United States v. Alvira-Sanchez

United States Court of Appeals
For the First Circuit
No. 14-1671
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS LUIS ALVIRA-SANCHEZ,
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, Thompson, and Kayatta,
Circuit Judges.
Ines McGillion, on brief for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, Francisco A. Besosa-Martínez, Assistant United
States Attorney, and Rosa Emilia Rodríguez-Vélez, United States
Attorney, on brief for appellee.
October 30, 2015
KAYATTA, Circuit Judge. Carlos Luis Alvira-Sanchez
alleges that the district court in this case made several errors
in accepting and entering his guilty plea. Alvira-Sanchez made no
objections to any of those purported errors at the time, nor did
he thereafter seek to withdraw his plea, even after he was
sentenced. He now asks that we vacate the acceptance of his plea.
Although several of Alvira-Sanchez's claims of error are
meritorious, no shortcoming in the district court's acceptance of
his plea caused him any harm. Accordingly, we deny Alvira-
Sanchez's request for reversal. At the same time, because the
parties agree that Alvira-Sanchez is entitled to seek a sentencing
reduction under Amendment 782 to the Drug Quantity Table of the
United States Guidelines, we remand solely for consideration of
that request.
I. Background
On October 24, 2013, law enforcement officers entered a
residence located roughly 168 feet from a school to arrest Alvira-
Sanchez on two outstanding warrants. On entry, officers found,
among other things, a loaded Zombie rifle, approximately 2.87 grams
of cocaine, approximately 1.3486 grams of cocaine base,
approximately 2.0247 grams of marijuana, and drug paraphernalia.
On October 30, 2013, Alvira-Sanchez was charged with four counts:
(1) possession of a firearm in a school zone, in violation of 18
U.S.C. § 922(q); (2) possession of cocaine in a school zone, with
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intent to distribute, in violation of 21 U.S.C. § 841; (3)
possession of marijuana in a school zone, with intent to
distribute, in violation of 21 U.S.C. § 841; and (4) possession of
a firearm in furtherance of a drug trafficking crime, in violation
of 18 U.S.C. § 924(c).
On February 19, 2014, Alvira-Sanchez came before the
court to enter a straight guilty plea--i.e., a plea not the product
of a plea bargain--on all counts. After verifying Alvira-Sanchez's
competence to plead, the court explained that pleading guilty
waived the right to trial by jury, the presumption of innocence,
the right to a public trial, and the right to remain silent. The
court next listed the elements of each of the four charged crimes
and verified Alvira-Sanchez's understanding. The court did not,
however, expressly inform Alvira-Sanchez of his right to persist
in a plea of not guilty. See Fed. R. Crim. P. 11(b)(1)(B).
Turning to the penalties, the court stated that "the gun
counts may require a consecutive sentence." The court then
described the penalties "regarding the drugs" as, in relevant part,
"[i]mprisonment of not more than 20 years," "[s]upervised release
of at least three years," and "the payment of a special monetary
assessment," and the penalties "regarding the gun" as, in relevant
part, "at least five years, statutory minimum; not more than life
imprisonment," "supervised release that can go as high as five
years," and "the payment of a special monetary assessment[.]" The
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court concluded by explaining that parole would not be available,
that the court was not bound by the recommendations of the United
States Sentencing Guidelines ("USSG"), and that Alvira-Sanchez
would serve a term of supervised release that "will never be more
than five years." The court did not, however, inform Alvira-
Sanchez that any sentence imposed for count 1 (possession of a
firearm in a school zone), up to a maximum of five years, was
statutorily mandated to run consecutively to any other sentence,
or that count 1 would carry its own concurrent term of supervised
release and special monetary assessment. After Alvira-Sanchez
accepted the government's factual proffer, the court entered his
plea and ordered a Presentence Investigation Report ("PSR").
The PSR as ultimately amended grouped counts 1–3 and
calculated a total offense level of 14 for those counts.1 For
criminal history, the PSR listed five prior arrests, including one
arrest for pending criminal charges and three arrests for past
dismissed charges. The PSR also noted that Alvira-Sanchez had
pled guilty to four unlisted juvenile offenses. The PSR concluded
that Alvira-Sanchez fell within Criminal History Category (CHC) I,
1 The PSR treated count 1 as a specific offense characteristic
of counts 2–3, pursuant to USSG § 3D1.2(c). Although any term of
imprisonment imposed under count 1 was statutorily required to run
consecutively to all others, 18 U.S.C. § 924(a)(4), count 1 did
not require that any term of imprisonment be imposed, and so it
could be grouped with related counts for guidelines purposes. See
USSG § 3D1.1(b)(1), cmt. n.2.
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corresponding to a recommended sentence of 15–21 months for grouped
counts 1–3. Count 4 carried a mandatory minimum sentence of 60
months. It was mandatory that any sentences imposed for counts 1
and 4 run consecutively to all other sentences, and to each other.
Alvira-Sanchez appeared thereafter for sentencing. He
requested a low-end guidelines sentence of 75 months––15 months
for grouped counts 1–3, plus the mandatory consecutive 60-month
sentence for count 4. The court granted his subsidiary request
that it treat the pending charges listed in the PSR's criminal
history section as allegations, but it declined to do the same for
the previously dismissed charges, seeing "no logical, reasonable
explanation, legal or factual or otherwise" as to why the charges
had been dismissed. Looking at the entirety of the PSR's criminal
history section, the court said that "you can tell a mile away
that [Alvira-Sanchez] has been involved for a substantial part of
his life in the business of drug dealing and firearms."
Turning to its obligation to sentence Alvira-Sanchez
under 18 U.S.C. § 3553, the court said that "even though we have
not mentioned 3553(a) by name, it is obvious that all this
discussion surrounds 3553(a), the sentencing factors." Expressing
concern for Puerto Rico's high crime rate and the "real need for
deterrence of criminal conduct," the court sentenced Alvira-
Sanchez to 6 months for count 1, 34 months for counts 2–3, and 60
months for count 4, with all sentences to be served consecutively
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for a total of 100 months. In addition, the court imposed
concurrent terms of supervised release of three years (count 1),
six years (count 2), four years (count 3), and five years (count
4). Finally, the court imposed a $100 monetary assessment for
each count, for a total of $400. Unhappy with his sentence,
Alvira-Sanchez now asks that we vacate the sentence and allow him
to withdraw his plea, or that we remand for a new sentence.
II. Analysis
A. The Plea Colloquy
1. Standard of Review
Because Alvira-Sanchez raised no objection to his plea
colloquy below, he bears the burden of showing: (1) that an error
occurred; (2) that the error was clear or obvious; (3) that the
error impaired his substantial rights; and (4) that the error
"seriously impaired the fairness, integrity, or public reputation
of judicial proceedings." United States v. Duarte, 246 F.3d 56,
60 (1st Cir. 2001).
2. The Consequences of Count 1
Before entering a guilty plea, a court must ensure that
the defendant understands "any maximum possible penalty, including
imprisonment, fine, and term of supervised release." Fed. R. Crim.
P. 11(b)(1)(H). Here, rather than explaining the consequences of
the gun counts (counts 1 and 4) separately, the district court
said merely, in relevant part, "[R]egarding the gun, the statutory
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penalty is at least five years, statutory minimum; not more than
life imprisonment . . . supervised release that can go as high as
five years; plus the payment of a special monetary assessment
that's consecutive." The court accurately stated the penalties
for possession of a firearm in furtherance of a drug trafficking
crime (count 4). See 18 U.S.C. § 924(c)(1)(A)(i)2; 18 U.S.C.
§ 3013(a)(2)(A); 18 U.S.C. § 3583(b)(1); 18 U.S.C. § 3559(a)(1).
The court did not, however, indicate that possession of a firearm
in a school zone (count 1) carried the potential for a separate
term of imprisonment not more than five years, required to run
consecutively, see 18 U.S.C. § 924(a)(4), and its own concurrent
term of supervised release, see 18 U.S.C. § 3583(a).
The government argues that the court's statement that
"the gun counts may require a consecutive sentence" was adequate
notice, but Alvira-Sanchez is correct that nothing in that
formulation served to inform him that the gun counts carried the
potential for "separate multiple sentences rather than a single
sentence, and that the consecutive nature of those sentences was
mandatory as opposed to permissive, and that they must be
consecutive not only to all non-gun counts, but also to each
2 Although 18 U.S.C. § 924(c)(1)(A)(i) does not explicitly
state that it carries the possibility of a life sentence, its
silence as to any maximum sentence creates an implicit maximum
sentence of life. See United States v. O'Brien, 560 U.S. 218, 241
(2010) (Stevens, J., concurring).
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other." Failure to explain correctly the interaction of the
consecutive sentences on the two counts was thus obviously
erroneous. Cf. United States v. Santiago, 775 F.3d 104, 106–07
(1st Cir. 2014) (government conceded that failure to inform
defendant that sentences must run consecutively was an obvious
error).
That error, though, did not affect Alvira-Sanchez's
substantial rights. Given that count 1 does not require any
minimum sentence, see 18 U.S.C. § 924(a)(4), and that Alvira-
Sanchez already knew he risked up to a 20-year term for counts 2–
3 and a consecutive life sentence for count 4, there is no reason
to think that the risk of an additional 5-year term would have
affected Alvira-Sanchez's willingness to plead. He does not allege
as much. See United States v. Romero-Galindez, 782 F.3d 63, 69
(1st Cir. 2015) (finding no plain error where district court
understated the supervised release period by two years at the
change of plea hearing because, inter alia, the discrepancy was
"but a small fraction of the life-imprisonment penalty" defendant
was facing).
The same analysis holds for the district court's failure
to describe accurately count 1's term of supervised release.
Alvira-Sanchez knew that he faced a potential term of supervised
release under count 4 that would "never be more than five years."
Because supervised release terms must run concurrently, see 18
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U.S.C. § 3624(e), and because no authorized term of supervised
release under 18 U.S.C. § 3583 exceeds five years, any term of
supervised release under count 1 could not have increased Alvira-
Sanchez's total exposure. Alvira-Sanchez nevertheless argues that
the number of concurrent supervised release terms being served is
consequential, as it could affect the consequences should he
violate his conditions of release. Alvira-Sanchez fails, however,
to allege that such an indirect and potential ramification of the
plea would have affected his decision to plead guilty, had he been
properly informed of count 1's concurrent supervised release term.
Nor would such an allegation be remotely persuasive.
Nor did the failure to inform Alvira-Sanchez of count 1's
potential for an added monetary assessment likely affect his
decision to plead. The court mentioned a monetary assessment in
connection with the gun charges and did not specify any dollar
amount. Alvira-Sanchez elected to plead without knowing what his
financial liability might be. It is not likely that the omission
impaired Alvira-Sanchez's substantial rights because it is not
likely that he would have reversed course had he known that he
faced two assessments of unknown value in connection with the gun
charges, rather than one.
3. The Right to Persist in Pleading Not Guilty
Alvira-Sanchez complains for the first time on appeal
that the district court never in so many words confirmed that he
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understood that, as Federal Rule of Criminal Procedure 11(b)(1)(B)
states in a straightforward manner, he had "the right to plead not
guilty, or having already so pleaded, to persist in that plea."
Rather, the district court asked Alvira-Sanchez if he understood
that he was waiving "the right that you have to put the government
through the burden of proving you guilty beyond a reasonable doubt
without you having to prove your innocence." Whether this
description of the right was, by itself, an insufficient
circumlocution or, instead, a practical elaboration that might
stand on its own, we need not decide.3 Rather, the transcript as
a whole makes clear that Alvira-Sanchez knew that he was not
compelled to persist in pleading guilty. Cf. United States v.
Cotal-Crespo, 47 F.3d 1, 8 (1st Cir. 1995) (finding plea colloquy
"adequate" when it was clear from context, inter alia, "that the
defendants understood that they had the right to persist in their
innocence and go to trial," but cautioning that "for the sake of
judicial economy and fundamental fairness, the best way to ensure
that Rule 11 is complied with is to explicitly comply with Rule
11").
Notably, the district court asked Alvira-Sanchez toward
the conclusion of the colloquy, "Do you still want to plead?"
thereby implying that it was still Alvira-Sanchez's choice whether
3 The government offers no argument one way or the other.
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or not to plead. Even Alvira-Sanchez's brief on appeal implicitly
concedes this point by arguing that the court's explanation at the
hearing of the criminal charges against him affected his decision
to plead guilty. Accordingly, even if we were to assume that the
lack of an express reference to the right to persist in a plea of
not guilty was error, such an error could not have affected Alvira-
Sanchez's substantial rights. Cf. United States v. Borrero-
Acevedo, 533 F.3d 11, 18 (1st Cir. 2008) ("It is defendant's
burden" on plain error review to show that but for the error "he
would otherwise not have pled guilty. If the record contains no
evidence in defendant's favor, his claim fails.").
B. The Monetary Assessment and Supervised Release
Alvira-Sanchez briefly argues that the three-year
supervised release term and $100 monetary assessment sentences
imposed for count 1 were contrary to statute. 18 U.S.C.
§ 924(a)(4) reads in relevant part, "Except for the authorization
of a term of imprisonment of not more than 5 years made in this
paragraph, for the purpose of any other law a violation of section
922(q) [possession of a firearm in a school zone] shall be deemed
to be a misdemeanor." Thus reading his § 922(q) count (count 1)
to be a misdemeanor, Alvira-Sanchez asserts that the maximum
permitted supervised release term under 18 U.S.C. § 3583(b)(3) is
1 year, and the maximum permitted monetary assessment under 18
U.S.C. § 3013(a)(1)(A)(iii) is $25.
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But the statutory language is not as clear as Alvira-
Sanchez contends. 18 U.S.C. § 3559(a)(4) classifies an offense as
a Class D felony "if the maximum term of imprisonment authorized
is less than ten years but five or more years." One could construe
18 U.S.C. § 924(a)(4) as establishing that a § 922(q) offense is
a misdemeanor except where misdemeanor and felony are
distinguished by their authorized terms of imprisonment. This may
not be the most persuasive reading, but this circuit has never
addressed the question. Some courts have taken Alvira-Sanchez's
reading. See United States v. Rivera-Concepcion, No. 07-169 CCC,
2007 WL 1852608, at *2 n.1 (D.P.R. 2007); but see id. at *2 (stating
amount of monetary assessment for § 922(q) violation as $100).
Others, however, have at least implicitly understood a § 922(q)
violation to constitute a Class D felony for sentencing purposes.
See Hough v. United States, No. 3:13-cv-143-FDW, 2015 WL 127881,
at *1 (W.D.N.C. 2015) (three years' supervised release for § 922(q)
violation). The statute's imprecise language and the fact that
other courts have fallen prey to the same error, if error indeed
there was here, demonstrate that any misconstruction on the part
of the district court was not obviously erroneous. Cf. United
States v. Richard, 234 F.3d 763, 771 (1st Cir. 2000) (declining to
resolve a question of statutory interpretation on plain error
review because "the law in this circuit was not 'obvious'" when
the district court imposed its sentence).
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C. The Government's Factual Proffer
Alvira-Sanchez argues that it was plain error for the
district court to accept his guilty plea despite the fact that the
government proffered no facts showing that he possessed a firearm
outside his residence. See 18 U.S.C. § 922(q)(2)(B) (prohibition
on possessing a firearm in a school zone does not apply "on private
property not part of school grounds"). However, the question
relevant to the sufficiency of the evidence in a plea proffer "is
not whether a jury would, or even would be likely, to convict: it
is whether there is enough evidence so that the plea has a rational
basis in facts." United States v. Gandia-Maysonet, 227 F.3d 1, 6
(1st Cir. 2000). Many crimes are proved by reasonably probative
circumstantial evidence, and a rational jury could conclude due to
the nature of the seized gun and evidence of Alvira-Sanchez's
involvement in the drug trade that he did not keep his gun
dutifully at home. Other juries appear to have inferred § 922(q)
violations based on guns found at private residences. See, e.g.,
United States v. Nieves-Castaño, 480 F.3d 597, 598–99 (1st Cir.
2007).
Even if the district court did commit error by accepting
the government's proffer, the error was not obvious. A proffer
establishes a sufficient factual basis for a guilty plea if it
touches all the elements of the crime. See United States v. Piper,
35 F.3d 611, 615–16 (1st Cir. 1994) ("[The district court] need
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not gratuitously explore points removed from the elements of the
offense."). Alvira-Sanchez points to no circuit precedent
establishing whether "possession outside the home" is an element
of a § 922(q) offense, or whether "possession inside the home" is
an affirmative defense. If the latter, then the government had no
obligation to proffer evidence to rebut an anticipated defense.
And even if the former, the law is sufficiently unsettled that any
error in accepting the government's proffer was not obvious. Cf.
Richard, 234 F.3d at 771 (no obvious error when law in circuit
unsettled).
D. Amendment 782
If a defendant is sentenced to a prison term based on a
sentencing range that the Sentencing Commission later lowers, a
district court may reduce the defendant's sentence if such a
reduction is consistent with the Commission's policy statements.
18 U.S.C. § 3582(c)(2). Amendment 782, effective November 1, 2014,
reduced by two levels the offense levels associated with certain
drug quantities. The parties agree that Amendment 782 reduced
Alvira-Sanchez's base offense level on his drug counts (counts 2–
3) from 14 to 12. This amendment reduces Alvira-Sanchez's
recommended sentencing range for grouped counts 1–3 from 15–21
months to 10–16 months. In light of the Sentencing Commission's
policy statement authorizing a court to consider reducing a
defendant's sentence if Amendment 782 reduces the guideline range
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applicable to that defendant, see USSG § 1B1.10(a)(1), remand is
appropriate, as both parties recognize.
E. Assignment on Remand
Where there is reason to think that a judge will base
sentencing determinations on unreliable or inaccurate information,
remand to a different judge is warranted. See, e.g., United States
v. Craven, 239 F.3d 91, 103 (1st Cir. 2001) (remand to different
judge where original judge had reviewed off-record evidence);
United States v. Curran, 926 F.2d 59, 64 (1st Cir. 1991) (same).
Moreover, a case can be assigned to a different judge on remand if
the original judge displayed a "deep-seated favoritism or
antagonism that would make fair judgment impossible." Yosd v.
Mukasey, 514 F.3d 74, 78 (1st Cir. 2008) (quoting Liteky v. United
States, 510 U.S. 540, 555 (1994)). The record evinces no such
antagonism here. Alvira-Sanchez points to several purported
indications of the district court's personal bias against him.
However, none hold water.
First, Alvira-Sanchez raised no objection to the court's
decision to call its own bailiff to testify at Alvira-Sanchez's
initial suppression hearing. Second, the court's decision not to
credit Alvira-Sanchez's testimony at that suppression hearing does
not evince bias. Cf. Yosd, 514 F.3d at 75 (finding no error in
the Board of Immigration Appeals' decision to remand an asylum
applicant's case to an immigration judge who had previously found
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him not to be credible). Third, the district court's disapproval
of Alvira-Sanchez's criminal history does not evince bias. We
have found it to be "within the district judge's discretion to
find that the defendant's criminal history score did not adequately
represent either the seriousness of his past criminal behavior or
the likelihood of his recidivism." United States v. Flores-
Machicote, 706 F.3d 16, 22 (1st Cir. 2013). Finally, the district
court's expression of its views on the failings of Puerto Rico's
court system was linked to an individualized consideration of
Alvira-Sanchez's criminal history and so did not reflect
unwillingness to consider Alvira-Sanchez's specific case. See id.
at 21–22.
Moreover, the record indicates that the district court
did consider Alvira-Sanchez's unique circumstances. At the
change-of-plea hearing, the court demanded an exact drug quantity
from defense counsel: "I will expect some sort of lab result at
the time of sentencing that tells how much of each substance you
have. . . . I'm not going to guess about this. I need to know."
When considering Alvira-Sanchez's objections to the PSR's criminal
history section at the sentencing hearing, the court insisted on
considering each past incident separately: "Wait. Wait. Let's go
one by one. . . . Let's not deal in wholesale here." Finally,
after accurately walking through the applicable sentencing
calculations based on Alvira-Sanchez's individualized PSR, the
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court expressed sympathy for Alvira-Sanchez: "I see in [him] also
a young individual, a person who had perhaps no guidance. I feel
sorry for that. But I have to make this distasteful exercise."
Taken together, the record gives no reason to believe
that the district judge is incapable of fairly hearing Alvira-
Sanchez's request for a sentencing reduction on remand.
III. Conclusion
We affirm the conviction based on the entry of a guilty
plea and remand solely for consideration of a sentence reduction
under Amendment 782.
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