United States v. Rodriguez-Adorno ( 2017 )

United States Court of Appeals
For the First Circuit
No. 16-1114
UNITED STATES OF AMERICA,
Appellee,
v.
RUBÉN RODRÍGUEZ-ADORNO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Barron, Circuit Judges.
Virginia G. Villa on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Thomas F. Klumper, Assistant United States
Attorney, Senior Appellate Counsel, on brief for appellee.
March 29, 2017
SELYA, Circuit Judge. Defendant-appellant Rubén
Rodríguez-Adorno, represented by newly-appointed counsel, attempts
to reinvent his case on appeal. His appellate briefing is long on
rhetoric and short on facts, and none of the issues that he
advances was raised below. Discerning no plain error, we affirm
the challenged conviction and sentence.
I. BACKGROUND
We briefly rehearse the background and travel of the
case, drawing the facts from the change-of-plea colloquy, the
uncontested portions of the presentence investigation report (PSI
Report), and the sentencing transcript. See United States v.
Dávila-González, 595 F.3d 42, 45 (1st Cir. 2010); United States v.
Dietz, 950 F.2d 50, 51 (1st Cir. 1991).
For about eight years, beginning around 2002, the
appellant participated in a drug-trafficking conspiracy run out of
a public housing project in Carolina, Puerto Rico. The drug ring
dealt in a cornucopia of controlled substances, including crack
cocaine, powder cocaine, heroin, marijuana, and assorted
prescription medications. The appellant functioned mostly as a
retail seller, peddling drugs throughout the project and its
environs. At other times, he served as a lookout, standing watch
while his confederates completed sales.
In May of 2010, a federal grand jury returned a six-
count indictment charging 70 persons (including the appellant)
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with a laundry list of offenses. As relevant here, count one
charged the appellant and others with conspiring to possess with
intent to distribute a panoply of controlled substances within a
protected location. See 21 U.S.C. §§ 841(a)(1), 846, 860. Other
counts charged the appellant with aiding and abetting the
distribution of heroin, cocaine, and marijuana within 1,000 feet
of a public housing project and with conspiring to possess a
firearm and ammunition during and in relation to the commission of
drug-trafficking crimes.
The appellant was not arrested until June of 2014.
Roughly four months later, he entered into a written plea agreement
(the Agreement), agreeing to plead guilty to count one. As part
of the bargain, the government agreed to dismiss the other charges
against him.
In the Agreement, the parties stipulated that the
appellant possessed at least 500 grams, but less than 2,000 grams,
of cocaine, notwithstanding that the drug ring was alleged to have
distributed "multiple kilograms" of several different kinds of
drugs. As a result, the appellant faced a statutory maximum
sentence of eighty years in prison. See 21 U.S.C. §§ 841(b)(1)(B),
860(a).
The Agreement included a number of provisions bearing
upon the appellant's prospective sentence (acknowledging, though,
that the sentencing court was neither bound nor constrained by any
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of these provisions). Of particular pertinence for present
purposes, the parties suggested a total offense level of 25, but
they did not stipulate to any criminal history category (CHC).
Instead, they agreed that if the appellant's CHC proved to be I or
II, he could argue for a sentence as low as sixty months and the
government could argue for a sentence as high as seventy months.
If, however, the appellant's CHC equaled or exceeded III, both
parties would recommend a sentence at the low end of whatever
guideline sentencing range (GSR) resulted. Regardless of what his
CHC turned out to be, the appellant promised not to ask for a
sentence of less than sixty months.
At the change-of-plea hearing, the court began by
offering to read the charges. The appellant declined the offer,
indicating that he knew the nature of the charges against him.
The court nonetheless proceeded to describe the relevant charges
in detail and also described the manner and means by which the
appellant and his coconspirators had allegedly carried out their
illicit activities. The appellant acknowledged that he had acted
in the manner that the court portrayed and confirmed that he wished
to plead guilty to the conspiracy count.
The court reminded the appellant that it was not bound
by the Agreement but, rather, was obliged to make its own guideline
calculations and could impose "any sentence provided by the law."
The appellant confirmed that he understood the court's position.
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In due course, the court accepted the appellant's guilty plea and
ordered the preparation of the PSI Report.
When the final version of the PSI Report emerged, it
identified four clusters of convictions aggregating to more than
ten individual convictions, two of which the probation officer
thought sufficient to serve as predicates for a career offender
enhancement under the sentencing guidelines. With this in mind,
the report recommended that the court set the appellant's total
offense level at 31 and place him in CHC VI. These recommendations
yielded a GSR of 188-235 months.
At the disposition hearing, the government urged the
court to impose a 100-month term of immurement.1 By contrast, the
appellant sought a sharply variant sentence and urged the court to
impose a seventy-month term of immurement. The court, after
adopting the guideline calculations adumbrated in the PSI Report,
sentenced the appellant to a 235-month incarcerative term — a
sentence that was within, but at the top of, the GSR. In fashioning
this sentence, the court considered, inter alia, the appellant's
personal characteristics, health, criminal history, and the nature
1 Because the Agreement did not specifically mention the
career offender enhancement, the government chose not to take that
enhancement into account in arriving at its sentencing
recommendation. Consequently, it recommended a sentence at the
low end of a hypothetical GSR, that is, a GSR calculated without
regard to the appellant's career offender status.
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of his participation in the offense of conviction. This timely
appeal followed.
II. ANALYSIS
The appellant challenges both his conviction and his
sentence. We discuss only those claims that show some slight
promise and summarily reject the remainder of his asseverational
array.
A. Conviction.
The appellant's principal plaint with respect to his
conviction is that his guilty plea was not knowing and voluntary.
We start our examination of this plaint with first principles:
before accepting a defendant's guilty plea, a court must "inform
the defendant of, and determine that [he] understands, . . . the
nature of each charge." Fed. R. Crim. P. 11(b)(1)(G); see United
States v. Jones, 778 F.3d 375, 382 (1st Cir. 2015). This
obligation extends to "the charges against [the defendant] and the
spectrum of possible penalties to which an admission of guilt will
expose him." United States v. Jimenez, 512 F.3d 1, 3 (1st Cir.
2007).
Seizing upon this requirement, the appellant insists
that the district court twice erred at the change-of-plea hearing:
when it failed to read count one of the indictment verbatim and
when it failed to inform him properly about the consequences of
his plea. Because he did not raise either of these claims below,
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our review is for plain error. See United States v. Vonn, 535
U.S. 55, 59 (2002). Plain error review imposes a heavy burden.
Under that daunting standard, the appellant must show "(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).
The appellant's first claim does not withstand even
cursory inquiry: the sentencing court simply was not obliged to
read the indictment verbatim. As we have noted, "Rule 11 does not
require a district court either to spout a fixed catechism or to
use a set of magic words." Jones, 778 F.3d at 382. By the same
token, it does not require that the court explore in minute detail
every nook and cranny of the charging document. See id.; United
States v. Cruz-Rivera, 357 F.3d 10, 13 (1st Cir. 2004). Reading
an indictment may be sufficient to inform a defendant of the
charges against him, see Jones, 778 F.3d at 382, but it is by no
means the only avenue through which a sentencing court can achieve
that end, see United States v. Cotal-Crespo, 47 F.3d 1, 6 (1st
Cir. 1995).
The appellant's more weighty claim is that the court's
failure to read count one verbatim rendered him unable to
"understand the scope of the offense to which he . . . plead[ed]
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guilty." At bottom, though, this claim rests on revisionist
history: at the change-of-plea hearing, the appellant affirmed
several times that he understood the charges and intended to plead
guilty. A defendant's admission that the allegations against him
are true is ordinarily sufficient proof that he understands the
charges. See United States v. Dunfee, 821 F.3d 120, 128 (1st Cir.
2016) (noting that declarations in open court "carry a strong
presumption of verity" (quoting United States v. Santiago Miranda,
654 F.3d 130, 138 (1st Cir. 2011))); United States v. Smith, 511
F.3d 77, 85 (1st Cir. 2007) (similar).
This case falls within that general rule, not within the
long-odds exception to it. The relevant inquiry on appeal focuses
on the totality of the circumstances, including "the attributes of
the particular defendant, the nature of the specific offense, and
the complexity of the attendant circumstances." Jones, 778 F.3d
at 382 (quoting United States v. Ramos-Mejía, 721 F.3d 12, 15 (1st
Cir. 2013)). In this instance, the court informed the appellant
that he was charged with conspiring to "knowingly and intentionally
possess with intent to distribute controlled substances." It then
described the offense conduct in some detail (including particular
methods and locations) and identified the appellant's role within
the conspiracy. The appellant confirmed his understanding of those
charges. No more was exigible to render the appellant's plea
knowing and voluntary.
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The appellant next contends that because neither the
Agreement nor the district court mentioned in haec verba that he
might be subject to the career offender enhancement,2 he did not
appreciate the consequences of his guilty plea. But this
contention mixes plums with pomegranates: the fact that the
appellant was not explicitly informed of the possibility of a
career offender enhancement does not mean that he was not
appropriately informed of the consequences of his plea. See
Jimenez, 512 F.3d at 3. After all, the Agreement specifically
contemplated that the appellant's CHC might be elevated and
established a sentencing framework that took account of that
possibility. The change-of-plea colloquy alluded to this
framework and, echoing the Agreement, warned the appellant that
the court would make its own guideline calculations and could
impose a sentence up to the statutory maximum for the offense of
conviction. These warnings were adequate. At this relatively
early stage in the process (that is, at the change-of-plea stage),
the court was not obligated to predict the future and "inform the
defendant . . . of the exact manner in which [his] future guideline
calculations may evolve." Jones, 778 F.3d at 383 (citing Fed. R.
2 The sentencing guidelines prescribe a career offender
enhancement when a defendant has "at least two prior felony
convictions of either a crime of violence or a controlled substance
offense." United States v. Montoya, 844 F.3d 63, 72 (1st Cir.
2016) (quoting USSG §4B1.1(a)). The enhancement serves both to
increase a defendant's offense level and to elevate his CHC. See
USSG §4B1.1(b).
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Crim. P. 11 advisory committee's note (1989 amendment) (discussing
same)). "Any other rule would put the cart before the horse,
requiring the court to get the functional equivalent of a full
[PSI Report] before it could accept a guilty plea." Id.
The appellant's final conviction-related claim has a
patina of plausibility. He points out that the court recited an
incorrect statutory maximum at the change-of-plea hearing. See
Fed. R. Crim. P. 11(b)(1)(H) (requiring court to notify defendant
of "any maximum possible penalty" that he faces). The error itself
is patent: at the change-of-plea hearing, the court told the
appellant that he faced a maximum possible sentence of forty years
when, in fact, he faced a maximum possible sentence of eighty
years. See 21 U.S.C. §§ 841(b)(1)(B), 860(a).
Although this error satisfies the first two elements of
the plain error test, it nonetheless falters at the third step:
the appellant has not shown that the error affected his substantial
rights. To make such a showing in this context, a defendant must
identify "a reasonable probability that but for some error, he
would not have pleaded guilty." United States v. Ocasio-Cancel,
727 F.3d 85, 89 (1st Cir. 2013) (citing, inter alia, United States
v. Davila, 133 S. Ct. 2139, 2147 (2013)). The appellant makes no
such argument, much less the requisite showing. At any rate, the
Agreement accurately stated the eighty-year statutory maximum for
the offense of conviction; and there is nothing in the record to
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suggest that the appellant — who was negotiating with the
government for a sentence well below the statutory maximum — was
influenced unfairly by the district court's slip of the tongue.3
See United States v. Romero-Galindez, 782 F.3d 63, 67-68 (1st Cir.
2015) (applying similar logic to hold that misstatement of term of
supervised release did not affect validity of defendant's plea).
To say more about the appellant's challenges to his
conviction would be to paint the lily. After examining all of the
appellant's arguments in this regard, it is readily apparent that
plain error is plainly absent.
B. Sentence.
The appellant's sentence-related arguments are no more
substantial. His briefing is muddled, and it is often unclear
whether he attempts to tie his claims to alleged procedural bevues
underlying his sentence or to its purported lack of substantive
reasonableness. In an abundance of caution, we address both
aspects.
In general, sentencing claims are addressed under a two-
step pavane. See United States v. Martin, 520 F.3d 87, 92 (1st
Cir. 2008). First, we address those claims that affect the
procedural integrity of the sentence. See id. Second, we address
3 We note that the PSI Report stated the correct statutory
maximum, and the appellant expressed no surprise upon receipt.
Nor did he seek to withdraw his guilty plea.
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any residual question as to the substantive reasonableness of the
sentence. See id.In this case, the appellant accuses the district court
of neglecting to give proper consideration to the factors
enumerated in 18 U.S.C. § 3553(a). Specifically, he contends that
the court did not mull the nature and circumstances of the offense
of conviction, his history and characteristics, and the need to
avoid unwarranted sentencing disparity. These contentions lack
any semblance of force.
As a threshold matter, the standard of review looms as
a formidable obstacle. The appellant did not raise any such claims
below and, thus, appellate review is for plain error. See Jimenez,
512 F.3d at 3; Duarte, 246 F.3d at 60.
Here, moreover, the court stated at the disposition
hearing that it had "taken into consideration all of the
. . . 3553 factors." This statement itself is entitled to some
weight, see Dávila-González, 595 F.3d at 49, and the appellant
points to nothing in the record that serves to suggest the
contrary.
In any event, a sentencing court has broad discretion to
weigh and balance the section 3553(a) factors. See United States
v. Flores-Machicote, 706 F.3d 16, 23 (1st Cir. 2013). The court
may treat those factors as a whole: "it is not required to address
those factors, one by one, in some sort of rote incantation when
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explicating its sentencing decision." United States v. Dixon, 449
F.3d 194, 205 (1st Cir. 2006).
Against this backdrop, we turn to the appellant's more
particularized plaints. To begin, his suggestion that the
sentencing court misperceived the nature and circumstances of the
crime is woven out of whole cloth. While he claims that the court
did not understand the "exact nature" of his participation in the
conspiracy and, therefore, could not tailor a sentence to his role
in the offense, the record belies this claim. At sentencing, the
court recounted many pertinent details of the offense, including
the appellant's service as a seller, and his admission that he had
handled between 500 and 2,000 grams of crack cocaine in the course
of the enterprise. Seen in this light, the suggestion that the
court did not understand the nature and circumstances of the
offense appears groundless.
Relatedly, the appellant claims that the court
misconstrued statements in the PSI Report regarding his history
and characteristics, causing the court to give his difficult family
circumstances and struggles with addiction short shrift. This
claim, too, strains credulity. The record reflects that the court,
before pronouncing sentence, paid specific heed to the appellant's
family circumstances, history of substance abuse, and health, and
factored those considerations into its sentencing calculus. The
appellant's remonstrance, then, boils down to nothing more than a
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contention that the court did not give potentially mitigating
factors, such as the appellant's history and characteristics, the
weight that the appellant would have liked. We have stated, with
a regularity bordering on the monotonous, that such qualitative
judgments fall comfortably within a sentencing court's purview.
See, e.g., United States v. Bermúdez-Meléndez, 827 F.3d 160, 165
(1st Cir. 2016); Flores-Machicote, 706 F.3d at 23. Accordingly,
the appellant's quarrel with this aspect of the sentencing court's
rationale falls short of a showing of error (plain or otherwise).
The appellant's claim of sentencing disparity is equally
unpersuasive. Refined to bare essence, his argument is that the
court failed to consider that many of his codefendants received
lesser sentences. This oversight, he says, transgressed the
congressional directive to "avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty
of similar conduct." 18 U.S.C. § 3553(a)(6). This claim is doubly
flawed.
For one thing, when Congress enacted section 3553(a)(6),
it was concerned "mainly with minimization of disparities among
defendants nationally rather than with disparities among
codefendants engaged in a common conspiracy."4 United States v.
4 To be sure, the appellant makes a passing suggestion in his
reply brief that his sentence is greater "than the majority of
defendants convicted of drug offenses who are Career Offenders."
This suggestion, though, is both conclusory and undeveloped. At
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Floyd, 740 F.3d 22, 39 (1st Cir. 2014) (quoting United States v.
Vargas, 560 F.3d 45, 52 (1st Cir. 2009)).
For another thing, the appellant has not shown that any
of his proposed comparators — an undefined subset of his
coconspirators — were similarly situated to him. Although his
brief contains a barebones list of the various coconspirators and
their sentences, the appellant comments upon only one particular
coconspirator — a coconspirator who allegedly played a more
significant role in the conspiracy but received a lesser sentence.
However, he presents no information about this coconspirator's
specific criminal involvement, his criminal history, his career
offender status, or his cooperation (if any) with the government.
A credible claim of sentencing disparity requires that
the proponent furnish the court with enough relevant information
to permit a determination that he and his proposed comparators are
similarly situated. See United States v. Reyes-Santiago, 804 F.3d
453, 467 (1st Cir. 2015). That information must enable the court
to "compare apples to apples." Id. Here, however, the appellant
utterly failed to lay any foundation on which to build a claim of
sentencing disparity. See United States v. Demers, 842 F.3d 8, 15
(1st Cir. 2016).
any rate, the appellant does not make any effort to show that the
offenders to whom this suggestion refers were similarly situated.
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Finally, we address the appellant's somewhat amorphous
claim that his sentence is substantively unreasonable.5 The
"linchpin" of substantive reasonableness review is an assessment
of whether the sentencing court supplied a "plausible sentencing
rationale" and reached a "defensible result." Martin, 520 F.3d at
96. In the course of such a review, an appellate court is generally
not at liberty to second-guess a sentencing court's reasoned
judgments. See United States v. Clogston, 662 F.3d 588, 593 (1st
Cir. 2011). After all, there is typically not a single reasonable
sentence but, rather, a broad range of reasonable sentences that
can apply in any given case. See Martin, 520 F.3d at 92.
Even though the appellant did not raise this claim below,
we assume — favorably to the appellant — that our review is for
abuse of discretion. See United States v. Pérez, 819 F.3d 541,
547 (1st Cir.), cert. denied, 137 S. Ct. 111 (2016); United States
v. Ruiz-Huertas, 792 F.3d 223, 228 & n.4 (1st Cir.), cert. denied,
136 S. Ct. 258 (2015). We discern none here.
Before imposing sentence, the district court recounted
the appellant's extensive criminal history, which included a
number of violent crimes, specific threats to individuals, and
weapons offenses.6 The court observed that, even though the
5To the extent (if at all) that this claim depends upon the
appellant's plaint about sentencing disparity, it fails for the
reasons previously stated.
6 The appellant takes umbrage at the district court's
description of several of his prior offenses. Although the court's
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defendant had been convicted of and served time for several
offenses, he continued to engage in criminal conduct.
Consequently, the court levied a sentence at the high end of the
GSR to protect the public, deter the appellant, and provide condign
punishment. This was doubtless a plausible sentencing rationale.
So, too, the court reached a defensible result. Within-
guidelines sentences are entitled to a presumption of
reasonableness, see Rita v. United States, 551 U.S. 338, 347
(2007), and a defendant who seeks to challenge such a sentence
bears a heavy burden, see United States v. Pelletier, 469 F.3d
194, 204 (1st Cir. 2006). The appellant has not carried that
burden: the nature of his crime, combined with his extensive
criminal history, made it reasonable for the court to look to the
upper reaches of the GSR. The sentence imposed, though stiff, is
within the wide universe of substantively reasonable sentences.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the appellant's conviction and sentence are
Affirmed.
language could have been more precise, any misconception about the
peripheral details about which the appellant complains was not
central to its analysis. Hence, any error in this regard was
harmless.
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