United States v. Valdez ( 2023 )

United States Court of Appeals
For the First Circuit
Nos. 22-1543, 22-1552
UNITED STATES OF AMERICA,
Appellee,
v.
AUGUSTO VALDEZ,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Gelpí, Howard, and Rikelman,
Circuit Judges.
Marie Theriault, for appellant.
Karen L. Eisenstadt, Assistant United States Attorney, with
whom Joshua S. Levy, Acting United States Attorney, was on brief,
for appellee.
December 14, 2023
GELPÍ, Circuit Judge. Defendant-Appellant Augusto
Valdez appeals from his guilty plea and conviction, for which he
received 120 months' imprisonment, followed by a five-year term of
supervised release. He raises two issues. First, he asserts that
the district court should have granted his motion to withdraw his
guilty plea because he conspired only with a confidential source
("CS") and the district court did not ensure that he knew that he
could not conspire illegally with a government agent -- two legal
errors that he alleges tainted the underlying conspiracy charge.
Second, he seeks to vacate his sentence because the district court
should have, sua sponte, verified his eligibility for the safety
valve under U.S.S.G. § 5C1.2.
We affirm, addressing each issue seriatim.
I. BACKGROUND
We recite only the facts necessary to resolve this
appeal. Because Valdez challenges his guilty plea and an alleged
sentencing error, we gather these "facts from the change-of-plea
colloquy, the unchallenged portions of the presentence
investigation report (PSR), and the record of the disposition
hearing." United States v. Cahill, 85 F.4th 616, 619 (1st Cir.
2023) (quoting United States v. Vargas, 560 F.3d 45, 47 (1st Cir.
2009)).
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A. Relevant Facts and Initial Legal Proceedings
In July 2019, law enforcement officers received a report
from a confidential source ("CS") that Valdez "was attempting to
purchase a large quantity of cocaine from a source of supply in
Texas." According to CS, Valdez offered to pay CS if CS, using
Valdez's money, bought several kilograms of cocaine from the Texas
source.
On July 10, 2019, CS and Valdez discussed logistics
while law enforcement officers monitored the conversation. Valdez
told CS that he had "paid participants well for helping him with
prior drug shipments." On July 11, 2019, Valdez delivered $450,000
to CS for the cocaine.
On July 15, 2019, at a meeting in Texas that Valdez
arranged, CS delivered the money to the Texas source. Two days
later, at Valdez’s instruction, CS received eighteen kilograms of
cocaine from the Texas source to transport to Valdez, who was in
Boston. Anticipating the delivery, law enforcement agents gave CS
"[seventeen] sham kilogram packages and [one] kilogram of actual
cocaine for delivery to Valdez." CS then met Valdez and delivered
these packages, but Valdez was stopped and arrested by law
enforcement.
A grand jury in the United States District Court for the
District of Massachusetts indicted Valdez in August 2019, charging
him with (1) conspiracy to distribute and possess, with intent to
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distribute, five or more kilograms of cocaine, 21 U.S.C. § 846("Count One"); and (2) possession with intent to distribute 500
grams or more of cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(B)(ii)
("Count Two").
Valdez and the government attended a discovery
conference before the United States Magistrate Judge on
December 23, 2019. At the conference, the government informed the
Magistrate Judge that it had provided all required discovery under
District of Massachusetts Local Rule 116.1. Local Rule
116.1(c)(1)(E) obligates the government to provide to the
defendant "the name of any person asserted to be a known unindicted
coconspirator." L.R., D. Mass. R. 116.1(c)(1)(E).
B. Valdez's Guilty Plea
Valdez appeared before the district court to plead
guilty without entering a plea agreement to both counts on
September 21, 2020. The district court conducted a Federal Rule
of Criminal Procedure 11 colloquy with Valdez.1 First, the
district court verified that Valdez was a high school graduate and
asked if he was competent to plead guilty, ascertaining that he
was not previously treated for mental illness and was not presently
1Although it is undisputed that Valdez can "understand some
English," he primarily speaks Spanish. So the district court
proceeded with the assistance of a certified court interpreter,
having Valdez respond in Spanish and the interpreter translate his
responses into English.
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under the influence of alcohol, narcotics, or medication of any
kind. Second, the district court asked Valdez if he had "received
a copy of the indictment . . . and . . . discussed those charges
and the case in general with" his attorneys, to which Valdez
replied, "Yes." The district court followed up on this point in
the following exchange:
THE COURT: And in your own words, Mr. Valdez,
what do you understand that you are being
charged with here this afternoon?
VALDEZ: Yes.
THE COURT: What crime do you understand that
you are being charged with here this
afternoon?
VALDEZ: I'm not sure. I'm not sure how to
call them, how to call the charges.
THE COURT: Well, I don't need a technical
name. What do you understand you're here for?
VALDEZ: Conspiracy for 5 kilos or more.
THE COURT: 5 kilos of what?
VALDEZ: Cocaine.
Third, the district court inquired into whether Valdez
understood the consequences of his guilty plea. Beyond informing
him that he would give up certain civil rights, the district court
asked the government to read the charges and note "if there [were]
any mandatory minimums." The government did so for both counts,
noting that (1) Count One carried a ten-year mandatory minimum,
and (2) Count Two carried a five-year mandatory minimum. The
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district court then asked if Valdez understood these consequences,
to which he replied that he did. Finally, the district court
explained to Valdez the advisory nature of the Sentencing
Guidelines, the district court's wide discretion in imposing a
sentence, and the constitutional rights -- such as the right to a
trial by jury and the right to counsel at trial -- that he would
give up by pleading guilty, before asking Valdez once more if he
understood the consequences of his guilty plea. Valdez said that
he indeed understood.
The government then recited the facts, as stated above,
underlying Valdez's plan to purchase cocaine from the Texas source.
The district court asked Valdez if he disagreed with what the
government claimed it could prove were the case to go to trial.
Valdez said "[n]o" and pled guilty. The district court accepted
his plea.
Five months later, on February 21, 2021, Valdez filed a
pro se motion to withdraw his guilty plea to Count One. On April 2,
2021, Valdez received substitute counsel, who filed a supplemental
memorandum supporting the motion. The motion (and memorandum)
contended that the district court should vacate Valdez's plea
because he conspired only with a government source, nullifying the
underlying conspiracy.
The district court denied the motion. It conceded that
"one cannot conspire solely with a government agent" but
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recognized that this conspiracy featured three coconspirators:
Valdez, CS, and the Texas source, who was not a government agent.
The district court further remarked that Valdez did not argue "that
his plea was made without his knowledge, intelligence and volition"
beyond this point.
Valdez filed two additional pro se motions on April 15
and June 3, 2022. His first motion sought to dismiss Count One on
the same basis as his motion to withdraw his guilty plea.2 His
second motion presented a new issue; in Valdez's view, the
government improperly enhanced his mandatory-minimum sentence
based on a prior conviction under 21 U.S.C. § 841(b)(1)(A) without
providing notice to the court, as required by 21
U.S.C. § 851(a)(1). The district court denied Valdez's first
motion for the reasons it explained in its earlier opinion. And
it denied the second motion without prejudice, reasoning that it
concerned an issue better suited for the sentencing hearing.
C. Sentencing
The district court held Valdez's sentencing hearing on
July 6, 2022. It began the hearing by noting that it considered
both parties' memoranda, the letters supporting Valdez, and the
PSR. Neither party objected to the PSR, which articulated the
This motion included an affidavit, in which Valdez stated
2
that his trial counsel did not explain the charges to him because
his trial counsel did not inform him that he could not "conspire
with a [g]overnment informant."
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same facts that we have summarized. Both parties agreed with how
the PSR calculated Valdez's advisory sentencing guideline range,
which the district court adopted -- finding that Valdez had a total
offense level of twenty-nine under U.S.S.G. §§ 2D1.1(a)(5) and
3E1.1(a)-(b) and a criminal history category of I, resulting in a
recommendation of 87 to 108 months imprisonment. Nevertheless,
the PSR noted, and both Valdez and the government agreed, that
Valdez was subject to a mandatory minimum sentence of 120 months'
imprisonment.
The PSR acknowledged that Valdez met the first four
criteria to qualify for the safety valve under 18 U.S.C.
§ 3553(f)(1)-(4) and U.S.S.G. § 5C1.2, which permits a federal
district court to sentence an offender below a statutory mandatory
minimum. According to the PSR, if the district court found that
Valdez met the fifth criterion by proving that he "truthfully
provided to the Government all information and evidence [he] has
concerning the . . . offenses[,]" U.S.S.G. § 5C1.2(a)(5), then the
district court could reduce Valdez's offense level by two points
to twenty-seven. This would place his advisory sentencing range
between seventy and eighty-seven months.
No one brought compliance with the fifth safety-valve
factor to the district court's attention at the sentencing hearing.
Instead, Valdez's counsel acknowledged that "[t]his [was] one of
those . . . occasions where the guidelines are lower than the
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mandatory minimum" but requested a 120-month mandatory-minimum
sentence anyway. The district court afforded Valdez and his
counsel a chance to raise any other issue before pronouncing a
sentence, but neither chose to do so. The district court,
therefore, sentenced him to 120 months' imprisonment on Count One
and sixty months' imprisonment on Count Two, to be served
concurrently, followed by five years of supervised release (a
sentence which is not at issue here). This timely appeal followed.
II. DISCUSSION
A. Motion to Withdraw Guilty Plea
Valdez's argument -- that the district court should have
granted his motion to withdraw his guilty plea "because it is a
legal impossibility to conspire with a governmental agent to commit
a crime" -- is a moving target. At times, he contends that this
principle invalidates his plea and Count One altogether, and thus
the district court should have granted his motion to withdraw his
plea. At other points, Valdez posits that the district court
should have granted his motion to withdraw because his plea was
not knowing, voluntary, and intelligent. In doing so, he contends
that the district court should have clarified whether he understood
that he could not illegally conspire with a government agent.3
3Valdez believes that his counsel was constitutionally
ineffective for "pressuring him to plead guilty" to Count One, and
he asks us to consider this in determining whether his plea was
knowing, intelligent, and voluntary. Where an
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We begin our analysis with the Rule 11 standard. "A
defendant may withdraw a guilty plea before sentence is imposed if
he shows 'a fair and just reason for requesting the withdrawal.'"
United States v. Isom, 580 F.3d 43, 52 (1st Cir. 2009) (quoting
United States v. Sousa, 468 F.3d 42, 46 (1st Cir. 2006); Fed. R.
Crim. P. 11(d)(2)(B)). Generally, we weigh "the totality of the
circumstances"4 in determining whether a defendant has met that
burden. United States v. Fonseca, 49 F.4th 1, 7 (1st Cir. 2022)
ineffective-assistance of counsel claim was not raised below,
"[w]e typically require that [the] claim be presented first to the
district court in a collateral proceeding" under 28 U.S.C. § 2255so that the district court may create a factual record. United
States v. Ramirez-Benitez, 292 F.3d 22, 31 (1st Cir. 2002) (citing
United States v. Campbell, 268 F.3d 1, 7 (1st Cir. 2001)); see
United States v. García-Núñez, 71 F.4th 1, 11–12 (1st Cir. 2023).
Indeed, to litigate the effectiveness of counsel as grounds to
withdraw a guilty plea in an ongoing criminal proceeding, the
defendant must both raise the issue below and develop a record
that "would allow us to fairly consider his claim." United States
v. Fernández-Santos, 856 F.3d 10, 17 & n.3 (1st Cir. 2017). Upon
review, the record appears to be too sparse to rule on this claim
right now, so we decline to address the issue here. See id.;
García-Núñez, 71 F.4th at 11. We note that, in so declining, our
decision is "without prejudice to [Valdez's] right to pursue [the
claim] later" in a collateral proceeding. Fernández-Santos, 856
F.3d at 18 (citing United States v. Mala, 7 F.3d 1058, 1063 (1st
Cir. 1993)).
4 We have expressed alternative formulations of this test
regarding when we must consider prejudice to the government.
Compare United States v. Dunfee, 821 F.3d 120, 127 (1st Cir. 2016)
(per curiam), and Isom, 580 F.3d at 52, with United States v.
Adams, 971 F.3d 22, 38 (1st Cir. 2020), and United States v.
Gardner, 5 F.4th 110, 123 (1st Cir. 2021) (Lynch, J., dissenting).
The circumstances here, however, weigh against Valdez so much that
we need not consider prejudice at all. See Fonseca, 49 F.4th at
7 n.1.
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(citing United States v. Gardner, 5 F.4th 110, 118 (1st Cir.
2021)). Such circumstances include "whether the plea was
voluntary, intelligent, knowing and in compliance with Rule 11;
the strength of the reasons offered in support of the motion;
whether there is a serious claim of actual innocence; [and] the
timing of the motion." United States v. García-Núñez, 71 F.4th 1,
9 (1st Cir. 2023) (alterations in original) (quoting Isom, 580
F.3d at 52). "[T]he 'core concerns of Rule 11,' whether the plea
was knowing, intelligent, and voluntary, are the most important
when reviewing a district court's denial of a motion to withdraw
a guilty plea." Id. (citation omitted) (quoting Isom, 580 F.3d at
52).
Under Rule 11, the district court must inform a defendant
of "the elements of the charges that the prosecution would have to
prove at trial." United States v. Fernández-Santos, 856 F.3d 10,
16 (1st Cir. 2017) (quoting United States v. Gandia-Maysonet, 227
F.3d 1, 3 (1st Cir. 2000)). "The manner in which the charge is
explained and the method for determining the defendant's
understanding of the charge will vary from case to case depending
upon the complexity of the charges, the capacity of the defendant,
and the attendant circumstances." United States v. Ketchen, 877
F.3d 429, 432–33 (1st Cir. 2017) (quoting United States v.
Cotal-Crespo, 47 F.3d 1, 6 (1st Cir. 1995)). "Ordinarily, 'it is
sufficient in a plea colloquy for a district court to ascertain
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that a defendant is aware of the nature of the charge[s] against
him by reading the charge[s] in the indictment to the defendant
and obtaining his competent acknowledgment that he understands the
charge[s].'" Fernández-Santos, 856 F.3d at 16 (alterations in
original) (quoting United States v. Ramos-Mejía, 721 F.3d 12, 15
(1st Cir. 2013)).
1. Standard of Review
"We review an unpreserved Rule 11 claim for plain error."
United States v. Williams, 48 F.4th 1, 5 (1st Cir. 2022) (citing
United States v. Vonn, 535 U.S. 55, 58–59 (2002)). Preserved
claims, however, are reviewed for an abuse of discretion. See
García-Núñez, 71 F.4th at 9. Valdez raised his primary
argument -- that he pled guilty to conspiring with a government
agent, which is not a crime, so his motions should have been
granted -- below. For that issue, we use the abuse-of-discretion
standard. See id.
But the same cannot be said for his claim that his plea
was not knowing, intelligent, and voluntary. Nothing in the
record5 reveals that this claim was raised squarely to the district
5 To be clear, tucked away in an attachment to his pro se
motion, Valdez claimed that his guilty plea was "not knowingly nor
was it intelligently made because . . . I was never told that I
cannot be held responsible for me conspiring with a government's
informant." Reading this in context, however, reveals that Valdez
was reiterating his contention that he could not be convicted of
conspiracy. And, in any event, this "perfunctory" reference did
not preserve the issue for appeal. United States v. Zannino, 895
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court, and that is a necessary predicate to evade plain error
review. See id. at 9-10. Therefore, we take a bifurcated
approach, asking whether the district court: (1) abused its
discretion when it denied Valdez's motion to withdraw because he
could not be convicted for conspiring with a government agent; or
(2) plainly erred when it denied his motion because Valdez did not
know, and was not informed, of this requirement.
2. Conspiring with a Government Agent
Although a person may not be convicted for conspiring
only with a government agent, "the plurality requirement is
satisfied by the participation of 'two' true conspirators . . . ."
United States v. Giry, 818 F.2d 120, 126 (1st Cir. 1987); see also
United States v. Cordero, 668 F.2d 32, 43 (1st Cir. 1981)
(rejecting legal-innocence argument where government agent was
interlocutor between two non-governmental co-conspirators); United
States v. Cordero, 973 F.3d 603, 617 (6th Cir. 2020) ("[I]t is
well-settled law that a defendant's conversations with a
government agent may be used to establish the existence of a
conspiracy between the defendant and other, non-government
co-conspirators." (citations omitted)); United States v. Wenxia
Man, 891 F.3d 1253, 1265 (11th Cir. 2018) ("[A] government informer
may serve as the connecting link between conspirators." (internal
F.2d 1, 17 (1st Cir. 1990); see also United States v. Zenon-
Rodriguez, 289 F.3d 28, 35 (1st Cir. 2002).
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quotation marks and original alterations omitted) (quoting Sears
v. United States, 343 F.2d 139, 142 (5th Cir. 1965))). The facts
that Valdez agreed to at the change-of-plea hearing revealed two
true conspirators: Valdez and the Texas source.
Valdez approached CS only to secure the shipment of
cocaine from the Texas source. He also arranged the meeting in
Texas between CS and the Texas source, gave $450,000 to CS to
deliver to the Texas source, and directed CS to bring the drugs
back to Boston from the Texas source. Thus, Valdez admitted to
arranging a three-way drug deal, in which one of the coconspirators
was not a government agent.
Considering these facts, Valdez's motion to withdraw his
guilty plea rested on faulty grounds. Cf. United States v. Ramos,
810 F.2d 308, 312 (1st Cir. 1987) ("[I]f [a] defendant's factual
contentions create no 'legally cognizable defense' to the charges,
'he has not effectively denied his culpability,' and the motion
can be denied." (quoting United States v. Barker, 514 F.2d 208,
220 (D.C. Cir. 1975) (en banc))). It was enough that Valdez pled
guilty "to participating in a conspiracy that involved at least
one other person" who was not a government agent to be "guilty of
conspiracy." United States v. Delarosa Arias, 979 F.3d 80, 82
(1st Cir. 2020) (quoting United States v. Matos-Quiñones, 456 F.3d
14, 21 (1st Cir. 2006)) (citing United States v. Penagaricano-
Soler, 911 F.2d 833, 840 n.5 (1st Cir. 1990)). The district court
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correctly recognized this, so it acted within its discretion when
it denied Valdez's motion.
3. Understanding of the Conspiracy Charge
"The defendant's burden under the plain error standard
is a heavy one." United States v. Ramirez-Benitez, 292 F.3d 22,
27 (1st Cir. 2002). This requires Valdez to show "(1) 'an
error . . . (2) which was clear or obvious and which not only
(3) affected [his] substantial rights, but also (4) seriously
impaired the fairness, integrity, or public reputation of judicial
proceedings.'" United States v. Abraham, 63 F.4th 102, 110 (1st
Cir. 2023) (alterations in original) (quoting United States v.
Pennue, 770 F.3d 985, 989 (1st Cir. 2014)). With this in mind, we
find no error here for a few reasons.
First, the record belies his claim that he was unaware
of the identity of his coconspirator in Texas. The government
provided Valdez with all required discovery at the discovery
conference, including "the name of any . . . known unindicted
coconspirator." L.R., D. Mass. 116.1(c)(1)(E). Valdez does not
dispute this, so he cannot fault the district court for not
informing him of information that he possessed.
Second, the colloquy at Valdez's Rule 11 hearing shows
that he understood enough about the charges to satisfy the Rule's
requirements. Valdez, who was a high school graduate, acknowledged
that he understood the charges and the mandatory minimum sentence
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that he faced at the change-of-plea hearing. He explained that he
was pleading guilty to conspiracy to distribute five or more
kilograms of cocaine. He told the district court that he discussed
the charges, and the case in general, with his counsel. And he
reassured the district court that he understood the consequences
of his guilty plea. See, e.g., Ramos-Mejía, 721 F.3d at 15–16
(affirming the acceptance of a guilty plea where the defendant
acknowledged that he understood the charges, reviewed them with
his counsel, and comprehended the consequences of pleading
guilty).
The nature of the conspiracy charge did not require more
in-depth discussion. "[W]hile the subtleties of conspiracy law
may be the bane of criminal law students, the basic principle is
easily understood: a group of people agreeing to do something
illegal." United States v. Carter, 815 F.2d 827, 829 (1st Cir.
1987). Thus, the district court could recite the charges, the
possible punishments, and the facts proving that Valdez committed
this run-of-the-mill crime to satisfy Rule 11's explanation
requirement. See id. (affirming where the judge read the charges
to the defendant, a high school graduate, who replied that he
understood them); United States v. Jones, 778 F.3d 375, 382–83
(1st Cir. 2015).
We have rejected calls to require district courts to
explain the nuances of criminal law under similar circumstances.
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See Jones, 778 F.3d at 382–83 (conspiracy to traffic cocaine);
Fernández-Santos, 856 F.3d at 16 (possession with intent to
distribute cocaine). For example, in United States v. Cahill, we
rejected a defendant's attempt to invalidate a guilty plea on the
basis that the district court did not confirm that he understood
the requisite intent for constructive possession of a firearm as
a convicted felon. 85 F.4th at 621-23 (reviewing for plain error).
We focused first on the defendant's assurances to the district
court that he understood the charges and reviewed them with
counsel, who explained them to him. Id. at 622. Because "the
district court was not required . . . 'to explain the elements of
each charge to the defendant on the record[,]'" it was not required
to go over, in detail, the legal rationale for the defendant's
culpability where the record showed that he reviewed his charges
with counsel and had them explained to him. Id. (quoting Bradshaw
v. Stumpf, 545 U.S. 175, 183 (2005)) (citing United States v.
Cruz-Rivera, 357 F.3d 10, 13 (1st Cir. 2004)).
So too here. Valdez explained to the district court
that he understood the charges, that he reviewed the charges with
his counsel, and that he understood the consequences of pleading
guilty. The district court "did not have to then explain" to
Valdez "the 'intricacies' of" the plurality requirement "or the
other legal doctrines that might be at issue in his case." Id.(citing Cruz-Rivera, 357 F.3d at 13). Accordingly, we affirm the
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district court's denial of Valdez's motion to withdraw his guilty
plea.
B. Application of the Safety Valve
Valdez next submits that his sentence was "procedurally
and substanti[vely] unreasonable" because the district court did
not explain why it did not find Valdez eligible for the safety
valve. Valdez, however, waived this argument.
"Waiver is the intentional relinquishment or abandonment
of a known right." United States v. Carter, 19 F.4th 520, 524
(1st Cir. 2021) (citing United States v. Rodriguez, 311 F.3d 435,
437 (1st Cir. 2002)). "[A] party waives an issue by 'purposefully
abandon[ing] it, either expressly or by taking a contrary position'
in the district court[.]" United States v. Ruiz-Valle, 68 F.4th
741, 746 (1st Cir. 2023) (quoting United States v. Chen, 998 F.3d
1, 6 (1st Cir. 2021)). "Waivers allow trial courts to narrow the
issues and concentrate scarce judicial resources on genuinely
contested matters -- and when a trial court makes a reasoned
decision, it is unfair to allow a party to subvert that decision
by resurrecting a waived claim." United States v. Orsini, 907
F.3d 115, 119 (1st Cir. 2018) (citing United States v.
Torres-Rosario, 658 F.3d 110, 116 (1st Cir. 2011)).
Valdez was aware of the statement in the PSR yet took a
contrary position by asking for the mandatory-minimum sentence.
The PSR informed Valdez and his counsel that he qualified for the
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safety valve if he met the fifth criterion. At the sentencing
hearing, the district court asked Valdez and his counsel repeatedly
if they agreed with the advisory sentencing range in the PSR, if
they had any objections to the PSR, and if they had anything else
to bring to the district court's attention. Neither did so.
Instead, they sought the mandatory-minimum sentence. "And by
telling the district court that it could sentence him" to 120
months in prison, Valdez "waived any claim that the court could
not do so" without considering the safety valve.6 Ruiz-Valle, 68
F.4th at 745–46; see also, e.g., United States v. Escobar-Figueroa,
454 F.3d 40, 49 (1st Cir. 2006) (finding that the defendant waived
6 In limited instances we have excepted "purely legal
questions" from waiver. Orsini, 907 F.3d at 120; see United States
v. Mulkern, 49 F.4th 623, 641 (1st Cir. 2022) (Barron, C.J.,
concurring in part and dissenting in part). We apply this
exception "only sparingly," Orsini, 907 F.3d at 120, where "the
equities heavily preponderate in favor of such a step." Mulkern,
49 F.4th at 635 (quoting Nat'l Ass'n of Soc. Workers v. Harwood,
69 F.3d 622, 627 (1st Cir. 1995)). And we, in part, "consider
factors 'such as whether the inadequately preserved arguments are
purely legal, are amenable to resolution without additional
factfinding, are susceptible to resolution without causing undue
prejudice, are highly convincing, are capable of repetition, and
implicate matters of significant public concern.'" Orsini, 907
F.3d at 120-21 (quoting Sindi v. El-Moslimany, 896 F.3d 1, 28 (1st
Cir. 2018)). This "hen's teeth rare" exception does not apply
here. Id. at 120. Valdez's challenge revolves around whether he
"truthfully provided" information to the government to qualify for
the safety valve, which requires factfinding. United States v.
Harakaly, 734 F.3d 88, 98 (1st Cir. 2013) (noting that a defendant
must prove entitlement to the safety valve by a preponderance of
the evidence). This alone counsels strongly against exempting
Valdez from the consequences of his waiver, so we shall not do so
here.
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an argument that § 3B1.2(b) applied where he did not raise the
issue and his counsel expressed satisfaction with the sentence
absent that provision).
Valdez's pro se7 motion concerning § 851 does not alter
this conclusion. He argued only that the government did not file
a § 851 notice, as it must do when it seeks to enhance the
statutory minimum or maximum penalties that apply to a given
defendant based on a prior conviction for a relevant drug offense.
21 U.S.C. § 851(a)(1). However, the government did not seek to
increase the applicable mandatory-minimum sentence based on
Valdez's prior convictions. Cf. Suveges v. United States, 7 F.3d
6, 9 (1st Cir. 1993) ("[S]ection 851 is not in play . . . where,
as here, the defendant is sentenced . . . to a prison term that
falls within a non-enhanced statutory minimum-maximum range.")
Valdez's pro se motion -- making an irrelevant argument
under § 851, which would not affect the baseline,
mandatory-minimum sentence that he requested -- thus did not
7 Valdez's pro se status would not permit us to treat his
motion as one made under § 5C1.2 and preserved or raised below to
the district court. We hold pro se filings "to less demanding
standards than those drafted by lawyers and endeavor, within
reasonable limits, to guard against the loss of pro se claims due
to technical defects." Dutil v. Murphy, 550 F.3d 154, 158 (1st
Cir. 2008) (citing Bolvin v. Black, 225 F.3d 36, 43 (1st Cir.
2000)). Holding him to those "reasonable limits," we cannot
discern any basis upon which the district court would glean that
Valdez's motion really took aim at the baseline, mandatory-minimum
sentence of ten years. Id.- 20 -
prevent his waiver here. Cf. United States v. Colón-De Jesús, 85
F.4th 15, 25 (1st Cir. 2023) (recognizing that general objections
to a sentence do not preserve unsaid issues); United States v.
Soto-Soto, 855 F.3d 445, 448 n.1 (1st Cir. 2017).
III. CONCLUSION
For the foregoing reasons, the denial of Valdez's motion
and the judgment below are affirmed.
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