United States v. Miranda-Carmona

United States Court of Appeals
For the First Circuit
No. 19-1622
UNITED STATES OF AMERICA,
Appellee,
v.
JORGE L. MIRANDA-CARMONA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Lipez, Kayatta, and Barron,
Circuit Judges.
José Luis Novas Debién, for appellant.
David C. Bornstein, Assistant United States Attorney, with
whom W. Stephen Muldrow, 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, were on brief, for appellee.
June 10, 2021
BARRON, Circuit Judge. Jorge L. Miranda-Carmona
("Miranda") challenges his 84-month prison sentence for possessing
with intent to distribute cocaine base in violation of 21 U.S.C.
§ 841(a). He bases this challenge on what he contends was the
District Court's error in applying the "intervening arrest" rule
in § 4A1.2(a)(2) of the United States Sentencing Guidelines
("Guidelines") when determining his criminal history category.
Because we agree with the government that Miranda invited any error
on that score, we affirm.
I.
On December 20, 2017, a federal grand jury in the
District of Puerto Rico returned a six-count indictment against
Miranda. Miranda pleaded guilty pursuant to a plea agreement on
January 31, 2019 to Count One of the indictment. That count
charged him with possessing with intent to distribute cocaine base
in violation of 21 U.S.C. § 841(a). The remaining five counts
were later dismissed.
Following the guilty plea, the United States Probation
Office prepared a presentence investigation report ("PSR").1 The
PSR assigned Miranda a criminal history score of 11 under the
1We refer here to an amended version of the PSR that was
finalized on May 30, 2019, which was materially identical to a
previously amended version of the PSR that was finalized on April
22, 2019.
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Guidelines. That score translated to a criminal history category
of V. See U.S.S.G. ch. 5, pt. A (sentencing table).
To calculate Miranda's criminal history score, the PSR
relied in part on § 4A1.1(a) of the Guidelines. That guideline
provides that 3 criminal history points are to be assigned to a
defendant "for each prior sentence of imprisonment exceeding one
year and one month." U.S.S.G. § 4A1.1(a). Based on that
guideline, the PSR assigned 3 of the 11 points it assigned to
Miranda based on his prison sentence of one year and nine months
for his June 4, 2013 Puerto Rico conviction of one count of
domestic abuse in the fourth degree that stemmed from his December
16, 2012 violation of Article 3.1 of Puerto Rico Domestic Violence
Law 54, P.R. Laws Ann. tit. 8, § 631. The PSR then assigned
another 3 of the 11 points that it assigned to Miranda based on
his concurrent prison sentence of one year and nine months for his
June 4, 2013 Puerto Rico conviction of one count of violating a
protective order that stemmed from his January 10, 2013 violation
of Article 3.1 of Puerto Rico Domestic Violence Law 54.2
Miranda thereafter submitted a written objection to the
PSR. He contended in it that the PSR, in calculating his criminal
history score, wrongly assigned a total of 6 points based on the
The information charging Miranda with this protective order
2
offense referred to it as a violation of "Article 2.8 of Law 54,"
but his judgment of conviction indicated that this offense had
been "reclassified" as a violation of Article 3.1.
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concurrent sentences imposed for these two prior convictions, when
it should only have assigned a total of 3 points as a result of
those sentences. Miranda relied for that contention on
§ 4A1.2(a)(2) of the Guidelines. That guideline provides that,
for purposes of § 4A1.1(a), "sentences . . . imposed on the same
day" should be treated "as a single sentence" unless "the sentences
were imposed for offenses that were separated by an intervening
arrest," and that offenses are "separated by an intervening arrest"
when "the defendant is arrested for the first offense prior to
committing the second offense." U.S.S.G. § 4A1.2(a)(2).
Miranda did not dispute in his written objection to the
PSR that he had received concurrent sentences "exceeding one year
and one month," id. § 4A1.1(a), for each of the two convictions at
issue. But, he contended, the concurrent sentences for those two
convictions had been imposed on the same day, June 4, 2013, and
"there was no intervening arrest" between the date that he
committed the domestic abuse offense underlying the first
conviction (December 16, 2012) and the date that he committed the
protective order offense underlying the second conviction (January
10, 2013). In fact, Miranda asserted in his written objection to
the PSR that he had not been arrested for either the domestic abuse
offense or the protective order offense. Accordingly, he
contended, he could not be assigned 3 criminal history points for
each of these concurrent sentences. See U.S.S.G. § 4A1.2(a)(2)
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("For purposes of applying § 4A1.1(a) . . . if prior sentences are
treated as a single sentence, use [only] the longest sentence of
imprisonment if concurrent sentences were imposed.").
Miranda did acknowledge in pressing this contention that
a criminal "complaint[] was filed against him" and a "protective
order was imposed" after, "[o]n December 16, 2012, [he] was
involved in a domestic dispute with his then partner." But, he
contended, no "arrest" within the meaning of the guideline had
taken place, as "he was brought to court without an arrest warrant"
after he committed the domestic abuse offense. Furthermore,
Miranda argued, even though "[o]n January 10, 2013, [he] sent his
partner a letter, which was in violation of the protective order,"
and an "additional charge was brought against him on January 23,
2013 for the letter" after which "Miranda appeared in court and
bail was set," "again no arrest was ordered or conducted" after he
committed the protective order offense.
A sentencing hearing was then held on May 2, 2019. In
advance of that hearing, the Probation Office filed an addendum to
the PSR that contained a response to Miranda's written objection
to it. The addendum stated that although "[o]n December 16, 2012,
Mr. Miranda was brought [to court] without an arrest warrant," he
was nevertheless "arrested by law enforcement (without a warrant)"
as he was "Mirandized and appeared before a judge who determined
probable cause for his arrest." Subsequently, the addendum stated,
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"[o]n January 10, 2013, [Miranda] engaged in the conduct"
underlying the second offense and "[a]gain, Mr. Miranda was taken
into custody without an arrest warrant and later appeared before
a judge." The addendum then concluded that Miranda "was arrested
for purposes of USSG § 4A1.2(a)(2), prior to engaging in the second
offense," and, "[c]onsequently, his criminal history score was
correctly calculated at eleven (11)."
During the May 2, 2019 sentencing proceeding, Miranda's
counsel3 once again asserted that Miranda had not been arrested in
connection with either of the offenses underlying the two
convictions that resulted in the concurrent sentences and thus
that the intervening arrest rule in § 4A1.2(a)(2) did not apply.
Accordingly, Miranda's counsel once again argued, only a total of
3 criminal history points could be assigned to Miranda on account
of the concurrent prison sentences imposed on the same day for the
convictions he received for those two offenses.
But, during this same sentencing proceeding, Miranda's
counsel also appeared to suggest that the relevant question for
purposes of applying the intervening arrest rule in this guideline
in his case was not whether there had been any arrest in connection
with the first offense but whether Miranda was arrested after
committing the second offense. In particular, although Miranda's
3 We note that Miranda's counsel on appeal is not the same
attorney who represented Miranda before the District Court.
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counsel first asserted at this sentencing proceeding that Miranda
was "not arrested" in connection with the "domestic dispute" that
occurred on December 16, 2012, his counsel subsequently
acknowledged upon questioning by the District Court that, after
this "domestic dispute," Miranda "was Mirandized, and he went
through [a judicial probable cause determination,] and he was
placed on bond." Miranda's counsel then continued: "if you take
a look at the [second offense involving the protective order
violation] where [Miranda] . . . wrote a letter, he is actually
-- his address is listed as at Bayamón," a correctional facility
in Puerto Rico -- which meant, counsel argued, that Miranda "was
actually in custody when the letter was written and then [he was]
brought [into court]. That doesn’t constitute an arrest under
[§] 4A1.2(a)(2)."
At that point during the hearing, the District Court
interjected: "Isn't the first arrest the intervening arrest?"
Miranda's counsel responded: "No, no, no. [There's an intervening
arrest] only if, like, . . . let's say you sell drugs, you are
given bond, you are out on bond and then they arrest you for
selling drugs again. . . . But if you look at the documents here,
it says that . . . he was detained at [the] Bayamón" correctional
facility when he committed the second offense and "that he was
brought without an arrest warrant to the court" after he was
charged with committing it.
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The District Court then decided to continue the
sentencing hearing so that it could review additional documents
related to Miranda's prior convictions that had not yet been
translated into English. The District Court also stated: "I think
I will be in a better position to see what it is that [Miranda's
counsel is] arguing . . . once I take a look at the documents and
listen to" further argument from Miranda's counsel as well as from
"the government -- [as] the government hasn’t argued yet."
When the sentencing proceeding resumed on May 29, 2019,
Miranda's counsel contended for the first time that Miranda had,
in fact, been arrested for the first offense -- involving domestic
abuse -- on the same day that he had committed it (December 16,
2012). Specifically, Miranda's counsel stated at the reconvened
hearing: "Miranda had a domestic violence incident with his ex-
partner . . . . On December 16th, 2012, he is arrested. He is
taken to Bayamón where he is in custody." (emphasis added). But,
Miranda's counsel proceeded to argue that Miranda could not have
been "arrested" for the second offense involving the protective
order violation:
He is incarcerated in Bayamón, and then he
writes his wife a letter . . . about three
weeks later on January 10th, 2013. He wasn’t
supposed to communicate with his wife. So
they bring him for -- to state court without
an arrest warrant. It seems that the state
marshals bring him. . . . [T]he fact that the
marshals bring someone to court does not
necessarily constitute an arrest for purposes
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of [§] 4A1.2. . . . It's not a restraint on
his liberty. He was already restrained. He
was already incarcerated. . . . So we would
say that, Your Honor, this is not an
intervening arrest. This is just the way
things are processed at the state court, given
the way he was incarcerated.
(emphasis added).
Thus, Miranda's counsel contended, because Miranda had
not been "arrested" for the second offense, the concurrent one-
year-and-nine-month prison sentences that had been imposed on the
same day for each of the convictions resulting from these offenses
should be "counted as a single sentence for a total of 3 points."
The District Court rejected Miranda's contention and
determined that there was an "intervening arrest" separating the
offense underlying the domestic abuse conviction and the offense
underlying the protective order conviction for purposes of
§ 4A1.2(a)(2). The District Court then counted the concurrent
one-year-and-nine-month prison sentences that Miranda had received
separately for purposes of § 4A1.1(a), which led it to agree with
the PSR's determination that a total of 6 rather than 3 points
should be assigned to Miranda for those sentences and thus to agree
that his criminal history points totaled 11 rather than 8, such
that his criminal history category was V rather than IV.
The District Court at that point proceeded to calculate
Miranda's total offense level, which it determined was 23. Having
determined that Miranda's criminal history category was V, the
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District Court calculated Miranda's Guidelines Sentencing Range to
be 84 to 105 months of imprisonment.
The District Court acknowledged that, pursuant to the
plea agreement, both the government and Miranda were recommending
a statutory-minimum sentence of 60 months' imprisonment. The
District Court determined, however, that the parties' recommended
sentence "does not reflect the seriousness of the offense, does
not promote respect for the law, does not protect the public from
further crimes by Mr. Miranda, and does not address the issues of
deterrence and punishment." The District Court then imposed an
84-month prison sentence to be followed by 5 years of supervised
release.
Judgment was entered on May 29, 2019, and Miranda timely
appealed on June 5, 2019.
II.
On appeal, Miranda challenges the District Court's
determination that there had been an "intervening arrest" between
his commission of the two offenses at issue and thus its assignment
of 3 criminal history points to him for each of the concurrent
sentences that were imposed on the same day in consequence of his
commission of those offenses. In pressing this contention, Miranda
argues that it does not matter whether he was arrested for the
offense underlying the second of the two convictions for which he
received the concurrent sentences -- namely, the protective order
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offense that he committed on January 10, 2013. He contends that
is so because any arrest for that offense could not qualify as an
"intervening arrest" under § 4A1.2(a)(2), given that it
necessarily would have occurred after the commission of the second
offense and so could not be an "intervening" one. See U.S.S.G.
§ 4A1.2(a)(2) ("Prior sentences always are counted separately if
the sentences were imposed for offenses that were separated by an
intervening arrest (i.e., the defendant is arrested for the first
offense prior to committing the second offense)." (emphasis
added)).
The government does not dispute that an arrest that
occurred for the January 10, 2013 protective order offense could
not qualify as an "intervening arrest" within the meaning of the
relevant guideline. But, the government contends, Miranda cannot
now challenge his sentence on the ground that there was no arrest
for his December 16, 2012 domestic abuse offense, and thus no
"intervening arrest" between the two offenses. And that is so
because, according to the government, Miranda "invited" the
District Court to find that such an arrest -- which even Mirada
now concedes on appeal could, if it occurred, qualify as an
"intervening arrest" -- in fact did occur, by virtue of his
counsel's express representation to that effect at the May 29,
2019 sentencing hearing. We agree.
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As we have explained, and as the government points out,
Miranda's counsel stated at the May 29, 2019 sentencing hearing
that "Miranda had a domestic violence incident with his ex-
partner . . . . On December 16, 2012, he is arrested. He is taken
to Bayamón where he is in custody." (emphasis added). Thus,
through his counsel at that hearing, Miranda invited the District
Court to find that an arrest occurred that Miranda does not now
dispute would, if it occurred, qualify as an "intervening arrest"
under § 4A1.2(a)(2). Indeed, Miranda's counsel's subsequent
argument to the District Court -- that Miranda could not have been
"arrested" for the second offense in part because he already had
been "arrested" and was "in custody" for the first offense -- was
predicated on the District Court making that finding. Accordingly,
Miranda may not now argue on appeal that whether he was arrested
for the second offense is "irrelevant," and that the District Court
lacked a basis for concluding that there had been no such arrest
in connection with the first offense.4 See United States v. Rivera-
Ruperto, 846 F.3d 417, 431 n.10 (1st Cir. 2017) ("[A] party cannot
concede an issue in the district court and later, on appeal,
attempt to repudiate that concession and resurrect the issue. To
hold otherwise would be to allow a litigant to lead a trial court
4 Miranda's assertion on appeal that it was "the Government
[that] directed the [intervening arrest] inquiry to the January
10, 2013" protective order offense is wholly without record
support.
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down a primrose path and later, on appeal, profit from the invited
error." (alteration in original) (quoting United States v. Gates,
709 F.3d 58, 63 (1st Cir. 2013))); cf. McPhail v. Municipality of
Culebra, 598 F.2d 603, 607 (1st Cir. 1979) ("A party may not
'sandbag' his case by presenting one theory to the trial court and
then arguing for another on appeal.").
III.
The sentence is affirmed.
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