174 Ariz. 228 (1992)
848 P.2d 313
In the Matter of the ESTATE OF Robert Wallace CRAIG, deceased.
ST. JOSEPH'S HOSPITAL AND MEDICAL CENTER, Petitioner-Appellee, Cross Appellant,
v.
Michael Ray HANSGEN; Gary Alan Hansgen; Mrs. Darrell L. Hansgen; Patricia Lynn Hansgen; Douglas Wayne Hansgen; Debra Ann Hansgen; Lyle Puzey; Mrs. Patsey Puzey; Mrs. Herschel Abbott; Mrs. Byron Wolfe; Misti Sue Wolfe; Staci Dean Wolfe; Glen Lowell Puzey; Nathan Puzey; Mrs. Lynn Fay Efird; Charles Maney Cork; Manley J. Cork; Timothy Van Puzey; Jay Charles Puzey; Kevin Jay Cork; Brian Lee Cork; Robert Mason Davis; Gene Alkire Davis; Rev. Michael Jay Davis; Mrs. Marion A. Wright; Fredrick McLean Wright; Marion Eugene Wright; Mrs. Karen Wright Bireline; Leona Heischmann Kuchefski; Robert W. Craig; Harold E. Craig; Vern Ingalsbe; C. Diane Cannon Lane; Larry J. Cannon; Steven A. Cannon; Michael J. Cannon; Richard L. Cannon; Win Smith; Harold A. Craig; Dennis Lee Wright; Stephen J. Kuchefski; Mrs. Claudia Kuchefski Ohl; and all heirs of Robert Wallace Craig, deceased, Respondents-Appellants, Cross Appellees.
No. 1 CA-CV 90-300.
Court of Appeals of Arizona, Division 1, Department E.
September 24, 1992.
Review Denied April 13, 1993.
*230 Garrey & Curran, P.C. by D. Reid Garrey, James P. Curran and Shawna Woner, Phoenix, for respondents-appellants, cross appellees.
Jennings, Strouss & Salmon by James M. Ackerman, John B. Weldon, Jr. and David J. Estes, Phoenix, for petitioner-appellee, cross appellant.
*231 OPINION
VOSS, Judge.
In this appeal we must construe a testamentary trust written in 1930. Since the time of the testator's death circumstances have changed substantially so that the terms of the charitable trust are outmoded. The heirs of the testator ask us to hold that the trust has failed and the estate should be distributed to them. The beneficiary of the trust requests that we deviate from the terms of the trust by application of the doctrines of cy pres or equitable deviation.
FACTS AND PROCEDURAL HISTORY
Dr. Robert Wallace Craig was a physician who came to Arizona in 1898 suffering from tuberculosis. He conquered his tuberculosis and went on to become a prominent physician, businessman, and property owner in Phoenix. Dr. Craig died in 1933, leaving a will dated May 12, 1930. He was survived by his wife and daughter.
In his will, Dr. Craig established a trust for the benefit of his wife and daughter, to provide them income for life. Dr. Craig's wife died in 1976 and his daughter died in 1987. Dr. Craig also provided for disposition of the trust estate following the death of his wife and daughter. Dr. Craig set out his intentions in "Article Fifth" of his will:
FIFTH: Upon the death of the survivor of my said wife and my said daughter, there shall be turned over and delivered from the trust estate to Sisters of Mercy of Arizona, a corporation, conducting St. Joseph's Hospital in Phoenix, Arizona, the sum of One Hundred Fifty Thousand Dollars ($150,000.00) to be used by said corporation for the erection, as soon as practicable, of a building to be situated in or near the City of Phoenix, Arizona, which said building shall be used by the said Sisters of Mercy of Arizona for the exclusive care of tubercular cases, and I direct that any tubercular patient is to be admitted and cared for in said building, irrespective of his or her religious belief or church affiliation.
The one of my Trustees who shall be acting at the time of the death of the survivor of my said wife and daughter, that is to say, Gus H. Hirschfeld, Sylvan C. Ganz or Phoenix Savings Bank and Trust Company, as the case may be, shall continue as sole Trustee to hold and manage the entire trust estate, including any and all accumulations and undistributed income, excepting, of course, the One Hundred Fifty Thousand Dollars ($150,000.00) to be paid to Sisters of Mercy of Arizona as aforesaid (excepting also the Five Thousand Dollars ($5,000.00) which might, under foregoing provisions, at that time be paid to Sarah J. Henderson), for a period of twenty-one (21) years from and after the death of the survivor of my said wife and daughter, and the net income therefrom shall be paid over and delivered by my said Trustee for and during said period of twenty-one (21) years and in quarterly installments, so nearly as that may be practicable, to said Sisters of Mercy of Arizona, to be used by said corporation to reduce the cost to individual patients who may be treated or cared for in the building to be erected by said Sisters of Mercy of Arizona as above provided.
I direct that there be filed in the Probate Court having jurisdiction of said trust, an agreement duly executed by said Sisters of Mercy of Arizona, wherein and whereby said corporation will agree to receive the net income from said trust estate for and during the period of twenty-one (21) years or such shorter period as may be limited by law, for the uses and purposes hereinabove provided, and if the said Sisters of Mercy of Arizona shall refuse or fail to execute and file such agreement within a reasonable time, then the entire estate shall immediately go and be paid over to my heirs-at-law then living, pursuant to the rules of succession of the State of Arizona then in force and effect.
Upon the expiration of twenty-one (21) years from and after the death of the survivor of my wife, Jo E. Craig, and my daughter, Kathleen Craig Bloomhardt, or upon the sooner termination of the trust, *232 if a termination of said trust should be required by law prior to the expiration of twenty-one (21) years, I direct that the entire trust estate shall go to and become the property of the Sisters of Mercy of Arizona, a corporation, absolutely, and subject to no direction by me or any other person. I express the hope, however, that said Sisters of Mercy of Arizona, shall make a use of the trust funds similar to the use to be made by said corporation of the income under the foregoing provisions.
The Sisters of Mercy of Arizona was a nonprofit charitable corporation that operated a charity hospital. It is now known as St. Joseph's Hospital and Medical Center. It continues as a non-profit charitable organization devoted to the care of the sick and needy.[1]
In 1944, the hospital filed a document agreeing "to receive the net income from the trust estate provided for under the Will of ROBERT WALLACE CRAIG, Deceased, Paragraph Fifth ...." In 1962, the hospital filed a second agreement to accept the trust "during the period of twenty-one (21) years or such shorter period as may be limited by law for the uses and purposes provided in the said Will." This document also stated: "The execution of this Agreement shall not preclude the undersigned from taking such action as may be necessary to secure a construction of the said Will in order to effectuate the intent and purpose of the testator."
The advent of public health measures and antibiotics have effectively reduced the incidence of tuberculosis in the general population. Between 1930 and 1986 the incidence of tuberculosis dropped from 130 cases per 100,000 population to 7 cases per 100,000 population. The treatment of tuberculosis has also changed. In Dr. Craig's day, treatment consisted of admission to a hospital. At the present time treatment is generally accomplished through chemotherapy on an out-patient basis. Hospitalization is generally no longer needed.
St. Joseph's filed a petition on December 14, 1988, proposing to the court that it depart from the terms of Dr. Craig's bequest under the cy pres doctrine. It submitted the affidavit of its vice-president for planning/research which asserted:
[I]t is not practical or feasible to construct a hospital facility for the exclusive care of tuberculosis patients for $150,000.00. Presently, the average capital expenditure to construct and equip one hospital bed in a major urban medical center is $150,000-$180,000. In contrast, renovating existing hospital space costs about $150-$180 per square foot, so $150,000 could renovate approximately 1,000 square feet of existing hospital space.
The hospital further stated that it was "unlikely that the annual cost of providing care to tuberculosis patients at St. Joseph's Hospital would approach $200,000 ...." In support of its request to use the bequest for purposes somewhat different from the specific terms of Dr. Craig's will, the hospital asserted:
There are a number of diseases related to tuberculosis. First, there are a variety of diseases  such as cancer or Acquired Immune Deficiency Syndrome (AIDS)  for which tuberculosis is a secondary illness caused by breakdowns of the immune system of the body. Second, there are a number of lung diseases other than tuberculosis  such as coccidimycosis (i.e., "Valley Fever"), chronic obstructive pulmonary disease, severe chronic asthma or emphysema  which can be broadly viewed to be related to tuberculosis.
The hospital requested the court to authorize the trustee to distribute the trust funds to it as follows:
(1) A lump sum distribution of One Hundred Fifty Thousand Dollars ($150,000), to be used by Petitioner to renovate and equip existing hospital space to be used for the diagnosis and treatment of patients with tuberculosis and related diseases.

*233 (2) For a period of twenty-one (21) years from May 16, 1987, until May 16, 2008, all of the trust income, to be used by Petitioner to provide care for patients with tuberculosis and related diseases where financial circumstances do not enable them to pay full charges.
The heirs-at-law (appellants/cross-appellees) intervened and objected to the hospital's petition. They filed a motion for summary judgment contending that the purpose of the trust had failed and that pursuant to the terms of the will, the entire trust estate should be immediately distributed to them. The trial court denied the hospital's petition and granted the heirs' motion for summary judgment. The hospital filed a motion for new trial, arguing that the judgment was contrary to law. The hospital asserted that the trust had not failed and the heirs were therefore not entitled to the trust estate. It also urged the court to apply equitable deviation to allow it to use the $150,000 bequest to build an out-patient facility for diagnosis and treatment of tuberculosis and to use the income to help defray the expenses of tuberculosis patients. The heirs moved to strike the motion for new trial, contending that it was an untimely attempt to introduce new evidence and legal theories. The heirs asked for an award of attorneys' fees as a sanction for the motion. After oral argument, the court granted the motion for new trial and reversed the summary judgment for the heirs. The court further "granted" the hospital's petition for a distribution of the trust assets, but denied any deviation from the terms of the will. The court also awarded the heirs limited attorneys' fees. The heirs' motion for new trial was denied. The heirs appealed and the hospital cross-appealed.
THE APPEAL
I. New Trial
The heirs argue that the trial court correctly granted their motion for summary judgment but committed error when it granted the hospital's motion for new trial. Summary judgment is appropriate only where the material facts are not in dispute and the inferences to be drawn therefrom lead to only one reasonable conclusion. Orme School v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). A party may properly file a motion for new trial to challenge summary judgment granted to the opposition. Maganas v. Northroup, 112 Ariz. 46, 537 P.2d 595 (1975). In reviewing an order granting a new trial, "we will uphold the order unless the trial court clearly abused its discretion." Tempe Corporate Office Building v. Arizona Funding Services, Inc., 167 Ariz. 394, 398, 807 P.2d 1130, 1134 (App. 1991).
A. Resulting Trust
The basic premise of the heirs' position is that the purpose of Dr. Craig's trust has failed, thus the hospital can no longer receive the gift and it should be paid to them, either under the so-called "gift-over" provision of the will, or under a resulting trust in favor of Dr. Craig's estate. According to the Restatement (Second) of Trusts § 413 (1959) when the purposes of a charitable trust cannot be accomplished, the transferee holds the property in a resulting trust for the transferor or his estate. No resulting trust arises if cy pres is applicable or the transferor intended no resulting trust. Id.
We must determine Dr. Craig's dominant purpose in establishing this trust. See In re Conness' Estate, 73 Ariz. 216, 240 P.2d 176 (1952). Once we have determined his purpose, we liberally construe his language in order to carry out his purpose. Id.
In his will Dr. Craig directed that upon the death of the survivor of his wife and daughter, the hospital take $150,000 of the trust estate to erect a building in or near Phoenix "for the exclusive care of tubercular cases." Next, he directed that the trust continue in place for a period of 21 years, with the income therefrom paid to the hospital "to be used by said corporation to reduce the cost to individual patients who may be treated or cared for in the building to be erected ... as above provided." After the expiration of the trust, Dr. Craig *234 gave the entire estate to the hospital "absolutely, and subject to no direction by me or any other person." The estate today has a value of over $3,000,000 and generates an annual income of more than $200,000.
No question is raised as to whether the hospital could have followed the trust instructions to the letter at the time of Dr. Craig's death. However, Dr. Craig's wife and daughter lived a long time after his death and conditions changed. The incidence of tuberculosis has greatly diminished and the methods of treating it have undergone a revolution. Additionally, the cost of construction of a hospital has risen so dramatically that the $150,000 legacy today would merely cover the cost of constructing and equipping one hospital bed.
The combination of changes presents us with a paradox. The size of the bequest for the capital outlay for Dr. Craig's building is now dwarfed by the size of the bequest whose purpose was to defray the expenses of its patients. However, it appears that the building envisioned by Dr. Craig is no longer necessary or financially feasible and would be a waste of resources.
While the incidence of tuberculosis has dramatically decreased, and the methods of treating it have changed substantially, the basic need for tending to people suffering from tuberculosis has not changed. Contrary to the assertion the heirs make in their briefs, tuberculosis is not merely a problem of the past. The evidence the hospital presented on this point is not in dispute: tuberculosis remains a serious health problem.
The heirs argue that the purpose behind Dr. Craig's trust has failed. We think their argument takes too narrow a view of what Dr. Craig was seeking to accomplish. The erection of a building was not Dr. Craig's charitable intent; the care of tuberculosis patients was. Consequently, the purpose behind Dr. Craig's charitable trust remains intact. The changed circumstances relate to the other end of the problem: how to administer Dr. Craig's trust estate to accomplish the goal. The charitable trust has not failed. There is no resulting trust in the heirs.
B. "Gift-Over" Provision
The heirs also argue that the hospital has forfeited the trust because it allegedly did not comply with his requirement to file an acceptance of the gift. The specific provision in question reads:
I direct that there be filed in the Probate Court .. . an agreement duly executed by [the hospital] wherein and whereby said corporation will agree to receive the net income from said trust estate for and during the period of twenty-one (21) years or such shorter period as may be limited by law, for the uses and purposes hereinabove provided, and if the [hospital] shall refuse or fail to execute and file such agreement within a reasonable time, then the entire estate shall immediately go and be paid over to my heirs-at-law then living, pursuant to the rules of succession of the State of Arizona then in force and effect.
The heirs concentrate on the phrase "within a reasonable time." Conceding that the hospital has filed two documents purporting to comply with Dr. Craig's requirement, they argue that Dr. Craig intended that the acceptance be filed after the death of the survivor of his wife and daughter.
We disagree with the heirs' interpretation of this provision. Dr. Craig gave no time period to which the "reasonable time" referred. His evident purpose was to secure a pledge that the hospital would carry out his wishes to treat persons suffering from tuberculosis.
Even if we were to accept the heirs' contention that the will could only mean "within a reasonable time" of the death of the survivor, the prior filing of the agreement would not violate this provision. "Within a reasonable time" can refer to time both before and after the event in question. If Dr. Craig had wanted the agreement filed after the death of the survivor, he could have easily said so. As it stands, the fact that the agreement was already on file at the time when it became necessary clearly comports with the intent *235 behind its requirement.[2]
We also agree with the hospital that its petition seeking to apply cy pres to depart from the explicit terms of the trust did not constitute a repudiation of the gift. No words found in the petition could reasonably be construed as a repudiation. Furthermore, the mere fact that a party seeks to construe the will to determine how it may deal with the bequest does not constitute a rejection of the gift. Cf. Ivancovich v. Meier, 122 Ariz. 346, 352, 595 P.2d 24, 30 (1979) (petitioner whose suit sought to determine meaning of testator's will did not forfeit will rights under in terrorem clause forfeiting the gift of any devisee who challenged the will).
II. Setting Aside Summary Judgment
Given that the trust purpose had not failed and the hospital had fulfilled the requirement that it file a written acceptance of the bequest, the trust estate was not payable to the heirs either under a resulting trust or the "gift-over" clause. Consequently, the summary judgment the trial court granted to the heirs was erroneous when made. Had the hospital immediately filed a notice of appeal instead of its motion for new trial, it would have been this court instead of the trial court which reversed the summary judgment. The trial court therefore did not abuse its discretion in granting the hospital's motion for new trial and in setting aside the summary judgment. We need not address the heirs' contentions regarding new evidence and new legal theories.
CROSS APPEAL
The hospital argues in its cross appeal that the court erred in refusing to allow it to depart from the terms of the trust, either through cy pres or equitable deviation.
I. CY PRES
At the present time, cy pres has not been adopted in Arizona. See State ex rel. Goddard v. Coerver, 100 Ariz. 135, 144, 412 P.2d 259, 265 (1966); In re Hayward's Estate, 65 Ariz. 228, 235, 178 P.2d 547, 551 (1947). Whether or not cy pres is to be the law of this state is not a question we must decide here. We believe this is a compelling case for the application of equitable deviation.
II. Equitable Deviation
Like cy pres, "equitable deviation" allows a departure from the express terms of the trust:
The court will direct or permit the trustee of a charitable trust to deviate from a term of the trust if it appears to the court that compliance is impossible or illegal, or that owing to circumstances not known to the settlor and not anticipated by him compliance would defeat or substantially impair the accomplishment of the purposes of the trust.
Restatement (Second) of Trusts § 381 (1959). "[I]f necessary to carry out the purposes of the trust, the court may direct or permit the trustee to do acts which are not authorized or are forbidden by the terms of the trust." Id., comment d.
Deviation and cy pres, while they are similar and seek to promote similar purposes, are distinguishable:
The defendant has raised the point that no deviation is possible since the cy pres doctrine is not recognized in South Carolina. It is the opinion of this Court, however, that the cy pres doctrine has no application in the instant case in any event as there is here no diversion of the trust and no transfer of assets to a different charity or to a different purpose.
* * * * * *
If anything, there is only a deviation from the strict or technical terms of the trust to enable the same charitable institution to better fulfill the purposes for which it was organized and to carry out to the fullest extent possible, the intent and purposes of the grantors of the property in question.
*236 State ex rel. Goddard v. Coerver, 100 Ariz. 135, 144, 412 P.2d 259, 265 (1966), quoting Furman University v. McLeod, 238 S.C. 475, 120 S.E.2d 865, 873 (1961). One court has stated:
In ordering a deviation a court of equity is merely exercising its general power over the administration of trusts; it is an essential element of equity jurisdiction. In ordering a deviation the court does not touch the question of the purpose or object of the trust, nor vary the class of beneficiaries, nor divert the fund from the charitable purpose designated .... The jurisdiction merely to vary the details of the administration of a trust is more liberally exercised, more firmly established and more widely recognized than the cy pres power of the court.
Craft v. Shroyer, 81 Ohio App. 253, 74 N.E.2d 589, 598 (1947) (citations omitted). Equitable deviation allows "a small change incident to the method of administration, which does not alter the purpose or object of the trust, nor vary the class of beneficiaries,[3] nor divert the fund from the charitable purposes named by the donor." Id.
In applying equitable deviation, we must determine Dr. Craig's basic purpose in establishing the trust, and what he would now direct in view of the changed conditions resulting from the passage of time. See Cleveland Museum of Art v. O'Neill, 72 Ohio L.Abs. 11, 129 N.E.2d 669, 670 (Ohio Com.Pleas 1955). We have already concluded that his basic purpose was to help persons suffering from tuberculosis. To determine if, and to what extent, deviation should apply, we examine its application in other cases.
In Cleveland Museum of Art v. O'Neill, several persons had established trusts for the acquisition of pieces of art for the art museum. Over the years the museum had been so successful in acquiring pieces that it no longer had the space to adequately display them. The museum therefore sought to use the income from the trusts to add on to its physical facilities. The court agreed that this was a proper application of equitable deviation.
Those who created the trusts with which this action deals were among the pioneers in the movement to bring into being a truly great Art Museum. The evidence is clear that in their day the most practical way for accomplishing their expansive purpose was to set aside funds for the acquiring of objects of art. That was the primary goal on the way toward establishing a strong Museum; they did their share in realizing it by making money immediately available for much-needed purchases.
.....
It is clear that there is no failure of the purpose which the settlors made manifest in their respective trusts .... But circumstances beyond the vision of the settlors today threaten to defeat the accomplishment of the very purpose which they had in mind. Lack of space now means loss of pictures for public enjoyment .... The evidence indicates that the need has changed, but that the longrange purpose remains the same, namely, the maintenance of an outstanding Museum of Art.
The Court is entitled to ask what the settlors would do today with the income of their trust funds, in view of the changed conditions that they could not anticipate. Would they be inclined to see the broad work of The Cleveland Museum of Art either defeated or impaired by lack of space? From the evidence the Court is convinced that the settlors were persons of broad vision and that in any event they would want the Museum to prosper, to expand and to be able to carry on its work indefinitely. The Court has no hesitancy in saying that under existing circumstances they would willingly deviate from their expressed method of procedure and permit the income from the trusts to be used as prayed for in the petition.
Id. at 671. The court therefore applied § 381 of the Restatement (Second) of *237 Trusts to allow the income from the trusts to be used for remodelling and adding to the existing museum building. Id. at 672.
In Colin McK. Grant Home v. Medlock, 292 S.C. 466, 349 S.E.2d 655 (App. 1986), the settlor left the residue of his estate to the "Colin McK. Grant Home" which he directed be built on the southwest corner of Huger and Meeting Streets. He directed that the home be
for white persons in reduced circumstances, both men and women, who by faith and profession are Presbyterians .... Provided that ... such persons shall be over forty years of age and shall have been residents of the City of Charleston for at least five years.
Id. 349 S.E.2d at 656-657. The court of appeals agreed with the trial court that the intent behind the trust was "to provide housing for elderly Charleston Presbyterians of reduced circumstances." Id. at 659. It rejected the heirs' contentions that the purpose was specifically to establish a monument to Colin McK. Grant at the specified location and to benefit only Caucasians. The court held that changed circumstances warranted a deviation from the express terms of the trust. The neighborhood surrounding the specified location had changed, rendering it unsuitable for such a residence. Id. Furthermore, race relations had advanced to the point that segregation was no longer the practice. Id. The court of appeals therefore upheld the trial court's order removing the racial restriction and the requirement that the housing be at the specific location.
The South Carolina court's discussion of changed circumstances is apt here:
There is no reason to doubt that if that particular real estate should become unsuitable for this purpose, [the settlors] would have wished the funds to be used to provide some other means of housing for the intended beneficiaries of the trust. Thus, the use of the specific Home they established was merely one method, convenient at the time of the trust's establishment, for carrying out their intent.
Id. at 658 (emphasis added). Like the placing of the Colin McK. Grant home at a specified location, the erection of a building for housing tubercular cases "was merely one method, convenient at the time of the trust's establishment, for carrying out [Dr. Craig's] intent." The changed circumstances require us to determine, as best we can from the will and its surrounding circumstances, how Dr. Craig would have directed the administration of the trust to best effectuate his purpose. See id. See also Restatement (Second) of Trusts § 167, comment a and illustrations 3, 5, 8 and 9.
In State ex rel. Goddard v. Coerver, 100 Ariz. 135, 412 P.2d 259, the Territory of Arizona had deeded land to the trustees of the mental hospital to be used in connection with that hospital. The hospital long used the land for agriculture, both as a means of supporting the hospital and as a method of treating patients. Due to changed circumstances, including a change in economics and the fact that "[r]ehabilitative theories no longer support such activities as the most effective means of treatment of the mentally ill," the supreme court applied equitable deviation and held that the hospital board could sell a portion of the land to Maricopa County if the county used the land to build a county hospital which would treat the mentally ill. Id. at 145, 412 P.2d at 265.
In our case, it is undisputed that the change in circumstances between 1933 and the present has made the construction of a separate building unfeasible, uneconomical and wasteful. We hold that its construction "would substantially impair the accomplishment of the purposes of the trust" Dr. Craig established in his will. See Restatement (Second) of Trusts § 381 (1959). An alternative use of this portion of the bequest would better serve Dr. Craig's generous intent. The trial court erred in requiring the needless construction of the building. It should have allowed the hospital to use the $150,000 to renovate and equip existing facilities to be used for the treatment of patients with tuberculosis.
It was clearly Dr. Craig's intent to help relieve the financial burden of persons *238 suffering tuberculosis who were treated by the hospital. He directed that the building be used "for the exclusive care of tubercular cases" and that the trust income be used "to reduce the cost to individual patients who may be treated or cared for in the building ...." The hospital sought to apply cy pres to use the income not only for tuberculosis treatment, but also for the treatment of persons with such conditions as AIDS and cancer, diseases whose suppression of the immune system can bring on tuberculosis as a "secondary illness." We do not believe that any divergence from the terms of the will is necessary to use the trust income for those people.
We here construe the term "tubercular cases." It is evident that this term means those patients suffering from tuberculosis. The language of Dr. Craig's will does not direct that the trust be used to treat only tuberculosis: it seeks to help the financial condition of "tubercular cases" and "individual patients." It must have been within Dr. Craig's contemplation that a person confined to a tuberculosis sanatorium might have other health problems. His will does not limit his charity to the treatment of the specific disease: it goes to the whole patient. Consequently, no deviation from Dr. Craig's will is necessary to allow the hospital to use the trust income to defray all the health care expenses for its tuberculosis patients.
St. Joseph's petition also asked to utilize the trust funds for treatment of persons with "related illnesses" who are not suffering from tuberculosis. To allow the hospital to use Dr. Craig's trust to help persons not suffering from tuberculosis, but related illnesses, would require a greater departure from the terms of the trust than appears necessary on the present facts.
"Although a court has considerable discretion to adapt a trust to changed circumstances, this flexibility is not unlimited. The distribution of trust property must always be in accord with the settlor's intent." Colin McK. Grant Home v. Medlock, 292 S.C. 466, 394 S.E.2d 655, 658. We take this as an admonition to caution. We deem it best to vary as little as necessary from the express terms of the trust. Dr. Craig's beneficence was aimed at tubercular cases and it does not appear on the record that there is a present need to go beyond that. Thus, on this record, we will not allow the hospital to use the funds on patients suffering related illnesses if they are not also tubercular cases.
III. Attorneys' Fees
In their motion to strike, the heirs requested an award of attorneys' fees as a sanction for the filing of the hospital's motion for new trial. They cited Ariz. Rev. Stat. Ann. ("A.R.S.") § 12-349, and Ariz. R.Civ.P. 11 and 59. The trial court awarded the heirs attorneys' fees for the period between August 11 and October 8, 1989.[4] Sanctions can be awarded under these circumstances:
A. Except as otherwise provided by and not inconsistent with another statute, in any civil action commenced or appealed in a court of record in this state, the court shall assess reasonable attorney fees, expenses and, at the court's discretion, double damages of not to exceed five thousand dollars against an attorney or party ... if the attorney or party does any of the following:
1. Brings or defends a claim without substantial justification.
2. Brings or defends a claim solely or primarily for delay or harassment.
3. Unreasonably expands or delays the proceeding.
4. Engages in abuse of discovery.
A.R.S. § 12-349. The trial court did not make any findings nor give any explanation for its award of fees. Its award cannot be upheld under A.R.S. § 12-349 as that requires the court to set forth the specific reasons behind its award. A.R.S. § 12-350.
A party or attorney may be sanctioned for violating the following requirement of Rule 11:

*239 The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
The facts regarding the hospital's actions in this suit are not in dispute. We therefore review de novo the conclusion that its actions constituted a violation of the rule. Gilbert v. Board of Medical Examiners of State of Arizona, 155 Ariz. 169, 184, 745 P.2d 617, 632 (App. 1987). There is no evidence in the record to indicate that any of the hospital's filings were done for an improper purpose. As we have ruled today, its claim was not groundless. Therefore, no Rule 11 sanctions were available.
Finally, there is nothing in Rule 59 which would give the court the power to impose sanctions. Courts should not impose sanctions lightly. Johnson v. Brimlow, 164 Ariz. 218, 222, 791 P.2d 1101, 1105 (App. 1990). The award of attorneys' fees must be reversed.
CONCLUSION
The dominant purpose behind Dr. Craig's trust was to use his wealth to help people suffering from tuberculosis. The agreements the hospital filed accepting his bequest satisfied the requirement set forth in his will. The trial court therefore correctly overturned the summary judgment previously entered in favor of the heirs.
Given the change in circumstances, a deviation from the express terms of the trust is appropriate to carry out Dr. Craig's intentions. The hospital should be allowed to use the $150,000 to upgrade existing facilities to better diagnose and treat tuberculosis. The trust income can be used to help treat all illnesses and conditions of the hospital's tubercular cases. The court's orders inconsistent with these holdings were in error.
The court also erred in awarding attorneys' fees against the hospital.
The judgment is affirmed in part and reversed in part. The cause is remanded to the superior court for further proceedings not inconsistent with this opinion.
EUBANK and GARBARINO, JJ., concur.
NOTES
[1]  In this opinion, we will refer to the petitioner as either St. Joseph's or the hospital.
[2]  Cf. Barassi v. Matison, 130 Ariz. 418, 636 P.2d 1200 (1981) (premature notice of appeal did not preclude appellate jurisdiction; purpose behind time requirements is still served even when notice is filed too early).
[3]  But see Colin McK. Grant Home v. Medlock, 292 S.C. 466, 349 S.E.2d 655, 660 (App. 1986) (class of beneficiaries may be expanded under equitable deviation).
[4]  The heirs filed their response to the hospital's objection to form of judgment on August 11, 1989. The hospital filed its motion for new trial on October 8.


                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT

                                      No. 18-6855

UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

PATRICK O’BRIAN ARTIS,

                    Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina,
at Charlotte. Max O. Cogburn, Jr., District Judge. (3:13-cr-00218-MOC-DSC-1; 3:18-
cv-00156-MOC)

Submitted: November 20, 2018                                      Decided: January 9, 2019

Before WILKINSON, FLOYD, and HARRIS, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Patrick O’Brian Artis, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Patrick O’Brian Artis seeks to appeal the district court’s order denying relief on

his 28 U.S.C. § 2255 (2012) motion and a subsequent order denying his Fed. R. Civ. P.

59(e) motion. The orders are not appealable unless a circuit justice or judge issues a

certificate of appealability.    28 U.S.C. § 2253(c)(1)(B) (2012).         A certificate of

appealability will not issue absent “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief on the

merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would

find that the district court’s assessment of the constitutional claims is debatable or wrong.

Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322,

336-38 (2003). When the district court denies relief on procedural grounds, the prisoner

must demonstrate both that the dispositive procedural ruling is debatable, and that the

motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at

484-85.

       We have independently reviewed the record and conclude that Artis has not made

the requisite showing. Accordingly, we deny a certificate of appealability and dismiss

the appeal. We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

                                                                               DISMISSED

                                             2


722 F.Supp.2d 150 (2010)
Alvan CAMACHO-TORRES, Plaintiff
v.
Maria Del C. BETANCOURT-VAZQUEZ, et al., Defendant(s).
Civil No. 09-1495 (JAG).
United States District Court, D. Puerto Rico.
July 13, 2010.
*151 Godwin Aldarondo-Girald, Ericson Sanchez-Preks, Aldarondo Girald Law Office, Laura Maldonado-Rodriguez, Laura Maldonado Law Office, San Juan, PR, for Plaintiff.
Miguel A. Rangel-Rosas, Maymi, Rivera & Rotger, PSC, Wandymar Burgos-Vargas, P.R. Department of JusticeFederal Litigation, San Juan, PR, for Defendants.

OPINION AND ORDER
GARCIA-GREGORY, District Judge.
Pending before the Court is Defendants' Maria del C. Betancourt-Vazquez ("Betancourt"), Grymarys De Jesus-Afanador ("Afanador"), and the Commonwealth of Puerto Rico's ("the Commonwealth") (collectively "Defendants") Motion to Dismiss.

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Alván D. Camacho-Torres ("Camacho") is a former career employee of the Comisión Apelativa del Sistema de Administración de Recursos Humanos del Servicio Público ("CASARH") filing a political discrimination claim under 42 U.S.C. § 1983, and claims under Puerto Rico state law for discrimination, retaliation, and negligence. Plaintiff seeks upward of $20 million in damages, including punitive damages, as well as injunctive relief. (Docket No. 2).
Defendants in this case are the Commonwealth of Puerto Rico and two officers of CASARH[1] in their personal and official capacities, individually and on behalf of their conjugal partnerships. (Docket No. 2).
Camacho has been an active member in the New Progressive Party ("NPP"), and was hired to work for CASARH (then known as JASAP) on August 1, 2000 by an appointee of former NPP governor Pedro Rosselló. On April 16, 2002, Camacho was selected for a career position at what is now CASARH. (Docket No. 2).
Betancourt, said to be an active and well-known member of the Popular Democratic Party ("PDP"), was appointed as *152 Chairwoman of CASARH near the end of 2004. This is when Camacho claims that political discrimination, a hostile work environment, and retaliatory measures against him began. Camacho claims to have criticized Betancourt's decisions regarding the "management of public documents" as being against Puerto Rico state law, and thereafter was the target of retaliatory measures meant to force him to resign from CASARH. (Docket No. 2).
Camacho asserts that on October 21, 2004 Betancourt eliminated a salary differential he was receiving as retaliation for his criticism of her performance, while leaving in effect the additional duties assigned to him that gave rise to the differential in the first place. (Docket No. 2).
Betancourt and Afanador are alleged as having been aware of Camacho's back problems and not only failing to make reasonable accommodation for him, but proceeding to assign him tasks that were contraindicated for his condition. (Docket No. 2).
Afanador sent Camacho an official memorandum alerting him to an impending disciplinary action for taking days off due to a medical condition. Camacho responded during work hours on January 17, 2006, using a work computer. His superiors then drafted a new policy to apply retroactively and characterized his behavior as the use of a work computer "for personal benefit." Camacho states that he is the only person to be fired under this policy. (Docket No. 2).
Camacho then filed a Complaint in the Federal District Court for the District of Puerto Rico on August 3, 2007, alleging political discrimination under § 1983 and several Puerto Rico state law claims seeking monetary and injunctive relief. (07-1691(ADC) Docket No. 1).
Judge Delgado-Colón entered judgment on February 10, 2009, dismissing with prejudice the § 1983 claims for monetary relief against the Commonwealth, and against Betancourt and Afanador in their official capacities. The § 1983 claim for injunctive relief was dismissed without prejudice. The supplemental state law claims were then dismissed without prejudice once the federal claims had been dismissed. (07-1691(ADC) Docket No. 1).
Camacho proceeded to file another Complaint with this Court on June 2, 2009, copying language from his 2007 Complaint, alleging the same claims against the Commonwealth, Betancourt, and Afanador (all parties in the first suit), based on the same set of alleged facts. (Docket No. 2).
Defendants filed a Motion to Dismiss on September 10, 2009, claiming that res judicata precluded Camacho's claims, and that in any event, his claims were no better able to withstand the standard for a motion to dismiss this time than they had several months before. (Docket No. 12).

DISCUSSION

I. Res Judicata and Camacho's Claims Under § 1983 for Monetary Relief Against Defendants in Their Official Capacity

"Under the federal law of res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating claims that were raised or could have been raised in that action." Apparel Art Int'l, Inc. v. Amertex Enters., 48 F.3d 576, 583 (1st Cir.1995). For res judicata to apply, three requirements must be met: "(1) a final judgment on the merits in an earlier action; (2) a sufficient identity between the parties in the two suits; and (3) a sufficient identity of the causes of action in the two suits." Ortiz-Cameron v. Drug Enforcement Admin., *153 139 F.3d 4, 5 (1st Cir.1998) (citing Porn v. Nat'l Grange Mut. Ins. Co., 93 F.3d 31, 34 (1st Cir.1996)), aff'd, 139 F.3d 4 (1998).
First, when determining whether the dismissal of a claim acts as a judgment on the merits, Rule 41 is instructive. Rule 41(b) states:
Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.
Fed.R.Civ.P. 41(b).
During this controversy's first journey through the court system, Camacho's claims for monetary relief under § 1983 against Defendants in their official capacity[2] were dismissed with prejudice, whereas his § 1983 claims seeking injunctive relief were dismissed without prejudice, following a Rule 12(c) Motion for Judgment on the Pleadings. (07-1691(ADC) Docket No. 26). Dismissal without prejudice does not have the force of a judgment on the merits, and so this Court will review Camacho's claim for injunctive relief.[3] Any claim for monetary damages against Defendants in their official capacity under § 1983, however, is barred by res judicata if it meets the criteria established above.
Secondly, Camacho was a plaintiff in the first suit, and is also a plaintiff in the present case. Betancourt, Afanador, and the Commonwealth were all defendants in the first suit, and are renamed as such here. There are no additional plaintiffs or defendants this time who did not have an opportunity to litigate this controversy in 2007. Nothing about the present case presents a reason to doubt the sufficiency of identity of the parties between the cases.
Thirdly, Camacho's cause of action under § 1983 in the current Complaint relates to political discrimination under the First Amendment and denial of Fourteenth Amendment Due Process rights premised on Camacho's "arbitrary" firing. Not only is the underlying cause of action identical to his 2007 suit, but so is the language; his Complaint has been almost entirely lifted from his first suit. The few new or extended sentences that grace the Complaint's fifteen pages are neither helpful nor illustrative. The two causes of action are undeniably of sufficient identity for res judicata to bar Camacho's § 1983 claims for monetary relief without reservation.

*154 II. Motion to Dismiss Standard of Review

In Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Supreme Court held that to survive a motion to dismiss under Rule 12(b)(6), a complaint must allege "a plausible entitlement to relief." Rodriguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 95-96 (1st Cir.2007) (quoting Twombly, 550 U.S. at 559, 127 S.Ct. 1955). The Court accepts all well-pleaded factual allegations as true, and draws all reasonable inferences in plaintiff's favor. See Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 51 (1st Cir.1990). While Twombly does not require of plaintiffs a heightened fact pleading of specifics, it does require enough facts to have "nudged their claims across the line from conceivable to plausible." Twombly, 550 U.S. at 570, 127 S.Ct. 1955. Accordingly, in order to avoid dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient "to raise a right to relief above the speculative level." Id. at 555, 127 S.Ct. 1955.
In Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the Supreme Court upheld Twombly and clarified that two underlying principles must guide this Court's assessment of the adequacy of a plaintiff's pleadings when evaluating whether a complaint can survive a Rule 12(b)(6) motion. See Iqbal, 129 S.Ct. at 1949-50. The First Circuit has recently relied on these two principles as outlined by the Supreme Court. See Maldonado v. Fontanes, 568 F.3d 263, 266 (1st Cir.2009). "First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
"Second, only a complaint that states a plausible claim for relief survives a motion to dismiss." Iqbal, 129 S.Ct. at 1950 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). Thus, any nonconclusory factual allegations in the complaint, accepted as true, must be sufficient to give the claim facial plausibility. Iqbal 129 S.Ct. at 1950. Determining the existence of plausibility is a "context-specific task" which "requires the court to draw on its judicial experience and common sense." Id. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not `show[n]'`that the pleader is entitled to relief.'" Id. (quoting Fed. R.Civ.P. 8(a)(2)). Furthermore, such inferences must be at least as plausible as any "obvious alternative explanation." Id. at 1950-51 (citing Twombly, 550 U.S. at 567, 127 S.Ct. 1955).

III. Political Discrimination Claim

Camacho seeks monetary and injunctive relief under 42 U.S.C. § 1983, complaining of deprivations of his First and Fourteenth Amendment rights by way of political discrimination. Defendants are named in their personal and official capacities, although Camacho's claim against Defendants in their official capacity for monetary damages is barred by res judicata, and the Commonwealth is sued only for injunctive relief.
It is well settled law that § 1983 "is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred." Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (internal citations omitted). Under § 1983, a plaintiff must first show that "the conduct complained of was committed by a person *155 acting under color of state law." Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 559 (1st Cir.1989). Secondly, a plaintiff must show the defendant's conduct deprived a person of rights, privileges, or immunities secured by the Constitution of the United States. Gutierrez-Rodriguez, 882 F.2d at 559.
Pursuant to the First Amendment, non-policymaking public employees are protected from adverse employment actions based on their political opinions. Marrero-Gutierrez v. Molina, 491 F.3d 1, 9 (1st Cir.2007). To establish a prima facie case of political discrimination in violation of the First Amendment, a plaintiff must show that party affiliation was a substantial or motivating factor behind a challenged employment action. Id. Namely, for purposes of Federal Rule of Civil Procedure 8(a)(2), a plaintiff must properly plead that: (1) the plaintiff and the defendant belong to opposing political affiliations, (2) the defendant has knowledge of the plaintiff's affiliation, (3) a challenged employment action occurred, and (4) political affiliation was a substantial or motivating factor behind the challenged employment action. Martinez-Velez v. Rey-Hernandez, 506 F.3d 32, 39 (1st Cir.2007). "While plaintiffs are not held to higher pleading standards in § 1983 actions, they must plead enough for a necessary inference to be reasonably drawn." Marrero-Gutierrez, 491 F.3d at 9 (internal citations omitted).
Camacho has adduced no new support for his political discrimination claim under § 1983 between Judge Delgado-Colón's dismissal of it without prejudice and the claim's re-emergence in federal court. As such, the Court agrees with Judge Delgado-Colón that Camacho's claim "simply fall[s] short."
Camacho, already on notice that his pleadings were deficient on his first attempt, has chosen to ignore Judge Delgado-Colón's assessment of what was missing from his complaint.[4] He has failed to allege any facts that suggest that Betancourt and Afanador had any knowledge that he was of a different political party, or that his political affiliation was actually in any way a motivation for their actions. The "bald assertion" that their behavior amounted to political discrimination is based on nothing more than Camacho's own knowledge of his own political affiliation and his suspicion of a larger conspiracy to drive him, as an NPP member, from the workplace.
Because Camacho has again failed to state a plausible claim, the Court hereby DISMISSES his remaining claims under § 1983 with prejudice.

IV. Deprivation of Due Process Claim

Camacho claims a property interest in his career position with CASARH, which he claims he was deprived of "against the substantive due process of law," violating the Fourteenth Amendment. (Docket No. 2).
Defendants, in their Motion to Dismiss, take the position that the Complaint does not make an adequate case for a procedural due process violation. This is not the question at issue here. Not only did Camacho specify this as a substantive due process claim in the Complaint itself, but *156 he reaffirmed this stance in his Opposition to the Motion to Dismiss. He claims to have been discharged arbitrarily because the reason proffered (violating a post facto policy) was pretext, and he claims that the real reason for his firing was political discrimination and retaliation. Camacho does not challenge the process involving the application of the policy under which he was discharged, but rather the reasoning behind this process, as being offensive to substantive due process.
Camacho points to, among other authority, Pittsley v. Warish, 927 F.2d 3 (1st Cir.1991), abrogation recognized by Martinez v. Cui, 608 F.3d 54 (1st Cir. 2010). Pittsley at one time suggested that a substantive due process claimant can avoid proving that the action complained of "shocks the conscience" if he can instead "demonstrate a violation of an identified liberty or property interest protected by the due process clause." Pittsley, 927 F.2d at 6. This, however, is not an accurate statement of the law. A claimant must show first that the behavior at issue shocks the conscience and, if shown, may then seek to prove that it impinges a right protected by substantive due process. County of Sacramento v. Lewis, 523 U.S. 833, 847, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998); Cui, 608 F.3d at 65 ("The conscience-shocking test is now an essential part of any substantive due process claim against a government actor.")
While central to the due process guarantee is "protection of the individual against arbitrary action of government," Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), "[o]nly the most egregious official conduct can be said to be arbitrary in the constitutional sense," Lewis, 523 U.S. at 846, 118 S.Ct. 1708 (1998).
"This Court has recognized that the very nature of this constitutional protection has caused that substantiative due process protection be used sparingly" as it is "disfavored, in part because of its virtually standardless reach." Rivera v. Fagundo, 310 F.Supp.2d 428, 436 (D.P.R. 2004) (internal citations omitted). Substantive due process protection is not triggered by merely unsound or erroneous government decisions. Id. at 435.
Before it would become necessary to determine whether a political firing would be so egregious as to offend substantive due process, this Court would have to at least assume that such a politically discriminatory firing took place. Because Camacho's § 1983 political discrimination claim has been determined implausible as alleged, it is unnecessary to proceed with the due process evaluation any further, since the basis for the due process claim has already been rejected by this Court. As such, the Court hereby DISMISSES Camacho's due process violation claim with prejudice.

V. Supplemental State Law Claims

This Court should decline to exercise supplemental jurisdiction over a plaintiff's state law claims when all federal claims are dismissed. See Camelio v. American Federation, 137 F.3d 666, 672 (1st Cir.1998) (holding that "the balance of competing factors ordinarily will weigh strongly in favor of declining jurisdiction over state law claims where the foundational federal claims have been dismissed at an early stage in the litigation."). Because Camacho's federal claims under § 1983 will be dismissed, the Court hereby DISMISSES without prejudice any claims made under Puerto Rico state law.

CONCLUSION
For the reasons stated above, this Court GRANTS Defendants' Motion to Dismiss. (Docket No. 12).
*157 Camacho's due process claim and federal claims under 42 U.S.C. § 1983 shall be DISMISSED with prejudice. Camacho's state law claims shall be DISMISSED without prejudice. Judgment shall be entered accordingly.
IT IS SO ORDERED.
NOTES
[1]  CASARH is a local government entity which serves as an appeal board for employees challenging certain types of employment actions.
[2]  Judge Delgado-Colón's opinion is silent as to claims made against Defendants in their personal capacity. However, because Judge Delgado-Colón entered a final judgment, the Court believes these claims could be barred by res judicata as well, by operation of Rule 41 which regards most dismissals as dismissals based on the merits unless otherwise stated. Fed.R.Civ.P. 41(b). If Camacho had been unhappy with the resolution of this controversy, the appropriate next step would have been a Motion for Reconsideration, or failing that, an appeal. Regardless of the operation of res judicata in the present case, the Court will nonetheless address Camacho's claims on the merits and arrive at an explicit and final judgment, lest Camacho gear up for a third time at bat with the same exact claim.
[3]  Res judicata precludes not only claims that have already been litigated, but also claims that "could have been raised." Apparel Art, 48 F.3d at 583. Camacho suggests no reason why his § 1983 claims for injunctive relief, though not adjudicated on the merits, should not be precluded because of their close relation to his monetary claims, nor did Defendants address this issue specifically within their res judicata discussion in their Motion to Dismiss. Because this is not dispositive here, the Court need not explore further.
[4]  "Camacho has not pled that defendants even knew he was a NPP member, or how Camacho's party affiliation held any relation to defendants' actions[.]" (07-1691(ADC) Docket No. 24).


            IN RE ELIANAH T.-T.—CONCURRENCE

   ROGERS, C. J., with whom EVELEIGH, J., joins, con-
curring. I agree and join with the majority’s holding
that General Statutes § 17a-10 (c)1 does not authorize
the Department of Children and Families (department),
to vaccinate children in the temporary custody of the
petitioner, the Commissioner of Children and Families
(commissioner), over the religious objection of the
respondent parents, Giordan T. and Nicanol T. I write
separately in order to more fully address the commis-
sioner’s claim that, as the guardian of children commit-
ted to her temporary custody pursuant to General
Statutes § 46b-129 (j) (4),2 she has all of the rights and
obligations of a guardian as set forth in General Statutes
§ 17a-1 (12),3 including the right to authorize the vacci-
nation of such children. In support of this contention,
the commissioner points out that, on August 23, 2016,
the trial court issued a form order stating that ‘‘[t]he
child or youth is committed until further order of the
court to the Commissioner of Children and Families
who shall be the guardian of the child or youth
according to the statutes in such cases.’’
   The genealogy and legislative history of the relevant
statutes, however, do not support the claim that the
commissioner is the exclusive guardian of children who
are temporarily committed to her custody, with all of
the rights and obligations set forth in § 17a-1 (12). In
1971, the predecessor to § 46b-129 (j) (4) provided that
the ‘‘welfare commissioner’’ was the guardian of a child
who was committed to his custody. See General Stat-
utes (Supp. 1969) § 17-62 (d). Notwithstanding this pro-
vision and the fact that certain children were committed
to both the Welfare Commissioner and the Commis-
sioner of Children and Youth Services, at some point
in 1970 or 1971, the Attorney General wrote an opinion
indicating that the Commissioner of Children and Youth
Services could not authorize medical treatment for chil-
dren in his custody because he was only their custo-
dian.4 See Conn. Joint Standing Committee Hearings,
Corrections, Welfare and Humane Institutions, 1971
Sess., Pt. 1, p. 185–86, remarks of John Dorman, Special
Assistant to the Commissioner of Children and Youth
Services (referencing ‘‘dual commitments’’ where child
is committed to the Department of Welfare and Com-
missioner of Children and Youth Services, and noting
recent opinion of Attorney General that state cannot
authorize medical treatment for children in its custody
because it has ‘‘mere custody of the child and not guard-
ianship’’); 14 H.R. Proc., Pt. 5a, 1971 Sess., p. 2201,
remarks of Representative John F. Papandrea (‘‘[This
bill] provides that the Commissioner of Children and
Youth Services shall be empowered and authorized to
have emergency medical treatment given to any ward
placed in his custody . . . . This presently is not possi-
ble and the Attorney General last year was forced to
give a ruling indicating that the commissioner had no
power even in the face of an emergency.’’). Because
these agencies lacked authority to authorize medical
treatment for children in their custody, the legislature
enacted No. 295 of the 1971 Public Acts, enabling the
Commissioner of Children and Youth Services to autho-
rize medical treatment for children in his custody. See
General Statutes (Supp. 1971) § 17-418 (c). Notably,
however, neither the original version of § 17a-10 (c),
which referred to the Commissioner of Children and
Youth Services; see Public Acts 1971, No. 295, § 1; nor
the current version, which refers to the commissioner;
see Public Acts 1993, No. 93-91 (amending § 17a-10 [c]
to substitute ‘‘Commissioner of Children and Families’’
for ‘‘Commissioner of Children and Youth Services’’);
expressly provides that the agency to which a neglected
or abused child is committed, or the commissioner of
that agency, is the child’s guardian. Moreover, as the
majority opinion points out, the legislative history of
§ 17a-10 (c) indicates that it was intended only to grant
the Commissioner of Children and Youth Services the
authority to authorize medical treatment in emergency
situations when that commissioner could not obtain
the consent of the parents. See 14 H.R. Proc., supra, p.
2201. Accordingly, the statute cannot reasonably be
interpreted as giving the agency to which a child is
temporarily committed all of the broad rights of a guard-
ian with respect to the medical treatment of a child.5
   It follows, therefore, that § 17a-1 (12), which was
enacted in 1998; see Public Acts 1998, No. 98-241; also
cannot be interpreted as giving the commissioner all
of the rights of a guardian. First, as I have just explained,
the enactment of Public Act 1971, No. 295, in 1971 was
premised on the legislature’s understanding that the
state agency having temporary custody of neglected or
abused children was not the guardian of those children
for all purposes, notwithstanding the fact that General
Statutes (Supp. 1969) § 17-62 (d) provided that the Wel-
fare Commissioner was the guardian of a child also
committed to the custody of the Commissioner of Chil-
dren and Youth Services. I am aware of no intervening
law that broadened the guardianship rights of those
commissioners. A statute, such as § 17a-1 (12), that
defines guardianship rights and obligations does not,
ipso facto, confer guardianship rights and obligations
on any particular person or entity.
  Second, by its plain terms, § 17a-1 (12) applies to ‘‘a
person who has a judicially created relationship
between a child or youth and such person that is
intended to be permanent and self-sustaining . . . .’’
(Emphasis added.) This is not the case when the com-
missioner has only temporary custody of a child and
the parents’ rights have not yet been terminated. Third,
the legislative history of § 17a-1 (12) provides no sup-
port for the proposition that it was intended to give
the commissioner exclusive guardianship rights over
children in her temporary custody.6
   Thus, the legislative genealogy and history of the
relevant statutory scheme support the conclusion that,
when the legislature enacted the predecessor to § 17a-
10 (c) in 1971 it contemplated that the Commissioner
of Children and Youth Services had, at most, a form of
joint guardianship with the parents of a child who had
been temporarily committed to him, and the rights of
the parents had not been terminated. The legislature
did not intend to confer the exclusive and unfettered
authority to authorize any and all forms of medical
treatment, provided only that such treatment was in
the child’s best interest. Moreover, the enactment of
§ 17a-1 (12) in 1998 did not expand the commissioner’s
rights as a coguardian of children in her temporary
custody. Indeed, the department’s own guidelines pro-
vide that ‘‘[t]he Area Office Social Work or Juvenile
Justice staff shall refer a case to the Medical Review
Board when . . . the treatment may be contrary to the
wishes of a parent or legal guardian . . . .’’ Department
of Children and Families, ‘‘Practice Guide: Standards
and Practice Regarding the Health Care of Children in
[the Department of Children and Families’] Care’’
(2014), p. 22. Those guidelines also provide that the
staff member who refers a case to the Medical Review
Board ‘‘shall work with the [Regional Resource Group]
Nurse or Nurse Practitioner to make personal contact
with the parents . . . and the parents’ . . . attorneys
. . . to ensure that they each understand the medical
plan, understand the risks and benefits, are in
agreement with it, and consent.’’ Id., p. 23. Thus, the
department clearly is operating under the assumption
that parents continue to have an important role in mak-
ing medical decisions for their children even when they
have temporarily lost custody of them.7 This interpreta-
tion is also consistent with the important constitutional
rights at issue, namely, the parents’ substantive due
process right to raise their children as they see fit,
including the right to control the children’s religious
upbringing. See Santosky v. Kramer, 455 U.S. 745, 753,
102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982) (‘‘The fundamen-
tal liberty interest of natural parents in the care, cus-
tody, and management of their child does not evaporate
simply because they have not been model parents or
have lost temporary custody of their child to the [s]tate.
Even when blood relationships are strained, parents
retain a vital interest in preventing the irretrievable
destruction of their family life.’’); see also State v.
DeCiccio, 315 Conn. 79, 149, 105 A.3d 165 (2014) (‘‘[i]t
is well established that this court has a duty to construe
statutes, whenever possible, to avoid constitutional
infirmities’’ [internal quotation marks omitted]).
   Accordingly, it is reasonable to conclude that § 17a-
10 (c) was intended to apply only when the commis-
sioner has a compelling reason to seek immediate medi-
cal treatment for a child in her temporary custody and
there may be insufficient time to obtain the consent of
the parents, i.e., in medical emergencies. When immedi-
ate medical treatment is not required to ensure the good
health of the child the statute does not apply, and, in
the absence of any other express statutory source to
authorize medical services or treatment for the child,
the commissioner must attempt to obtain the consent
of the parents as the child’s coguardians. If the parents
cannot be found, I would conclude that the commis-
sioner must make that representation to a court and
seek to obtain an order allowing the commissioner to
authorize medical treatment. Similarly, the commis-
sioner must obtain a court order if the parents object
to the medical treatment.8
   With respect to the legal standard to be applied in
cases in which the commissioner is seeking a court
order authorizing the medical treatment of a child in
its temporary custody over the objection of the parents,
my research has revealed no Connecticut case that
address this issue, or the issue of when a court may
order medical treatment for a child in the parents’ cus-
tody over the objection of the parents. In the Matter
of McCauley, 409 Mass. 134, 136–37, 139, 565 N.E.2d 411
(1991), the Supreme Judicial Court of Massachusetts
addressed the latter question and concluded that the
rights of parents to make decisions for their children,
the child’s interest in continuing good health and the
state’s parens patriae interest must be balanced.9 I
believe that this is an appropriate standard, and I would
apply it even when the parents have lost temporary
custody of their children to the commissioner.
   With respect to the narrow question of whether the
commissioner may authorize the vaccination of a child
in her temporary custody over the religious objection
of the child’s parents, the Connecticut legislature has
already concluded as a matter of public policy that
the interest of parents in opting not to vaccinate their
children on religious grounds outweighs the child’s
interest in being immune from certain diseases and the
state’s parens patriae interest in ensuring the well-being
of the child and the public at large. See General Statutes
§ 10-204a.10 In my view, the courts are bound by this
policy determination. Accordingly, I would conclude in
the present case that the commissioner had no authority
either under § 17a-10 (c) or as the coguardian of the
children in her temporary custody to authorize their
vaccination over the parents’ religious objection.
  1
    General Statutes § 17a-10 (c) provides: ‘‘When deemed in the best inter-
ests of a child in the custody of the [Commissioner of Children and Families],
the commissioner, the commissioner’s designee, a superintendent or assis-
tant superintendent or, when the child is in transit between [Department
of Children and Families] facilities, a designee of the commissioner, may
authorize, on the advice of a physician licensed to practice in the state,
medical treatment, including surgery, to insure the continued good health
or life of the child. Any of said persons may, when he or she deems it in
the best interests of the child, authorize, on the advice of a dentist licensed
to practice in the state, dentistry, including dental surgery, to insure the
continued good health of the child. Upon such authorization, the commis-
sioner shall exercise due diligence to inform the parents or guardian prior
to taking such action, and in all cases shall send notice to the parents or
guardian by letter to their last-known address informing them of the actions
taken, of their necessity and of the outcome, but in a case where the
commissioner fails to notify, such failure will not affect the validity of
the authorization.’’
    2
      General Statutes § 46b-129 (j) (4) provides in relevant part: ‘‘The commis-
sioner shall be the guardian of [a] child [committed to the custody of the
commissioner] for the duration of the commitment . . . .’’
    3
      General Statutes § 17a-1 (12) (B) defines ‘‘ ‘guardian’ ’’ in relevant part
as ‘‘a person who has a judicially created relationship between a child or
youth and such person that is intended to be permanent and self-sustaining
as evidenced by the transfer to such person of the following parental rights
with respect to the child or youth . . . the authority to make major decisions
affecting the child’s or youth’s welfare, including, but not limited to . . .
major medical, psychiatric or surgical treatment . . . .’’
    The commissioner contends that, because she is the guardian of children
in her temporary custody, she has the authority under General Statutes § 10-
204a (a) to determine whether to invoke the exemption to the immunization
requirement when immunization would be contrary to the religious beliefs
of such children. See General Statutes § 10-204a (a) (3) (exempting from
immunization requirement ‘‘[a]ny such child who . . . presents a statement
from the parents or guardian of such child that such immunization would
be contrary to the religious beliefs of such child . . . shall be exempt from
the appropriate provisions of this section’’). If § 17a-1 (12) confers this
authority, however, it necessarily confers the authority to make all decisions
concerning the welfare of such children, including the authority to authorize
vaccinations in the first instance. Thus, the commissioner effectively con-
tends that the authority conferred on it by § 17a-10 (c) is superfluous to its
authority as the guardian of children in its temporary custody.
    4
      This opinion is not available in the Connecticut State Library. Accord-
ingly, it is unclear to which state entity—the Welfare Commissioner or the
Department of Children and Youth Services—the opinion was directed. As
I discuss later in this concurring opinion, however, the legislature responded
to the Attorney General’s opinion by authorizing the Commissioner of Chil-
dren and Youth Services to authorize medical services for children in his
custody. Accordingly, it is reasonable to conclude that the opinion was
directed at that commissioner.
    5
      Although General Statutes (Supp. 1969) § 17-62 (d) provided that the
Welfare Commissioner was the guardian of children committed to his cus-
tody, and No. 295 of the 1971 Public Acts was directed at the Commissioner
of Children and Youth Services, it is clear that the Welfare Commissioner
did not have all of the rights and obligations of a guardian. If he had, then
he could simply have authorized the Commissioner of Children and Youth
Services to provide medical treatment to children in his temporary custody.
    6
      Section 17a-1 (12) was enacted in response to Congress’ enactment of
the Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115
(1997) (ASFA). See Conn. Joint Standing Committee Hearings, Judiciary, Pt.
7, 1998 Sess., p. 2175, written testimony of Kristine D. Ragaglia, Commis-
sioner of the Department of Children and Families (explaining that § 17a-1
[12] was intended to address AFSA requirement that states define guardian).
Section 101 (b) of the AFSA, codified at 42 U.S.C. § 675 (7) (2012), defines
‘‘legal guardianship’’ as ‘‘a judicially created relationship between child and
caretaker which is intended to be permanent and self-sustaining as evidenced
by the transfer to the caretaker of the following parental rights with respect
to the child: protection, education, care and control of the person, custody
of the person, and decisionmaking.’’ (Internal quotation marks omitted.)
Title 42 of the United States Code, § 675 (2), provides: ‘‘The term ‘parents’
means biological or adoptive parents or legal guardians, as determined by
applicable State law.’’ (Emphasis added.) When the ASFA was enacted in
1997, however, Connecticut’s laws governing commitment of a child and
termination of parental rights did not define ‘‘legal guardian.’’ Accordingly,
to address this gap, the legislature enacted § 17a-1 (12), apparently taking
the language ‘‘permanent and self-sustaining as evidenced by the transfer
. . . of the following parental rights’’ from the federal statute, and the
enumerated rights and obligations from General Statutes § 45a-604 (5); see
Public Acts 1973, No. 156; that defines ‘‘guardianship’’ for probate purposes.
The legislative history of No. 98-241 of the 1998 Public Acts, which, in
addition to enacting § 17a-1 (12), made numerous changes to the statutes
governing commitment to the commissioner and termination of parental
rights, indicates that the general purpose of the legislation was to shorten
the period in which children committed to the commissioner are in limbo.
See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 6, 1998 Sess., p.
1856, remarks of Attorney General Richard Blumenthal (‘‘this bill essentially
aims to move [decisions regarding the disposition of abused and neglected
children] more quickly . . . [and] [t]he thrust of this measure is to provide
for adoptive homes as soon as possible so that they can be secure, permanent
[and] stable, where reunification is not a realistic hope’’). I see no evidence
that the purpose of § 17a-1 (12) was to make the commissioner the exclusive
guardian of children in her temporary custody.
   7
     I emphasize that my sole focus in this concurring opinion is on the right
of the commissioner to make medical decisions for children in her temporary
custody when the rights of the parents have not been terminated. I express
no opinion on the rights or obligations of the commissioner to care for
children in her temporary custody in other contexts.
   8
     Of course, as a matter of common sense, the commissioner may also
authorize medical treatment for children in her temporary custody with
respect to the minor scrapes and bruises that are an everyday occurrence
during childhood without obtaining the consent of the parents or a court
order. I need not, however, determine the outer limits of that authority here.
   9
     The court stated in McCauley: ‘‘We are faced with the difficult issue of
when a [s]tate may order medical treatment for a dangerously ill child over
the religious objections of the parents. . . . [T]here are three interests
involved: (1) the natural rights of parents; (2) the interests of the child; and
(3) the interests of the [s]tate. . . .
   ‘‘Courts have recognized that the relationship between parents and their
children is constitutionally protected, and, therefore, that the private realm
of family life must be protected from unwarranted [s]tate interference. . . .
The rights to conceive and to raise one’s children are essential . . . basic
civil rights . . . . The interest of parents in their relationship with their
children has been deemed fundamental, and is constitutionally protected.
. . . Parents, however, do not have unlimited rights to make decisions for
their children. Parental rights do not clothe parents with life and death
authority over their children. . . . The [s]tate, acting as parens patriae, may
protect the well-being of children. . . .
   ‘‘The right to the free exercise of religion, including the interests of parents
in the religious upbringing of their children is, of course, a fundamental right
protected by the [federal] Constitution. . . . However, these fundamental
principles do not warrant the view that parents have an absolute right to
refuse medical treatment for their children on religious grounds. . . .
   ‘‘The [s]tate’s interest in protecting the well-being of children is not nulli-
fied merely because the parent grounds his claim to control the child’s
course of conduct on religion or conscience. . . . The right to practice
religion freely does not include liberty to expose the community or the child
to communicable disease or the latter to ill health or death. . . . [T]he
power of the parent, even when linked to a free exercise claim, may be
subject to limitation . . . if it appears that parental decisions will jeopardize
the health or safety of the child, or have a potential for significant social
burdens. . . . When a child’s life is at issue, it is not the rights of the parents
that are chiefly to be considered. The first and paramount duty is to consult
the welfare of the child.’’ (Citations omitted; footnote added; internal quota-
tion marks omitted.) In the Matter of McCauley, supra, 409 Mass. 136–37;
see also Diana H. v. Rubin, 217 Ariz. 131, 136, 171 P.3d 200 (App. 2007)
(under federal constitutional due process principles, when parents object to
vaccination of child in temporary custody of state, ‘‘state must demonstrate a
compelling interest to justify overriding the combination of religious and
parental rights involved’’); In re G.K, 993 A.2d 558, 566 (D.C. App. 2010)
(under statute defining ‘‘residual parental rights,’’ parents retained right to
consent to certain medical treatment for child in legal custody of state); In
the Mattter of Lyle A., 14 Misc. 3d 842, 850, 830 N.Y.S.2d 486 (2006) (implicit
in routine procedures used by Department of Human Services was that ‘‘[a]
parent whose child is in foster care has the right to make the decision
regarding whether or not his or her child will be given psychotropic drugs’’);
In the Matter of Martin F., 13 Misc. 3d 659, 676, 820 N.Y.S.2d 759 (2006)
(if parent of child in temporary foster care opposes administration of mental
health medicine it cannot lawfully be prescribed unless court determines
‘‘whether the proposed treatment by medication is narrowly tailored to give
substantive effect to the [child] patient’s liberty interest’’); Guardianship
of Stein, 105 Ohio St. 3d 30, 35–36, 821 N.E.2d 1008 (2004) (‘‘the decision
to withdraw life-supporting treatments goes beyond the scope of making
medical decisions,’’ and, therefore, ‘‘[t]he right to withdraw life-supporting
treatment for a child remains with the child’s parents until the parents’
rights are permanently terminated’’); but see In re Deng, 314 Mich. App.
615, 626–27, 887 N.W.2d 445 (because determination of unfitness ‘‘so breaks
the mutual due process liberty interests as to justify interference with the
parent-child relationship,’’ state could vaccinate children in temporary cus-
tody over objection of parents pursuant to statute allowing parents to opt
out based on religious objections [internal quotation marks omitted]), appeal
denied, 500 Mich. 860, 884 N.W.2d 580 (2016).
   10
      See footnote 3 of this concurring opinion for the relevant text of
§ 10-204a.


16-2749
United States v. Mayes (Myrick)

                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on
the 14th day of November, two thousand seventeen.

Present: ROBERT A. KATZMANN,
                     Chief Judge,
         RAYMOND J. LOHIER, JR.,
         CHRISTOPHER F. DRONEY,
                     Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

                                  Appellee,

                                  v.                                         No. 16-2749

DANIEL MYRICK, also known as Curnull,

                                  Defendant-Appellant,

ANTHONY MAYES, JR., ANTOINE MAYES,

                     Defendants.
_____________________________________________

For Defendant-Appellant:                 Thomas F. X. Dunn, New York, NY.

For Appellee:                            Alicyn L. Cooley (Richard M. Tucker and Susan Corkery,
                                         Assistant United States Attorneys, Of Counsel, for Bridget M.
                                         Rohde, Acting United States Attorney for the Eastern District
                                         of New York, Brooklyn, NY.
       Appeal from the United States District Court for the Eastern District of New York (Ross,

J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Daniel Myrick appeals from a final judgment entered by the district

court (Ross, J.) on July 26, 2016, sentencing him principally to 204 months’ imprisonment for

one count of racketeering conspiracy and two counts of murder in aid of racketeering. Prior to

sentencing, the government filed a letter motion seeking a sentence below the mandatory

minimum of life imprisonment, pursuant to § 5K1.1 of the United States Sentencing Guidelines,

based on Myrick’s substantial assistance to the government. See 18 U.S.C. § 3553(e). Myrick

challenges his sentence as procedurally and substantively unreasonable. We assume the parties’

familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

       “We review a sentence for procedural and substantive reasonableness under a ‘deferential

abuse-of-discretion standard.’” United States v. Thavaraja, 740 F.3d 253, 258 (2d Cir. 2014)

(quoting Gall v. United States, 552 U.S. 38, 41 (2007)). Among the ways in which a district

court may commit procedural error are where “it does not consider the § 3553(a) factors” or

“fails adequately to explain its chosen sentence.” United States v. Cavera, 550 F.3d 180, 190 (2d

Cir. 2008) (en banc). This Court’s “review of a sentence for substantive reasonableness is

particularly deferential[,] . . . . identifying as substantively unreasonable only those sentences

that are so ‘shockingly high, shockingly low, or otherwise unsupportable as a matter of law’ that

allowing them to stand would ‘damage the administration of justice.’” United States v.

Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012) (quoting United States v. Rigas, 583 F.3d 108, 123

(2d Cir. 2009)).

                                                  2
          With respect to procedural reasonableness, Myrick stresses that the district court did not

consider the loss of his father at a young age, Myrick’s purported history of concussions, or

Myrick’s purported history of depression. Myrick contends that these omissions, combined with

the district court’s statement at sentencing that there was “little in defendant’s personal history

[other than his cooperation] that [could] be considered truly mitigating,” Joint App. 88, indicate

that the district court did not “thoroughly consider [Myrick’s] personal history and characteristics

in determining an appropriate sentence,” Appellant’s Br. 17. Because Myrick did not object to

the procedural reasonableness of his sentence in the proceedings below, this challenge is

reviewed for plain error. See United States v.Villafuerte, 502 F.3d 204, 208–09 (2d Cir. 2007).

          The sentencing transcript reveals that the district court was engaged in the sentencing

hearing, paid attention to the arguments, and felt strongly that a relatively lengthy sentence was

warranted given Myrick’s violent conduct, even when accounting for his substantial cooperation.

The district court did not make any statement that would suggest that it had misapprehended the

record or overlooked Myrick’s arguments. Given that we do not “insist that the district court

address every argument the defendant has made or discuss every § 3553(a) factor individually,”

we cannot say that the district court committed procedural error, let alone plain procedural error,

in considering Myrick’s history and characteristics. Id. at 210. Moreover, “[t]he particular weight

to be afforded aggravating and mitigating factors,” including pertinent aspects of a defendant’s

personal history, “‘is a matter firmly committed to the discretion of the sentencing judge.’”

Broxmeyer, 699 F.3d at 289 (quoting United States v. Fernandez, 443 F.3d 19, 32 (2d Cir.

2006)).

          As for the substantive reasonableness of his sentence, Myrick hinges his challenge on the

fact that he was initially offered a plea bargain before agreeing to cooperate, under which he

                                                   3
would have faced a maximum sentence of 20 years. But what sentence Myrick may have

received had he accepted that plea offer is neither here nor there, as the government’s offer was

made before the government knew that Myrick had committed a murder in cold blood at the

direction of his co-defendant, Anthony Mayes, Jr., and before Myrick pleaded guilty to a

superseding information charging him for that murder. That Myrick disclosed this murder to the

government when the case had been cold for years does not absolve him of culpability. And that

Myrick might regret his voluntary choice to cooperate does not render his 17-year sentence for

his participation in two murders (among other things) substantively unreasonable. See United

States v. Morillo, 540 F. App’x 63, 66 (2d Cir. 2013) (rejecting argument that cooperator’s

sentence was substantively unreasonable because his disclosure of additional criminal activity

diminished the benefit of cooperation). Finally, though Myrick served 100 months in prison for

narcotics-related conduct that overlapped with the instant offense, that criminal conduct was far

less serious than the violent conduct for which Myrick was convicted in this case. Myrick’s prior

sentence thus does not bear materially on the substantive reasonableness of his current sentence.

       We have considered all of the defendant’s arguments on this appeal and find in them no

basis for vacatur. Accordingly, we AFFIRM the judgment of the district court.

                                             FOR THE COURT:
                                             CATHERINE O’HAGAN WOLFE, CLERK

                                                4