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USCA1 Opinion
July 12, 1996 [Not for Publication] [Not for Publication]
United States Court of Appeals
For the First Circuit
____________________
No. 95-1654
UNITED STATES,
Appellee,
v.
VICTOR LAGUER-AVELLANET,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge] ___________________
____________________
Before
Stahl, Circuit Judge, _____________
Campbell, Senior Circuit Judge, ____________________
and Lynch, Circuit Judge. _____________
____________________
Benito I. Rodriguez Masso for appellant. _________________________
Jeanette Mercado-Rios, Assistant United States Attorney, with _____________________
whom Guillermo Gil, United States Attorney, and Jose A. Quiles- _____________ _______________
Espinosa, Senior Litigation Counsel, were on brief for appellee. ________
____________________
____________________
Stahl, J. Defendant-appellant Victor Laguer- Stahl, J ________
Avellanet pleaded guilty, pursuant to a plea agreement, to a
drug trafficking conspiracy. Despite the government's
recommendation, made in accordance with that agreement, for a
twelve-month imprisonment term, the district court imposed a
fifteen-month term. In this appeal, Laguer-Avellanet seeks
to be resentenced to the recommended term but not to withdraw
his plea.
I. I. __
Pertinent Facts and Prior Proceedings Pertinent Facts and Prior Proceedings _____________________________________
In December 1994, a grand jury returned an
indictment charging in count one that Laguer-Avellanet1 and
ten codefendants conspired to distribute and to possess with
intent to distribute cocaine. In February 1995, Laguer-
Avellanet entered into a plea agreement with the government
whereby he agreed to plead guilty to that count.
The plea agreement set forth the parties'
stipulations as to several sentencing guideline matters.2
It provided that the conduct relevant to the offense yielded
an offense level of eighteen, pursuant to U.S.S.G.
2D1.1(a)(3). The parties also agreed to downward
____________________
1. Laguer-Avellanet is also known as Ruben Sanchez-Irizarry.
2. The plea agreement originally provided only that it was
entered into "pursuant to Rule 11(e)(3)" of the Federal Rules
of Criminal Procedure. The parties agreed to add to that
provision, "11(e)(1)(C)," which the court acknowledged at the
change of plea hearing.
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adjustments for acceptance of responsibility, U.S.S.G.
3E1.1(b), and for being a minor participant, U.S.S.G.
3B1.2(b), for a total reduction of five levels, yielding a
total offense level of thirteen. The plea agreement also
stated that "[t]he guideline sentencing range, then, is
twelve (12) to eighteen (18) months," and thus, it reflected
a presumed criminal history category of one. See U.S.S.G. ___
Ch.5, Pt.A, Sentencing Table.
Further, the agreement provided:
The United States recommends a twelve
(12) month term of imprisonment. No
agreement concerning the application of
any other sentencing guideline has been
entered into by the parties. There is no
agreement between the parties concerning
the Defendant's criminal history
category. All other aspects of the
sentence are left to the sound discretion
of the Court.
The agreement did not explicitly state whether or not the
court was bound by the sentence recommendation, or whether
Laguer-Avellanet would have the right to withdraw his plea if
the court imposed a higher-than-recommended sentence.
On February 14, 1995, the district court conducted
a change of plea hearing, during which Laguer-Avellanet
pleaded guilty with several of his codefendants who had
signed identical plea agreements. At that hearing, the court
reiterated the plea agreement's provisions regarding
sentencing. The court elicited Laguer-Avellanet's
acknowledgment (along with the other defendants') that the
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agreed sentencing range was twelve to eighteen months, and
that the government was recommending a twelve-month term of
imprisonment.3 The court ensured Laguer-Avellanet's
understanding that there was no agreement concerning the
criminal history category and that "all other aspects of the
sentence are left to the sound discretion of the Court."
Finally, the court informed him that the sentence would be
imposed "in accordance with the sentencing guidelines and
policy statements."
At the end of the change of plea hearing, the court
accepted Laguer-Avellanet's guilty plea and ordered a
presentence report ("PSR").4 At no time did the court
explicitly state that it was accepting, rejecting, or
deferring decision on the plea agreement. Further, at no
time did the court expressly warn Laguer-Avellanet that it
was not bound by the twelve-month recommendation and that it
could and might impose a higher sentence. Further, nothing
____________________
3. The government confirmed its twelve-month recommendation
at the change of plea hearing, although it did not
affirmatively recommend it again at the sentencing hearing,
stating only, "in keeping with the plea agreement, the United
States has nothing to add." Laguer-Avellanet does not
suggest that the government breached the plea agreement.
4. Laguer-Avellanet requested to "waive the presentence
report" so that he could begin his imprisonment term
immediately. The court stated that it would "not accept a
waiver of the presentence report," see U.S.S.G. 6A1.1 ___
(prohibiting such waiver), but allowed Laguer-Avellanet's
request to begin his imprisonment term before completion of
the report and actual sentencing.
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whatsoever was stated as to whether or not Laguer-Avellanet
could withdraw his guilty plea upon learning of the court's
ultimate sentencing determination.
On May 25, 1995, the district court, after
reviewing an amended PSR, conducted a sentencing hearing.
The PSR concluded that, due to two prior convictions, Laguer-
Avellanet had a criminal history category of two instead of
the previously presumed one, which increased the applicable
guideline sentencing range from that indicated in the plea
agreement (twelve to eighteen months) to fifteen to twenty-
one months: a range in excess of the recommended twelve-month
term.
Objecting to the PSR's criminal history
calculation, Laguer-Avellanet's counsel asserted, "we entered
into a plea agreement in this case for a 12-month sentence,
and that's what we have been all the time -- let's call it
offering [Laguer-Avellanet]." He also argued that the prior
convictions were not properly countable in the criminal
history category and that, even if they were, they were
minimal in nature and the court should depart downward to
effect the recommended twelve-month sentence. After
repeating his request that "the 12-month sentence be
recognized as the applicable sentence and the proper sentence
for our client in his case," counsel entreated upon the court
that Laguer-Avellanet was truly remorseful for his crime,
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that there would be no recidivism on his part, and concluded
that "it would be only fair for us and for him to receive a
twelve-month sentence if that's into [sic] the discretion of
the Court."
The court rejected these arguments, stating that
Laguer-Avellanet had "struck a very good deal" and that he
would have probably been sentenced to "fifteen years at
least" had he gone to trial and been found guilty. The court
acknowledged that the specific sentencing-guideline
stipulations had been formed pursuant to Fed. R. Crim. P.
11(e)(1)(C), but, after reminding Laguer-Avellanet that he
expressly had not stipulated to the criminal history
category, it sentenced him to the lower end of the higher
guideline range: fifteen months. The court did not
explicitly state whether or not it had accepted or rejected
the plea agreement, nor did it offer Laguer-Avellanet an
opportunity to withdraw his guilty plea. At the conclusion
of the hearing, Laguer-Avellanet did not object further,
offer anything else to inform the proceedings, or request to
withdraw his plea.5
____________________
5. At oral argument before this court, we asked counsel for
Laguer-Avellanet whether or not, at that time, his client had
completed the fifteen-month incarcerative portion of his
sentence. We indicated that if he had been released, this
case might be moot. Neither counsel for Laguer-Avellanet nor
the government's attorney knew if he was still in custody.
This court has now been informed that Laguer-Avellanet was
released from custody into a supervised release program on
March 29, 1996 (well before the date of oral argument before
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II. II. ___
Discussion Discussion __________
Laguer-Avellanet now claims that the parties did
not agree merely to a twelve-month recommendation, but ______________
rather, that they firmly agreed that twelve months was the
appropriate sentence for his crime. He contends that because
the district court effectively accepted the plea agreement,
it was bound to impose the twelve-month term and was
obligated to "enter whatever [sentencing] findings were
necessary to reach the same." We disagree.
The plain language of the plea agreement provided
that, although the government would recommend a twelve month
imprisonment term, other aspects of the sentence were
entirely open to the district court's resolution, to wit: the
application of sentencing guidelines to which the parties did
not otherwise stipulate, calculation of the criminal history
category, and "[a]ll other aspects of the sentence." During
____________________
this court), having served the fifteen-month term.
Although Laguer-Avellanet challenges the length of
the incarcerative portion of his sentence and not his
conviction, we find that his appeal is not moot despite his
release from prison because the imposition of the fifteen-
month term instead of a twelve-month term could lead to a
future "collateral consequence." See U.S.S.G. 4A1.1 (a) & ___
(b) (mandating three criminal history points for prior
sentences exceeding one year and one month imprisonment, but
only two if for a lesser term (of a least sixty days));
United States v. Kassar, 47 F.3d 562, 565 (2d Cir. 1995) ______________ ______
(finding not moot a sentence challenge despite completion of
sentence because of possible future criminal history category
calculation).
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the plea colloquy, the court reiterated these provisions
individually and elicited the Laguer-Avellanet's
acknowledgment of them. Laguer-Avellanet's statements and
arguments to the court at sentencing, while urging a twelve-
month sentence, reveal his understanding that the imposition
of that term was within the discretion of the court.
On appeal, Laguer-Avellanet emphasizes, in a
talismanic fashion, the language of Fed. R. Crim. P.
11(e)(1)(C) and (e)(3), the provisions under which the
parties purported to enter into the plea agreement. On its
face, Rule 11(e)(1)(C) applies when the parties have agreed
to a "specific sentence," which must then be embodied in the
final judgment and sentence, per Rule 11(e)(3), if the court
accepts the plea agreement. Regardless of whether or not the
parties' stipulation to the several sentencing-guideline
matters comes within the meaning of "specific sentence," it
is clear that the parties did not agree that twelve months ___
was "the appropriate disposition of the case" within the
meaning of Rule 11(e)(1)(C). Rather, the parties
unequivocally agreed that the government would only recommend
that term and particularly that the appropriate criminal
history category was an open question.
We need not conduct an exhaustive inquiry as to
whether the parties' agreement was truly an "11(e)(1)(C)"
agreement, or instead, effectively an "11(e)(1)(B)"
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agreement, or perhaps, a strange hybrid of the two.6
Because the parties simply did not agree to a firm twelve-
month sentence, Laguer-Avellanet cannot seek "specific
performance" of the plea agreement to reduce his imprisonment
term. Moreover, contrary to Laguer-Avellanet's assertion, a
court could not be "forced" to make the requisite sentencing
findings in order to give effect to a plea agreement
specifying either a certain term or a recommendation. See __ ___
U.S.S.G. 6B1.2(b) & (c) (allowing court to accept a
sentence recommendation or agreement only when it is
satisfied that the sentence falls within the applicable
guideline range or the sentence reflects a justifiable
departure from that range).
While we find an affirmance appropriate, we offer
some guidance for the handling of plea agreements involving
sentencing promises. Where, as here, the government agreed
only to recommend a sentence, the district court should,
during the change of plea hearing, specifically inform the
defendant that it is not bound by that recommendation and
that it might impose a sentence less favorable to the
defendant. The court should also clearly inform the
defendant whether or not he will have the right to withdraw
____________________
6. Rule 11(e)(1)(C) governs plea agreements in which the
parties agree "that a specific sentence is the appropriate
disposition of the case," while 11(e)(1)(B) governs
agreements in which the parties agree only that the
government will recommend a particular sentence.
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his guilty plea at some later time.7 Finally, the court
should explicitly specify the status of the plea agreement:
whether it is accepted, rejected, or deferred pending
consideration of the PSR.8 Here, the district court's
procedures were much more summary and therefore subject to
potential misunderstanding.
The possible remedy, however, for such shortcomings
is not (as Laguer-Avellanet seeks here) "specific
performance" of an agreement term to which both parties never
agreed, but rather, the opportunity to withdraw the plea.
Because Laguer-Avellanet does not argue that he would have
withdrawn his plea but for these plea colloquy deficiencies,
he has not established prejudice from them. At bottom,
because Laguer-Avellanet is not entitled to the relief he
seeks, we must affirm his sentence.
____________________
7. If the plea agreement was entered into pursuant to Rule
11(e)(1)(B), the defendant must be advised that he has no
right to withdraw his plea if the court does not accept the
sentence recommendation. See Fed. R. Crim. P. 11(e)(2). If, ___
instead, the parties agreed under 11(e)(1)(C), and the court
rejects that agreement, the court must "afford the defendant
the opportunity to then withdraw the plea, and advise the
defendant that if the defendant persists in a guilty plea . .
. the disposition of the case may be less favorable to the
defendant than that contemplated by the plea agreement."
Fed. R. Crim. P. 11(e)(4).
8. We note that under U.S.S.G. 6B1.1(c), the court must
defer its decision to accept or reject a plea agreement until
it has the opportunity to consider the presentence report,
unless that report is not required under U.S.S.G. 6A1.1.
-10- 10
Laguer-Avellanet's final challenge is to the
calculation of his criminal history category. He argues
that, assuming the court did not err in accepting and
implementing the plea agreement, it should have granted his
request to depart downward from the criminal history category
of two because it significantly overrepresented the
seriousness of his criminal history.9 The law is well
settled, however, that "no appeal lies from a discretionary
refusal to depart." United States v. Morrison, 46 F.3d 127, _____________ ________
130 (1st Cir. 1995). Thus, this challenge is wholly
unavailing.
III. III. ____
Conclusion Conclusion __________
For the foregoing reasons, the judgment of the
district court is affirmed. ________
____________________
9. Laguer-Avellanet does not, in this appeal, pursue his
argument that the two prior convictions were not properly
countable for purposes of calculating the criminal history
category.
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Document Info
Docket Number： 95-1654
Filed Date： 7/12/1996
Precedential Status： Precedential
Modified Date： 9/21/2015