United States v. Irizarry-Rosario , 903 F.3d 151 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1117
UNITED STATES OF AMERICA,
Appellee,
v.
AXEL IRIZARRY-ROSARIO,
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,
Kayatta, Circuit Judge,
and Torresen, Chief U.S. District Judge.
Richard B. Klibaner and Klibaner & Sabino on brief for
appellant.
Mariana E. Bauzá-Almonte, Assistant United States Attorney,
Chief, Appellate Division, John A. Mathews II, Assistant United
States Attorney, and Rosa Emilia Rodríguez-Vélez, United States
Attorney, on brief for appellee.
September 10, 2018

Of the District of Maine, sitting by designation.
TORRESEN, Chief District Judge. Defendant-Appellant
Axel Irizarry-Rosario challenges his 84-month sentence for
possession of firearms on the grounds that the government breached
its plea agreement with him. Finding no error, we affirm.
I. Background
On September 15, 2016, Irizarry-Rosario pleaded guilty
to a two-count indictment entered after a police search of his
residence uncovered six guns, a significant amount of ammunition,
and eighty-two small bags of cocaine. Count I of the indictment
charged Irizarry-Rosario with possessing firearms in furtherance
of a drug trafficking crime in violation of 18 U.S.C. §
924(c)(1)(A)(i). Count II charged the possession of cocaine with
intent to distribute in violation of 21 U.S.C. § 841(a)(1).1
For Count I, the parties' plea agreement stipulated that
the government would recommend a sentence of sixty months, the
minimum term of imprisonment required by 18 U.S.C. § 924(c). For
Count II, the parties agreed that Irizarry-Rosario's Base Offense
Level under U.S.S.G § 2D1.1 was twelve and that his Total Offense
Level was ten. The parties did not stipulate to a Criminal History
Category. However, the parties agreed that if the district court
found that Irizarry-Rosario fell within Criminal History Category
1
Our discussion of the facts is drawn from the plea
agreement and the transcript of the sentencing hearing. See United
States v. Arroyo–Maldonado, 791 F.3d 193, 196 (1st Cir. 2015).
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I, then under the sentencing guidelines Irizarry-Rosario's
sentencing range would be six to twelve months. The plea agreement
provided that Irizarry-Rosario would seek a sentence at the lower
end of this range and that the government would argue for a
sentence at the higher end. The parties also agreed that any
recommendation by either party for a term of imprisonment below or
above the stipulated sentence recommendations would constitute a
material breach of the plea agreement.
At Irizarry-Rosario's sentencing hearing, the government
kept its arguments brief. The prosecution began by stating that
the parties had entered into a plea agreement and that for Count
I, "we are going to be requesting 60 months." The following
exchange ensued:
[THE GOVERNMENT]: However, for the cocaine
count, the Defense can request 6 months and
the Government can request up to 12 months.
The Government encourages the Court to
sentence the Defendant in the higher end of
those 12 months based on the sheer volume and
quantity of firearms that were seized, and the
ammunition that was seized. We are not
talking about self-defense –
THE COURT: The higher end of the drug charge
because of the weapons?
[THE GOVERNMENT]: The weapons is 60 months
minimum statutory. That's what we stand by.
But, however, for the cocaine count, in which
there is a spread – there is a range from 6 to
12 months – we encourage the Court to sentence
him to the higher end of those 12 months based
on the amount of firearms that were seized,
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the amount of ammunition, and the magazines
that were seized in his house, Your Honor.
The government offered nothing further. At the close of the
hearing, after finding that Irizarry-Rosario fell within Criminal
History Category I, the district court rehearsed the relevant facts
including the full list of firearms and the number of rounds that
the police had found in Irizarry-Rosario's residence. The district
court then addressed the government's recommended sentence on
Count I:
Because of the significant number of weapons,
some with obliterated serial numbers, and
ammunition found, including assault rifles,
large capacity magazines chocked full of
ammunition, and additional ammunition in
boxes, the Court finds that the sentence to
which the parties agreed does not reflect the
seriousness of the offense, does not promote
respect for the law, does not protect the
public from further crimes by Mr. Irizarry[-
Rosario], and does not address the issues of
deterrence and punishment.
The district court went on to sentence Irizarry-Rosario to eighty-
four months of imprisonment as to Count I and twelve months as to
Count II, to be served consecutively.
II. Analysis
Irizarry-Rosario claims that the government breached the
parties' plea agreement by arguing, albeit implicitly, that the
agreed-upon sixty-month sentence for his weapons charge was too
low. Because Irizarry-Rosario did not object to the government's
alleged breach below, our review is for plain error. United States
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v. Oppenheimer–Torres, 806 F.3d 1, 4 (1st Cir. 2015). Irizarry-
Rosario therefore must show: "(1) that an error occurred (2) which
was clear and 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." Id. (quoting United States v. Marchena–Silvestre,
802 F.3d 196, 200 (1st Cir. 2015)).
A defendant who enters into a plea agreement
relinquishes significant constitutional rights. United States v.
Rivera–Rodríguez, 489 F.3d 48, 57 (1st Cir. 2007). We therefore
"hold prosecutors engaging in plea bargaining to 'the most
meticulous standards of both promise and performance.'" Id.
(quoting United States v. Riggs, 287 F.3d 221, 224 (1st Cir.
2002)). In short, "[t]he government must keep its promises or the
defendant must be released from the bargain." United States v.
Kurkculer, 918 F.2d 295, 297 (1st Cir. 1990).
At times, the government's obligation to adhere
scrupulously to a plea agreement collides with its equally firm
obligation to provide relevant information to the sentencing
court. United States v. Ubiles–Rosario, 867 F.3d 277, 283 (1st
Cir. 2017). When these commitments conflict, we look to the plea
agreement's terms "to 'help resolve the[] competing tugs.'" Id.
at 284(quoting United States v. Miranda–Martinez, 790 F.3d 270,
275 (1st Cir. 2015)).
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Here, Irizarry-Rosario acknowledges that the government
facially complied with the plea agreement by requesting a sixty-
month sentence for Count I, but he claims that the government then
sought to undermine that recommendation. Irizarry-Rosario's
support for his position is that during the plea colloquy the
government twice referred to the large quantity of weapons and
ammunition Irizarry-Rosario possessed at the time of his arrest.
Through these references, Irizarry-Rosario contends, the
government tacitly argued that the district court should impose a
sentence above sixty months.
"We prohibit not only explicit repudiation of the
government's [plea-bargain] assurances but also end-runs around
those assurances." United States v. Cruz–Vázquez, 841 F.3d 546,
548 (1st Cir. 2016). There is, however, no indication here that
the government took with one hand what it had given with the other.
The government did not lament the plea agreement's terms or
otherwise suggest that it would seek a different sentence if free
to do so. See United States v. Clark, 55 F.3d 9, 12 (1st Cir.
1995); United States v. Canada, 960 F.2d 263, 269 (1st Cir. 1992).
Instead, the government stated its recommendation on the weapons
charge without any reservation, confirmed to the district court
that its references to Irizarry-Rosario's weapons went only to the
drug charge, and reiterated that it was recommending the sixty-
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month sentence on Count I to which the parties had agreed. This
reflects adherence to the plea agreement, not a breach.
The prosecution also did not "gratuitously offer[] added
detail garbed in implicit advocacy" that might have led the
district court to rethink the government's recommendation.
Miranda–Martinez, 790 F.3d at 275 (citing United States v. Gonczy,
357 F.3d 50 (1st Cir. 2004)). The plea agreement provided that
the government would seek a sentence at the higher end of the
guidelines range for Count II. The government was entitled to
explain that recommendation to the sentencing judge, and it did so
briefly and interspersed with reaffirmations of the sixty-month
sentencing recommendation for Count I. This was not a breach. See
Ubiles-Rosario, 867 F.3d at 287 ("Having unequivocally and
repeatedly stated that it was recommending a sentence of 300
months, the government was free to offer reasons supporting its
recommendation." (quotation marks and citations omitted)); see
also United States v. Quiñones–Meléndez, 791 F.3d 201, 204 (1st
Cir. 2015) (no error from government's introduction of video
showing the defendant fleeing from officers, where the defendant's
plea agreement contemplated that the government could argue that
the defendant's sentences for two counts should run
consecutively); United States v. Almonte–Nuñez, 771 F.3d 84, 91
(1st Cir. 2014) (no error from the government's emphasis at
sentencing on the vulnerability of the defendant's purported
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victim; "[t]he Agreement allowed the prosecutor to seek the upper
end of the [guideline sentencing range] contemplated by the
Agreement, and the AUSA was within fair territory in emphasizing
facts that made a sentence at the low end of that [range]
inappropriate").
Irizarry-Rosario insists that the government's
references to firearms must have been ill-intentioned because the
number of weapons he possessed was irrelevant to the calculation
of his guideline range on Count II. This argument misses the mark.
As we have recognized, under 18 U.S.C. § 3661 "[n]o limitation
shall be placed on the information concerning the background,
character, and conduct of a person convicted of an offense which
a court of the United States may receive and consider for the
purpose of imposing an appropriate sentence." Cruz–Vázquez, 841
F.3d at 549 (quoting 18 U.S.C. § 3661). It requires little
imagination to understand why a defendant's accumulation of a small
arsenal might counsel in favor of a higher sentence on a drug
distribution charge.
In sum, the government did not breach its plea agreement
with Irizarry-Rosario and there is no error.
III. Conclusion
For the reasons set forth above, we affirm Irizarry-
Rosario's sentence.
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