“Say Why or Try Again” – The First Circuit’s Clarion Call for Explicit Treatment of Core Mitigation Arguments in Upward Variance Sentences
A Comprehensive Commentary on United States v. Flores-Nater, 86 F.4th ___ (1st Cir. 2025)

1. Introduction

United States v. Flores-Nater marks the second appellate trip for a sensational Puerto Rico gang-related murder. After the First Circuit vacated the initial 30-year sentence for lack of adequate explanation, the district court re-imposed the same term. Defendant Jadnel Flores-Nater again appealed, contending – among other things – that the judge ignored his principal mitigation theme: he was barely 18 when he pulled the trigger.

The Court of Appeals agreed that the sentencing court’s silence on this “dominant argument” constituted procedural error, vacated the sentence a second time, and articulated a crisp rule: when a court chooses a large upward variance, it must expressly show that it heard, considered, and either accepted or rejected the defendant’s central mitigation contentions.

Key Actors

• Appellant/Defendant: Jadnel Flores-Nater (“Potro”)
• Appellee: United States of America
• District Judge: Hon. Francisco A. Besosa (D.P.R.)
• First Circuit Panel: Circuit Judges Montecalvo, Kayatta (author), and Aframe

2. Summary of the Judgment

The First Circuit (1) vacated the 360-month sentence and remanded for resentencing because the district court failed to explain its apparent rejection of the age-based mitigation argument; (2) rejected challenges to the court’s use of Puerto Rico’s high crime rate in the deterrence calculus, finding no plain error; and (3) held that the government did not breach the plea agreement by defending the higher sentence on appeal.

Thus, while reaffirming the legitimacy of community-based considerations when properly tied to case facts, the opinion erects a sturdier procedural guardrail: robust, on-the-record analysis of a defendant’s flagship mitigation claim is mandatory for substantial upward variances.

3. Analysis

3.1 Precedents Cited and Their Influence

• Gall v. United States, 552 U.S. 38 (2007) – Baseline authority for individualized sentencing and abuse-of-discretion review; cited for the duty to consider § 3553(a) factors and provide reasons.
• Roper v. Simmons, 543 U.S. 551 (2005); Graham v. Florida, 560 U.S. 48 (2010) – Supreme Court recognition that youthful offenders are less culpable; fortified the defendant’s age argument.
• United States v. Colón-Cordero, 91 F.4th 41 (1st Cir. 2024) – Very recent case where the Court vacated for failure to address intellectual-disability mitigation; provided the doctrinal template the panel ultimately applied.
• Community-Consideration Line:
  • United States v. Flores-Machicote, 706 F.3d 16 (2013) – Approved use of Puerto Rico crime statistics when linked to case-specific facts.
  • United States v. Carrasquillo-Sánchez, 9 F.4th 56 (2021) & Rivera-Berríos, 968 F.3d 130 (2020) – Reversed sentences relying solely on community crime rates.
  • United States v. Flores-González, 86 F.4th 399 (1st Cir. 2023) (en banc, equally divided) – Left earlier cases undisturbed; panel leans on this posture.
• Plea Agreement Cases: Carbajal-Váldez, 874 F.3d 778 (2017); Hernández-Ramos, 906 F.3d 213 (2018) – Confirm that absent an express appellate-level limitation, the government can defend a higher sentence on appeal.

3.2 The Court’s Legal Reasoning

1. Preservation & Standard of Review
   - Age-argument issue deemed preserved because the district court had ample notice starting from the first sentencing and through the prior appeal.
   - Review therefore for abuse-of-discretion (not plain error).
   - Community-rates objection not preserved, hence plain-error analysis applied, and defendant lost.
2. Procedural Unreasonableness Ruling
   - Upward variance: from 120-month Guideline to 360-month sentence (a 20-year jump).
   - Key Rule: Larger variance ⇒ heavier explanatory burden.
   - The court mentioned age only in passing (and even misstated it). No discussion of how youth affects culpability.
   - Applying Colón-Cordero, silence on a paramount mitigation claim is fatal. Hence abuse of discretion.
3. Substantive & Procedural Challenges to Community-Crime Considerations
   - Existing precedent allows using locale-specific crime data if coupled with offense specifics.
   - District judge tied Puerto Rico’s homicide rate to the gang-style murder facts ⇒ acceptable.
   - No plain error, sentence otherwise plausible.
4. Plea-Agreement Breach Claim
   - Contract interpretation: agreement barred government from urging higher sentence in district court but said nothing about appeals.
   - Explicit waiver by defendant (not by government).
   - Government’s appellate stance therefore permissible.

3.3 Impact of the Judgment

For District Courts:

• Whenever considering a substantial departure/variance, they must create a clear record that addresses – expressly and specifically – any major mitigation point pressed by the defense.
• Passing references to the existence of the factor are insufficient.

For Defense Counsel:

• Highlight a single, potent mitigation theme and press it repeatedly; failure of the court to respond is now fertile ground for reversal.
• Formal objection at the end of sentencing is useful but not indispensable when the record already signals the issue.

For Prosecutors:

• May rely on community-crime data if they also tie it concretely to the individual case.
• Plea agreements must expressly curb appellate advocacy if limiting the government’s future positions is a bargaining goal.

Doctrinally: The decision cements a “speak-up” procedural principle: a sentencing judge’s failure to articulate its consideration (or rejection) of a defendant’s leading mitigation argument is itself reversible error, especially for large variances.

4. Complex Concepts Simplified

• Guidelines Upward Variance: When a judge sentences above the advisory range. Must justify under § 3553(a) factors.
• Procedural vs. Substantive Reasonableness:
  • Procedural – Was the process correct? Did the judge calculate Guidelines and explain reasons?
  • Substantive – Is the length of the sentence itself defensible?
• Plain-Error Review: Four-part standard applied when an issue was not raised below. Harder for appellant to win.
• Community-Based Considerations: Using local crime conditions (e.g., high homicide rates) to inform deterrence needs. Allowed if tied to defendant’s conduct.
• Plea-Agreement “Material Breach”: A serious violation that could void the deal; here limited to conduct at sentencing, not on appeal.

5. Conclusion

United States v. Flores-Nater reinforces the First Circuit’s insistence on transparent, reasoned sentencing – particularly when the court travels far beyond the Guidelines. The panel’s message is simple: if a defendant puts a spotlight on a mitigation argument, the judge must either dim it with explanation or let it illuminate a shorter sentence. Silence is no longer golden; it is reversible error.

Equally notable is the Court’s balanced stance: it preserved the legitimacy of community-specific deterrence rationales and protected the government’s appellate prerogatives under ordinary plea-bargain language.

Going forward, Flores-Nater will be the citation of choice whenever counsel argues that a sentencing court glossed over a primary mitigation point. The First Circuit has drawn the line: “Say why – or try again.”