United States v. Llanos-Falero ( 2017 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 15-1070
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    AURELIO J. LLANOS-FALERO,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Francisco A. Besosa, U.S. District Judge]
    Before
    Howard, Chief Judge,
    Torruella and Lynch, Circuit Judges.
    José R. Olmo-Rodríguez on brief for appellant.
    Mainon A. Schwartz, Assistant United States Attorney,
    Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
    Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States
    Attorney, on brief for appellee.
    January 30, 2017
    LYNCH, Circuit Judge.           The district court sentenced
    Aurelio Llanos-Falero to 137 months of imprisonment after he pled
    guilty to bank robbery, see 
    18 U.S.C. §§ 2113
    (a), 2113(d), and 2,
    and to brandishing a firearm during and in relation to a crime of
    violence, see 
    id.
     §§ 924(c)(1)(A)(ii), and 2.                 The district court
    ordered that this sentence run consecutively with Llanos-Falero's
    sentences for Puerto Rico law convictions for domestic assault and
    illegal possession of a submachine gun.        Llanos-Falero appeals the
    district   court's     sentence,   arguing   that       the    sentencing   judge
    failed to make the proper inquiry into the effects of Llanos-
    Falero's medication on his competence to enter a plea, that the
    sentencing judge failed to warn Llanos-Falero before accepting his
    plea that his federal sentence might be imposed consecutively with
    his Puerto Rico sentences, and that the consecutively imposed
    federal sentence is unreasonable.         We affirm the sentence.
    I.
    In   June    2011,   while   serving     a    four-year     probation
    sentence for a robbery, Llanos-Falero conspired with at least two
    associates to rob a Banco Santander de Puerto Rico branch in Cabo
    Rojo, Puerto Rico. As admitted in his plea agreement, he "selected
    the branch, conducted surveillance on the bank, planned the method
    of the robbery, including the use and carrying of a firearm in the
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    presence of customers and employees, as well as the entry and
    egress points to and from the bank."
    On June 24, 2011, an associate of Llanos-Falero drew
    police away from the vicinity of the bank with a bogus 911 call
    while Llanos-Falero drove two other associates to the bank.     The
    two associates entered the bank, one of them took out a loaded 12-
    gauge shotgun, and they ordered those inside the bank to the floor.
    They stole approximately $38,813 of deposits insured by the Federal
    Deposit Insurance Corporation.     Because one of the bank employees
    was able to activate the bank's silent alarm, the two associates
    were arrested about ten minutes after the start of the robbery.
    Initially, they did not disclose Llanos-Falero's participation in
    the robbery.     As a result, Llanos-Falero was not arrested at that
    time in connection with the robbery.
    After the robbery and before being charged with federal
    crimes for his participation in it, Llanos-Falero committed a
    number of other offenses.    In October 2012, he was sentenced by a
    Puerto Rico court to 1 year and 9 months of imprisonment for two
    counts of domestic violence.     In 2013, he pled guilty to charges
    stemming from illegal possession of a submachine gun in 2012 and
    was sentenced by a Puerto Rico court to a further 7 years of
    incarceration.
    Llanos-Falero was indicted for federal crimes related to
    the bank robbery in April 2014, while serving his Puerto Rico law
    - 3 -
    sentences.1   The indictment charged three counts: an aiding and
    abetting violation of armed robbery, see 
    18 U.S.C. §§ 2113
    (a),
    2113(d), and 2 (Count One); an aiding and abetting violation of
    brandishing   a   firearm   during   and   in   relation   to   a   crime   of
    violence, see 
    id.
     §§ 924(c)(1)(A)(ii), and 2 (Count Two); and being
    a felon in knowing possession of a firearm in interstate commerce,
    see id. §§ 922(g)(1), 924(a)(2) (Count Three).
    Pursuant to a plea agreement, Llanos-Falero pled guilty
    to the first two counts on July 3, 2014.        The parties recommended,
    "[a]fter due consideration of the relevant factors enumerated in
    
    18 U.S.C. § 3553
    (a)," an adjusted advisory Sentencing Guidelines
    offense level of 22 for Count One, and did not stipulate as to
    criminal history category.      A Pre-Sentence Investigation Report,
    prepared for Llanos-Falero's sentencing, concluded that Llanos-
    Falero had 11 criminal history points and a criminal history
    category of V.    The plea agreement recommended "a sentence of 72
    months as to Count One and 60 months for Count Two to be served
    consecutively for a total sentence of 132 months, or 11 years of
    imprisonment."     The plea agreement further stated that "[t]he
    parties jointly recommend[ed], as to Count One, that this federal
    1    It is unclear how or when authorities became aware of
    Llanos-Falero's role in the robbery. Llanos-Falero did admit his
    involvement one day after he was indicted.
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    sentence    be    imposed   to     run     concurrently     with    defendant's
    Commonwealth of Puerto Rico sentence currently being served."
    Through the plea agreement, Llanos-Falero "knowingly and
    voluntarily waive[d] the right to appeal the judgment and sentence
    in   [his   federal]    case,    provided    that   [he    was]    sentenced   in
    accordance with the terms and conditions set forth in the Sentence
    Recommendation provision of [the] Plea Agreement."                   He further
    acknowledged that he was "aware that his sentence [wa]s within the
    sound discretion of the judge and of the advisory nature of the
    Guidelines"; that "the [district court] [wa]s not a party to this
    Plea and Forfeiture Agreement and thus [wa]s not bound by this
    agreement    or   the   sentencing       calculations     and   recommendations
    contained"; that "the [district court] ha[d] jurisdiction and
    authority to impose any sentence within the statutory maximum set
    for the offense to which [he] [wa]s pleading guilty"; that "the
    [district court] m[ight] accept or reject the Plea and Forfeiture
    Agreement"; and that "[s]hould the Court impose a sentence up to
    the maximum established by statute, [he] c[ould not], for that
    reason alone, withdraw his guilty plea, and w[ould] remain bound
    to fulfill all of the obligations under this Plea and Forfeiture
    Agreement."
    On July 3, 2014, the district court held a change-of-
    plea hearing.     In the course of the hearing, the sentencing judge
    asked if Llanos-Falero had been recently treated for a mental
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    illness.   Llanos-Falero responded that he had been treated for
    bipolar disorder and stress. In response to the sentencing judge's
    questions, Llanos-Falero also said that he had been prescribed
    "Elavil, Vistaril, and another" medication, that he continued to
    take those medications twice a day, and that he had taken them the
    morning of the hearing.      When asked "Do you feel okay today?" by
    the sentencing judge, immediately after that colloquy, Llanos-
    Falero responded "Yes, I do, sir."           The sentencing judge asked
    next "Can you make a voluntary and knowing plea?" to which Llanos-
    Falero replied "Yes, I can, sir."
    In response to further questioning, Llanos-Falero said
    that he had been treated for addiction to marijuana and Percocet,
    but had stopped treatment around two and a half months before the
    hearing,   and   that   he   had   last    used   marijuana   or    Percocet
    approximately two years prior.      He confirmed that he was taking no
    other medications besides the ones he had already mentioned and
    that he had not consumed alcohol in the past 24 hours.             When asked
    "what is it that you want to do today here in court?" Llanos-
    Falero responded "I want to plead guilty."          The sentencing judge
    asked Llanos-Falero's counsel if he had any doubts as to Llanos-
    Falero's "competence to plead at this time," to which counsel
    responded "No, your honor."        The sentencing judge concluded that
    "[b]ased on his answers to my questions and his appropriate
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    demeanor, I find . . . Aurelio Llanos-Falero to be competent to
    enter his plea of guilty."
    The   sentencing   judge   also    asked    if   Llanos-Falero's
    counsel had "fully explain[ed] the plea agreement" to Llanos-
    Falero and whether counsel was satisfied as to Llanos-Falero's
    understanding of the plea agreement, and counsel responded that he
    had explained the plea agreement and that he was satisfied as to
    Llanos-Falero's understanding of it.           The sentencing judge asked
    Llanos-Falero repeatedly whether he understood that the judge
    could enter a sentence "that is either more severe or less severe
    than any sentence you may anticipate, or even the sentence being
    recommended in the plea agreement, except that, as to Count Two,
    I cannot sentence you for anything less than [60] months." Llanos-
    Falero responded that he did understand.                The sentencing judge
    concluded:
    It's the finding of the Court in the case of the United
    States versus Aurelio Llanos-Falero that Mr. Llanos is
    fully competent and capable of entering an informed
    plea, that he is aware of the nature of the charges and
    the consequences of the plea, and that his plea of guilty
    is a knowing and voluntary one, supported by an
    independent basis in fact containing each of the
    essential elements of the offense.
    Mr. Llanos' plea is, therefore, accepted, and he is now
    adjudged guilty of that offense.
    After   submission   of    the    Pre-Sentence    Investigation
    Report, the court delivered Llanos-Falero's sentence on December
    2, 2014. The sentencing judge noted that "[t]he parties had agreed
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    on a sentence of 72 months as to Count One and 60 months as to
    Count Two, for a total of 132 months of imprisonment, which f[ell]
    below the [G]uideline[s] range reflected in the [P]re-[S]entence
    [I]nvestigation   [R]eport."    The    court    concluded   that   "an
    appropriate sentence [wa]s at the lower end of the [G]uideline[s]
    range for Count One, plus 60 months for Count Two."         The court
    sentenced Llanos-Falero to "a term of 77 months as to Count One
    and 60 months as to Count Two, to be served consecutive to each
    other, for a total of 137 months."     The sentencing judge further
    ordered that "[t]he total amount of imprisonment w[ould] run
    consecutively to any prior criminal conviction imposed by [Puerto
    Rico]."   The court also sentenced Llanos-Falero to two concurrent
    five-year terms of supervised release.         When the court asked
    Llanos-Falero's counsel whether he had anything to add, counsel
    stated: "Mr. Llanos is being sentenced to a little more than four
    years [more] than his co-Defendants, [at least one of whom] also
    planned the robbery with him. . . .    In addition, he [would] not
    be standing before this Court if he had not admitted [his guilt]
    because that was the main evidence."     When the sentencing judge
    observed "This is something that you agreed to," counsel replied
    "I am just asking for a concurrency with Count One with the [Puerto
    Rico] charges."    The court denied the request.        This appeal
    followed.
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    II.
    Llanos-Falero raises three issues on appeal.2              He argues
    that the district court violated Rule 11 of the Federal Rules of
    Criminal Procedure by failing to inquire sufficiently into the
    effect of Llanos-Falero's medication on his capacity to make an
    intelligent and voluntary plea.                  See Fed. R. Crim. P. 11.        He
    further argues that the sentencing court committed a Rule 11
    violation by failing to "warn[] or advise[] [him] that it had
    discretion       to   impose    the       sentence   to    run   concurrently     or
    consecutively."       Finally, he argues that the sentence imposed is
    unreasonable      because      of   its    difference     in   duration   from   the
    sentence proposed in the plea agreement and the district court's
    failure to take into account Llanos-Falero's admission of guilt
    and the effect of depression on his actions.                     All three claims
    fail.       We address them in turn.
    2 The government argues that we could dismiss this appeal
    because Llanos-Falero "fails to explain why this appeal should be
    entertained, given the existence of a waiver-of-appeal clause in
    the plea agreement he signed."      The government does concede,
    however, that if Llanos-Falero had addressed the issue, he could
    have made a reasonable argument that the waiver clause is
    inapplicable, because it was contingent on his being sentenced in
    accordance with the plea agreement, and the sentence imposed
    departed from that recommendation. Llanos-Falero argues in turn
    that he did not address the appellate waiver clause "because it is
    patently inapplicable" in light of the sentence imposed, and so he
    had no obligation to discuss it. We need not resolve this dispute.
    Because the issues Llanos-Falero raises on appeal all fail, we
    bypass the appellate-waiver issue and proceed to the merits.
    - 9 -
    The parties agree that we should review Llanos-Falero's
    claim as to the district court's failure to inquire sufficiently
    into his medications under a plain error standard.            Under this
    standard, Llanos-Falero 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. Padilla, 
    415 F.3d 211
    , 218 (1st
    Cir. 2005) (en banc) (quoting United States v. Duarte, 
    246 F.3d 56
    , 60 (1st Cir. 2001)).       He cannot meet this rigorous standard.
    First, Llanos-Falero makes little "attempt to meet the four-part
    test" for plain error, and his sparse briefing risks waiver of the
    issue.   United States v. Pabon, 
    819 F.3d 26
    , 33 (1st Cir. 2016);
    see also United States v. Zannino, 
    895 F.2d 1
    , 17 (1st Cir. 1990).
    But even if the claim were properly presented, it would fail.
    Llanos-Falero relies on United States v. Parra-Ibañez,
    
    936 F.2d 588
     (1st Cir. 1991).        In that case, during a change-of-
    plea hearing, the district court discovered through questioning
    that the defendant had been under treatment for a "mental or
    emotional condition" and had taken Ativan, Halcion, and Restoril
    within 24 hours of the hearing.           
    Id. at 591
    .      There, "[t]he
    [district] court did not undertake to explore whether any of the
    medications identified by [the defendant] affected his ability to
    enter a voluntary and intelligent plea," 
    id.,
     although "at other
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    points in the hearing, [the district court did] inquire as to [the
    defendant's]     general      ability   to   comprehend   the   proceedings,"
    including   asking      the   defendant's    counsel   and   the   prosecution
    whether they had any doubts as to the defendant's competence to
    plead, 
    id.
     at 591–92.          Earlier, the court had held a competency
    hearing and determined on the basis of psychiatric testimony that
    although the defendant "had undergone psychiatric treatment and
    had a history of drug abuse," he was competent to plead guilty.
    
    Id. at 591
    .
    We   held    that    although    the   appellant    had   made   no
    objection, 
    id. at 593
    , the district court had been "obligated by
    Rule 11 to ask further questions," such as "what dosages [of
    medication the defendant] had ingested and what effects, if any,
    such medications might be likely to have on [the defendant's]
    clear-headedness," 
    id. at 596
    .          We have clarified since that the
    reversible error in Parra-Ibañez concerned the failure to make any
    further inquiry whatsoever.        See United States v. Kenney, 
    756 F.3d 36
    , 46–47 (1st Cir. 2014); Cody v. United States, 
    249 F.3d 47
    , 53
    (1st Cir. 2001) (emphasizing that the sentencing judge in Parra-
    Ibañez "failed to follow up with any question whatsoever about
    whether the defendant's medication affected his competence to
    plead"); Miranda-González v. United States, 
    181 F.3d 164
    , 166 (1st
    Cir. 1999) (”The absolute failure to investigate further once
    - 11 -
    apprised of the recent ingestion of drugs doomed the plea entered
    by the defendant[] in Parra-Ibañez . . . .").
    Here, the district court's colloquy with Llanos-Falero
    was enough to satisfy Parra-Ibañez.                 The district court, upon
    learning that Llanos-Falero was under medication taken twice daily
    and that he had taken dosages that morning, immediately asked "Do
    you feel okay today?" to which Llanos-Falero answered "Yes, I do,
    sir"; and "Can you make a voluntary and knowing plea?" to which
    Llanos-Falero responded "Yes, I can, sir."                     The colloquy reads
    naturally as an inquiry into whether the medications Llanos-Falero
    had taken before the hearing impaired his ability to plead.                       In
    addition, after receiving assurances from Llanos-Falero's attorney
    that the attorney had no doubts as to Llanos-Falero's competence
    to plead, the sentencing judge concluded that Llanos-Falero was
    competent    "[b]ased    on     his    answers      to   my    question   and    his
    appropriate demeanor."
    We   have   held    that      similar   questions,      combined     with
    explicit    findings    as     to   the    defendant's        demeanor,   meet   the
    standards of Rule 11.          See United States v. Morrisette, 
    429 F.3d 318
    , 322–23 (1st Cir. 2005); see also United States v. Rodríguez-
    León, 
    402 F.3d 17
    , 25 n.8 (1st Cir. 2005) (refusing to "second-
    guess" district court's judgment based on defendant's demeanor).3
    3    The fact that the district court did not inquire as to
    the identity of the third medication does not change our result:
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    Indeed, it is difficult to imagine plain error where, as here, the
    district   court,       upon   learning     that       the    defendant       had    taken
    medication, immediately (1) asked the defendant if he was all right
    and   received     a    response     that   he    was;       (2)    received       further
    assurances    from      defendant's     counsel        --    ironically,       the       same
    attorney   who    now     raises     this   issue      on    appeal      --   as    to   the
    defendant's      competence     to    plead;     and    then       (3)   articulated       a
    conclusion    that      the    defendant    was     competent         based    on    those
    responses and the defendant's demeanor during the colloquy.                              The
    colloquy here clearly met Rule 11's requirements.
    The parties also agree that Llanos-Falero's claim that
    the district court violated Rule 11 by not sufficiently informing
    him of the consequences of his pleading guilty is subject to plain
    error review.          Specifically, Llanos-Falero contends that "[t]he
    failure of the district court to warn, or advise, Llanos-Falero
    that it had discretion to impose the sentence to run concurrently
    or consecutively denied him the opportunity to make a knowing and
    voluntary plea of guilt." As with his first claim, Llanos-Falero's
    failure to elaborate clearly how this purported lapse by the
    district court meets the four-part test for plain error risks
    waiver.    See Pabon, 819 F.3d at 33.             Regardless, the claim fails.
    "[T]here is certainly no settled rule that a hearing cannot proceed
    unless precise names and quantities of drugs have been identified."
    United States v. Savinon-Acosta, 
    232 F.3d 265
    , 269 (1st Cir. 2000);
    see also Kenney, 756 F.3d at 47 (same).
    - 13 -
    Rule 11 requires the sentencing court to "advise the
    defendant that the defendant has no right to withdraw the plea if
    the court does not follow the recommendation or request."            Fed. R.
    Crim. P. 11(c)(3)(B).    The district court made that advisement and
    Llanos-Falero said that he understood it.              Moreover, Llanos-
    Falero's plea agreement also explained that concept and required
    Llanos-Falero to acknowledge that even if the district court
    sentenced him to the statutory maximums for Counts One and Two
    (twenty-five years and life imprisonment, respectively), he could
    not withdraw a guilty plea "for that reason alone."               Given the
    information in the plea agreement and the disclaimers made by the
    district court at the change of plea hearing, both of which Llanos-
    Falero   acknowledged,   Llanos-Falero     cannot    show    "a   reasonable
    probability that, but for [the error claimed], the result . . .
    would have been different."        Padilla, 
    415 F.3d at 221
     (first
    alteration    in   original)   (quoting   United    States   v.   Dominguez
    Benitez, 
    542 U.S. 74
    , 82 (2004)).
    Finally, Llanos-Falero challenges the sentence imposed
    on the grounds that it is unreasonably longer than the sentence
    proposed by the plea agreement and that it did not take into
    account Llanos-Falero's admission of guilt or his assertion that
    he was severely depressed when he participated in the robbery.
    The parties dispute the applicable standard of review, but we need
    not decide that issue, because Llanos-Falero's claim fails even
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    under abuse of discretion review, which is the most appellant-
    friendly standard that could apply.
    The district court permissibly exercised its discretion
    when   it    ordered   Llanos-Falero's   federal     sentence   to   run
    consecutively with his Puerto Rico sentences, resulting in a
    sentence eight years longer than the one proposed in the plea
    agreement.    Both the Guidelines and our case law recognize that a
    sentencing judge generally has the discretion to impose a new
    sentence consecutively with a previous undischarged sentence.        See
    U.S.S.G. § 5G1.3(d); United States v. Carrasco-de-Jesús, 
    589 F.3d 22
    , 27 (1st Cir. 2009).
    The district court imposed a sentence "at the lower end
    of the [G]uideline[s] range for Count One, plus [the mandatory
    minimum of] 60 months for Count Two," to be served consecutively
    with Llanos-Falero's Puerto Rico sentences.        There is no evidence
    in the record that Llanos-Falero's Puerto Rico convictions for
    possession of a submachine gun and for domestic violence have any
    relation to his federal convictions related to the bank robbery,
    nor does Llanos-Falero suggest any connection.           At the final
    sentencing hearing, the district court gave a lengthy recitation
    of the details of the offenses, the findings in the Pre-Sentence
    Investigation Report, and the rationale behind the Guidelines
    calculation for Llanos-Falero's sentence, and concluded that the
    Guidelines calculation in the Pre-Sentence Investigation Report
    - 15 -
    "satisfactorily reflect[ed] the components of Mr. Llanos' offense
    by considering its nature and circumstances," an inquiry that
    plainly     fulfilled   its    obligation     to    consider    the    factors
    enumerated in 
    18 U.S.C. § 3553
    (a).          The district court's decision
    to impose the sentence consecutively with Llanos-Falero's Puerto
    Rico sentences was arrived at through the proper procedure, was
    entirely reasonable, and was clearly not an abuse of discretion.
    Llanos-Falero's    argument     that    the    district     court
    committed reversible error because it "did not take into account
    the fact that if [he] had not admitted [to] the crime, he would
    have never been convicted and the fact that the crime was [the]
    result of aberrant behavior caused by a severe depression" is
    meritless.     As with his other arguments, this claim is conclusory
    and underdeveloped: Llanos-Falero gives no explanation as to why
    and how these factors would have affected the district court's
    calculus.    And the record undercuts the claim.        Llanos-Falero made
    a partial confession shortly after being indicted, and he agreed
    in his plea agreement that the government could obtain a conviction
    "by physical and documentary evidence, including, but not limited
    to   testimony,    photographs,    videos,     documents,      toll   records,
    statements, and other physical evidence."
    In any event, "these potentially mitigating factors were
    before the district court at sentencing," and "[t]here is not the
    slightest reason to think that the district court overlooked them."
    - 16 -
    United States v. Cortés-Medina, 
    819 F.3d 566
    , 570–71 (1st Cir.
    2016).   The sentence imposed was well within the Guidelines range
    and deserves "a presumption of reasonableness."       
    Id. at 572
    (quoting Rita v. United States, 
    551 U.S. 338
    , 347 (2007)).      In
    these circumstances, Llanos-Falero "must adduce fairly powerful
    mitigating reasons and persuade us that the district court was
    unreasonable in balancing pros and cons."     
    Id.
     (quoting United
    States v. Clogston, 
    662 F.3d 588
    , 593 (1st Cir. 2011)).    He has
    not satisfied this burden.
    III.
    We affirm the district court's sentence.
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