APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Juan Perez-Gimenez, U.S. District Judge]
The opinion of the court was delivered by: Selya, Circuit Judge.
Before Boudin, Selya and Lipez, Circuit Judges.
A jury convicted defendant-appellant Hernardo Medina-Villegas on nine counts growing out of a conspiracy to commit armed robbery and the unlawful killing of a guard during the robbery. In an earlier multi-defendant appeal, we affirmed the appellant's convictions and sentences on eight of the nine counts. See United States v. Catalan-Roman, 585 F.3d 453, 475 (1st Cir. 2009). As to the remaining count, however, we affirmed the appellant's conviction but vacated his sentence in order to afford him an opportunity to allocute. See id. At resentencing on that count, the district court heard the appellant's allocution and proceeded to reinstate the original sentence of life imprisonment without the possibility of release.
The appellant again repairs to this court claiming that the reimposed sentence is both procedurally and substantively unreasonable. In addition, he attempts to raise a double jeopardy claim that the district court declined to address on remand. After careful consideration, we affirm.
Our earlier opinion contains an exegetic discussion of the background facts, the charges lodged against the appellant, and the travel of the case, see id. at 457-60, and we assume the reader's familiarity with that account. For present purposes, a sketch suffices.
A federal grand jury sitting in the District of Puerto Rico indicted the appellant and others on charges arising out of the robbery of an armored truck and the killing of a guard. After a trial, the jury convicted the appellant on nine counts. The counts pertinent to this appeal are counts eight and nine. Count eight charges the appellant with aiding and abetting the use and discharge of firearms during and in relation to a crime of violence death resulting. See 18 U.S.C. §§ 2, 924(j). Count nine charges the appellant with aiding and abetting the use and discharge of firearms during and in relation to a crime of violence. See id. §§ 2, 924(c)(1)(A)(iii). At the time of the original disposition, the district court sentenced the appellant, inter alia, to life imprisonment without the possibility of release (count eight) and a consecutive term of thirty years' imprisonment (count nine).
On his first appeal, the appellant advanced a broad array of claims. With respect to count eight, he argued (among other things) that the district court had not afforded him an opportunity to allocute. We found merit in this claim, vacated the sentence on count eight, and remanded to give the appellant a concinnous opportunity to allocute. See Catalan-Roman, 585 F.3d at 475.
At the resentencing hearing, the appellant asked the district court to entertain a double jeopardy argument addressed to count nine. The court, apparently deeming such an issue to be beyond the scope of the remand, declined to adjudicate it. It then heard the appellant's allocution on count eight and reinstated the sentence previously imposed. This timely appeal ensued.
We start with the sentence imposed on count eight. Although the appellant's brief is amorphous, we assume, favorably to him, that his challenge to his sentence encompasses both procedural and substantive grounds.
We review preserved objections to both the procedural and substantive reasonableness of a sentence for abuse of discretion. See Gall v. United States, 552 U.S. 38, 46 (2007); United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). "The review process is bifurcated: we first determine whether the sentence imposed is procedurally reasonable and then determine whether it is substantively reasonable." United States v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011).
The appellant's claim of procedural error rests on the provisions of 18 U.S.C. § 3553. Pertinently, this statute requires the sentencing court to consider the variety of available sentences, see id. § 3553(a)(3), and to "state in open court the reasons for its imposition of the particular sentence," id. § 3553(c). In this regard, the appellant notes that the jury could not agree on a life sentence for count eight and, therefore, the district court had the option to impose a lesser sentence.*fn1 Given this circumstance, he argues that the court's failure either to state why it did not select a lesser sentence or to explain its reasons for the reimposed sentence constitutes reversible error.
This claim of error comes late in the day. At resentencing, the appellant did not object to the court's failure to offer an explanation of the reasons underlying the sentence, nor did he object to the proceeding on any related ground. Accordingly, his present claim has not been preserved, and our review is for plain error. See United States v. Pakala, 568 F.3d 47, 56 (1st Cir. 2009).
The test for plain error is familiar. As we said in United States v. Duarte, 246 F.3d 56 (1st Cir. 2001), "[r]review for plain error entails four showings: (1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant's substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings." Id. at 60.
It is settled law that a district court's failure adequately to explain a sentence as required by section 3553(c), without more, is not plain error. See United States v. Mangual-Garcia, 505 F.3d 1, 16 (1st Cir. 2007). Rather, "a reversal under plain error review requires a reasonable probability that, but for the error, the district court would have imposed a different, more favorable sentence." Id. at 15 (internal quotation marks omitted). This is equally true when the claim of error is ...