Filed: Feb. 17, 2010
Latest Update: Mar. 03, 2020
Summary: -2-, A probation officer proceeded to prepare the PSI Report.sentencing error were waived). United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. prior sentences are counted separately, unless (A) the sentences resulted from, offenses contained in the same charging, instrument;
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 08-2433
UNITED STATES OF AMERICA,
Appellee,
v.
AMADO DE LA ROSA-RAMOS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Selya, Lipez and Howard, Circuit Judges.
Linda Backiel on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Chief, Appellate Division, and Thomas F. Klumper,
Assistant United States Attorney, on brief for appellee.
February 17, 2010
Per Curiam. Defendant-appellant Amado De La Rosa-Ramos
pleaded guilty to charges involving his attempted illegal reentry
into the United States. The district court sentenced him to two
concurrent 51-month terms of immurement. On appeal, he challenges
his sentence. We direct a slight modification in the sentence but
otherwise affirm.
The facts, which we glean from the plea colloquy, the
presentence investigation report (PSI Report), and the transcript
of the disposition hearing, are uncomplicated. On March 25, 2008,
Puerto Rico maritime police called the U.S. Border Patrol to a
locus roughly 200 yards off the coast of Parque de Colón. Upon
arrival, the border patrol agents observed a number of persons
jumping from a detained vessel into the surrounding waters. The
agents apprehended the defendant and thirteen other individuals.
In due course, a federal grand jury handed up a two-count
indictment against four persons. The indictment charged the
defendant with plotting to effect his own illegal entry and aiding
and abetting the illegal entry of others, in violation of 8 U.S.C.
§ 1325(a)(1) (count 1), and attempted reentry into the United
States without proper authorization after having been deported
following the commission of an aggravated felony, in violation of
8 U.S.C. § 1326(a)(2), (b)(2) (count 2). The defendant entered a
straight guilty plea to both counts.
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A probation officer proceeded to prepare the PSI Report.
Using the November 2007 edition of the guidelines manual, she
grouped the counts of conviction because they arose out of the same
plan, scheme, or course of conduct. See USSG §3D1.2(b). Inasmuch
as count 2 carried the higher total offense level — 21 — the
probation officer used it to calculate the guideline sentencing
range (GSR).1 See id. §3D1.3(a).
To complete this calculation, the probation officer
needed to determine the defendant's criminal history category
(CHC). Because certain details of the defendant's criminal record
are pertinent to an issue on appeal, we note the relevant
particulars.
The first conviction with which we are concerned led to
sentencing by a local Puerto Rico court on November 27, 1995. The
charges were for aggravated assault and related weapons violations.
The Puerto Rico court imposed a two-year prison sentence. The PSI
Report assigned three criminal history points in respect to this
sentence. See id. §4A1.1(a). Following service of this sentence,
the government deported the defendant.2
1
This total offense level resulted from a base offense level
of 8, see USSG §2L1.2, plus 16 levels because the defendant's
earlier deportation followed his conviction for a crime of
violence, see id. §2L1.2(b)(1)(A)(ii), less 3 levels for acceptance
of responsibility, see
id. §3E1.1.
2
At sentencing in the instant case, the parties disagreed
about the date of deportation. We need not resolve this dispute as
the exact date is immaterial to the issues presented on appeal.
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The defendant's other brushes with the law arose out of
activities that led to his arrest by the Coast Guard on or about
October 25, 2003. This arrest followed the Coast Guard's seizure
of a wooden yawl off the coast of San Juan. Federal authorities
detained several persons (including the defendant). They
subsequently charged the defendant with illegal reentry into the
United States after having been deported for commission of an
aggravated felony. See 8 U.S.C. § 1326(b)(2).
The defendant entered a guilty plea on July 20, 2004, and
a federal judge sentenced him to 41 months in prison (subsequently
reduced to 30 months) and three years of supervised release. The
PSI Report assigned three criminal history points to this sentence.
See USSG §4A1.1(a).
On March 24, 2004, the defendant (along with other
persons arrested on October 25, 2003) was charged with smuggling
and harboring illegal aliens. As part of a plea bargain, the
government later dropped these charges and, instead, filed an
information that charged the defendant with misprision of a felony.
See 18 U.S.C. § 4. On June 9, 2005, the defendant entered a guilty
plea to this charge. The court sentenced him the same day to
twelve months and one day in prison, to run concurrently with the
unserved portion of his 41-month sentence (described above). The
PSI Report assigned three criminal history points to this sentence.
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See USSG §4A1.1. After his release, the government again deported
the defendant.
In addition to the foregoing, the PSI Report assigned two
points because the defendant committed the offenses of conviction
(that is, the offenses underlying this appeal) while serving a term
of supervised release. See id. §4A1.1(d).
In the aggregate, these allocations produced a total of
eleven criminal history points, which placed the defendant in CHC
V. See
id. Ch. 5, Pt. A (sentencing table). As a further data
point, the PSI Report noted that the statutory maximum sentences
for the offenses of conviction were two years for count 1 and
twenty years for count 2.
Neither side filed objections to the PSI Report. See
D.P.R.R. 132(b)(3). At the disposition hearing, however, the
defendant disputed certain dates, see, e.g., supra note 2, and
sought to "clarify" his prior convictions. Despite this
clarification, the sentencing court ruled that the prior
convictions were appropriately scored in the PSI Report. Then, the
court cited a variety of mitigating factors and adjusted the
defendant's total offense level downward by three levels (to 18).
Accepting all the other recommendations contained in the PSI Report
and retaining the defendant's classification in CHC V, the court
computed the GSR at 51-63 months. The government recommended a
sentence at the low end of the GSR. The court obliged, sentencing
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the defendant to two concurrent 51-month terms of imprisonment.
This timely appeal followed.
Before us, the defendant advances two claims of error.
First, he argues that his sentence on count 1 exceeds the statutory
maximum. Second, he argues that the court below erred in
determining his CHC. Since his second claim requires more
analysis, we start there.
The defendant's challenge to his CHC comprises an attack
on two of the district court's intermediate calculations. Because
no part of this attack was adumbrated in the district court, the
government asserts that the defendant has waived these claims of
error. For his part, the appellant concedes that these claims are
unpreserved — he is raising them for the first time on appeal — but
says that they are forfeited, not waived.
The characterization question is not free from doubt.
See, e.g., United States v. Turbides-Leonardo, 468 F.3d 34, 38 (1st
Cir. 2006) (suggesting, on analogous facts, that claims of
sentencing error were waived). A party waives a right when he
intentionally relinquishes or abandons it. United States v. Olano,
507 U.S. 725, 733 (1993); United States v. Eisom,
585 F.3d 552, 556
(1st Cir. 2009). In contrast, a party who merely fails to make a
timely assertion of a right forfeits that right, but does not waive
it. United States v. Rodriguez,
311 F.3d 435, 437 (1st Cir. 2002).
The distinction is consequential from the standpoint of possible
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appellate review; "a waived issue ordinarily cannot be resurrected
on appeal, whereas a forfeited issue may be reviewed for plain
error." Id. (citations omitted).
It is not necessary for us to decide this
characterization question here. The merits of the claims in
question are easily dispatched, so it is unnecessary for us to
address the waiver issue head-on. Therefore, we assume, favorably
to the defendant, that what transpired here was simply a
forfeiture. This means, of course, that we may review the claims,
but only for plain error. Under that standard, the defendant must
show "(1) that an error occurred (2) which was clear or obvious and
which not only (3) affected the defendant's substantial rights, but
also (4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." United States v. Duarte, 246
F.3d 56, 60 (1st Cir. 2001).
The defendant assigns error to the lower court's
compilation of his criminal history score. The nub of his
complaint is that the court counted the two sentences arising out
of the October 2003 incident separately. In his view, the
underlying charges were "related cases" and, thus, should have been
treated as a single unit (carrying fewer criminal history points).
This argument fails. Without objection, both the
probation officer and the district court used the November 2007
edition of the guidelines for all purposes relevant to sentencing.
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Even on appeal, no one has suggested that some other edition of the
guidelines should have been employed.
In all events, the November 2007 edition of the
guidelines plainly applies here. Unless doing so would cause an ex
post facto problem, a sentencing court should use the version of
the guidelines in effect on the date of sentencing. See 18 U.S.C.
§ 3553(a)(4)(A)(ii); USSG §1B1.11(a); United States v. Silva, 554
F.3d 13, 22 (1st Cir. 2009); United States v. Harotunian,
920 F.2d
1040, 1041-42 (1st Cir. 1990). The district court sentenced the
defendant on September 26, 2008, for offenses that arose out of
events that occurred on March 25, 2008. The November 2007 edition
of the guidelines was in force on both dates. A fortiori, using
that version of the guidelines did not pose an ex post facto
problem.
These guidelines instruct that when multiple prior
sentences are in play, separate sentences sometimes may be counted
as a unit for the purpose of calculating a defendant's criminal
history score. See USSG §4A1.2(a). But in that regard, the
guidelines make no reference to a "related cases" standard.
Instead, they provide in pertinent part that:
. . . prior sentences are counted separately
unless (A) the sentences resulted from
offenses contained in the same charging
instrument; or (B) the sentences were imposed
on the same day. Count any prior sentence
covered by (A) or (B) as a single sentence.
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USSG §4A1.2(a)(2). Under this standard, whether or not the prior
convictions are "related" is irrelevant.3
In this case, the record makes manifest that the
challenged convictions were not for offenses described in the same
charging document, nor were the sentences for them imposed on the
same day. Thus, the district court correctly counted the two
convictions as separate offenses for the purpose of tabulating the
defendant's criminal history score.
The defendant has a fallback position. He argues that
the district court blundered by awarding three criminal history
points for the misprision of felony sentence and that, therefore,
the sentence on count 2 must be vacated. His premise is correct,
but the conclusion that he reaches is not.
The district court erred in assigning three criminal
history points to this sentence. The sentence for the misprision
of felony conviction was for one year and one day. Thus, only two
points should have been assigned for that sentence. See USSG
§4A1.1(a) (requiring three criminal history points be added for
sentences "exceeding one year and one month"); id. §4A1.1(b)
3
A "related cases" provision was contained in the immediately
preceding edition of the guidelines: whether convictions were
counted separately turned, in some circumstances, on whether the
cases were "related." See USSG §4A1.2 (2006). But this provision
was deleted in 2007, see USSG Supp. to App. C, amend. 709 (2007),
and it has no bearing here.
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(requiring two criminal history points be added for sentences of at
least 60 days).
Although the defendant is correct in insisting that the
court should have assigned two, not three, criminal history points
for this sentence, the error was harmless. Subtracting one
criminal history point would not have shifted the defendant into a
different CHC and, thus, would not have changed the GSR.
Consequently, the counting error did not impugn the defendant's
substantial rights. See Fed. R. Crim. P. 52(a); United States v.
Jimenez, 512 F.3d 1, 8 (1st Cir. 2007). It follows that this claim
cannot survive scrutiny under the third prong of the test for plain
error. The sentence imposed on count 2 must stand.
This leaves the defendant's sentence on count 1. He
maintains that this sentence exceeds the statutory maximum. We
agree.
The facts are these. With respect to count 1, the
defendant pleaded guilty to violating 8 U.S.C. § 1325. The
district court sentenced him to 51 months' imprisonment. The
conviction, however, is for a first offense and, thus, is subject
to a six-month maximum term of imprisonment.4 See 8 U.S.C.
§ 1325(a). Thus, the sentence imposed on count 1 was in excess of
the statutory maximum. We deem that error plain, and find the
4
Although the PSI Report described the maximum term of
imprisonment as two years for the section 1325 offense, that
maximum is only available for a subsequent section 1325 conviction.
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remaining elements of the plain error test satisfied. See, e.g.,
United States v. Hilario-Hilario, 529 F.3d 65, 76 (1st Cir. 2008).
This does not mean, however, that resentencing is
required. The reduction of a sentence to conform to a statutory
maximum ordinarily may be accomplished without a new sentencing
hearing. See, e.g., United States v. Barnes, 244 F.3d 172, 178
(1st Cir. 2001). In this case, an instruction to the sentencing
court is all that is needed to repair the defect.
We need go no further. For the reasons elucidated above,
we uphold the sentence on count 2. However, we remand count 1,
with directions to the district court to amend that sentence to a
sentence of six months' imprisonment, to run concurrently with the
sentence imposed on count 2. As amended, the sentence on count 1
is also affirmed.
So Ordered.
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