United States v. Sierra , 186 F. App'x 16 ( 2006 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-1564
UNITED STATES,
Appellee,
v.
PEDRO SIERRA,
Defendant, Appellant,
No. 05-1565
UNITED STATES,
Appellee,
v.
BRUNO MONTENEGRO,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
Matthew V. Soares on brief for appellant Sierra.
Michael R. Hasse on brief for appellant Montenegro.
Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Nelson Pérez-Sosa, Assistant United States Attorney,
and H.S. Garcia, United States Attorney, on brief for appellee.
July 3, 2006
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Per Curiam. Pedro Sierra and Bruno Montenegro appeal
from the sentences they received after their pleas of guilty to
conspiracy to possess marijuana with intent to distribute. Their
appeals have been consolidated for our review.
Sierra and Montenegro, along with four other men, were
aboard a fishing vessel that had sailed from the country of
Colombia in October 2003, heading for Puerto Rico. The vessel was
apprehended by the United States Coast Guard off the southern shore
of Puerto Rico. The Coast Guard retrieved 654 kilograms of
marijuana that had been dumped into the sea from the vessel when
the crew realized it had been detected. Sierra and Montenegro
entered into identical plea agreements with the government. The
agreements specified a base offense level of 28 under the federal
Sentencing Guidelines and called for downward adjustments for
acceptance of responsibility and compliance with the "safety valve"
provision. The agreements went on to declare that no other
adjustments would apply, but reserved to the defendants the right
to argue at the sentencing hearing for a downward adjustment based
on USSG § 3B1.2, which allows a decrease in the offense level of a
defendant who played a minor or minimal role in the offense. Both
defendants were sentenced on March 15, 2005, at separate hearings,
to terms of 46 months in prison.
Each appeal raises a single issue: whether the district
court violated Fed. R. Crim. P. 32(i)(3)(B) by failing to rule
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explicitly on whether the defendant qualified for a downward
adjustment based on his role in the offense. The pertinent facts
concerning sentencing, however, are different for each of the
defendants.
Rule 32(i)(3)(B) requires that a court, at sentencing,
"must — for any disputed portion of the presentence report or other
controverted matter — rule on the dispute or determine that a
ruling is unnecessary either because the matter will not affect
sentencing, or because the court will not consider the matter in
sentencing." Fed. R. Crim. P. 32(i)(3)(B).
Appellant Sierra contends that the district court
violated this rule by not making an explicit ruling as to whether
Sierra was entitled to a downward adjustment for his role in the
offense. However, while Sierra reserved the right in his plea
agreement to argue the role-in-the-offense question, he did not
invoke that right or even mention the issue at his sentencing
hearing. This means both that there was no "controverted matter"
that the judge would have been required by Rule 32(i)(3)(B) to
decide and that Sierra forfeited the argument below. A district
court has no obligation to raise a role-in-the-offense question of
its own initiative, the more so since a defendant bears the burden
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of proving his or her entitlement to a downward adjustment. See
United States v. Ocasio, 914 F.2d 330, 332-33 (1st Cir. 1990).1
Defendant Montenegro, in contrast, did argue at his
sentencing hearing that he played only a minor role in the
marijuana transport and that he was entitled to a downward
adjustment accordingly. In response, the government argued that
Montenegro's role was not minor, but that he was in fact fully
culpable and thus did not qualify for the downward adjustment. The
district court imposed sentence on Montenegro without explicitly
ruling on whether or not he was entitled to the adjustment, stating
simply, "The Court has considered all the applicable adjustments
under the new advisory Federal Sentencing Guidelines." The court
sentenced Montenegro to 46 months in prison, which was the sentence
specified in the plea agreement under the parties' assumption that
Montenegro would qualify for downward adjustments based on
acceptance of responsibility and "safety valve" but no other
adjustments. After the court pronounced the sentence, defense
counsel did not object to the court's failure to explicitly resolve
the role-in-the offense question.
Because no timely objection was made, we review the
district court's action for plain error. See United States v.
1
The government argues that the waiver of appeal rights
contained in Sierra's plea agreement should act to bar the present
appeal. Because the appeal lacks merit in any event, we need not
reach the waiver question.
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Mastera, 435 F.3d 56, 61 (1st Cir. 2006). None exists here.
Montenegro's reliance on Rule 32 is misplaced. The rule exists "to
assure reliability" of the facts germane to sentencing, United
States v. Johnson, 445 F.3d 339, 344 (4th Cir. 2006), and applies
if there is a relevant factual dispute or if the defendant has
objected to a portion of the Pre-Sentence Investigation Report
(PSR). See, e.g., United States v. McCants, 434 F.3d 557, 561-62
(D.C. Cir 2006) (obligations of Rule 32 applied where "key
elements" of the PSR's sentencing calculations relied on
"contentious" factual assumptions); United States v. Darwich, 337
F.3d 645, 666-67 (6th Cir. 2003) (obligations of Rule 32 applied
where PSR took a stance on defendant's leadership role in the
offense and defendant disputed that stance in objections to the
PSR). Here, Montenegro raised no objections to the PSR and there
was no pertinent factual dispute. In any event, the court's
imposition of the 46-month sentence contemplated by the plea
agreement suggests a rejection of Montenegro's request for a
downward adjustment not accounted for in the plea agreement's
calculation.
The sentences of appellants Sierra and Montenegro are
affirmed.
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