Filed: Jan. 12, 2006
Latest Update: Feb. 21, 2020
Summary: United States Attorney on brief for appellee.and turn to his appeal.largely consists of waived claims.conviction); United States v. Meade, 110 F.3d 190, 200 (1st Cir.presented to the district court.controlled substance offense;mandatory guidelines when it sentenced appellant.
Not For Publication in West's Federal Reporter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. 04-2450
UNITED STATES,
Appellee,
v.
JOSE DURAN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Boudin, Chief Judge,
Campbell and Stahl, Senior Circuit Judges.
Peter J. Cyr and Law Offices of Anthony J. Sineni, III, LLC
on brief for appellant.
Margaret D. McGaughey, Appellate Chief and Paula D. Silsby,
United States Attorney on brief for appellee.
January 12, 2006
Per Curiam. Appellant, Jose Duran, was convicted of
conspiracy to distribute and possess with intent to distribute
100 grams or more of heroin in violation of 21 U.S.C. §§
841(a)(1) & 846. He now appeals both his conviction and
sentence.
In addition, on November 21, 2005, appellant filed a
motion to relieve his attorney requesting that we provide him a
copy of a 28(j) letter filed by the government and grant him
leave to refile his pro se supplemental brief. Refiling is
unnecessary, however, because we are in receipt of his September
23, 2005 pro se supplemental brief and have considered the claims
raised therein, as well as the claims raised in the supplemental
brief, reply brief and merits brief filed through his counsel on
his behalf. Moreover, we have provided appellant a copy of the
28(j) letter. Accordingly, the motion is denied.
Further, he filed on December 5, 2005 and December 16,
2005 motions claiming that the District Court in Maine lacked
jurisdiction because appellant was indicted for a crime that
allegedly took place solely in Massachusetts. The facts of the
presentence report detailing the instant offense--to which
appellant did not object below--belie appellant's argument. They
indicate that appellant engaged in a conspiracy to provide drugs
that were to be sold in Maine. Accordingly, we deny the motion
and turn to his appeal. See 18 U.S.C. § 3237 ("Offenses begun in
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one district and completed in another, or committed in more than
one district, may be inquired of and prosecuted in any district
in which such offense was begun, continued, or completed.").
I. Appeal of the Conviction
We first address his appeal of his conviction, which
largely consists of waived claims. Appellant argues that the
district court erred in relying upon police reports to conclude
that he was previously convicted of his prior convictions.
Appellant, however, waived the claim when appellant's counsel
withdrew his objection concerning the evidence presented by the
government in support of the prior convictions and when appellant
admitted that the facts in the presentence report are undisputed.
Likewise, appellant waived his argument that the
district court erred in allowing him to plead guilty to an
indictment that was not supported by sufficient evidence and
which was based on perjured statements. See United States v.
Lujan, 324 F.3d 27, 30 (1st Cir. 2003) (a guilty plea waives all
nonjurisdictional challenges to a criminal conviction); United
States v. Cotton,
535 U.S. 625, 629-631 (U.S. 2002)(concluding
claim that indictment was defective because it failed to include
drug quantity was not jurisdictional).
Though related, appellant's claim that his plea was
involuntary is not waived, however. In particular, appellant
asserts his plea was involuntary because the court failed to
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establish the factual basis for his plea. See Fed. R. Crim. P.
11(b)(3) (stating, "[b]efore entering judgment on a guilty plea,
the court must determine that there is a factual basis for the
plea."). We review Rule 11 challenges raised for the first time
on appeal only for plain error. See United States v. Cheal, 389
F.3d 35, 40 (1st Cir. 2004). After reviewing the record, we
conclude there was no plain error here because appellant's plea
had a rational basis in facts that he conceded. See United
States v. Serrano-Beauvaix,
400 F.3d 50, 53 (1st Cir. 2005).
Appellant also waived his claims that his guilty plea
cannot be accepted because venue was not proper. See United
States v. Lujan, 324 F.3d 27, 30 (1st Cir. 2003) (a guilty plea
waives all nonjurisdictional challenges to a criminal
conviction); United States v. Meade,
110 F.3d 190, 200 (1st Cir.
1997) (stating, "[w]e have further recognized that venue is a
waivable personal privilege designed for the benefit of the
defendant. As such, the constitutional and statutory venue
provisions are not restrictions on the court's jurisdiction.")
(citations omitted).
In addition, he claims that his counsel ineffectively
assisted him. "The rule in this circuit is that a fact-specific
claim of ineffective legal assistance cannot be raised initially
on direct review of a criminal conviction, but must originally be
presented to the district court." United States v. Grace, 367
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F.3d 29, 37 (1st Cir. 2004) (internal quotation marks omitted).
We will deviate from this rule "where the critical facts are not
genuinely in dispute and the record is sufficiently developed to
allow reasoned consideration of an ineffective assistance claim."
United States v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991).
Appellant's fact-intensive claim does not fit into the exception
to the rule.
II. Appeal of the Sentence
We now turn to appellant's challenges to his sentence.
He first argues that the district court erred in failing to
exercise its discretion to grant a downward departure. He
concedes, however, that he did not request a departure below. We
lack jurisdiction to review a sentencing court's refusal to
depart downward based on its belief that the defendant's
circumstances fail to warrant such a departure. See United
States v. Melendez-Torres, 420 F.3d 45, 50-51 (1st Cir. 2005);
see also United States v. Monteiro,
417 F.3d 208 (1st Cir. 2005)
(declining to review a sentencing judge's refusal to grant a
downward departure where the judge did not evince an
understanding that he was constrained from doing so). Here, the
judge gave no indication that the guidelines constrained him from
granting a departure, so we cannot consider the claim. See
id.
Appellant further argues that the district court erred
in sentencing him as a career offender pursuant to U.S.S.G. §
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4B1.1. Guidelines section 4B1.1 sets forth three criteria for
"career offender" status: (1) the defendant was at least 18 years
old at the time he committed the instant offense; (2) the instant
offense is a felony that is either a crime of violence or a
controlled substance offense; and (3) the defendant has at least
two prior felony convictions of either a crime of violence or a
controlled substance offense. Here, the PSR shows that he was 29
years old when he committed the instant offense and that he had
a prior conviction for trafficking possession of marijuana, a
prior conviction for trafficking and possession of cocaine and
heroin, and a conviction for assault and battery and possession
of cocaine. In addition, there is no doubt that the instant
offense is a felony that is a controlled substance offense.
Accordingly, the three criteria are met, and the district court
did not err in sentencing appellant as a career offender.
Lastly, appellant raises a claim pursuant to United
States v. Booker, 125 S. Ct. 738 (2005), and with greater success.
Though the government disputes whether the district court
concluded that the guidelines were mandatory, it is clear to us
from the record that the court acted as if it was bound by
mandatory guidelines when it sentenced appellant. Because
appellant preserved the claim by timely challenging the
constitutionality of the guidelines, the government has the
burden of proving the harmlessness of the district court's error.
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See United States v. Vazquez-Rivera, 407 F.3d 476, 488-490 (1st
Cir. 2005).
The government argues that the error was harmless
because appellant's counsel conceded that the statutory minimum
of ten years likely "would not be enough" in light of appellant's
record. We disagree. Over ten years separates appellant's actual
sentence and the statutory minimum, so there is plenty of room
for a lesser sentence that accommodates appellant's counsel's
concession. The government also argues that, in stating the
sentence was "something that you have brought upon yourself by
your past criminal conduct," the sentencing judge indicated that
he did not feel constrained by the guidelines.
This argument would have more weight were it not for
the fact that the sentencing judge made several statements that
indicated he felt constrained, "[i]t doesn't give me any pleasure
to impose a sentence of 262 months on a 30-year-old-man" and, "I
don't say that to berate you, simply [it] is the fact that this
is the law that Congress has imposed because of the scourge of
drugs like heroin and other drugs . . . it is a huge sentence .
. . it's a great tragedy for you and your family." The fact that
the judge sentenced appellant to the bottom of the guidelines
range would not alone warrant a remand but, in conjunction with
the judge's statements, adds to our concerns. See United States
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v. Casas, 425 F.3d 23, 102 (1st Cir. 2005) (doubt enhanced by
sentence at bottom of range).
Lastly, the government claims that the sentence is
reasonable in light of appellant's extensive criminal record.
Even if we were to consider at this stage the reasonableness of
the sentence, the government's argument goes little distance
towards establishing that the district court's error was harmless
because it is possible that a lesser sentence would meet the
statutory requirements. See 18 U.S.C. § 3553. Accordingly, we
believe the Booker error here was not harmless.
To conclude, we deny appellant's motion to relieve his
attorney and motion for review of jurisdiction, affirm the
conviction, vacate the sentence, and remand for resentencing
consistent with this opinion. The remand is not a suggestion or
a prediction that the sentence will necessarily be altered.
It is so ordered.
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