United States v. Almonte-Nunez , 771 F.3d 84 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-1896
UNITED STATES OF AMERICA,
Appellee,
v.
EDWIN OMAR ALMONTE-NUÑEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Howard, Selya and Stahl,
Circuit Judges.
Heather Golias, with whom Law Office of Heather Golias was on
brief, for appellant.
John A. Mathews II, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Thomas F. Klumper, Assistant United States Attorney,
were on brief, for appellee.
November 14, 2014
SELYA, Circuit Judge. When the government enters into a
plea agreement with a criminal defendant, it acquires a duty to
carry out the obligations it has undertaken in both letter and
spirit. This duty devolves upon the government's attorneys. But
those attorneys, as officers of the court, remain bound by their
corollary duty to provide full and accurate information about the
offense and the offender to the sentencing court. As this case
illustrates, these dual obligations sometimes require prosecutors
to walk a fine line.
I. BACKGROUND
We draw the facts from the plea agreement, the change-of-
plea colloquy, the presentence investigation report (PSI Report),
and the transcript of the disposition hearing. See United States
v. Fernández-Cabrera, 625 F.3d 48, 50 (1st Cir. 2010).
Early on the morning of September 30, 2011, Puerto Rico
police officers pursued a car in Caparra Heights. The car careened
into a pole and defendant-appellant Edwin Omar Almonte-Nuñez was
observed clambering out of the wreck. The defendant threw a pistol
on the floor as he went. He and a passenger were arrested.
There had been a robbery in the neighborhood, leaving an
injured victim behind. During a search incident to arrest, some of
the victim's property (including her passport) was found in the
suspects' possession.
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The defendant admitted participating in the robbery. He
further admitted using the pistol to strike the victim, a 78-year-
old widow. The victim explained in a sworn statement that the
defendant had placed the pistol to her forehead, threatened to
shoot her, twice struck her in the face with the pistol, and
restrained her against a wall. The victim suffered grievous
injuries, including the loss of her right eye.
A federal grand jury subsequently returned a superseding
indictment that charged the defendant in pertinent part with
robbing an individual of a United States passport in violation of
18 U.S.C. § 2112 (count 1), brandishing a firearm during a crime of
violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (count 2),
and being a convicted felon in possession of a firearm in violation
of 18 U.S.C. § 922(g)(1) (count 3). After initially maintaining
his innocence, the defendant executed a plea agreement (the
Agreement) and entered guilty pleas to all counts. See Fed. R.
Crim. P. 11(c)(1)(B).
In the Agreement, the government and the defendant agreed
to a series of guideline calculations, culminating in a total
offense level of 25. The parties pledged that neither of them
would argue for any further offense-level adjustments. The
defendant's criminal history category (CHC) was left open and,
thus, his guideline sentencing range (GSR) was undetermined.
Nevertheless, the Agreement allowed the defendant to argue for
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sentences on counts 1 and 3 at the low end of whatever GSR emerged
and allowed the government to argue for high-end sentences on those
counts. With respect to count 2, the parties jointly agreed to
advocate an 84-month sentence (to run consecutive to whatever
sentences the court imposed on the other counts).
The Agreement made clear that these sentencing
recommendations were not binding on the district court. To guard
against the possibility that the court might reject the proposed
calculations, the defendant agreed to waive his right to appeal
only if he was "sentenced in accordance with the terms and
conditions set forth in the Sentence Recommendation provisions" of
the Agreement.
We fast forward to March 14, 2013, when the probation
department submitted an amended PSI Report. This version contained
certain information not included in the Agreement's stipulated
facts. Pertinently, the PSI Report noted that the victim had been
threatened with death and restrained during the robbery. With this
in mind, the PSI Report suggested that the defendant's total
offense level should be 29 (not 25). See USSG §2B3.1(b)(2)(F)
(providing two-level enhancement for threat of death); id.
§2B3.1(b)(4)(B) (providing two-level enhancement for restraining
victim). It further recommended that the defendant be placed in
the highest available CHC: VI.
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At a sentencing conference held on April 16, 2013, two
noteworthy developments occurred. First, the court related its
inclination to adopt the two new enhancements proposed in the PSI
Report. Second, the court stated that it regarded the parties'
sentencing recommendation on counts 1 and 3 as too lenient.
The disposition hearing convened on June 14, 2013. The
defendant did not object to the appropriateness of CHC VI. He did,
however, object to the threat-of-death adjustment, arguing that
this enhancement would constitute double counting in light of the
charge limned in count 2. The Assistant U.S. Attorney (AUSA)
agreed that a threat-of-death adjustment would constitute double
counting. The court acquiesced, and that proposed adjustment
dropped out of the case.
The court followed up by asking the AUSA whether the
proposed restraint adjustment would be double counting. She
replied that it would not. The defendant did not challenge the
accuracy of this response but nonetheless beseeched the court to
use the total offense level adumbrated in the Agreement (25).
Later in the proceeding, the defendant objected to inclusion of the
restraint adjustment, maintaining that the government had not
mentioned that element in the plea negotiations and that, in all
events, there was insufficient evidence to justify a finding that
the victim had been restrained. The AUSA rejoined that the
government had provided full discovery and that the victim impact
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statement furnished a factual basis for the two-level restraint
enhancement. At the same time, however, the AUSA assured the court
that the government stood by the sentencing recommendations
delineated in the Agreement.
This exchange concluded with the court advising the
parties that it was inclined to incorporate the restraint
enhancement into the offense-level calculation. Doing so would
boost the defendant's offense level to 27, resulting in a GSR of
130 to 162 months.
The court then heard arguments about what sentence to
impose. The defendant's lawyer argued that, if the court used an
offense level of 27, it should impose a bottom-of-the-range 130-
month sentence on counts 1 and 3. While the AUSA reiterated that
the government stood by the Agreement and its sentencing
recommendations, she referenced the seriousness of the offenses,
the various aggravating factors, and the need for deterrence. When
the court made clear that the higher GSR would apply, the AUSA
recommended 137-month sentences on counts 1 and 3. Not
coincidentally, 137 months represented the high end of the GSR that
would have applied if the court had stuck with an offense level of
25. The court continued to press the AUSA about the restraint
enhancement, whereupon the AUSA repeated that there was a factual
basis for the enhancement but asked the court to impose a sentence
in accordance with the Agreement's sentence recommendation
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provisions (in other words, a sentence premised on an offense level
of 25).
The rest is history. The court applied the restraint
enhancement and set the defendant's total offense level at 27. The
GSR for counts 1 and 3 thus became 130 to 162 months. The court
sentenced the defendant to concurrent 150-month incarcerative terms
on those counts, to be followed by the agreed 84-month
incarcerative term on count 2. This timely appeal followed.
II. ANALYSIS
In this venue, the defendant presses two claims of error.
First, he says that the government breached the Agreement and that,
therefore, he should be resentenced before a different judge.
Second, he says that the 150-month sentence on count 3 must be
vacated because it exceeds the statutory maximum for that count.
There is, however, a threshold issue: the government
contends that the waiver-of-appeal clause contained in the
Agreement bars our review of the defendant's claims of error. We
start there.
A. Appeal Waiver.
It is black-letter law that a criminal defendant may
waive his right to appeal. See United States v. Teeter, 257 F.3d
14, 23 (1st Cir. 2001). We will enforce such a waiver as long as
"the defendant knowingly and voluntarily agreed to its terms and
enforcement would not result in miscarriage of justice." United
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States v. McCoy, 508 F.3d 74, 77 (1st Cir. 2007) (citing Teeter,
257 F.3d at 24-26).
Of course, a waiver of appeal precludes only those
appeals that fall within its scope. See Fernández-Cabrera, 625
F.3d at 51; McCoy, 508 F.3d at 77. In determining whether an
appeal is within the scope of a waiver provision, we interpret a
plea agreement according to traditional contract-law principles.
See United States v. Murphy-Cordero, 715 F.3d 398, 400 (1st Cir.
2013). Here, the terms of the waiver-of-appeal clause are
unequivocal: the defendant is foreclosed from appealing only if he
was "sentenced in accordance with the terms and conditions set
forth in the Sentence Recommendation provisions" of the Agreement.
As to counts 1 and 3, the sentence recommendation
provisions contemplated a total offense level of 25 (with no
further offense-level adjustments) and a sentence within the
ensuing GSR. Thus, for the defendant to have been sentenced in
accordance with the terms of the sentence recommendation
provisions, he would have had to be sentenced within a GSR derived
from an offense level of 25. Such a GSR, even at the highest
possible CHC (VI), tops out at 137 months. See USSG Ch.5, Pt.A,
sentencing table. The defendant's 150-month sentences on counts 1
and 3 were above this ceiling. It follows, as night follows day,
that the sentences imposed on counts 1 and 3 were not in conformity
with the Agreement's sentence recommendation provisions.
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Consequently, the waiver-of-appeal clause does not pretermit
appellate review. See, e.g., Murphy-Cordero, 715 F.3d at 400.
The government resists this conclusion. It asseverates
that the defendant was sentenced in conformance with the sentence
recommendation provisions because those provisions did not lock in
a particular GSR and the Agreement otherwise informed the defendant
that the district court retained ultimate sentencing discretion.
This is anfractuous reasoning, and we reject it.
We interpret a plea agreement as a whole and strive to
give effect to all of its terms. See United States v. Okoye, 731
F.3d 46, 49 (1st Cir. 2013). Here, the Agreement unambiguously set
the offense level at 25 and barred arguments in favor of further
adjustments. That the Agreement informed the defendant that the
district court retained ultimate sentencing discretion does not
eviscerate these commitments.1 The waiver-of-appeal clause is,
therefore, a dead letter.
B. Purported Breach.
We turn next to the defendant's claim that the government
failed to abide by the Agreement. Whether the government breached
the terms of a plea agreement is usually a question of law, which
1
With minimal effort, the government could have drafted a
waiver clause having the effect that it unrealistically ascribes to
the language actually used in the Agreement. See United States v.
Isom, 580 F.3d 43, 51 (1st Cir. 2009) (considering waiver provision
that applied "if the sentence imposed by the Court is within the
guideline range determined by the Court or lower." (emphasis
supplied) (internal quotation mark omitted)).
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we review de novo. See United States v. Clark, 55 F.3d 9, 11 (1st
Cir. 1995). But where, as here, the defendant fails to object to
the purported breach before the district court, review is only for
plain error. See Puckett v. United States, 556 U.S. 129, 143
(2009); United States v. Rivera-Rodríguez, 489 F.3d 48, 57 (1st
Cir. 2007).
The path of plain-error review is well traveled. The
appellant must shoulder the burden of showing "(1) that an error
occurred (2) which was clear or 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." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.
2001); accord United States v. Olano, 507 U.S. 725, 732 (1993).
Within this taxonomy, an error is deemed to affect substantial
rights when it likely affected the outcome of the proceedings. See
Puckett, 556 U.S. at 135.
The government perplexingly concedes that it breached the
Agreement's prohibition against supporting further adjustments by
advising the court that the record contained a factual basis for
the restraint adjustment. A federal court in a criminal case is
not obliged to accept the government's confession of error, see
United States v. Mescual-Cruz, 387 F.3d 1, 8 n.2 (1st Cir. 2004),
and we decline to do so here. Our cases make pellucid that the
AUSA was under an unflagging duty, as an officer of the court, to
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provide this accurate factual information to the sentencing judge
once the judge had raised the issue. See United States v. Gonczy,
357 F.3d 50, 53 (1st Cir. 2004). Because the AUSA's statements did
no more than fulfill this duty, they could not constitute a breach
of the Agreement. We explain briefly.
A defendant who enters a plea agreement waives a panoply
of constitutional rights and, therefore, we hold prosecutors to
"the most meticulous standards of both promise and performance."
United States v. Riggs, 287 F.3d 221, 224 (1st Cir. 2002) (internal
quotation marks omitted); see Clark, 55 F.3d at 12. Such standards
require more than lip service to, or technical compliance with, the
terms of a plea agreement. See Rivera-Rodríguez, 489 F.3d at 57;
United States v. Saxena, 229 F.3d 1, 6 (1st Cir. 2000).
However, this principle does not operate in a vacuum. We
repeatedly have emphasized that prosecutors have a concurrent and
equally solemn obligation to provide relevant information to the
sentencing court and that a plea agreement may not abridge that
obligation. See, e.g., Gonczy, 357 F.3d at 53; Saxena, 229 F.3d at
6; see also United States v. Canada, 960 F.2d 263, 270 n.7 (1st
Cir. 1992) ("It is necessary at all times that the government
'level' with the court as to the correct facts and calculations
relevant to guideline sentencing.").
In this instance, the Agreement obligated the government
"to refrain from arguing further guideline adjustments" to an
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offense level of 25. But there is a material difference between
answering questions asked by a sentencing court or bringing facts
to the court's attention and affirmatively supporting an
adjustment. See Clark, 55 F.3d at 13. The AUSA's statements here
plainly were made in response to the district court's inquiry and
to correct what the AUSA reasonably viewed as a misstatement of
fact by defense counsel. Seen in this light, those statements did
not cross the line into forbidden terrain: supporting an
enhancement entails an element of advocacy, and there was no such
advocacy by the prosecutor here. See Saxena, 229 F.3d at 7-8.
It is equally plain that the AUSA's substantive
sentencing argument did not transgress the Agreement. The AUSA
made the following argument:
Considering all of the facts and in this case
we are talking about a defenseless female, 70
year old woman, attacked in a way that nobody
should have to face a situation like this.
When she is sleeping, in a vulnerable state,
the way it happened and the vicious way that
he committed the crime, when he assaulted her
with no provocation on her part. The fact
that she suffered severe bodily injury, she
lost her right eye, and to this day she has
almost lost her eyesight. She is basically
blind at this point. She needs the continued
help of her family.
. . . .
We stand by the plea agreement and in a sense
we have to recommend to the Court the higher
end of the guideline, not the lower end. That
is considering the defendants [sic]
background, all [section] 3553 factors and the
need to protect the community from future
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crimes of this defendant and send a message
that crimes like this will not be tolerated.
. . . .
We are standing by the plea agreement with the
guidelines negotiated by the parties.
Following additional questioning from the court concerning the
restraint adjustment, the AUSA reiterated that the government
intended to adhere to the Agreement and twice recommended a 137-
month sentence. This sentencing recommendation tracked the
Agreement, which expressly permitted the government to seek a
sentence at the high end of the applicable GSR based on offense
level 25.
The defendant has a fallback position. He insists that
the AUSA's conduct, taken as a whole, conveyed the government's
tacit support for the restraint adjustment. A fair reading of the
transcript of the disposition hearing belies the defendant's
tendencious characterization. At no time did the AUSA advocate in
favor of the newly emergent restraint adjustment. To the contrary,
she repeatedly asserted that the government stood by the Agreement.
To be sure, it is possible for a prosecutor to undercut
a plea agreement while paying lip service to its covenants. Our
decision in Clark illustrates this point. There, we found a breach
of the plea agreement when the government, without formally
opposing a downward adjustment that it had agreed not to oppose,
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made it clear that it regarded the adjustment as inappropriate.
See 55 F.3d at 12.
We consider the totality of the circumstances in
determining whether a prosecutor engaged in impermissible tactics.
See, e.g., Gonczy, 357 F.3d at 53-54; Saxena, 229 F.3d at 6-7.
Here, there is no basis for concluding that the prosecutor
reaffirmed a promise to the defendant out of one side of her mouth
and tried to subvert it out of the other side. The AUSA said
nothing that could reasonably be construed as an indication that
she supported the restraint adjustment. No more is exigible: the
AUSA was not required to be effusive in refusing to support the
adjustment. Cf. Canada, 960 F.2d at 270 (explaining that a
prosecutor is not obliged to present an agreed representation "with
any particular degree of enthusiasm").
In a final effort to save a sinking ship, the defendant
suggests that there is more to the AUSA's argument than meets the
eye. He says that, peeking beneath the surface of the
recommendation, the AUSA insinuated that she was touting an overly
lenient sentence only because she was precluded from arguing for a
stiffer one. In particular, the defendant complains that the AUSA
"highlighted the vulnerable nature of the complainant and the
impact on her daily life." He adds that the court's earlier
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characterization of the recommended sentence as too lenient should
have put the government on notice of the need to tread lightly.2
This plaint leads nowhere. The Agreement allowed the
prosecutor to seek the upper end of the GSR contemplated by the
Agreement, and the AUSA was within fair territory in emphasizing
facts that made a sentence at the low end of that GSR
inappropriate. See Rivera-Rodríguez, 489 F.3d at 58. The
defendant admitted to committing a heinous crime resulting in
horrific injuries, and nothing contained in the Agreement entitled
him to have the government sugarcoat the facts.
To say more on this point would be to paint the lily.
Holding steady and true the delicate balance between the AUSA's
dual obligations and considering the totality of the circumstances,
no breach of the Agreement is evident.
C. Count 3 Sentence.
The defendant's remaining claim of error targets his
sentence on the firearm possession charge (count 3). His thesis is
that the sentence imposed must be vacated because it exceeds the
statutory maximum. Inasmuch as this claim is raised for the first
2
The defendant likewise laments that the AUSA referenced
certain facts not otherwise before the court concerning the
defendant's involvement of his common-law partner's son in the
robbery. While this reference may have been overzealous, it was
not objected to and, in all events, this aspect of the government's
advocacy in no way communicated support for a sentence beyond the
upper range of 137 months, fully in line with the Agreement.
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time on appeal, our review is for plain error. See Duarte, 246
F.3d at 60.
The statute of conviction for count 3 is 18 U.S.C.
§ 922(g)(1). The maximum sentence authorized by Congress for a
violation of this statute is 10 years (120 months). See 18 U.S.C.
§ 924(a)(2). In this case, count 3 was grouped with count 1 for
purposes of calculating the applicable offense level. See USSG
§3D1.2(a). The court warrantably determined that the GSR was 130
to 162 months and then imposed a 150-month concurrent sentence on
each of the two grouped counts.
With respect to count 3, this sentence constituted clear
and obvious error. Guideline calculations simply cannot usurp a
maximum level of imprisonment established by Congress. See United
States v. Saccoccia, 58 F.3d 754, 786 (1st Cir. 1995). Nor does
grouping by some mysterious alchemy blend the maximum penalties for
each of the grouped counts. See USSG §5G1.2, comment. (n.1)
(explaining that when a defendant is sentenced for multiple
convictions, the separate statutory maximums limit each sentence).
Consequently, the 150-month sentence on count 3 is above the
maximum sentence permitted by law.
Notwithstanding this manifest error, the government
argues that resentencing is unwarranted because the incorrect
sentence did not affect the defendant's substantial rights and,
therefore, did not amount to plain error. This argument is
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premised on the defendant's identical and concurrent 150-month
sentence on count 1.
We have not adopted a uniform rule about whether, without
a preserved claim of error, a defendant who is sentenced to a term
of imprisonment in excess of a statutory maximum is entitled to
relief even though his overall period of immurement will not be
affected. Compare, e.g., United States v. Matos, 611 F.3d 31, 36
(1st Cir. 2010) (denying relief), with United States v. García-
Ortiz, 528 F.3d 74, 84-85 (1st Cir. 2008) (granting relief).
Although particular cases may differ, flexibility exists and, under
normal circumstances, our discretion should be exercised in favor
of trimming back an excessive sentence. Our reasoning follows.
To begin, in an appropriate case, leaving intact a
sentence that exceeds a congressionally mandated limit may sully
the public's perception of the fairness of the proceeding. That
perception, in turn, may threaten respect for the courts and may
impair their reputation.
From the defendant's standpoint, collateral consequences
may arise as a result of an above-the-maximum sentence imposed on
a particular count. The existence and extent of these collateral
consequences are notoriously difficult to predict, but they have
the potential to harm the defendant in a myriad of ways. See
United States v. Bossany, 678 F.3d 603, 606-07 (8th Cir. 2012)
(recognizing that "mere presence of an excessive sentence in a
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defendant's record has the potential of causing prejudice"). It
strikes us as both unwise and unfair to place the risk of such harm
on the defendant where, as here, the excessive sentence is easy to
correct. See United States v. Kincaid, 898 F.2d 110, 112 (9th Cir.
1990) (refusing to place risk of future prejudice flowing from
erroneous sentence on defendant).
In the last analysis, correcting such an error will
rarely tax judicial resources and may (depending on what an
uncertain future brings) provide some small benefit to the
defendant. When (as in this case) there are no countervailing
circumstances, we believe that the interests of justice ordinarily
will tip the scales in favor of relief.
That ends this aspect of the matter. Because the
sentence on the firearm possession charge (count 3) exceeds the
statutory maximum, we direct the district court, on remand, to
enter a modified sentence of 120 months on that count. See United
States v. Barnes, 251 F.3d 251, 261 (1st Cir. 2001).
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we affirm the defendant's sentence on counts 1 and 2, but order the
court below to enter a modified sentence on count 3.
So Ordered.
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