United States v. Acevedo-Sueros

United States Court of Appeals
For the First Circuit
No. 14-1732
UNITED STATES OF AMERICA,
Appellee,
v.
SANTOS ACEVEDO-SUEROS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Lynch, Lipez, and Thompson,
Circuit Judges.
Guillermo A. Macari-Grillo, on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Francisco A. Besosa-Martínez, Assistant United
States Attorney, on brief for appellee.
June 17, 2016
LIPEZ, Circuit Judge. Santos Acevedo-Sueros appeals the
sentence imposed following his guilty plea to four felony counts
related to a conspiracy to import over 1,300 kilograms of cocaine.
We affirm.
I.
Charged on December 18, 2013, Acevedo-Sueros informed
the court of his intention to plead guilty on February 12, 2014,
and entered a straight guilty plea on March 12, 2014. The
Presentence Investigation Report ("PSR") calculated his Total
Offense Level ("TOL") at 34, including a two-level downward
adjustment for acceptance of responsibility under U.S.S.G.
§ 3E1.1(a). It did not mention the additional one-level decrease
potentially available for "timely notifying authorities of his
intention to enter a plea of guilty, thereby permitting the
government to avoid preparing for trial." U.S.S.G. § 3E1.1(b).
Acevedo-Sueros did not object to the PSR, nor did his
sentencing memorandum mention a possible one-level decrease under
§ 3E1.1(b) or suggest that his total offense level should be 33
rather than 34. At his sentencing hearing, the court asked whether
the correct total offense level was 34, and his counsel agreed.
The court did not ask Acevedo-Sueros whether he had reviewed the
PSR and discussed it with his attorney. The court ultimately
sentenced him to concurrent prison terms of 151 months for each of
the four counts, the low end of the guidelines sentencing range
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given a TOL of 34 and Criminal History Category ("CHC") I.
Acevedo-Sueros challenges his sentence, claiming that it is
procedurally unreasonable on two grounds. We address those grounds
in turn.
II.
Acevedo-Sueros avers that the district court should have
given him the benefit of an additional one-level reduction in his
offense level pursuant to § 3E1.1(b). Before addressing the merits
of his argument, we address a waiver argument raised by the
government.
A. Waiver
The government urges that Acevedo-Sueros waived the one-
level reduction issue by failing to raise it below, and hence we
should not address the issue at all. See generally United States
v. Olano, 507 U.S. 725, 733-34 (1993) (explaining that "[w]hereas
forfeiture is the failure to make the timely assertion of a right,
waiver is the 'intentional relinquishment or abandonment of a known
right;'" the former may be reviewed for plain error, whereas the
latter may not be reviewed on appeal (quoting Johnson v. Zerbst,
304 U.S. 458, 464 (1938))); United States v. Rodriguez, 311 F.3d
435, 437 (1st Cir. 2002) (finding waiver of an objection to a
sentencing guidelines calculation where defendant "consciously
waived the issue").
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The government argues that, in its words, "Acevedo-
Sueros' serial failures to raise this issue at various points
throughout the proceedings below constitute a waiver, rather than
a mere forfeiture." As the government points out, he did not
object to the PSR, which mentioned § 3E1.1(a) but not § 3E1.1(b);
and he did not raise § 3E1.1(b) in his sentencing memorandum or at
the sentencing hearing.1 Acevedo-Sueros does not dispute that he
failed to object to the guidelines calculation as recommended in
the PSR, or to ask the district court to apply the § 3E1.1(b)
offense level adjustment at sentencing. In Acevedo-Sueros' view,
however, this was a mere "lapse in the computation of the offense
level," and despite his omission the issue may be reviewed for
plain error under Olano.
Ultimately, we need not decide the waiver issue. Where
a defendant's claim would fail even if reviewed for plain error,
we have often declined to decide whether the defendant's failure
to raise the issue below constituted waiver or mere forfeiture.
1 Federal Rule of Criminal Procedure 32(f)(1) requires that
"[w]ithin 14 days after receiving the presentence report, the
parties must state in writing any objections, including objections
to material information, sentencing guideline ranges, and policy
statements contained in or omitted from the report." The Local
Rules of the District of Puerto Rico also require that "[w]ithin
fourteen (14) days from disclosure of the PSR, counsel for the
government and counsel for the defense shall file . . . written
objections to the facts or guideline application in the PSR."
D.P.R. Crim. R. 132(b)(3)(A). The Local Rules add that "[a] party
waives any objection to the PSR by failing to comply with this
rule." Id.
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See, e.g., United States v. Aguasvivas-Castillo, 668 F.3d 7, 13-
14 (1st Cir. 2012). So it is here. Even if Acevedo-Sueros'
omissions below constitute a mere forfeiture, his argument fails
on plain error review.
B. Acceptance of Responsibility (U.S.S.G. § 3E1.1(b))
Section 3E1.1(b) reads:
If the defendant qualifies for a decrease under
subsection (a), the offense level determined prior
to the operation of subsection (a) is level 16 or
greater, and upon motion of the government stating
that the defendant has assisted authorities in the
investigation or prosecution of his own misconduct
by timely notifying the authorities of his
intention to enter a plea of guilty, thereby
permitting the government to avoid preparing for
trial and permitting the government and the court
to allocate their resources efficiently, decrease
the offense level by 1 additional level.
U.S.S.G. § 3E1.1(b) (emphases omitted). Acevedo-Sueros argues
that, because his prompt guilty plea obviated the need for the
government to prepare for trial, he was entitled to the one-level
reduction.
The government responds that, pursuant to § 3E1.1(b),
the court was not permitted to grant the reduction except "upon
motion of the government," a motion it never made.2 Its argument
is bolstered by the relevant application note to § 3E1.1:
2 The government acknowledges an exception to the government-
motion requirement, applicable "when the government's withholding
of the predicate motion 'was based on an unconstitutional motive'
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Because the Government is in the best position to
determine whether the defendant has assisted
authorities in a manner that avoids preparing for
trial, an adjustment under subsection (b) may only
be granted upon a formal motion by the Government
at the time of sentencing.
Id. § 3E1.1 cmt. n.6.
Acevedo-Sueros argues that "the government asked orally
for the one-level reduction at the sentencing hearing." Though
his brief provides little explanation, the implication is that
this oral request satisfied the need for a "motion of the
government." Id. § 3E1.1(b).
Acevedo-Sueros evidently relies on the following
colloquy from the sentencing hearing:
THE COURT: So, [TOL] 34 and [CHC] One is a
guideline range of 151 to 188
months, a fine range of $17,500.00
to 10 million dollars plus a
supervised release of at least five
years.
AUSA: If it is a level 33, it would be 135
to 168.
THE COURT: No one said level 33, it is a level
34.
AUSA: Yes, okay.
or 'was not rationally related to any legitimate government end.'"
United States v. Meléndez-Rivera, 782 F.3d 26, 30 (1st Cir. 2015)
(quoting United States v. Beatty, 538 F.3d 8, 14 (1st Cir. 2008)).
Acevedo-Sueros does not argue, and there is no evidence to suggest,
that the Beatty exception applies. See infra.
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The suggestion that this exchange satisfied the government-motion
requirement of § 3E1.1(b) is frivolous. This stray comment by the
prosecutor was not a motion, much less a "formal motion." U.S.S.G.
§ 3E1.1 cmt. n.6. The district court did not err by not recognizing
it as such.
Acevedo-Sueros also makes a second argument, though,
again, his reasoning is unclear. He suggests that the district
court made a legal error, believing that "it lacked discretion to
grant the additional one-level reduction to the offense level under
§ 3E1.1(b) without a government motion." He points to our holding
in Meléndez-Rivera that "when the government's withholding of the
predicate motion 'was based on an unconstitutional motive' or 'was
not rationally related to any legitimate government end,'" the
district court may grant the additional one-level reduction even
absent a government motion. United States v. Meléndez-Rivera, 782
F.3d 26, 30 (1st Cir. 2015) (quoting United States v. Beatty, 538
F.3d 8, 14 (1st Cir. 2008)). His argument seems to be that the
district court declined to consider a downward adjustment under
§ 3E1.1(b) because it thought it was categorically forbidden from
doing so absent a government motion. Because there is no such
categorical prohibition, the argument goes, the district court
made an error of law that prevented it from granting the reduction.
The argument has no merit. There is no indication in
the sentencing hearing transcript that the district court believed
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it had no authority to grant an additional one-level reduction.
The court did not opine on § 3E1.1(b) at all, presumably because
neither the parties nor the PSR brought that guideline to its
attention. There is no suggestion that the government's sentencing
recommendations were driven by any improper motive that would have
allowed the court to substitute its judgment for that of the
government.
There was no error -- plain or otherwise -- in the
court's determination that the proper TOL was 34.
III.
Acevedo-Sueros also challenges the procedural
reasonableness of his sentence on the ground that the district
court did not directly inquire at sentencing whether he had read
the PSR and reviewed it with his counsel. See Fed. R. Crim. P.
32(i)(1)(A) (requiring a district court to "verify that the
defendant and the defendant's attorney have read and discussed the
presentence report and any addendum to the report"); United States
v. DeLeon, 704 F.3d 189, 196 (1st Cir. 2013) ("There is no doubt
'that it is the better practice for trial courts to address the
defendant directly in order to establish that he or she has had
the opportunity to read the [PSR] and to discuss it with his/her
counsel.'" (alteration in original) (quoting United States v.
Manrique, 959 F.2d 1155, 1157-58 (1st Cir. 1992))). He did not
raise this issue at sentencing, and thus it was forfeited and may
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be reviewed only for plain error. See United States v. Mangual-
Garcia, 505 F.3d 1, 15 (1st Cir. 2007).
In asking us to vacate his sentence based on a plain
error, Acevedo-Sueros bears the burden of showing that "(1) an
error occurred; (2) the error was clear and obvious; (3) the error
affected the defendant's substantial rights; and (4) the error
impaired the fairness, integrity, or public reputation of the
judicial proceedings." Id. The district court did not ask
Acevedo-Sueros on the record whether he had read the PSR and
discussed it with counsel, and on this record it is not "abundantly
clear . . . that both defendant and his counsel [were] familiar
with the report." DeLeon, 704 F.3d at 196 (quoting Manrique, 959
F.2d at 1157). However, we need not decide whether the court's
omission amounted to clear and obvious error. Because he has not
shown that his substantial rights were affected, we may not vacate
his sentence on plain error review.
The requirement that a defendant show that a plain error
affected his substantial rights, as relevant here, "means that the
error must have been prejudicial: It must have affected the
outcome of the district court proceedings." Olano, 507 U.S. at
734. A defendant can show prejudice in the context of plain error
review by pointing to "specific facts," Mangual-Garcia, 505 F.3d
at 16, that establish "a reasonable probability that, but for the
error, the district court would have imposed a different, more
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favorable sentence," id. at 15 (quoting United States v. Gilman,
478 F.3d 440, 447 (1st Cir. 2007)).
Acevedo-Sueros argues that this requirement is met
because the court's alleged failure to verify that he had reviewed
the PSR with his attorney "was prejudicial since it increased the
range of his term of imprisonment from 135 to 168 months to 151 to
188 months." He does not expand on this cursory argument. We
read his brief to suggest that, if only the court had inquired
whether he had reviewed the PSR with his counsel, a one-level
decrease in his offense level would have been granted, resulting
in a TOL of 33 rather than 34. It is not clear how a question
from the court would have led to this outcome, and he fails to
show a reasonable probability that this is so.
Indeed, even if Acevedo-Sueros had not previously
reviewed the PSR, and if the court had inquired about his review,
prompting Acevedo-Sueros and his attorney to discuss the report
for the first time, we doubt that this review would have drawn
their attention to § 3E1.1(b), a provision that had not hitherto
been raised by the parties or the probation office. And even if
he had asked the government for a motion under § 3E1.1(b), we have
little basis on which to infer that the government would have
agreed to his request. Accordingly, we hold that Acevedo-Sueros
has not carried his burden to show that his substantial rights
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were affected by the court's alleged failure to satisfy Rule
32(i)(1)(A).3
Affirmed.4
3 Acevedo-Sueros also suggests that the district court
abused its discretion by imposing a substantively unreasonable
sentence. The argument is only "adverted to in a perfunctory
manner, unaccompanied by [any] effort at developed argumentation,"
and thus need not be considered. United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990). The argument would fail even if
considered on its merits, however. Acevedo-Sueros does not come
close to showing that his sentence -- at the low end of the
applicable guidelines range -- was unreasonable. See, e.g., United
States v. Perretta, 804 F.3d 53, 58 (1st Cir. 2015) (finding no
abuse of discretion where a sentence was within a properly
calculated guidelines sentencing range); United States v. Torres-
Landrúa, 783 F.3d 58, 68-69 (1st Cir. 2015) (same).
4 On January 5, 2016, while we had jurisdiction over this case
during the pendency of this appeal, the district court entered an
order purporting to reduce Acevedo-Sueros' sentence to 121 months.
This was done pursuant to Amendment 782 to the sentencing
guidelines, which effectively reduced the recommended sentences
for certain drug crimes. See U.S.S.G. App. C Supp., Amend. 782
(effective Nov. 1, 2014). This court was not notified. In United
States v. Maldonado-Rios, 790 F.3d 62 (1st Cir. 2015) (per curiam),
we made clear that while a sentence is on appeal, the district
court lacks jurisdiction to reduce that sentence under Amendment
782. However, nothing in this opinion prevents the district court
from modifying the sentence once mandate issues. See Boston &
Maine Corp. v. Town of Hampton, 7 F.3d 281, 282 (1st Cir. 1993)
("[I]ssuance of the mandate formally marks the end of appellate
jurisdiction." (quoting Johnson v. Bechtel Assocs. Prof'l Corp.,
801 F.2d 412, 415 (D.C. Cir. 1986))).
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