Circuit summarized the district court reasoning as

follows:

At sentencing the district court stated that it “ha[d]

... considered the other sentencing factors set forth in

Title 18 United States Code Section 3553(a),” as well

as the PSR. It further stated that it “ha[d] considered

Mr. Rosario's age and mental and emotional

condition at the time of the offense as relevant in

determining his sentence.” These conditions included

that “[h]e was 16 [sic] years old when he committed

the offenses, and perhaps lacked maturity and a

sense of responsibility. Mr. Rosario's longstanding

history of abuse and neglect by his caregivers, his

physical and mental conditions, which were mostly

untreated, led him to be reckless and impulsive,

but that recklessness and impulsiveness

culminated in the death of at least four persons.”4 The

court ultimately concluded that the parties’

requested sentences did not “reflect[ ] the seriousness

of the offenses, or promote[ ] respect for the law, or

protect[ ] the public ..., [or] ... address the issues of

deterrence and punishment.” (Our emphasis)

United States v. Rosario, supra at pages 46-47.

Thus, it is evident that while the sentencing court affirmed that it

had considered Mr. Rosario-Sánchez’s age, long standing history of abuse

and physical and mental conditions in fashioning a sentence, it concluded

that such factors supported a stiffer sentence. For the district court

Petitioner’s age at the time of offense, showed a lack of maturity and

13

sense of responsibility. Likewise, his physical and mental conditions led

him to recklessness and impulsiveness which in the sentencing court’s

view required more punishment.

Thus, it was evident that while the district court appeared to

consider these factors in fashioning a sentence, instead of using them as

mitigation factors, it used the same as aggravating circumstances that

justified a higher sentence.

The Appeal.

The direct result of the district court’s determination to ignore Mr.

Rosario-Sánchez’s juvenile age and his history of intellectual disability,

abuse and corruption by adults, was a significant increase of his

sentencing exposure as he was sentenced to double the amount Petitioner

asked for, pursuant to his plea agreement, and even five (5) more years

than what the government requested.

In his appeal, Mr. Rosario-Sanchez explained to the appeals court

how the district court’s refusal to consider his minor age, intellectual and

mental disability constituted a deviation of this Honorable Court’s

relevant precedents. Mr. López-Rivera explained that this High Court

14

has

repeatedly

discussed

the

interrelation

between

the

Eight

Amendment and intellectual disability and that the Court has required

sentencing courts to consider a defendant’s characteristics and personal

history, which includes his age, mental health condition, in fashioning a

proper and fair individualized sentence. Gall v. United States, 536 U.S.

38, 51 (2007).

Petitioner also emphasized in his appeal that his sentence was

unconstitutionally invalid under Miller v. Alabama, 567 U.S. 460 (2012)

“arguing

that

the

district

court

imposed

a

sentence

that

is

disproportionate and harsh given Rosario-Sánchez’s age at the time of

the offense. United States v. Rosario, supra at page 50.

Furthermore, during the Oral Argument of the case Petitioner

emphasized to the Panel of the First Circuit that evaluated the case, that

this Honorable Court precedents had always stressed minor age, the

maturity of the offender and mental impairments as mitigating factors

that should be consider at sentencing. Petitioner argued that the district

court had misconstrued these mitigating factors and had turned them

into aggravating factors to support an increase in punishment.

15

The Petitioner emphasized that the finding made by the district

court that Mr. Rosario-Sánchez’s 16 years of age4 established a lack of

maturity and a sense of responsibility, coupled with the finding that

Petitioner’s physical and mental conditions, which the district court

recognized were mostly untreated, led him to be reckless and impulsive,

was a misconstruction of this High Court’s specific directions to lower

courts to treat this factors as mitigating circumstances in multiple cases,

including Miller v. Alabama, supra and Atkins v. Virgina, 536 U.S. 304

(2002).

Notwithstanding the above, in opinion issued in this case, the First

Circuit Court of Appeals denied Mr. Rosario-Sánchez’s appeal without

properly discussing with any detail whether the district court’s reliance

on commonly recognized mitigating factors (ie: age and mental

impairments) as aggravating factors was a mistake.

The matter, however, was squarely presented to the First Circuit

in Petitioner’s Petition for Rehearing or Rehearing En Banc. In such

Petition Mr. Rosario Sánchez highlighted how the First Circuit on the

4 In fact Petitioner was 15 years old.

16

same months that it ruled in this case issued another published opinion

in the case of United States v. Flores-Nater, 144 F.4th 56 (1st. Cir. 2025)5

where the holding to vacate the sentence was that the district court had

failed to consider his age (19 years of age) at the time of offense as a

mitigating factor.

The Petition for Rehearing emphasized that in Flores-Nater the

First Circuit correctly recognized this High Court’s precedents ruling as

follows:

While age does not excuse behavior and age per se is

ordinarily not a factor to consider at sentencing, “a

sentencing court should account for age when

inquiring into the conduct of a defendant”. Id.

“Immaturity at the time of the offense conduct is not

an inconsequential consideration”; as such, it should

not go unnoticed. Roper v. Simmons, 543 U.S. 551,

569, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005).

Furthermore, considerations of age and immaturity

are relevant to a defendant's character under the

sentencing factors in § 3553(a). Gall, 552 U.S. at 58,

128 S.Ct. 586 (citing Johnson v. Texas, 509 U.S. 350,

367, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993)); Eddings

v. Oklahoma, 455 U.S. 104, 115, 102 S.Ct. 869, 71

L.Ed.2d 1 (1982). Accordingly, Flores-Nater's age,

immaturity, and vulnerability are important factors

to consider at sentencing. (emphasis in original and

in opinion)

5 Flores-Nater, supra relates to a Sentence imposed by the same judge who imposed

sentence on Petitioner, Honorable Judge Francisco Besosa.

17

In the present case, the aformentioned logic and application of this

High Court precendents related to consideration of minor age at

sentencing is lacking. The First Circuit choose to deny the Petition for

Rehearing and left unalterred its prior decision which directly conflicts

with its own decision in Flores-Nater.

REASONS FOR GRANTING THE WRIT

I. Youth offense is a well recognized mitigating factor not an

aggravating factor and there exists an intracircuit split in the

First Circuit Court of Appeals regarding this matter.

This Petition presents the opportunity for the Court to examine an

intracircuit split within the First Circuit Court of Appeals regarding the

use of minor age as a mitigation factor. On July 14, 2025 a panel of the

First Circuit Court, (Kayata, presiding)6 vacated a sentence and

judgment issued by Honorable Judge Francisco Besosa for not properly

considering defendant’s argument that it should consider his age (19

years) at the time of offense as a mitigating factor. Days before, in this

6 Montecalvo, Kayata and Aframe, Circuit Judges. Opinion issued by Honorable

Judge Kayata.

18

case, another panel of the circuit court (Gelpí, presiding)7 refused to

vacate a sentence and judgment issued by the same district court judge

where the sentencing court evidently failed to consider Petitioner’s age

(15 years) as a mitigating factor and instead considered age as an

aggravating factor.

This Court should consider addressing this Petition not only to

solve this intra-circuit split, but also ensure uniform application of

federal law and to correct the incorrect application of precedents issued

by this High Court related to the proper use of minor age.

II. The age of youth offenders has traditionally been

understood to be a mitigating factor

This Honorable Court has repeated on many ocassions that even

when faced with some of the more serious cases, lower courts have an

obligation “to consider the mitigating qualities of youth.” Graham v.

Florida, 560 U.S. 48, 69 (2010) and Miller v. Alabama, supra. This High

Court has repeatedly recognized that “youth is more than a chronological

fact. It is a time and condition of life when a person may be most

7 Barron, Chief Judge, Thompson and Gelpei, Circuit Judges. Opinion issued by

Honorable Judge Gelpí.

19

susceptible to influence and to psychological damage.” Johnson v. Texas,

supra at 367 (1993), citing Eddings v. Oklahoma, supra at 115 (1982).

Also, see Roper v. Simmons, 543 U.S. 551 (2005), holding that youth

matters in sentencing.

In Graham, supra this High Court following Roper, repeated the

concept that juveniles have lessened culpablility. More recently, in Jones

v. Mississippi, 593 U.S. 98, 108 (2021) this Court rejected a requirement

for courts to find “permanent incorrigibility” prior to imposing a harsh

sentence on a minor, but reemphasized that Supreme Court precedent

required lower courts to consider youth “as a sentencing factor akin to

mitigating circumstance” citing Miller supra; “a judge or jury must have

the opportunity to consider the defendant’s youth and must have

discretion to impose a different punishment” recognizing “the murderer’s

diminished culpability and heightened capacity for change.” Miller, supra

at 465, 479 and 489.

Thus, it is clear from the long line of cases issued by this Honorable

Court that young age has been traditionally found to be a mitigating

circumstance.

20

III. The district court and appellate court erred by

determining that Petitioner’s age, lack of maturity, recklessness

and impulsivity, associated with his age, justified a higher

sentence. This High Court should correct this legal mistake

which is in conflict with this Court’s precedents and other

Circuits decisions

First, the district court and then the appellate court in this case

refused to follow the clear holding established by this High Court related

to the different evaluation that a youth offender deserves under the Eight

Amendment to the United States Constitution when sentenced. On the

contrary, the First Circuit complemented the lower court’s error by

erroneously finding that “[t]he [district] court appropriately pointed to

the seriousness of Rosario’s offenses, as well as the ‘recklessness and

impulsivity’ of his actions. (Our emphasis).

In so holding the First Circuit, compouned de district court’s error

by incorrectly affirming that that “recklessness and impulsivity” are

proper aggravating factors, even in the context of a manipulated juvenile

who has limited intellectual capacity, is very young and has a host of

other emotional and mental conditions. By so doing, the First Circuit, as

the district court, rejected without any valid consideration the early age

and juvenile status of Petitioner.

21

If the Petitioner’s “recklessness and impulsivity” was caused, as

was here, by his young age, mental and emotional impairments, under

this High Court precedents such factors had to be considered to reduce

his culpability not to increase it. The First Circuit’s opinion thus negate

the value of 30 years of precedents set by this Court. Johnson v. Texas,

509 U.S. 350, 368 (1993) (“[t]he relevance of youth as a mitigating factor

derives from the fact that the signature qualities of youth are transient;

as individuals mature, the impetuousness and recklessness that may

dominate in younger years can subside.” (Our emphasis).

The First Circuit, thus, commits the same mistake as the district

court. Both lower courts convert what is a well established traditional

mitigating factors into a justification for a harsher punishment. This

Court should not allow such travesty of justice that directly contradicts

this Court’s holding in the many aforementioned cases.

Worse, the determination by the First Circuit in this case is in

conflict with other circuits where it is clear law that so-called

“recklensses and impulsivity” are part of the mitigating characteristics

of youth. See, for example, United States v. Jefferson, 816 F.3d 1016, 1020

22

(8th Cir. 2016), citing Miller v. Alabama, supra. (“[i]t then evaluated the

extent to which immaturity, failure to appreciate risk, impulsiveness,

peer pressure, and a difficult upbringing—the mitigating factors of youth

emphasized in Miller, 132 S.Ct. at 2465—contributed to Jefferson's

criminal activity”). (Our emphasis). Also see, United States .v Grant, 9

F4th 186 (3rd. Cir. 2021) that holds that Supreme Court preceedent

requires that a “sentencer must weigh youth as a mitigating factor”

before sentencing a juvenile homice offender. United States v. Ramsay,

538 F. Supp. 3d 407 (S.D. NYC 2021) (explaining youth immaturity,

recklessness and impetousity as mitigating factors for younger offender

citing Miller v. Alabama, supra at 472.

As the Court can see, lower courts have been applying “Youth

Matters in Sentencing” concepts outside the death penalty field for some

time now, particularly as that penalty is not available for juveniles since

the opinion of this Court in Thompson v. Oklahoma, 487 U.S. 815, 838

(1988). Even Honorable Judge Besosa, who issued the sentence in this

case, has since recognized the importance of youth as a mitigation factor.

23

See, the opinion issued in United States v. Vázquez, 793 F.Supp. 3d 423

(D.P.R. 2025). Judge Besosa explains:

“Supporting Vázquez's position, a new appreciation

for how youth matters in sentencing has emerged…

Underpinning

each

decision

was

an

acknowledgement that children are constitutionally

different from adults for purposes of sentencing”

because they “have diminished culpability and

greater prospects for reform. Children “have a lack of

maturity and an underdeveloped sense of

responsibility, leading to recklessness, impulsivity,

and heedless risk-taking.” They are “more vulnerable

to negative influences and outside pressures,

including from their family and peers; they have

limited control over their own environment, and lack

the ability to extricate themselves from horrific,

crime-producing settings.” And “a child's character is

not as well formed as an adult's; his traits are less

fixed and his actions less likely to be evidence of

irretrievable depravity.” . emphasized both common

sense and emerging science regarding adolescent

development to differentiate juveniles from adult

offenders. (Our emphasis, Cites and internal

quotation marks omitted).

In his opinion in Vázquez implicitly recognizes his mistake in this

case when he acknowledges that the reality that juvenile and minors

“have a lack of maturity and an underdeveloped sense of responsibility,

leading to recklessness, impulsivity, and heedless risk-taking” that in

24

reality are part of the mitigation analysis that he failed to carry out in

this case. What Judge Besosa recognized in Vázquez, citing the same

precedents we have included in this Petition, is the standard for

sentencing juveniles and what Petitioner requested from him and the

First Circuit without success. Accordingly, it is evident, from the above

that in Petitioner’s case the lower courts’ failure to properly consider his

age and youth characteristics, and particularly in view of his other

mental and emotional issues, constitutes a miscarriage of justice and an

incorrect application of this Court’s prior precedents. The proper remedy

is for the sentence and judgment of Petitioner to be vacated and the case

remanded for resentencing before a different district court judge.

CONCLUSION

For the reasons expressed above, this Court should grant this

Petition for Certiorari and provide the relief herein requested.

Respectfully submitted,

Raúl Mariani-Franco

P.O. Box 9022864

San Juan, PR, 00902-2864

Tel.: (787) 620-0038

Fax: (787) 620-0039

25

Counsel of Record for Petitioner Rosario-Sánchez

Date: December 22, 2025

26

CERTIFICATE OF SERVICE

I, Raúl S. Mariani Franco, certify that on December 22, 2025,

copies of the enclosed MOTION FOR LEAVE TO PROCEED IN

FORMA PAUPERIS and PETITION FOR A WRIT OF CERTIORARI

were served to each party to the above proceeding, or to that party's

counsel, and on every other person required to be served, pursuant to

Supreme Court Rules 29.3 and 29.4, by depositing an envelope

containing the above documents in the United States mail, properly

addressed to them with first-class postage prepaid.

The names and addresses of those served are as follows:

Solicitor General of the United States

Room 5614, Department of Justice

950 Pennsylvania Avenue, NW

Washington, D.C. 20530-0001

In San Juan, Puerto Rico today Decemer 22, 2025.

S/Raúl S. Mariani Franco

RAUL S. MARIANI FRANCO

27

CERTIFICATION OF WORD COUNT AND FONT

As required by Supreme Court Rule 33.1(h), I certify that the

document contains 4662 words, in Century Schoolbook font, excluding

the parts of the document that are exempted by Supreme Court Rule

33.1(d).

I declare under penalty of perjury that the foregoing is true and

correct.

Executed on December 22, 2025.

S/Raul S. Mariani Franco

RAUL S. MARIANI FRANCO

28