Filed: Jul. 05, 2005
Latest Update: Feb. 21, 2020
Summary: United States v. Argentine, 814 F.2d 783, 790 (1st Cir.F.3d 68, 77 (1st Cir.2, While appellant argued that the district court violated, Apprendi in connection with his erstwhile motion to withdraw his, plea, this does not suffice to preserve his Booker claim because he, later withdrew the motion.
Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1068
UNITED STATES,
Appellee,
v.
ALCIDES GARCIA-MARCUCCI,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge
and Lynch, Circuit Judge.
Alcides Garcia-Marcucci on brief pro se.
H.S. Garcia, United States Attorney and Nelson Perez-Sosa,
Assistant U.S. Attorney, on brief for appellee.
July 5, 2005
Per Curiam. Appellant, Alcides Garcia-Marcucci, pled
guilty to one count of conspiracy to distribute one hundred fifty
kilograms or more of cocaine in violation of 21 U.S.C. ยง 846 and
one count of laundering monetary instruments in violation of 18
U.S.C. 1956(a)(1). He now appeals both his conviction and
sentence.
Appellant first argues we should vacate his conviction
because his guilty plea was rendered involuntary when the
government breached its agreement to recommend the bottom of the
guideline range of 188-235 months and to refrain from "us[ing] any
information concerning his alleged leadership to enhance the
sentence." He further argues that the district court erred in
failing to bring about the disclosure of the terms of the agreement
during the change of plea hearing.
As appellant is unable to establish there was a plea
agreement, both of these arguments fail. See United States v.
Riggs, 287 F.3d 221, 224 (1st Cir. 2002); see also United States v.
Saxena,
229 F.3d 1, 5 (1st Cir. 2000). Appellant concedes he
never entered into a written plea agreement with the government,
and the rules of the United States District Court for the District
of Puerto Rico require that such agreements be in writing. See
D.P.R. R. 418 (2002). Moreover, the record evidence does not
support the existence of such an agreement. The record supports
only that the government stipulated that it would seek an offense
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level of 38 and a criminal history category of I, would withdraw
its 851 notice, and would "not seek any enhancement for a
supervisory role or leadership capacity." These stipulations do
not resemble the terms of the alleged plea agreement, and the
government complied with each of them. To be sure, appellant
provides an affidavit in which he claims that his counsel promised
him that he would "receive at least the bottom of the guideline
range of 188 to 235 months" if he pled guilty. As he did not
properly raise this factual claim before the district court,
however, he has forfeited any right to appeal on this ground.1 See
United States v. Argentine, 814 F.2d 783, 790 (1st Cir. 1987).
Appellant further argues that even if there was no plea
agreement, his plea was involuntary because it was based upon his
counsel's false assurances that the government would recommend a
sentence at the lower end of the Guidelines range. This claim
requires proof of facts outside the present record, as it centers
on alleged intimate discussions between him and his counsel.
Accordingly, it is not appropriate for direct appeal and will not
1
While appellant raised a somewhat similar issue in his
motion to set aside and/or withdraw guilty plea that he filed in
the district court, the district court never considered it,
choosing to hold the motion in abeyance while it determined whether
the defense counsel that filed the motion should be disqualified
due to conflict of interest. Ultimately, the court disqualified
the counsel, and subsequent defense counsel withdrew the motion at
the sentencing hearing.
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be considered. See, e.g, United States v. Mala, 7 F.3d 1058, 1063
(1st Cir. 1993).
Lastly, in response to our invitation to file
supplemental briefing on the subject, appellant raises a claim of
Booker error. Appellant did not preserve this claim below, so we
review for plain error.2 See United States v. Antonakopoulos, 399
F.3d 68, 77 (1st Cir. 2005). Appellant's claim is largely
identical to his involuntary plea claim and, therefore, fails for
the above stated reasons. Thus, he is unable to establish that the
Booker error affected his substantial rights. See
id. at 78.
Accordingly, we affirm.
2
While appellant argued that the district court violated
Apprendi in connection with his erstwhile motion to withdraw his
plea, this does not suffice to preserve his Booker claim because he
later withdrew the motion.
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