United States v. Jose Rivera , 209 F. App'x 618 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2940
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the District of
* Nebraska.
Jose Rivera, *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 14, 2006
Filed: December 26, 2006
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Before BYE, COLLOTON, and BENTON, Circuit Judges.
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PER CURIAM.
Jose Rivera appeals the 188-month sentence imposed after he pleaded guilty to
conspiracy to distribute and possess with the intent to distribute 500 grams or more
of a substance containing methamphetamine, 50 grams or more of a substance
containing crack cocaine, and 5 kilograms or more of a substance containing cocaine
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1), 846. He argues the district court1
abused its discretion in rejecting his initial plea agreement. We affirm.
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
On October 20, 2004, a grand jury returned a four-count indictment charging
Rivera with drug and firearm crimes. On August 4, 2005, pursuant to Federal Rule
of Criminal Procedure 11(c)(1)(C), a plea agreement was filed with the court in which
Rivera agreed to plead guilty to the drug conspiracy count of the indictment, cooperate
with the government, and waive certain rights in exchange for the government's
promise to drop the remaining charges. The parties agreed Rivera should be
imprisoned for 168 months. On August 5, 2005, consistent with the plea agreement,
Rivera pleaded guilty to the drug conspiracy count. Pursuant to Rule 11(c)(3), the
district court accepted Rivera's guilty plea but deferred acceptance of the plea
agreement pending review of the presentence report (PSR). The PSR recommended
a U.S. Sentencing Guidelines (Guidelines) advisory imprisonment range of 235-293
months which reflects an offense level of thirty-seven with a Category II criminal
history.
On February 28, 2006, the district court rejected the plea agreement explaining:
(1) the 168-month plea agreement sentence fell twenty months below the low end of
the most lenient advisory Guidelines calculations2 and sixty-seven months below the
low end of the range recommended in the PSR; and (2) Rivera's co-defendant and
brother, regarded by the PSR preparer and at least one witness as similarly culpable,
was sentenced to 292 months imprisonment following a jury trial. The district court
determined the plea agreement lacked a "justifiable reason," within the meaning of
Guideline § 6B1.2(c)(2)(A), to depart from the advisory Guideline range as stated in
the PSR. The district court informed Rivera of his right to withdraw his guilty plea.
2
In a letter dated February 22, 2006, the United States represented the proposed
168-month sentence would not undermine the goals of sentencing but acknowledged
the plea agreement reflected a Guidelines calculation error and the low end of Rivera's
imprisonment range should have been 188 months which reflects an offense level of
thirty-five with a Category II criminal history.
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On May 24, 2006, the United States and Rivera filed a new, non-cooperation
plea agreement based on an offense level of thirty-five with a Category II criminal
history; the parties agreed Rivera should be sentenced within a Guidelines range of
188-235 months. At a July 12, 2005 plea and sentencing hearing, the district court
accepted the second plea agreement after determining Rivera's guilty plea was
knowing, intelligent, and voluntary. The court sentenced Rivera to a term of 188
months imprisonment.
On appeal, Rivera contends the district court failed to appropriately consider
the factors set forth in 18 U.S.C. § 3553(a) in rejecting the first plea agreement. While
he concedes the Guidelines range "is a starting point" and an important sentencing
factor for consideration of a Rule 11(c)(1)(C) agreement, Rivera argues a court "must
vary" from the Guidelines where other § 3553(a) factors would render a sentence
within the Guidelines unreasonable. He also asserts the district court improperly
"entered the plea bargaining process" when it adopted the PSR's facts and conclusions
and determined the first plea agreement would create a disparity between Rivera's
proposed sentence and his brother's sentence and undermine the Guidelines.
"Whether to approve or reject a plea agreement is a matter confided to the
sound discretion of the trial court" which is reviewed for abuse of discretion. United
States v. Nicholson, 231 F.3d 445, 451 (8th Cir. 2000). Rivera does not contend the
district court participated in any of the discussions between the United States and
Rivera which preceded the entry of the first plea agreement. Presented with the first
plea agreement, the district court did not modify it in any way but rejected it in its
entirety, gave Rivera the opportunity to change his plea, and directed the parties to
inform the court of how they intended to proceed. Thus, we find the district court did
not meddle in the plea bargaining process.
We need not and do not reach any of the other issues Rivera presents for
review. Rivera chose to affirm his guilty plea and enter into the second plea
agreement which called for a sentencing range of 188-235 months. The district court
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sentenced Rivera to a term at the lowest end of this range. Rivera does not contest the
district court's finding he knowingly, intelligently, and voluntarily agreed to the
second plea agreement. Therefore, regardless of whether the district court properly
rejected the first plea agreement, Rivera's second plea agreement was made with a full
understanding of the possible consequences and therefore cured any prejudice possible
from the first proceeding. See United States v. Walker, 927 F.2d 389, 391 (8th Cir.
1991) (noting a defendant's "subsequent action of entering into a plea agreement cured
any potential prejudice from the first [plea agreement] proceeding"); United States v.
Olesen, 920 F.2d 538, 543 (8th Cir. 1990) ("If the district court had merely rejected
the agreement and allowed the parties to renegotiate, this court could have affirmed
the sentence based on the subsequent plea agreement."); cf. United States v. Nguyen,
46 F.3d 781, 783 (8th Cir. 1995) ("A defendant who explicitly and voluntarily exposes
himself to a specific sentence may not challenge that punishment on appeal.").
Accordingly, we affirm.
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