          United States Court of Appeals
                     For the First Circuit


No. 16-1287

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                     HÉCTOR MULERO-ALGARÍN,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

       [Hon. Carmen Consuelo Cerezo, U.S. District Judge]


                             Before

                  Torruella, Lynch, and Barron,
                         Circuit Judges.


     Mauricio Hernández Arroyo and Law Offices of Mauricio
Hernández Arroyo, Esq. on brief for appellant.
     Julia M. Meconiates, Assistant U.S. Attorney, Mariana E.
Bauzá-Almonte, Assistant U.S. Attorney, Chief, Appellate Division,
and Rosa Emilia Rodríguez-Vélez, United States Attorney, on brief
for appellee.


                          July 31, 2017
             LYNCH,       Circuit   Judge.       While    on   supervised   release

following his serving a 135-month term of imprisonment for a 2002

conviction    for     a    federal    drug   felony,      Héctor    Mulero-Algarín

committed a second federal drug felony in 2014.                    In doing so, he

committed    two    offenses:        violation    of     the   conditions   of   his

supervised release and the new drug offense.                   Mulero-Algarín pled

guilty and was sentenced for the new drug offense by a different

district court judge than presided over his previous conviction

and sentence.       He was newly sentenced to 120 months' imprisonment

for that drug offense.

             In a separate proceeding, held before the district court

judge who had presided over the original 2002 drug case, Mulero-

Algarín's term of supervised release was revoked and replaced with

a 36-month prison sentence, to be served consecutively to the 120-

month sentence imposed on him for the new drug offense.                     See 18

U.S.C. §§ 3583(e)(3), 3584(a). The court also stated that it would

not impose a further term of supervised release upon Mulero-

Algarín's release from that confinement.                   This appeal concerns

only the revocation sentence.

             Mulero-Algarín does not dispute that he violated the

conditions of his supervised release by committing the second drug

crime or that revocation of his supervised release was warranted.

He appeals only the district court's decision to impose his

revocation sentence consecutively to, rather than concurrently
                                        - 2 -
with, his sentence for the second crime.                   He makes the factually

incorrect          argument    that   the     court   failed   to    consider     his

cooperation with the government as to his second drug crime as

part of this claim.

               We hold that the district court committed no error.                 We

affirm Mulero-Algarín's revocation sentence.

                                             I.

               On     May     15,   2002,     Mulero-Algarín    pled   guilty      to

possession of cocaine with intent to distribute, in violation of

21 U.S.C. § 841(a)(1), after he was caught piloting a speedboat

with 1,576 kilograms of cocaine on board.                    U.S. District Judge

Carmen C. Cerezo sentenced him to 135 months' imprisonment, plus

five       years    of   supervised    release.       He    served   his   term   of

imprisonment.

               Mulero-Algarín's supervised release term commenced on

September 2, 2011, with an expiration date of September 1, 2016.

On January 22, 2014, claiming he had "faithfully complied" with

the conditions of his supervised release,1 Mulero-Algarín moved

for its early termination.              The government opposed that motion,

and Judge Cerezo denied it.



       1  As conditions of his original supervised release,
Mulero-Algarín was required to not, inter alia, "commit another
federal, state or local crime," "purchase, possess, use,
distribute, or administer any controlled substance," or "associate
with any person(s) engaged in criminal activity."
                                            - 3 -
               On December 10, 2014, less than a year after requesting

early termination of his supervised release, Mulero-Algarín was

detained on board a speedboat, along with one other passenger,

after fleeing from a U.S. Coast Guard vessel and throwing multiple

packages overboard, one of which was found to contain approximately

30    kilograms     of    cocaine.     Mulero-Algarín        was    charged     with

conspiring to possess cocaine with intent to distribute on board

a    vessel    of   the   United   States,    see   46     U.S.C.    §§   70502(b),

70503(a)(1), 70504(b)(1), 70506(b), and knowingly failing to obey

an order of a federal law enforcement officer to heave to a vessel

of the United States, see 18 U.S.C. § 2237(a)(1).                         This new

criminal case was assigned to U.S. District Judge Pedro A. Delgado-

Hernández.

               On October 16, 2015, Mulero-Algarín pled guilty in the

new drug case, and Judge Delgado-Hernández sentenced him to 120

months' imprisonment -- the applicable mandatory minimum -- plus

five years of supervised release.            Mulero-Algarín's plea agreement

stipulated that, in the event that he was to be sentenced for

violating the conditions of his original supervised release in a

revocation proceeding before Judge Cerezo, he could request that

his revocation sentence run concurrently with his new sentence,

while    the    government    could   request       that    the     sentences   run

consecutively.


                                      - 4 -
          The U.S. Probation Office had initiated a revocation

proceeding before Judge Cerezo on December 16, 2014, after learning

of Mulero-Algarín's December 10 detention.       On January 27, 2015,

"consistent with the [c]ourt's usual practice . . . when the

ground[] for revocation of supervised release is new criminal

conduct," Judge Cerezo ordered the revocation proceeding continued

until Mulero-Algarín's new criminal case concluded.         On October

26, 2015, with the revocation proceeding resumed, Mulero-Algarín

filed in that proceeding a sentencing memorandum in which he

conceded his supervised release violation based on his commission

of a new crime, and requested that his revocation sentence run

concurrently with his new sentence.

          At    his   February   17,   2016   sentencing   hearing     for

violating the conditions of his supervised release, Mulero-Algarín

renewed his request for a concurrent revocation sentence.              The

government requested that the sentences run consecutively.           After

determining    that   Mulero-Algarín's   Guidelines   Sentencing     Range

("GSR") was 24 to 30 months, Judge Cerezo noted that Mulero-Algarín

had violated his supervised release2 by engaging in "the same [type

of] activity and conduct" for which he had been sentenced to 135



     2    Judge Cerezo found that Mulero-Algarín had violated the
conditions of his supervised release by "committing and being
convicted of another federal crime," "possessing [a] controlled
substance[,] and associating with a person engaged in criminal
activity." Mulero-Algarín did not contest that finding.
                                 - 5 -
months' imprisonment in 2002.          In light of "the seriousness of the

offense, and . . . the need to provide adequate deterrence to

[Mulero-Algarín's] future conduct," Judge Cerezo concluded that a

sentence of 36 months' imprisonment, to be served consecutively to

the 120-month sentence imposed on Mulero-Algarín in his new drug

case, would be "sufficient but not greater than necessary in this

case."     See 18 U.S.C. §§ 3553(a), 3583(e)(3), 3584.           This appeal

followed.

                                       II.

            On appeal, Mulero-Algarín raises both procedural and

substantive challenges to Judge Cerezo's decision to impose the

36-month    revocation      sentence    consecutively    to,    rather     than

concurrently with, the 120-month sentence for the second drug

crime.3     Assuming   in    Mulero-Algarín's    favor   that   all   of    his

challenges were preserved, we review his revocation sentence for

abuse of discretion.        See United States v. Butler-Acevedo, 656

F.3d 97, 99 (1st Cir. 2011).       We hold that there was no error.




     3    Mulero-Algarín does not challenge Judge Cerezo's
decision to vary his revocation sentence upward to 36 months from
the GSR of 24 to 30 months.
                                   - 6 -
A.   Mulero-Algarín's Claims of Procedural Error

           Mulero-Algarín advances two related claims of procedural

error regarding the consecutive nature of his revocation sentence,

both of which rely on a misunderstanding of applicable law.4

           First, Mulero-Algarín argues that Judge Cerezo failed to

credit him for the time that he had already served in prison as a

result of his 2002 conviction.            Mulero-Algarín notes that the

maximum term of reimprisonment for which he was eligible upon

revocation was capped by statute at five years.                See 18 U.S.C.

§ 3583(e)(3). He also notes that under the version of § 3583(e)(3)

applicable here, see United States v. Tapia-Escalera, 356 F.3d

181, 187-88 (1st Cir. 2004) (2003 amendment to § 3583(e)(3) does

not apply when the offense of conviction predates that amendment),

the five-year cap applies to the aggregate of all periods of

reimprisonment that he could be required to serve for violations

of his supervised release.          From those premises, Mulero-Algarín

argues that Judge Cerezo should have counted the 135-month prison

sentence   he   received     in   2002   toward    the   five-year     aggregate

reimprisonment cap and concludes that -- because the cap had been

exceeded   --   he   could   be    required   to    serve   only   a    nominal,

concurrent revocation sentence.



      4   To the extent that Mulero-Algarín's argument relies at
all on our decision in United States v. Rodríguez-Meléndez, 828
F.3d 35 (1st Cir. 2016), that case is inapposite.
                                     - 7 -
           Mulero-Algarín's argument mistakenly characterizes his

original term of imprisonment for the underlying drug offense as

a term of reimprisonment for a supervised release violation.              The

cap in § 3583(e)(3) -- both before and after that section was

amended in 2003 -- applies only to terms of reimprisonment imposed

upon revocation.5   Mulero-Algarín has received no prior revocation

sentence   to   credit   toward   the   cap.       Judge   Cerezo   correctly

recognized this and did not credit Mulero-Algarín for any time

that he had already served in prison.          Mulero-Algarín's resulting

36-month   revocation    sentence    fell   well    within   the    five-year

reimprisonment cap.6


     5    Tapia-Escalera makes this clear.     See 356 F.3d 181.
There, the defendant had previously violated his supervised
release and been sentenced upon revocation to ten months of
reimprisonment, plus four additional years of supervised release.
Id. at 182. At issue was the district court's imposition of a 30-
month term of reimprisonment upon the defendant's violation of his
additional supervised release.     Id.   Applying the version of
§ 3583(e)(3) applicable here, we held that the district court had
erred by failing to count the prior ten-month sentence toward the
aggregate cap, which -- based on that defendant's offense of
conviction -- was 36 months. Id. at 188. We then remanded so
that the district court could reduce the 30-month sentence by four
months to comport with the cap. Id. The five years in prison
that the defendant had served for the original offense did not
bear on the assessment of whether the cap had been exceeded. See
id. at 182.
     6    Mulero-Algarín's citation to 18 U.S.C. § 3583(h) takes
him no further.    Section 3583(h) outlines the cap that applies
when a district court revokes a defendant's supervised release and
replaces it with a term of reimprisonment plus an additional term
of supervised release. Judge Cerezo did not impose an additional
term of supervised release on Mulero-Algarín, so § 3583(h) is
inapposite.
                                    - 8 -
               Mulero-Algarín also argues that Judge Cerezo failed to

credit him for the time that he had already served under supervised

release as a result of his 2002 conviction -- specifically, the 39

months between the commencement of his supervised release in

September 2011 and his arrest for the second crime in December

2014.       He argues that Judge Cerezo should have deducted these 39

months from his 36-month revocation sentence and concludes that -

- because his credit exceeded his sentence -- he could be required

to serve only a nominal, concurrent revocation sentence.

              This claim is easily dispatched, as it is explicitly

foreclosed by statute.        Defendants sentenced to reimprisonment

upon revocation do not receive "credit for time previously served

on postrelease supervision."      18 U.S.C. § 3583(e)(3).

              Mulero-Algarín's procedural claims both fail.7    There

was no error.

B.   Mulero-Algarín's Claim of Substantive Unreasonableness

              Mulero-Algarín claims that Judge Cerezo's decision to

impose his revocation sentence consecutively to his sentence for

his second crime was substantively unreasonable, in light of

certain factors that he argues militated in favor of concurrent



        7 To the extent that -- as an alternative to his claim
that his time served in prison or under supervised release entitled
him to a concurrent revocation sentence -- Mulero-Algarín claims
that his time served entitled him to an incremental reduction of
his revocation sentence, that claim fails for the same reasons.
                                  - 9 -
sentences.     Specifically, he argues that (1) he cooperated with

the government following his arrest for the second drug crime,

(2) he was already penalized for his supervised release violation

through his sentence for the second crime, and (3) due to his 120-

month sentence for the second crime, he will be incarcerated until

he   is   nearly   60   years   old,   even   without   the   addition   of   a

revocation sentence.

             Defense counsel vigorously pressed these factors at

sentencing, and there is no reason to think that Judge Cerezo did

not consider them, so we construe Mulero-Algarín's challenge as

directed at the weight that the factors were afforded.            See United

States v. Cortés-Medina, 819 F.3d 566, 571 (1st Cir.), cert.

denied, 137 S. Ct. 410 (2016).         How much weight to afford various

factors at sentencing is a judgment committed to the informed

discretion of the sentencing court. See United States v. Clogston,

662 F.3d 588, 593 (1st Cir. 2011).

             Judge Cerezo considered the cooperation that Mulero-

Algarín provided in his second drug case -- in the form of the

names of his criminal associates -- along with the fact that he

had already been credited for such assistance in that case.

Indeed, Mulero-Algarín's cooperation factored prominently into

Judge Delgado-Hernández's decision in that case to impose only the

mandatory minimum sentence.        And while Mulero-Algarín asserted in

his revocation proceeding that he had offered to assist the
                                   - 10 -
government further by wearing a wire around other known drug

traffickers, Judge Cerezo was also aware that he had provided no

such service, as he had not been released on bail.

          Similarly, Judge Cerezo considered the fact that the GSR

in Mulero-Algarín's second drug case was increased because he had

committed the offense while on supervised release along with the

fact that Mulero-Algarín was not actually penalized for that

increase, given that he received the mandatory minimum sentence

for his offense.

          Finally, Judge Cerezo considered the fact that Mulero-

Algarín will be 60 years old after serving a decade in prison for

his new drug crime along with the fact that he committed that crime

at age 49, after having served a decade in prison for a similar

crime.

          After considering these factors, Judge Cerezo reasonably

afforded overriding weight to the need to deter Mulero-Algarín

from further recidivism and justifiably concluded that additional

time in prison following his 120-month term for his new crime would

be an appropriate sentence for his supervised release violation.

See 18 U.S.C. § 3584(b).        In assessing the totality of the

circumstances as she did, and in sentencing Mulero-Algarín to a

consecutive term of imprisonment, Judge Cerezo certainly did not

exceed her "broad discretion" to fashion a revocation sentence

under 18 U.S.C. § 3583(e)(3).    United States v. Hernández–Ferrer,
                                - 11 -
599 F.3d 63, 66 (1st Cir. 2010).    The fact that Judge Cerezo "chose

not   to   sentence   [Mulero-Algarín]   according    to   his   counsel's

recommendation" does not establish error.            Butler-Acevedo, 656

F.3d at 101.

                                 III.

            Mulero-Algarín's revocation sentence is affirmed.




                                - 12 -
