United States v. Perez-Gonzalez ( 2020 )

United States Court of Appeals
For the First Circuit
No. 17-1754
UNITED STATES OF AMERICA,
Appellee,
v.
RODERICK PÉREZ-GONZÁLEZ, a/k/a Canito,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Torruella, Dyk,* and Barron,
Circuit Judges.
Raúl S. Mariani-Franco for appellant.
Daniel N. Lerman, Attorney, Criminal Division, Appellate
Section, United States Department of Justice, with whom Rosa Emilia
Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte,
Assistant United States Attorney, Chief, Appellate Division, and
Francisco A. Besosa-Martínez, Assistant United States Attorney,
were on brief, for appellee.
July 28, 2020
* Of the Federal Circuit, sitting by designation.
BARRON, Circuit Judge. In early 2017, Roderick Pérez-
González pleaded guilty to a drug conspiracy offense in the United
States District Court for the District of Puerto Rico. He now
raises a double jeopardy challenge under the Fifth Amendment to
the United States Constitution to that conviction based on his
earlier prosecution for a federal drug conspiracy crime, to which
he had also pleaded guilty. We affirm.
I.
In July of 2010, a federal grand jury in the United
States District Court for the District of Puerto Rico charged Pérez
with conspiracy to possess with intent to distribute cocaine,
cocaine base, and marijuana around the Columbus Landing Public
Housing Project in Mayagüez, Puerto Rico, in violation of 21 U.S.C.
§ 846. The indictment alleged that the conspiracy began roughly
in 2002, continued to the date of the indictment, and involved
Pérez and twenty-seven of his co-defendants. The indictment also
charged Pérez with four additional offenses: three counts of
aiding and abetting in the possession with intent to distribute,
for cocaine base, cocaine, and marijuana, respectively, in
violation of 21 U.S.C. § 841(a)(1), and one count of conspiracy to
possess firearms during and in relation to drug trafficking crimes
in violation of 18 U.S.C. § 924(c)(1)(A) and § 924(o).
In April of 2011, Pérez agreed to plead guilty to the
conspiracy to possess with intent to distribute charge in exchange
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for the government's agreement to request dismissal of the other
counts. Pérez conceded in the plea agreement's statement of facts
that he "acted as a seller for the drug trafficking organization"
at the Columbus Landing Public Housing Project, and that, in so
doing, he "distribute[d] street quantity amounts of crack cocaine,
cocaine, and marijuana" and "possess[ed] and carr[ied] firearms in
order to protect the drug distribution activities and their
proceeds."
The District Court accepted Pérez's guilty plea and
sentenced him to seventy months' imprisonment, which was later
reduced to a prison term of sixty months. In October of 2015,
Pérez completed his sentence and began his term of supervised
release.
Less than a year later, in July of 2016, a federal grand
jury in the United States District Court for the District of Puerto
Rico again charged Pérez with conspiring to possess narcotics with
the intent to distribute in violation of 21 U.S.C. § 846. Again,
it was alleged that the conspiracy was to sell narcotics within
the Columbus Landing Public Housing Project. This time, though,
the grand jury charged Pérez alongside thirty-nine alleged co-
conspirators and alleged that the conspiracy began around 2010 and
continued up to the date of the 2016 indictment. The new
indictment also charged Pérez with an additional three counts of
aiding and abetting in the distribution of narcotics in violation
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of 21 U.S.C. § 841(a)(1) for distributing, respectively, cocaine
base, cocaine, and marijuana. Finally, like the first indictment,
the new one charged him with conspiracy to possess firearms in
furtherance of a drug trafficking crime in violation of 18 U.S.C.
§ 924(c)(1) and § 924(o).
Pérez entered into another agreement with the government
in February of 2017. As before, Pérez agreed to plead guilty to
the drug trafficking conspiracy charge in exchange for the
government promising to request the dismissal of the other charges.
The plea agreement incorporated a statement of facts in which Pérez
admitted "that he was a drug point owner of the drug trafficking
organization" at the Columbus Landing Public Housing Project and
that he "controlled and supervised the drug trafficking
operations" there. In the statement of facts, Pérez also
acknowledged that, in his role as a drug point owner, he "was
responsible for directly and indirectly providing sufficient
narcotics to the runners and sellers" of the conspiracy "for
further distribution" and that he "collected the proceeds of the
drug sales and paid [his] co-conspirators."
The plea agreement incorporated a waiver of appeal
provision. In it, Pérez "knowingly and voluntarily waive[d] the
right to appeal the judgment and sentence in this case, provided
that [he] [was] sentenced in accordance with the terms and
conditions" of the deal.
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The District Court accepted Pérez's guilty plea and
sentenced him, in accord with the plea agreement, to a term of
seventy-two months' imprisonment.1 Pérez then filed a timely
notice of appeal.
II.
The Double Jeopardy Clause of the United States
Constitution bars the United States from prosecuting "a single
person for the same conduct under equivalent criminal laws."
Puerto Rico v. Sánchez Valle, 136 S. Ct. 1863, 1876 (2016); see
U.S. Const. amend. V. Pérez contends that his second prosecution
for conspiracy in violation of 21 U.S.C. § 846 impermissibly put
him "twice" "in jeopardy" "for the same offense," U.S. Const.
amend. V, because it was for the same underlying conduct as his
prior prosecution for violating that statute.
The government responds in part that Pérez's waiver of
appeal in his plea agreement requires that we dismiss this
challenge. But, even if it is not waived because a double jeopardy
violation would work a "miscarriage of justice," Sotirion v. United
States, 617 F.3d 27, 33 (1st Cir. 2010) (quoting United States v.
Teeter, 257 F.3d 14, 25 (1st Cir. 2001)), the challenge still
fails.
1 At the same hearing, the District Court sentenced Pérez to
an additional eighteen months' imprisonment for violating the
conditions of release for his initial conviction and ordered the
two sentences to run consecutive to one another.
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So long as the record supplies "a rational basis" for
concluding that two counts to which a defendant has pleaded guilty
are "predicated on different conduct," United States v.
Stefanidakis, 678 F.3d 96, 100 (1st Cir. 2012), then the defendant
has, by pleading guilty twice, "concede[d] that he has committed
two separate crimes," United States v. Broce, 488 U.S. 563, 570
(1989). Moreover, a defendant who has pleaded guilty cannot
"contradict the 'admissions necessarily made upon entry of a
voluntary plea of guilty.'" United States v. Class, 138 S. Ct.
798, 805 (2018) (quoting Broce, 488 U.S. at 573-74). Thus, a
defendant who brings a double jeopardy challenge to a second
prosecution in which he pleaded guilty based on a prior one in
which he did the same is limited to the facts contained in the
"indictments and the existing record." Class, 138 S. Ct. at 804
(quoting Broce, 488 U.S. at 576). Because Pérez did not raise his
challenge below, we apply plain error review. See Stefanidakis,
678 F.3d at 99-100; see also United States v. Ríos-Rivera, 913
F.3d 38, 41-43 (1st Cir.) (treating an unpreserved challenge to a
conviction entered after a guilty plea as forfeited when it targets
"the government's authority to prosecute a defendant"), cert.
denied, 139 S. Ct. 2647 (2019). We conclude he cannot meet that
standard because there is a "rational basis" for finding that the
conduct underlying the first federal conspiracy conviction is
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distinct from the conduct underlying the second, to which he also
pleaded guilty.
Here, Pérez correctly notes that the two conspiracy
prosecutions concerned conduct at the same "places" and charged
him with violations of "the same statutory provision." United
States v. Laguna-Estela, 394 F.3d 54, 57 (1st Cir. 2005). But, the
record still reveals that there is a rational basis to conclude
that the two conspiracies were distinct.
The record shows that the counts in question charged
conspiracies that began on different dates, ended on different
dates, and, despite spanning a fourteen-year period, overlapped
for about six months at most. See United States v. Collazo-Aponte,
216 F.3d 163, 198 (1st Cir. 2000) (holding two conspiracies to be
distinct, in part because they "involve[d] different time periods"
despite a year-long overlap), vacated on other grounds, 532 U.S.
1036 (2001); Broce, 488 U.S. at 570 (looking at the different start
dates of conspiracies to find them facially distinct). Pérez urges
that we adopt a rule that would "solely require[] [the] defendant
to establish that the charged conspiracy was committed within the
same overlapping period[] as his prior acquittal or conviction for
the same offense," but, as he recognizes, our precedent rejects
such a rule. See, e.g., Laguna-Estela, 394 F.3d at 57-59 (finding
two conspiracies distinct in spite of an overlap in time period);
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see also United States v. Barbosa, 896 F.3d 60, 74 (1st Cir. 2018)
(discussing the law-of-the-circuit doctrine).
In addition to the temporal distinctions between the two
charged conspiracies, a review of the counts in question shows
that the charged conspiracies involved many distinct participants.
Specifically, they were alleged to have involved, respectively,
twenty-eight and forty co-conspirators, with only four
individuals, including Pérez himself, overlapping. See United
States v. Booth, 673 F.2d 27, 29-30 (1st Cir. 1982) (finding two
conspiracies distinct in part because only ten individuals
participated in both conspiracies and thus "the persons involved
in the two conspiracies [were] substantially different"). The
record also shows that Pérez played a different role in each
conspiracy (as a seller and drug point owner, respectively). See
Laguna-Estela, 394 F.3d at 58 (finding two conspiracies distinct
in part due to evidence that the defendant's role in each
conspiracy was different). And, while the second conspiracy aimed
to sell all the same drugs as were involved in the first conspiracy
-- cocaine, cocaine base, and marijuana -- it also involved the
sale of two additional drugs -- Percocet and Xanax -- that were
not identified in the first indictment. See Broce, 488 U.S. at
571 (deeming two conspiracies facially distinct in part because
they "embraced separate objectives").
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Thus, there is ample support for finding that Pérez has
"conceded guilt to two separate offenses." Id. at 571.
Accordingly, we affirm the conviction that Pérez challenges.
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