Filed: Jul. 19, 2013
Latest Update: Mar. 28, 2017
Summary: United States v. Murphy-Cordero, 715 F.3d 398, 400 (1st Cir.consequences of his plea. (4) the kinds, of sentence and the sentencing range established for, .offense of conviction.That is exactly what the district court did in this case.descry no error in the court's reliance on this information.
United States Court of Appeals
For the First Circuit
No. 12-1103
UNITED STATES OF AMERICA,
Appellee,
v.
ANGEL OCASIO-CANCEL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Howard, Selya and Lipez,
Circuit Judges.
Nereida Meléndez Rivera and Meléndez Torres Law PSC on brief
for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Julia M. Meconiates, Assistant United States
Attorney, on brief for appellee.
July 19, 2013
SELYA, Circuit Judge. After accepting his guilty plea,
the district court sentenced defendant-appellant Angel Ocasio-
Cancel to serve 87 months in prison. In his ensuing appeal, the
defendant asseverates that his guilty plea was neither voluntary
nor knowing and, in any event, the district court's sentencing
methodology was flawed. After careful consideration of this
asseverational array, we affirm both the defendant's conviction and
his sentence.
Because this appeal follows a guilty plea, we draw the
facts from the plea agreement, the change-of-plea colloquy, the
unchallenged portions of the presentence investigation report (PSI
Report), and the transcript of the disposition hearing. See United
States v. Calderón-Pacheco, 564 F.3d 55, 56 (1st Cir. 2009); United
States v. Dietz,
950 F.2d 50, 51 (1st Cir. 1991).
In July of 2010, a federal grand jury sitting in the
District of Puerto Rico charged a multitude of persons (including
the defendant) with participation in a widespread drug-trafficking
conspiracy. The government alleged that, as part of the charged
conspiracy, the defendant acted as a seller and distributed
narcotics at sundry drug points within public housing projects.
Shortly before his scheduled trial, the defendant opted
to plead guilty to the conspiracy charge. See 21 U.S.C.
§§ 841(a)(1), 846, 860. The government and the defendant executed
a nonbinding plea agreement. See Fed. R. Crim. P. 11(c)(1)(A)-(B).
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The district court accepted the change of plea and ordered the
preparation of a PSI Report.
The guideline calculation, incorporated in the plea
agreement and reiterated in the PSI Report, started with a
stipulated base offense level (26); added two levels for proximity
to a protected location, see USSG §2D1.2(a)(1); subtracted three
levels for acceptance of responsibility, see USSG §3E1.1; and
settled upon a total offense level of 25. The plea agreement was
silent as to the defendant's Criminal History Category (CHC).
Filling this void, the PSI Report noted that in 2006 a Puerto Rico
court had sentenced the defendant to four years of probation for
violations of the Controlled Substances Act of Puerto Rico, see
P.R. Laws Ann. tit. 24, § 2406, and that in 2011 the court had
revoked his probation and sentenced him to serve a four-year term
of imprisonment. Based on this information and the fact that the
defendant had committed the offense of conviction while on escape
status, the PSI Report recommended placing the defendant in CHC
III. The defendant's total offense level, combined with his CHC,
yielded a guideline sentencing range (GSR) of 70-87 months.
At the disposition hearing, the guideline calculations
limned in the PSI Report went unchallenged. In mitigation, defense
counsel urged the district court to take into account the fact that
the defendant was already facing a four-year sentence in the local
courts. The district court nonetheless imposed a top-of-the-range
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sentence — 87 months — to run consecutively to the undischarged
local sentence. This timely appeal followed.
To begin, we think it appropriate to remark that the plea
agreement contained a waiver-of-appeal provision, which stated in
pertinent part that if the district court "accepts this agreement
and sentences the defendant according to its terms, conditions, and
recommendations, the defendant waives and surrenders the right to
appeal the judgment and sentence in this case." At the disposition
hearing, the district court referred to this provision and
suggested that it operated to limit any appeal to "the correctness
of the exercise of my discretion to sentence [the defendant] to the
higher end of the guidelines." We do not agree.
The plea agreement states that if the district court
placed the defendant in CHC I, II, or III, he could "request a
sentence of imprisonment at the lower end of the applicable
guideline range" and in that event, the government would "request
a sentence of imprisonment of 70 months." The district court
placed the defendant in CHC III, but nonetheless eschewed the 70-
month sentencing recommendation and imposed a stiffer sentence.
Plea agreements should be given their plain meaning.
Under the unambiguous language of the plea agreement in this case,
the district court's rejection of the sentencing recommendation
vitiated the waiver-of-appeal provision in its entirety. See
United States v. Murphy-Cordero, 715 F.3d 398, 400 (1st Cir. 2013).
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Consequently, that provision does not operate to circumscribe the
defendant's appellate rights in any way. See id.
With this preface, we turn to the defendant's flagship
contention: that the district court's failure to advise him that
his federal sentence would run consecutively to his undischarged
local sentence renders his guilty plea invalid. This omission, he
says, denotes that his plea was neither knowing nor voluntary
because had he been aware that the court intended to impose a
consecutive sentence, "he may have insisted on proceeding to
trial." Appellant's Br. at 14.
This contention is raised for the first time on appeal.
Accordingly, our review is for plain error. See United States v.
Vonn, 535 U.S. 55, 58-59 (2002); United States v. Ramos-Mejía, ___
F.3d ___, ___ (1st Cir. 2013) [No. 12-1738, slip op. at 3]. Plain
error is a redoubtable standard of review; to surmount it a
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).
It would serve no useful purpose to do a full-dress plain
error analysis here. After all, it is clear beyond any hope of
contradiction that the defendant must, at a bare minimum, show a
reasonable probability that but for some error, he would not have
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pleaded guilty. See United States v. Davila, 133 S. Ct. 2139, 2147
(2013); United States v. Dominguez Benitez,
542 U.S. 74, 83 (2004).
There was no error here.
A defendant's guilty plea must be voluntary, knowing, and
intelligent. See Ramos-Mejía, ___ F.3d at ___ [slip op. at 4];
United States v. Negrón-Narváez, 403 F.3d 33, 36 (1st Cir. 2005).
This means that a defendant must be informed of the "direct"
consequences of his plea. See Brady v. United States,
397 U.S.
742, 748, 755 (1970). Nevertheless, a defendant need not be
informed of all the collateral consequences of a guilty plea. See
Steele v. Murphy,
365 F.3d 14, 17 (1st Cir. 2004). In this
setting, the distinction between a direct consequence and a
collateral consequence "turns on whether the consequence represents
a definite, immediate, and largely automatic effect on the range of
a defendant's punishment." Id. (internal quotation marks omitted).
Before us, the defendant concedes — as he must — that the
decision about whether to impose a concurrent or consecutive
sentence normally lies within the district court's discretion.1
See 18 U.S.C. § 3584(a) (explaining that "if a term of imprisonment
is imposed on a defendant who is already subject to an undischarged
1
There are circumstances in which the imposition of a
consecutive sentence is obligatory. See, e.g., 18 U.S.C.
§ 924(c)(1)(D)(ii) (mandating consecutive sentence for certain
firearm offenses); Id. § 1028A(b)(2) (mandating consecutive
sentence for certain aggravated identity theft offenses); see also
Abbott v. United States, 131 S. Ct. 18, 23 (2010). This case does
not involve any such circumstances.
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term of imprisonment, the terms may run concurrently or
consecutively"); see also United States v. Carrasco-de-Jesús, 589
F.3d 22, 27 (1st Cir. 2009). This discretion is broad and, at the
time of the plea, it was anybody's guess whether the district court
would opt to impose the sentence concurrently or consecutively.
Because a consecutive sentence was neither automatic nor definite
in the circumstances of this case, it was not a direct consequence
of the defendant's guilty plea. Therefore, the district court had
no obligation to inform the defendant, at the change-of-plea
hearing, about the possibility that a consecutive sentence might be
imposed. See United States v. Hernandez,
234 F.3d 252, 256 (5th
Cir. 2000).
In an effort to blunt the force of this reasoning, the
defendant asserts that the district court was laboring under the
mistaken impression that it had no choice but to impose a
consecutive sentence. Building on this foundation, the defendant
argues that the consecutive sentence was a direct consequence of
his guilty plea. But as we explain below, the record is pellucid
that the district court did not labor under any such misimpression.
Thus, we need not grapple with the theoretical possibility that a
sentencing court's mistaken belief in the inevitability of a
consecutive sentence suffices to transmogrify a collateral
consequence into a direct consequence.
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At the disposition hearing, defense counsel urged the
court to take into account the fact that the undischarged local
sentence arose out of the operations of the same conspiracy that
was charged in the federal case. The court flatly rejected this
exhortation, observing that "[t]hese are different cases in
different jurisdictions." The court went on to explain that it
would not impose a concurrent sentence because the undischarged
local sentence involved "a different crime." This explanation
indicates to us that the district court imposed a consecutive
sentence because it viewed such a sentence as warranted — not
because it thought that it had no other choice.
Relatedly, the defendant hints that the district court
should have, in the exercise of its discretion, imposed a
concurrent rather than a consecutive sentence. Any such argument
is waived: in response to the court's statement at the disposition
hearing that it did not intend to impose a concurrent sentence,
defense counsel repeatedly declared, "I'm not asking for that."
Waiver is the purposeful relinquishment of a known right, see
United States v. Olano, 507 U.S. 725, 733 (1993); United States v.
Rodriguez,
311 F.3d 435, 437 (1st Cir. 2002), and that is precisely
what occurred here.
This brings us to the defendant's claims of procedural
error in the construction of his sentence. Because the defendant
did not raise any of these claims below, review is limited to plain
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error. See Murphy-Cordero, 715 F.3d at 401; Duarte, 246 F.3d at
60. Plain error is plainly absent here.
In formulating a sentence, a district court is required
to consider an amalgam of factors set out in 18 U.S.C. § 3553(a).2
See, e.g., United States v. Quiñones-Medina, 553 F.3d 19, 26 (1st
Cir. 2009); United States v. Martin,
520 F.3d 87, 91 (1st Cir.
2008). The defendant first asserts that the district court erred
in failing to address these factors. This assertion lacks force.
We have never required that sentencing courts undertake
"an express weighing of mitigating and aggravating factors."
United States v. Lozada-Aponte, 689 F.3d 791, 793 (1st Cir. 2012).
By the same token, we have never mandated that each section 3553(a)
factor be mentioned separately by the sentencing court. See id.;
United States v. Dixon,
449 F.3d 194, 205 (1st Cir. 2006).
2
The sentencing factors set out in 18 U.S.C. § 3553(a)
include, as pertinent here:
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the
need for the sentence imposed — (A) to reflect the
seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense; (B)
to afford adequate deterrence to criminal conduct; (C) to
protect the public from further crimes of the defendant;
. . . (3) the kinds of sentences available; (4) the kinds
of sentence and the sentencing range established for
. . . the applicable category of offense committed by the
applicable category of defendant . . . ; (5) any
pertinent policy statement . . . issued by the Sentencing
Commission . . . [;] (6) the need to avoid unwarranted
sentence disparities among defendants with similar
records . . . .
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Instead, we have taken a pragmatic approach and recognized that "a
court's reasoning can often be inferred by comparing what was
argued by the parties or contained in the pre-sentence report with
what the judge did." United States v. Jiménez-Beltre, 440 F.3d
514, 519 (1st Cir. 2006) (en banc).
The record in this case makes manifest that the district
court considered the relevant section 3553(a) factors. The court
exhibited an intimate knowledge of the contents of the PSI Report
and trenchantly discussed the nature and circumstances of the
offense of conviction. The court likewise displayed great
familiarity with the defendant's criminal history, discussing in
detail prior charges that had been lodged against him. Last — but
far from least — the court gave individualized consideration to the
defendant's situation and articulated its reasons for choosing the
imposed sentence. No more was exigible.
The defendant's plaint that the district court neglected
sufficiently to explain its reasoning for the sentence is largely
refuted by what we have already written.
The court's explanation, though inelegant, was adequate,
particularly since the sentence fell within the GSR. Although the
GSR is not controlling with respect to the reasonableness of a
specific sentence, see United States v. Gates, 709 F.3d 58, 71 (1st
Cir. 2013); Jiménez-Beltre, 440 F.3d at 517-18, the fact that a
sentence falls within a properly calculated guideline range is
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pertinent to the requisite degree of explanation: a within-the-
range sentence usually demands a less detailed explanation than a
variant sentence. See United States v. Madera-Ortiz, 637 F.3d 26,
30 (1st Cir. 2011); United States v. Turbides-Leonardo,
468 F.3d
34, 41 (1st Cir. 2006). Where, as here, a district court offers a
plausible rationale in support of a within-the-range sentence, "it
need not wax longiloquent." Murphy-Cordero, 715 F.3d at 402.
The defendant makes a last-ditch argument that the court
below erred in sentencing him at the top of the GSR based on
unsupported facts regarding prior local charges that were
ultimately dismissed. Specifically, the defendant takes issue with
the court's suggestion that his CHC underrepresented the extent of
his past criminal conduct.
The Federal Rules of Evidence do not apply in sentencing
proceedings. See United States v. Zapata, 589 F.3d 475, 485 (1st
Cir. 2009). A district court may ground sentencing determinations
on any evidence that it reasonably deems to be reliable. See
United States v. Cintrón-Echautegui,
604 F.3d 1, 6 (1st Cir. 2010).
Here, the defendant did not object to any aspect of the PSI
Report's discussion of local charges against him that were
ultimately dismissed. When a fact is set out in a presentence
investigation report and is not the subject of a timely objection,
the district court may treat the fact as true for sentencing
purposes. See United States v. Medina,
167 F.3d 77, 81 (1st Cir.
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1999); United States v. Rosales, 19 F.3d 763, 770 (1st Cir. 1994).
That is exactly what the district court did in this case. We
descry no error in the court's reliance on this information. See
United States v. Flores-Machicote,
706 F.3d 16, 21 (1st Cir. 2013)
(explaining that "a sentencing judge may consider whether a
defendant's criminal history score substantially underrepresents
the gravity of his past conduct" and a "record of past arrests or
dismissed charges may indicate a pattern of unlawful behavior"
(internal quotation mark omitted)).
We need go no further. For the reasons elucidated above,
we uphold both the defendant's conviction and his sentence.
Affirmed.
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