United States v. Carrera-Gonzalez ( 2008 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-2141
UNITED STATES,
Appellee,
v.
PEDRO CARRERA-GONZÁLEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Lynch, Circuit Judges.
Juan F. Matos de Juan on Anders brief for appellant.
June 11, 2008
Per Curiam. Pedro Carrera-González admitted to violation
of a condition of his supervised release term imposed as part of
his sentence for a 1997 guilty plea to a drug trafficking
conspiracy and use of a firearm. His violation was the commission
of another federal offense: in 2006, Carrera pled guilty to a
charge of car-jacking in violation of 18 U.S.C. § 2119(1), based
upon conduct which occurred in March 2005, while he was on
supervised release from his imprisonment for the 1997 offense. The
district court revoked his supervised release term and imposed a
sentence of eighteen months, to be served consecutively to a fifty-
month sentence for his car-jacking conviction. Carrera has filed
a notice of appeal. Appellant's counsel has filed a brief under
Anders v. California, 386 U.S. 738 (1967), asserting the lack of
any meritorious ground for appeal, and has moved to withdraw as
counsel. Carrera has not filed a separate pro se brief. As
required by Anders, we have conducted a full examination of the
proceedings. Because it is clear that there are no meritorious
grounds for appeal, we affirm the revocation and sentence and grant
counsel's motion to withdraw.
"We review revocation sentences for abuse of discretion."
United States v. McInnis, 429 F.3d 1, 4 (1st Cir. 2005). "The
statutory maximum, based on the original offense rather than the
grade of release violation, ultimately limits the court's
sentencing discretion." Id. Here, Carrera's original 1997 offense
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of conspiracy to distribute multi-kilogram quantities of cocaine
and crack cocaine was a Class A felony. The eighteen-month
revocation sentence did not exceed the statutory maximum for a
Class A felony (5 years). See 18 U.S.C. § 3583(e)(3).
Consistent with 18 U.S.C. § 3583(e), the court stated
that it had considered the factors set forth in § 3553(a)(1) before
it arrived at the revocation sentence. The court took into account
the advisory guideline range under U.S.S.G. § 7B1.4, and imposed a
sentence within that range (acknowledging that it was not required
to do so). See McInnis, 429 F.3d at 4 ("Pursuant to §
3553(a)(4)(B), the court need only consider, not implement, the
advisory sentence range provided in the guidelines' policy
statements").
Based upon a Grade A violation of supervised release (the
2006 car-jacking offense) and a criminal history category (CHC) of
I for the 1997 offense, the court correctly identified the
guideline imprisonment range as 12 - 18 months. At sentencing,
defense counsel argued that the district court should have applied
the guideline imprisonment range of 4 - 10 months contained in the
Magistrate Judge's July 2005 Report and Recommendation. However,
the Report and Recommendation pre-dated Carrera's guilty plea to
the federal car-jacking offense on which this revocation was based.
It was prepared in connection with the Probation Officer's initial
motion for revocation based upon Carrera's arrest under Puerto Rico
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charges of robbery and firearm possession. The Magistrate Judge
determined that violation to be a "Grade B violation," yielding the
guideline range of 4 - 10 months under U.S.S.G. § 7B1.4. The
Probation Officer later filed an amended motion for revocation
based upon the federal car-jacking charge, which was correctly
determined to be a "Grade A violation," yielding a 12 - 18 month
range.1
The district court clarified in response to defense
counsel's request for reconsideration, that it had considered the
criminal history pre-dating the 1997 offense (not the 2006 offense)
in arriving at the revocation sentence. The record supports the
district court's statement that Carrera's "criminal history up to
[the commission of the 1997 offense] was violent." The presentence
investigation report (PSR) for the 1997 offense reported a prior
criminal conviction of aggravated assault. See PSR, p. 8. There
was no abuse of discretion in the sentencing court's consideration
of that criminal history or the violent nature of the car-jacking
offense in determining the length of the revocation sentence.
In imposing a consecutive sentence, the district court
correctly stated that it was following the policy (rather than
mandate) of the Sentencing Commission. See Sent. Tr., p. 13. There
1
U.S.S.G. 7B1.1 classifies violations according to the type
of offense committed by the conduct of the releasee, and defines a
"crime of violence" with reference to U.S.S.G. § 4B1.2, which in
turn relies upon the statutory elements of the offense and
potential punishments.
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is no suggestion that the court misinterpreted the guidelines to
require a consecutive sentence. Cf. United States v. Crudup, 375
F.3d 5, 8 (1st Cir. 2004) (holding that 2003 amendment to U.S.S.G.
§ 5G1.3 worked a substantive change to that guideline by
"encourag[ing] district courts to impose consecutive sentences,
while at the same time permitting them - in the exercise of their
sound discretion - to make the federal sentence concurrent").
Carrera objected at the revocation sentencing hearing
that the negotiations that led to the amended plea agreement for
the 2006 car-jacking offense included the parties' alleged
agreement to recommend a 10-month, concurrent sentence in the
revocation case. There is nothing in the amended plea agreement
itself to indicate that any such promise was part of the
negotiation.2 Moreover, even if the parties had so agreed, there
would not have been a breach since the parties both did recommend
a 10-month concurrent sentence. Finally, the amended plea
agreement was entered with respect to the 2006 offense which was
before a different district court judge for sentencing than the
judge who presided over the revocation proceedings in this case.
2
The amended plea agreement for the 2006 offense makes no
mention of the pending revocation proceedings with respect to the
1997 offense, and it contains a provision that the written
agreement "constitutes the complete agreement between the United
States, the defendant, and defendant's counsel," and that the
government "has made no promises or representations except as set
forth in writing in this plea agreement and den[ies] the existence
of any other term and conditions not stated herein." Amended Plea
Agreement, Dkt No. 121, ¶ 16.
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There was no plea agreement entered with respect to the violation
of supervised release. The district court did not abuse its
discretion by failing to following the parties' recommendation to
impose a concurrent sentence.
The revocation of appellant's supervised release term and
the imposition of an 18-month consecutive sentence are affirmed.
Appellant's counsel's motion to withdraw is granted.
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