United States v. Santiago , 775 F.3d 104 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 14-1219
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE ALIBAL SANTIAGO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Lynch, Chief Judge,
Howard and Barron, Circuit Judges.
Victoria M. Bonilla-Argudo, with whom Bourbeau & Bonilla, LLP
was on brief, for appellant.
Donald C. Lockhart, Assistant U.S. Attorney, with whom Peter
F. Neronha, United States Attorney, was on brief, for appellee.
December 24, 2014
LYNCH, Chief Judge. This case involves the guilty plea
of a coconspirator, Jose Alibal Santiago, in a 2010 murder in Rhode
Island. This court earlier issued an en banc decision about the
state's obligation to honor a federal detainer in this same murder
for his codefendant, Jason Pleau. See United States v. Pleau, 680
F.3d 1 (1st Cir. 2012) (en banc).
On September 5, 2013, Jose Alibal Santiago pleaded guilty
to conspiracy to commit robbery affecting commerce; robbery
affecting commerce; and possessing, using, carrying, and
discharging a gun in relation to a crime of violence with death
resulting. See 18 U.S.C. §§ 924, 1951(a). The government concedes
that the district court erred at the change-of-plea hearing by
omitting sufficient notice of the possible sentence accompanying
the third charge, which involved both a consecutive sentence and a
ten-year mandatory minimum. Counsel for the government also failed
to provide such notice in his description of the case at that
hearing. On plain error review, we find that Santiago's
substantial rights were not affected by this error and affirm.
I.
On September 20, 2010, Santiago and a coconspirator,
Kelley Lajoie, drove from Springfield, Massachusetts to Woonsocket,
Rhode Island to accomplish a planned-out crime. There, they met
their coconspirator, Jason Pleau. The three planned to rob a gas
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station manager, David Main, of the Woonsocket Shell Station's
receipts as he went to deposit them at a nearby Citizens Bank.
Santiago, Pleau, and Lajoie first went to the Shell
Station. There, Santiago spoke with the cashier, who was an
acquaintance. The three saw Main and identified a car they
believed belonged to him. They then split up into assigned tasks:
Santiago drove his truck to an apartment complex near the Citizens
Bank, Pleau waited with his gun near the bank, and Lajoie observed
the gas station.
Just after 11:00 a.m., two and a half hours later, Lajoie
called Pleau and told him that she saw Main leaving the gas
station. Main traveled to the bank, just down the road, with the
receipts. At the outside of the bank, he encountered an armed and
masked Pleau, who demanded the money. Main did not comply but ran
toward the bank doors. Pleau followed him, shooting repeatedly.
Main was struck in the head and collapsed at the entrance to the
bank. Pleau took the money ($12,542) and ran to Santiago, who
drove them away in his waiting car. Two witnesses identified
Santiago as driving the truck.
The two drove to Pleau's house in Providence, where they
met Lajoie and Pleau's girlfriend and divided the money. Santiago
and Lajoie made their way back to Springfield. Santiago, after
attempting to evade capture for two days, surrendered himself on
September 22 to the Woonsocket police.
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On December 14, the grand jury indicted Santiago, Pleau,
and Lajoie for (1) conspiracy to commit robbery affecting commerce
(in violation of the Hobbs Act), 18 U.S.C. § 1951(a); (2)
committing robbery affecting commerce (in violation of the Hobbs
Act), id.; and (3) possessing, using, carrying, and discharging a
gun in relation to a crime of violence with death resulting, id.§ 924(c)(1)(A), (j)(1).1 The first two counts of the indictment
each have no mandatory minimum and a twenty-year statutory maximum.
Id. § 1951(a). The third count carried a possible death sentence
and required a mandatory minimum of ten years, to be served
consecutively to any other sentence. Id. § 924(c)(1)(A)(iii),
(D)(ii), (j)(1). The government gave notice that it would not seek
the death penalty as to Santiago.
On December 9, 2011, Lajoie pleaded guilty to the three
charges and agreed to cooperate. She was sentenced to 188 months.
On July 31, 2013, Pleau pleaded guilty to the three charges. Pleau
was sentenced to life in prison without the possibility of parole.
On September 4, 2013, the district court began voir dire
for Santiago's trial. The next day, Santiago changed his plea to
guilty, without a plea agreement. On February 13, 2014, the
district court sentenced him to forty years: twenty for the first
1
The indictment also included accomplice liability, 18 U.S.C.
§ 2, for the second and third charges.
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two counts, served concurrently, and twenty for the third count,
served consecutively. This appeal followed.
II.
Santiago seeks to vacate his plea on the grounds that, at
the change-of-plea hearing, he was informed of the statutory maxima
for the three charges, but was not informed of the mandatory
minimum for Count Three nor the requirement that the Count Three
sentence be served consecutively. This omission, he argues, is a
violation of Fed. R. Crim. P. 11(b)(1)(I), and the government
agrees. See id. ("[T]he court must inform the defendant of, and
determine that the defendant understands . . . any mandatory
minimum penalty . . . ."); United States v. Rivera-Maldonado, 560
F.3d 16, 19 (1st Cir. 2009) ("Change of plea colloquies are
governed by Federal Rule of Criminal Procedure 11 . . . .").
As Santiago failed to object at the hearing or to move to
set aside his plea in the district court, we review for plain
error. See Rivera-Maldonado, 560 F.3d at 19. To satisfy plain
error review, the defendant must show "1) there was an error, 2)
the error was plain, 3) the error affected substantial rights, and
4) the error seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings." Id. (alteration in original)
(quoting United States v. Vonn, 535 U.S. 55, 62-63 (2002))
(internal quotation marks omitted). The government concedes that
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a Rule 11 error occurred and that it was plain. The next issue is
whether it affected Santiago's substantial rights.
To satisfy the third prong, Santiago "must show a
reasonable probability that, but for the error, he would not have
entered the plea." United States v. Dominguez Benitez, 542 U.S.
74, 83 (2004). We must be satisfied, after review of the entire
record, "that the probability of a different result is 'sufficient
to undermine confidence in the outcome' of the proceeding." Id.(quoting Strickland v. Washington, 466 U.S. 668, 694 (1984));
United States v. Ortiz-García, 665 F.3d 279, 286 (1st Cir. 2011).
Santiago's arguments on this prong have no merit. The
record shows what Santiago knew before, during, and after the Rule
11 hearing. Considered cumulatively, the record clearly shows that
Santiago was aware at the time of that hearing of the mandatory
ten-year minimum for Count Three and that it was consecutive. We
see scant probability that he would not have entered his plea had
he been informed of those facts at the Rule 11 hearing.
Before the Rule 11 Hearing
On May 8, 2012, before the Rule 11 hearing, Santiago
wrote a letter explaining, "I'm facing a life sentence if I am
found guilty at trial, and 40 years if I plead guilty." Santiago
accurately predicted his sentence upon pleading guilty. It is
likely he predicted serving some time consecutively for Count
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Three, in light of the twenty-year statutory maximum for Counts One
and Two.2
The defendant emphasizes Santiago's pro se filing on
August 13, 2013, only weeks before trial. There, in the course of
raising concerns about his attorney, Santiago's filing stated that
"[i]f convicted, I am facing a sentence between 30-40 years in
prison." Santiago argues that, since he thought he faced thirty to
forty years if convicted at trial, he presumably assumed that he
would receive a lower sentence upon pleading guilty. That is one
possible inference; another is that he thought he would receive a
sentence toward the lower bound of that range following a guilty
plea. And even taking Santiago's inference as true, he may well
have thought that his guilty plea would lead to a sentence below
thirty years by adding short sentences on Counts One and Two (which
have no mandatory minimum) to a ten-year consecutive sentence on
Count Three. His reliance on this filing adds little to our
analysis.
During the Rule 11 Hearing
Though the error occurred at the Rule 11 hearing, the
judge did ask Santiago whether he had spoken with his lawyer "about
the Federal Sentencing Guidelines and how they are likely to apply
2
Santiago challenges the authenticity of the letter, which is
signed "Ho-Ho" and was filed by Pleau. In denying Pleau's motion
to sever, the district court accepted Pleau's submission that
Santiago was the author of that letter.
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in this case," to which Santiago answered, "Yes." The likely
application of the Guidelines would assuredly have included the
consecutive ten-year mandatory minimum for Count Three. The
district court also warned Santiago that the Presentence
Investigation Report (PSR) "is a very important document . . . in
determining what the appropriate sentence is," a comment which
Santiago indicated that he understood.
After the Rule 11 Hearing
On December 5, 2013, the Probation Office released an
initial PSR, which explicitly referenced Count Three's ten-year
mandatory minimum and required sequential sentencing. On February
6, 2014, Santiago filed several objections to the initial PSR,
including to its use of uncharged conduct, but no objection to the
ten-year mandatory minimum, the consecutive sentence requirement,
or the Guidelines sentencing range. The same day, the Probation
Office released a final PSR, again explicitly referencing the ten-
year consecutive mandatory minimum.
The Sentencing Hearing
At sentencing on February 13, the court asked the defense
lawyer whether he "had the opportunity to review the [PSR] with
[his] client and [had] been able to answer all of [the client's]
questions." The defense counsel replied in the affirmative. At no
point during the sentencing hearing did Santiago express surprise
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at the application of the Guidelines, the consecutive sentences, or
his ultimate sentence.
Santiago relies on United States v. Ortiz-García, which
held that the district court there had committed Rule 11 error by
failing to inform the defendant of the maximum sentence -- a life
sentence -- for the charge to which he pleaded guilty. 665 F.3d at
285-86. On plain error review, we found that the error affected
substantial rights even though the PSR contained the correct
maximum penalty. Id. at 288. We reasoned that "[i]f the record
clearly established [a defendant] had reviewed the PSR with his
attorney prior to the sentencing hearing" and failed to object,
"that might indeed negate" the defendant's claim of Rule 11 error.
Id. at 287. The record there "reveal[ed] no such thing, because
the district court failed to confirm . . . that [the defendant] had
read and discussed the PSR with his attorney." Id. Indeed, given
the record before this court, it assumed the first time the
defendant ever learned he might receive a life sentence was at his
sentencing hearing. Id. Based on that assumption, this court in
Ortiz-García declined to draw an inference that the defendant knew.
Id. at 287-88. In this case, unlike in Ortiz-García, the record
reveals that the district court confirmed that the defendant had,
at the least, reviewed the PSR with his attorney and disproves his
contention that he was caught by surprise.
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Santiago says for the first time in his reply brief in
this appeal that the district court also erred because it must
confirm that the defendant "read and discussed the [PSR]" with his
attorney under the language of Fed. R. Crim. P. 32(i)(1)(A)
(emphasis added). See Ortiz-García, 665 F.3d at 287. Santiago
reads that language to impose two distinct requirements: (1) the
court must confirm that the defendant personally read the PSR, and
(2) the court must confirm that the defendant discussed it with his
attorney.
Fed. R. Crim. P. 32(i)(1)(A) does require that "[a]t
sentencing, the court . . . must verify that the defendant and the
defendant's attorney have read and discussed the presentence report
and any addendum to the report." This is a change from the 1994
version of the rule, which required only that the court "determine
that the defendant and the defendant's counsel have had the
opportunity to read and discuss" the PSR. Ortiz-García, 665 F.3d
at 287 (quoting United States v. Cruz, 981 F.2d 613, 619 n.9 (1st
Cir. 1992)) (internal quotation marks omitted).
Nonetheless, to the extent that Santiago newly argues for
reversal on the basis of a Rule 32 error, the argument is waived.
United States v. Martí-Lón, 524 F.3d 295, 299 n.2 (1st Cir. 2008)
("Issues 'advanced for the first time in an appellant's reply brief
are deemed to have been waived.'" (quoting United States v. Eirby,
515 F.3d 31, 36 n.4 (1st Cir. 2008))). Insofar as this argument
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arises within the Rule 11 analysis, we note that Santiago did not
object to the district court's use of the term "reviewed" and does
not say that the attorney actually failed to review the PSR with
him. This argument adds nothing to his argument that there is a
reasonable probability that but for the error, he would not have
entered the plea.
As this court has said,
There is no doubt "that it is the better
practice for trial courts to address the
defendant directly in order to establish that
he or she has had the opportunity to read the
[PSR] and to discuss it with his/her counsel.
This simple practice will avoid unnecessary
challenges and help ensure fairness in the
sentencing procedure."
United States v. DeLeon, 704 F.3d 189, 196 (1st Cir. 2013)
(alteration in original) (quoting United States v. Manrique, 959
F.2d 1155, 1157-58 (1st Cir. 1992)); see id. at 196 & n.7
(explaining on plain error review that failure to follow that
practice is not per se Rule 32 error, even under the current
language of the Rule).
The other cases Santiago cites are distinguishable, as
they involved affirmative misrepresentations by the government (in
the written plea agreement) and by the district court (at the
change-of-plea hearing) to the defendant. See Rivera-Maldonado,
560 F.3d at 17-19, 21 (defendant assured by government and court
before pleading guilty of three-year maximum supervised release,
but PSR stated lifetime maximum supervised release); United States
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v. Santo, 225 F.3d 92, 93-96 (1st Cir. 2000) (defendant assured by
government and court before pleading guilty of five-year mandatory
minimum, but PSR applied ten-year mandatory minimum).
Finally, Santiago does not say that he was actually
unaware of the consecutive mandatory minimum. Indeed, after the
district court explicitly mentioned the ten-year consecutive
mandatory minimum for Count Three at the sentencing hearing,
Santiago personally addressed the district court without indicating
any concern about that information.
Since it is quite clear that Santiago was aware of the
information, it defies logic to say that he would not have pleaded
guilty had the information been given explicitly.
III.
On these facts, Santiago has not shown a reasonable
probability that, had he been informed at the Rule 11 hearing of
the mandatory minimum on Count Three, he would not have entered the
guilty plea. See Dominguez Benitez, 542 U.S. at 83. The
conviction and sentence are affirmed.
So ordered.
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