United States v. Fernandez-Cabrera , 625 F.3d 48 ( 2010 )

United States Court of Appeals
For the First Circuit
No. 09-2655
UNITED STATES OF AMERICA,
Appellee,
v.
HENRY FERNÁNDEZ-CABRERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Boudin, Selya and Howard, Circuit Judges.
Stephen Neyman on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Chief, Appellate Division, and Luke Cass, Assistant
United States Attorney, on brief for appellee.
November 5, 2010
SELYA, Circuit Judge. Defendant-appellant Henry
Fernández-Cabrera pleaded guilty to one count of illegal reentry
into the United States. Eschewing the parties' joint
recommendation for a sentence at the bottom of the guideline
sentencing range (GSR), the district court sentenced the defendant
to 33 months in prison. The defendant now mounts a challenge to
both the district court's failure to provide advance notice of its
intention not to adopt the joint sentencing recommendation and the
adequacy of the court's explanation for its choice of sentence.
Discerning no error, we affirm.
In considering a sentencing appeal that trails in the
wake of a guilty plea, we glean the relevant facts from the plea
agreement, the change-of-plea colloquy, the presentence
investigation report (PSI Report), and the transcript of the
disposition hearing. See United States v. Nguyen, 618 F.3d 72, 73
(1st Cir. 2010); United States v. Dietz, 950 F.2d 50, 51 (1st Cir.
1991).
This case first took shape in June of 2009, when police
officers in San Juan detained the defendant after he failed to
furnish identification following an investigation of a traffic
accident and his admission that he was in the United States
illegally. The officers promptly notified federal Immigration and
Customs Enforcement (ICE) agents and ceded jurisdiction to that
agency.
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ICE's investigation revealed that this was not the
defendant's first illegal foray into the United States. In 2000,
he had entered the United States illegally and stayed until his
arrest two years later on drug and weapons charges. See 21 U.S.C.
§§ 812, 841; 18 U.S.C. § 922. In the course of the ensuing
criminal proceedings, the defendant admitted to three prior illegal
entries into the United States. Each time, he had been apprehended
but allowed to depart voluntarily to the Dominican Republic (his
homeland).
The government ultimately secured a conviction on the
drug and weapons charges in the United States District Court for
the Southern District of New York. The court imposed a 21-month
prison sentence. The defendant served his time and an immigration
judge ordered his removal to the Dominican Republic. In connection
with his deportation he received an I-294 Form, which explained
that his return to the United States was forbidden without the
approval of the Attorney General and that criminal penalties would
result should he violate that prohibition.
In defiance of this edict, the defendant returned
illegally to the United States in October of 2007. He remained in
this country until his 2009 arrest. At that time, the government
charged him with illegal reentry after having been deported
following his conviction for an aggravated felony. See 8 U.S.C.
§§ 1326(a), (b)(2).
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The defendant waived indictment, thus qualifying for
participation in a "fast-track" plea agreement program.1 He
entered into a plea agreement (the Agreement) with the government
and pleaded guilty to a one-count information.
The Agreement placed the defendant's GSR at 30-37
months.2 It acknowledged that the parties would jointly recommend
to the district court "a sentence of imprisonment equal to the
lower end of the applicable guideline." The Agreement also
contained a waiver-of-appeal provision, which stated that if the
district court was to "accept[] the plea agreement and sentence[]
the defendant according to the sentencing recommendations
contemplated [in the Agreement]," the defendant would be deemed to
have surrendered any right to appeal.
At the disposition hearing, the district court abjured
the proposed sentence, instead imposing a sentence near the mid-
point of the GSR: 33 months. The court explained:
Defendant has a prior federal criminal
conviction for trafficking of firearms and
possessing with intent to distribute cocaine
. . . . He has admitted to four prior illegal
entries into the United States, the present
offense being his fifth illegal entry.
1
This early disposition program, adopted in Puerto Rico
pursuant to USSG §5K3.1, allows a defendant the benefit of a three-
level downward reduction in his offense level in exchange for his
waiver of indictment and admission of guilt.
2
This placement was confirmed by the district court and is
not challenged on appeal.
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In order to reflect the seriousness of
the offense, to promote respect for the law,
and particularly to deter similar conduct by
this Defendant in the future, the Court finds
that a sentence at mid applicable guideline
range is sufficient but not greater than
necessary to address these statutory
sentencing factors.
The defendant made no contemporaneous objection to this statement
(or, for that matter, to any finding made in connection with
sentencing).
Following the entry of judgment, the defendant served a
timely notice of appeal. In his appeal, he challenges his sentence
on the ground that the district court failed to provide either (i)
advance notice of its intention to deviate from the jointly
recommended sentence or (ii) an adequate explanation of its
decision. The government counters that the defendant has waived
any right to appeal and that, in all events, the defendant's claims
lack force. Because the government's waiver-of-appeal argument is
logically antecedent to the defendant's plaints, we start there.
The government's waiver argument need not detain us. A
criminal defendant who waives his right to appeal relinquishes a
substantial right. Consequently, a waiver-of-appeal provision in
a plea agreement should be construed according to its tenor, and
any ambiguities should be resolved in favor of allowing the appeal
to proceed. See United States v. Acosta-Roman, 549 F.3d 1, 3-4
(1st Cir. 2008); United States v. McCoy, 508 F.3d 74, 77 (1st Cir.
2007); United States v. Teeter, 257 F.3d 14, 23-25 (1st Cir. 2001).
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In the case at hand, the language of the waiver-of-appeal
provision is pellucid: the waiver does not attach unless the
district court has "sentence[d] the defendant according to the
sentencing recommendations contemplated [in the Agreement]." The
Agreement contains only a single sentencing recommendation: a joint
entreaty that the district court sentence the defendant to a term
of imprisonment "equal to the lower end of the applicable
guidelines." But, here, the GSR encompasses a span of 30-37
months, yet the district court sentenced the defendant to a 33-
month term of immurement. That mid-range sentence was not the low-
end sentence "contemplated" in the Agreement.
That ends this aspect of the matter. A waiver-of-appeal
provision is enforceable according to its terms. Acosta-Roman, 549
F.3d at 3. The government, however, is not entitled to recast the
reach of such a provision after the fact. When the district court
chose not to follow the parties' joint sentencing recommendation,
the waiver-of-appeal provision, as framed, was relegated to the
scrap heap. Consequently, the appeal may proceed.
We turn next to the defendant's claims. We begin with
the standard of review. The Supreme Court has directed the courts
of appeals to review an appealed sentence for reasonableness. See
Gall v. United States, 552 U.S. 38, 46 (2007). This assessment is
to be made pursuant to a deferential abuse-of-discretion standard.
Id. That approach pertains where, as here, the sentencing court
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has imposed a within-the-range sentence. United States v.
Carrasco-De-Jesús, 589 F.3d 22, 26 (1st Cir. 2009); United States
v. Jiménez-Beltre, 440 F.3d 514, 517 (1st Cir. 2007) (en banc);
United States v. Deppe, 509 F.3d 54, 62 (1st Cir. 2007).
In this context, reasonableness has both substantive and
procedural dimensions. The defendant does not challenge the
substantive reasonableness of his sentence but, rather, advances
two claims of procedural unreasonableness.
The first of these claims is premised on the Supreme
Court's decision in Burns v. United States, 501 U.S. 129 (1991).
There, the Court held that a defendant must be afforded reasonable
notice before a sentencing court may depart upward from the GSR on
grounds not specifically flagged in either the PSI Report or some
other submission that antedates the disposition hearing.3 Id. at
138.
The defendant's emphasis on Burns is doubly flawed. For
one thing, this emphasis ignores the shifting of the tectonic
plates caused by the Court's subsequent decision in United States
v. Booker, 543 U.S. 220 (2005). For another thing, honoring this
claim would involve an unwarranted expansion of Burns. We explain
each of these flaws briefly.
3
Since 2002, this holding has been codified in Federal Rule
of Criminal Procedure 32(h). See Irizarry v. United States, 553
U.S. 708, 709-10 (2008).
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We begin this explanation with a comment on the effect of
Booker. The Burns Court perceived a "special need for notice,"
Irizarry v. United States, 553 U.S. 708, 713-14 (2008), at a point
in time when the federal sentencing guidelines were viewed as
mandatory. The Court's later decision in Booker, 543 U.S. at 246,
264-65, undermined that premise. Booker rendered the guidelines
advisory. See id. This is important because, under a mandatory
guideline regime, the parties could reasonably anticipate judicial
adherence to the guidelines and, thus, a sentence within the GSR.
See Irizarry, 553 U.S. at 714. Thus, when a sentencing court opted
to depart upward without advance notice, a defendant might well be
caught unawares. See Burns, 501 U.S. at 138.
Booker changes that dynamic. As previously noted, the
holding in Booker made the guidelines advisory. That, in turn,
made deviations from the guidelines more readily foreseeable and,
thus, made sentences within the GSR less a matter of routine. See
United States v. Vega-Santiago, 519 F.3d 1, 4 (1st Cir. 2008)
(noting that, post-Booker, the sentencing inquiry "is far more
broad, open-ended, and discretionary"). That altered the calculus
of reasonable expectations.
Recognizing the salience of this shift, the Supreme
Court, in the post-Booker era, has refused to expand the notice
requirement announced in Burns beyond the narrow confines of a
sentencing departure. See Irizarry, 553 U.S. at 714-15. In that
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regard, the Court has interpreted Booker as defenestrating any
argument for an expansion of the Burns principle. See id. at 716.
We have echoed this reasoning. See Vega-Santiago, 519 F.3d at 3-4.
As matters now stand, the notice contemplated by Burns is necessary
only when a sentencing court purposes to depart based on previously
unannounced considerations. See Fed. R. Crim. P. 32(h). This case
does not fit within that taxonomy.
Booker aside, a Burns-like prophylactic is unnecessary in
this case. Here, the court imposed a sentence within the GSR — a
GSR agreed to by the parties and limned in the PSI Report. The
parties' default expectation should have been that the court would
impose a within-the-range sentence, so there was no special need
for notice. See United States v. Jackson, 32 F.3d 1101, 1106 (7th
Cir. 1994) ("We understand and agree that the district court is not
required to give notice of its decision to sentence within the
applicable Guideline range on grounds identified in the presentence
report. . . ."); United States v. Willis, 997 F.2d 407, 416-17 (8th
Cir. 1993) (similar). Moving a sentence up a notch but remaining
within the GSR is fundamentally different from departing upwardly
sua sponte to a point above the top of the GSR.
In an effort to sabotage this reasoning, the defendant
argues that because the Agreement contemplated a specific sentence
he had a right to expect, absent notice to the contrary, that the
court would impose that sentence. Its failure to do so, he says,
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constituted unfair surprise. This is not a legitimate basis for a
claim of prejudicial surprise. See Irizarry, 553 U.S. at 715-16.
After all,
[i]n the normal case a competent lawyer . . .
will anticipate most of what might occur at
the sentencing hearing . . . . Garden variety
considerations of culpability, criminal
history, likelihood of re-offense, seriousness
of the crime, nature of the conduct and so
forth should not generally come as a surprise
to trial lawyers who have prepared for
sentencing.
Id. at 716 (quoting Vega-Santiago, 519 F.3d at 5); see also United
States v. Politano, 522 F.3d 69, 75 (1st Cir. 2008).
We add a coda. Mechanical rules about when warnings are
or are not required do not control in every case. One would expect
a sentencing court to be sensitive to a timely objection based on
surprise and a claim that further information needs to be gathered.
But this assumes real surprise — unlikely in this case since
recommendations are not always followed. It also assumes an on-
the-spot request for further time and a fairly specific and
plausible explanation of what is expected to be gained — and no
such request or explanation was made here. A defendant scarcely
can complain about the lack of a warning when there is no reason to
believe that a warning, if given, would have made the slightest
difference.
The defendant's remaining claim of sentencing error takes
the form of a challenge to the adequacy of the court's explanation
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for the mid-range sentence. This, too, is a claim of procedural
unreasonableness, which engenders abuse-of-discretion review. See,
e.g., Carrasco-De-Jesús, 589 F.3d at 26.
It cannot be gainsaid that a sentencing court must
indicate the basis for the sentence imposed. United States v.
Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 2006) (citing 18
U.S.C. § 3553(c)). Withal, pronouncing sentence does not require
a district court to be precise to the point of pedantry. The
requirement for explication is less rigid than the defendant
suggests:
While the court ordinarily should identify the
main factors upon which it relies, its
statement need not be lengthy . . . nor need
it dissect every factor made relevant by 18
U.S.C. § 3553 . . . . Even silence is not
necessarily fatal; "a court's reasoning can
often be inferred by comparing what was argued
by the parties or contained in the presentence
report with what the judge did."
Id. at 40-41 (quoting Jiménez-Beltre, 440 F.3d at 519); see also
United States v. Arango, 508 F.3d 34, 46 (1st Cir. 2007). The
level of detail required varies depending on the circumstances.
Thus, "sentences that fall inside a properly calculated guideline
sentencing range require a lesser degree of explanation than those
that fall outside." Turbides-Leonardo, 468 F.3d at 41 (citing
United States v. Smith, 445 F.3d 1, 4 (1st Cir. 2006)).
Viewed against this backdrop, the defendant's claim
disintegrates. The district court observed that the defendant had
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entered the United States illegally on five separate occasions and
concluded that a mid-range sentence was appropriate to promote
respect for the law and to prevent recidivism. That was a
sufficient explanation to undergird the court's choice of a 33-
month sentence.
The defendant advances two counter-arguments. The first
posits that it was impermissible for the court to find facts (such
as the number of illegal entries) based on the PSI Report. This
argument is jejune. The defendant interposed no objection to the
chronicling of these events, and it is settled beyond hope of
contradiction that unobjected-to "[f]acts contained in a
presentence report ordinarily are considered reliable evidence for
sentencing purposes." United States v. Morillo, 8 F.3d 864, 872-73
(1st Cir. 1993); accord United States v. Cintrón-Echautegui, 604
F.3d 1, 6 (1st Cir. 2010). That principle applies here.
The defendant's second counter-argument posits that the
court's explanation of the sentence was insufficient to meet the
demands of 18 U.S.C. § 3553(c). We do not agree.
Where the record permits a reviewing court to identify
both a discrete aspect of an offender's conduct and a connection
between that behavior and the aims of sentencing, the sentence is
sufficiently explained to pass muster under section 3553(c).
United States v. Mangual-Garcia, 505 F.3d 1, 15 (1st Cir. 2007).
The explicit reference by the court below to the defendant's
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recurring pattern of illegal entries corresponded to this
benchmark.
We need go no further. For the reasons elucidated above,
we uphold the defendant's sentence.
Affirmed.
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