United States v. Molina-Quintero ( 2017 )


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  •                 Not for Publication in West's Federal Reporter
    United States Court of Appeals
    For the First Circuit
    Nos. 15-1943
    15-1944
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    RAMÓN MOLINA-QUINTERO,
    Defendant, Appellant.
    APPEALS FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Juan M. Pérez-Giménez, U.S. District Judge]
    Before
    Lynch, Lipez, and Thompson,
    Circuit Judges.
    Paul M. Glickman and Glickman Turley LLP on brief for
    appellant.
    Rosa Emilia Rodríguez–Vélez, United States Attorney, Mariana
    E. Bauzá-Almonte, Assistant United States Attorney, Chief,
    Appellate Division, and Mainon A. Schwartz, Assistant United
    States Attorney, on brief for appellee.
    March 20, 2017
    .
    THOMPSON, Circuit Judge.
    PREFACE
    Ramón Molina-Quintero ("Molina") believes the government
    breached a plea agreement he had entered into with the government
    and so says he should get resentenced by a different district
    judge.   Spying no plain error, we affirm.
    BACKGROUND1
    Plea Agreement
    Molina pleaded guilty to drug and firearm charges under
    a nonbinding plea agreement that resolved two indictments filed
    against him. After working through some adjustments, the agreement
    arrived at a total offense level 33 for the two drug charges.         The
    agreement did not specify either his criminal history score or
    criminal   history   category,   though    it   did   forecast   possible
    sentencing ranges for the drug charges based on criminal history
    categories I (135-168), II (151-188), and III (168-210).2         For the
    drug charges, the parties promised to jointly recommend a sentence
    at "the lower end of the applicable guideline range for a total
    1 As per usual, we draw the background facts from the plea
    agreement, the unobjected-to parts of the presentence report, and
    the transcripts from the relevant court hearings.      See, e.g.,
    United States v. Romero-Galindez, 
    782 F.3d 63
    , 65 n.1 (1st Cir.
    2015).
    2 These ranges were for the drug charges together, because
    they were grouped for sentencing purposes, as required by the
    guidelines. See U.S.S.G. § 3D1.2(d).
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    offense level 33."         And for the firearm charge, the parties
    promised to jointly recommend a 60-month term, to run consecutively
    to whatever sentence the judge imposed on the drug charges.              "Any
    recommendation other than what is stated herein," the agreement
    added, "constitute[s] a breach of the plea agreement."
    Presentence Report
    Probation also found that Molina's total offense level
    was 33, which included a 2-level enhancement because the drug
    trafficking occurred near a protected location.              And probation
    calculated his criminal-history category as II because of his 1994
    conviction for carrying a weapon without a license.              All of this
    produced a proposed sentencing range of 151-188 months.
    Sentence
    At    sentencing,   Molina's    lawyer   asked   the   judge    to
    (a) jettison the protected-location enhancement because the plea
    agreement     "did   not   contemplate"     adding    "points"     for   that
    enhancement; (b) lower his offense level by 2 levels based on
    Amendment 782 to the sentencing guidelines;3 and (c) reduce his
    criminal-history score because of the 1994 conviction's supposed
    remoteness.      The judge asked the prosecutor for her response.          And
    3 That amendment retroactively lowered by 2 levels the base
    offense levels for many drug crimes.       See United States v.
    Alejandro-Montañez, 
    778 F.3d 352
    , 362 (1st Cir. 2015).
    - 3 -
    she started off with some background about the plea negotiations,
    saying that "we lowered the amount of drugs" attributed to him to
    reach an agreement.         She conceded that the plea agreement did not
    mention    the    possibility       of   a   protected-location       enhancement.
    Noting how the plea agreement contained a stipulated total offense
    level of 33, she also said — wrongly, it turns out, without being
    contradicted by defense counsel then and there — that "the parties
    agreed that each party was going to argue for a sentence within
    the range."      But, she quickly added, "the government at this time
    is standing by what was recommended in the plea agreement" and so
    would    not     push   for   a     protected-location         enhancement.    The
    government would not oppose the 2-level reduction under Amendment
    782, she intimated, even though that would result in a total
    offense level lower than the one spelled out in the plea agreement.
    But she argued against Molina's bid to have the judge reduce his
    criminal-history        category,     saying     he   should    "be   considered   a
    criminal history category II."
    And now we come to the money quote, as Molina sees it.
    After saying all this to the judge, the prosecutor then said that
    Molina "should be sentenced to the higher end of the applicable
    range."     As she started to go into the stipulated facts — which
    she     noted    included     his    "preserv[ing]      and     protect[ing]   the
    narcotics and profits of the organization through the use of
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    intimidation" — the judge interrupted and asked her follow-up
    questions         about      the    defense's       push      for       a     lower   guidelines
    calculation.            Among her responses, the prosecutor stressed that
    the government could not ask for a protected-location enhancement
    because "that would be a breach of the plea agreement."                                    During
    this back-and-forth between the prosecutor and the judge, Molina's
    lawyer          broke   in     to     object      to    the     prosecutor's           misstated
    recommendation for a sentence at the higher end of the sentencing
    range.          But the judge said that he was "still trying to resolve
    the . . . objections you have with the presentence report."
    After explaining why the protected-location enhancement
    applied and the prior conviction counted toward his criminal-
    history points,4 the judge gave defense counsel a chance to finish
    his comment on the government's sentence recommendation.                                     The
    prosecutor's "upper end of the guideline" recommendation, defense
    counsel         said,    was   "in        clear   breach"     of        the    plea   agreement,
    "[u]nless         she   wishes       to    withdraw     that,       I    don't    know."      The
    prosecutor responded immediately, saying "that is correct.                                 And we
    stand correct[ed]."                She then explained her mistake, saying that
    most       of    the    plea       agreements      in   this        multi-defendant        drug-
    conspiracy matter specified a sentencing range rather than a point
    4
    We need not get into the judge's reasons because Molina does
    not challenge the ruling on those two issues here.
    - 5 -
    within that range but that Molina's agreement was different: "[W]e
    withdraw that because . . . we usually do that within a range.
    But in this particular case, in order to reach a recommendation,
    we agreed that . . . the government was going to agree for the
    lower end of the applicable guideline range."
    Taking a belt-and-suspenders approach, the judge made
    doubly sure what the government's recommendation was:
    THE COURT: That [Molina] be sentenced to the lower end
    of the applicable guideline range . . . [t]hat is the
    recommendation of the government?
    [THE PROSECUTOR]:   Yes.
    THE COURT: So the statement you previously made to the
    higher end, referring to the higher end of the guideline
    —
    [THE PROSECUTOR]:   We withdraw that one.
    THE COURT:   — you withdraw that?
    [THE PROSECUTOR]:   Yes, Your Honor.
    Molina's counsel did not object to the prosecutor's
    revised recommendation, despite being given the chance to voice
    his objection. And counsel did not say that the prosecutor's error
    was incurable, that the cure was not effective, or that his client
    should be sentenced by a judge who had not heard the misstated
    recommendation.
    After   listening   to    each   side's   lawyers,   the   judge
    proceeded to impose Molina's sentence.        The 2-level increase for
    - 6 -
    a protected location and the 2-level decrease pursuant to Amendment
    782 effectively cancelled each other out.              And skipping over
    details   not   relevant   to   this   appeal,   we   see   that    the   judge
    eventually settled on a total offense level of 33 (mirroring the
    total offense level set out in the plea agreement).                Paired with
    a criminal-history category of II, Molina's sentencing range was
    151-188 months.      After considering the offense elements, the
    parties' plea agreement, and the pertinent 18 U.S.C. § 3553(a)
    sentencing factors,5 the judge sentenced Molina to concurrent 188-
    month sentences for the two drug charges and a consecutive 60-
    month term for the firearm charge.
    From this sentence, Molina appeals, arguing that because
    the government breached the plea agreement, we must vacate and
    remand to a different judge for resentencing.               The government
    argues otherwise, unsurprisingly.6
    5 The judge noted, for example, that this was Molina's
    "seventh known arrest and his fourth conviction" and that he had
    proven to be a serial probation violator.
    6 The government insists "that the corrected misstatement was
    not a breach," or, "if it was a breach," that "it was
    satisfactorily cured."    But this distinction does not matter,
    since, either way, a sentencing remand is not called for.      Cf.
    United States v. Oppenheimer-Torres, 
    806 F.3d 1
    , 4 (1st Cir. 2004)
    (concluding both that the prosecutor's misstatement "did not
    constitute a breach of the agreement" and that it was "not obvious
    that there was a breach that was not adequately corrected").
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    DISCUSSION
    Standard of Review
    The parties dispute which standard of review governs, de
    novo     —    Molina's     preferred    standard;        or     plain     error        —    the
    government's preferred standard.                  We side with the government:
    Molina never suggested to the judge that the prosecutor's misstep
    was incurable or that her correction was not enough to cure the
    error.        And    he   did   not   ask   for    the     relief    he       now   wants       —
    resentencing before a different judge. So we review only for plain
    error,       see    
    Oppenheimer-Torres, 806 F.3d at 4
        —    a    famously
    difficult-to-satisfy            standard,    which     requires         Molina      to     show
    "error,      plainness,     prejudice       to    [him,]      and   the       threat       of   a
    miscarriage of justice," see United States v. Torres–Rosario, 
    658 F.3d 110
    , 116 (1st Cir. 2011); see also Puckett v. United States,
    
    556 U.S. 129
    , 142 n.4 (2009).
    Analysis
    In bygone days we routinely said that a prosecutor's
    "erroneous sentencing recommendation in breach of a plea agreement
    was not cured by withdrawal in favor of a belatedly compliant
    recommendation."          
    Oppenheimer-Torres, 806 F.3d at 4
    (citing United
    States v. Kurkculer, 
    918 F.2d 295
    , 302 (1st Cir. 1990), for our
    old approach).         But then along came Puckett, where the high Court
    explained that "some [plea agreement] breaches may be curable upon
    - 8 -
    timely objection — for example, where the prosecution simply forgot
    its commitment and is willing to adhere to the 
    agreement." 556 U.S. at 140
    .
    With   this   in    mind,     and    assessing         the    prosecutor's
    misstep in light of the transcript as a whole, we see "no obvious
    error   in    the    [judge's]        decision        to    proceed    following     the
    prosecution's unambiguous correction of its initial error."                          See
    
    Oppenheimer-Torres, 806 F.3d at 4
    .        Remember:        Before   the
    prosecutor made the complained-about recommendation, she took
    pains to explain that the government intended to fulfill its plea-
    agreement    obligations,        as    evidenced       by    her    saying    that   the
    prosecution stood by the agreement's recommendations — which is
    why, for example, she refused to push for a protected-location
    enhancement     (because        the    agreement           did   not      include    that
    enhancement).       Avoiding a breach was a major goal of hers, we can
    fairly infer from the transcript.                     And although she got the
    recommendation wrong at first — asking for the high end instead of
    the low end of the sentencing range — she corrected the error when
    made aware of it.       She also did so readily and forcefully — not
    grudgingly or misleading, as Molina suggests.                      It is safe to say,
    then, that all the sentencing-hearing participants "knew plainly
    and correctly that the government's considered recommendation was
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    as in the [a]greement."     See 
    id. All of
    which means that Molina
    cannot show plain error.       See 
    id. Arguing against
       this     conclusion,   Molina   blasts   the
    prosecutor for not calling her "breach . . . inadvertent."               But
    the prosecutor did make an inadvertence claim.              Recall:      The
    prosecutor explained to the judge that other recommendations in
    this   multi-defendant   case    were    for   sentences   within   certain
    ranges, rather than for a specific point within that range.
    Molina's case, it turns out, did involve dozens of defendants.
    And Molina was not the only defendant surnamed Molina-Quintero.
    Interestingly, the other Molina-Quintero's plea agreement called
    for a sentence recommendation "within the applicable guideline
    range for a total offense level of thirty three (33)" — for what
    it is worth, the misstated recommendation here would have been
    perfectly proper under that agreement.         All in all, looking at the
    whole picture, we view the prosecutor's unfortunate misstatement
    as an indication of confusion on her part — not as "a sign that
    the government had second thoughts" about the plea agreement's
    recommendation.   See 
    id. Insisting that
    the prosecutor neither "defend[ed]" the
    agreement's "low-range" recommendation nor "counteract[ed] the
    premises" undergirding her "high-range" proposal, Molina relies on
    pre-Puckett caselaw — Kurkculer, for example — to argue that the
    - 10 -
    prosecutor's withdrawal of the offending recommendation with a
    substitution of the agreed-upon one could not "cure" the problem
    because "[t]he damage had already been done."      But the Supreme
    Court's Puckett decision and our decision in Oppenheimer-Torres
    knock the legs out from under that argument.      See Oppenheimer-
    
    Torres, 806 F.3d at 4
    (noting how Puckett changed the law in this
    circuit).
    The bottom line is that Molina fails the plain-error
    test because, as in Oppenheimer-Torres, "it is not obvious that
    there was a breach that was not adequately corrected as the Supreme
    Court anticipated in Puckett."    See 
    Oppenheimer-Torres, 806 F.3d at 4
    .
    CONCLUSION
    Our work over, we affirm Molina's sentence.
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