United States v. Llanos-Falero

United States Court of Appeals
For the First Circuit
No. 15-1070
UNITED STATES OF AMERICA,
Appellee,
v.
AURELIO J. LLANOS-FALERO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Lynch, Circuit Judges.
José R. Olmo-Rodríguez on brief for appellant.
Mainon A. Schwartz, Assistant United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States
Attorney, on brief for appellee.
January 30, 2017
LYNCH, Circuit Judge. The district court sentenced
Aurelio Llanos-Falero to 137 months of imprisonment after he pled
guilty to bank robbery, see 18 U.S.C. §§ 2113(a), 2113(d), and 2,
and to brandishing a firearm during and in relation to a crime of
violence, see id. §§ 924(c)(1)(A)(ii), and 2. The district court
ordered that this sentence run consecutively with Llanos-Falero's
sentences for Puerto Rico law convictions for domestic assault and
illegal possession of a submachine gun. Llanos-Falero appeals the
district court's sentence, arguing that the sentencing judge
failed to make the proper inquiry into the effects of Llanos-
Falero's medication on his competence to enter a plea, that the
sentencing judge failed to warn Llanos-Falero before accepting his
plea that his federal sentence might be imposed consecutively with
his Puerto Rico sentences, and that the consecutively imposed
federal sentence is unreasonable. We affirm the sentence.
I.
In June 2011, while serving a four-year probation
sentence for a robbery, Llanos-Falero conspired with at least two
associates to rob a Banco Santander de Puerto Rico branch in Cabo
Rojo, Puerto Rico. As admitted in his plea agreement, he "selected
the branch, conducted surveillance on the bank, planned the method
of the robbery, including the use and carrying of a firearm in the
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presence of customers and employees, as well as the entry and
egress points to and from the bank."
On June 24, 2011, an associate of Llanos-Falero drew
police away from the vicinity of the bank with a bogus 911 call
while Llanos-Falero drove two other associates to the bank. The
two associates entered the bank, one of them took out a loaded 12-
gauge shotgun, and they ordered those inside the bank to the floor.
They stole approximately $38,813 of deposits insured by the Federal
Deposit Insurance Corporation. Because one of the bank employees
was able to activate the bank's silent alarm, the two associates
were arrested about ten minutes after the start of the robbery.
Initially, they did not disclose Llanos-Falero's participation in
the robbery. As a result, Llanos-Falero was not arrested at that
time in connection with the robbery.
After the robbery and before being charged with federal
crimes for his participation in it, Llanos-Falero committed a
number of other offenses. In October 2012, he was sentenced by a
Puerto Rico court to 1 year and 9 months of imprisonment for two
counts of domestic violence. In 2013, he pled guilty to charges
stemming from illegal possession of a submachine gun in 2012 and
was sentenced by a Puerto Rico court to a further 7 years of
incarceration.
Llanos-Falero was indicted for federal crimes related to
the bank robbery in April 2014, while serving his Puerto Rico law
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sentences.1 The indictment charged three counts: an aiding and
abetting violation of armed robbery, see 18 U.S.C. §§ 2113(a),
2113(d), and 2 (Count One); an aiding and abetting violation of
brandishing a firearm during and in relation to a crime of
violence, see id. §§ 924(c)(1)(A)(ii), and 2 (Count Two); and being
a felon in knowing possession of a firearm in interstate commerce,
see id. §§ 922(g)(1), 924(a)(2) (Count Three).
Pursuant to a plea agreement, Llanos-Falero pled guilty
to the first two counts on July 3, 2014. The parties recommended,
"[a]fter due consideration of the relevant factors enumerated in
18 U.S.C. § 3553(a)," an adjusted advisory Sentencing Guidelines
offense level of 22 for Count One, and did not stipulate as to
criminal history category. A Pre-Sentence Investigation Report,
prepared for Llanos-Falero's sentencing, concluded that Llanos-
Falero had 11 criminal history points and a criminal history
category of V. The plea agreement recommended "a sentence of 72
months as to Count One and 60 months for Count Two to be served
consecutively for a total sentence of 132 months, or 11 years of
imprisonment." The plea agreement further stated that "[t]he
parties jointly recommend[ed], as to Count One, that this federal
1 It is unclear how or when authorities became aware of
Llanos-Falero's role in the robbery. Llanos-Falero did admit his
involvement one day after he was indicted.
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sentence be imposed to run concurrently with defendant's
Commonwealth of Puerto Rico sentence currently being served."
Through the plea agreement, Llanos-Falero "knowingly and
voluntarily waive[d] the right to appeal the judgment and sentence
in [his federal] case, provided that [he was] sentenced in
accordance with the terms and conditions set forth in the Sentence
Recommendation provision of [the] Plea Agreement." He further
acknowledged that he was "aware that his sentence [wa]s within the
sound discretion of the judge and of the advisory nature of the
Guidelines"; that "the [district court] [wa]s not a party to this
Plea and Forfeiture Agreement and thus [wa]s not bound by this
agreement or the sentencing calculations and recommendations
contained"; that "the [district court] ha[d] jurisdiction and
authority to impose any sentence within the statutory maximum set
for the offense to which [he] [wa]s pleading guilty"; that "the
[district court] m[ight] accept or reject the Plea and Forfeiture
Agreement"; and that "[s]hould the Court impose a sentence up to
the maximum established by statute, [he] c[ould not], for that
reason alone, withdraw his guilty plea, and w[ould] remain bound
to fulfill all of the obligations under this Plea and Forfeiture
Agreement."
On July 3, 2014, the district court held a change-of-
plea hearing. In the course of the hearing, the sentencing judge
asked if Llanos-Falero had been recently treated for a mental
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illness. Llanos-Falero responded that he had been treated for
bipolar disorder and stress. In response to the sentencing judge's
questions, Llanos-Falero also said that he had been prescribed
"Elavil, Vistaril, and another" medication, that he continued to
take those medications twice a day, and that he had taken them the
morning of the hearing. When asked "Do you feel okay today?" by
the sentencing judge, immediately after that colloquy, Llanos-
Falero responded "Yes, I do, sir." The sentencing judge asked
next "Can you make a voluntary and knowing plea?" to which Llanos-
Falero replied "Yes, I can, sir."
In response to further questioning, Llanos-Falero said
that he had been treated for addiction to marijuana and Percocet,
but had stopped treatment around two and a half months before the
hearing, and that he had last used marijuana or Percocet
approximately two years prior. He confirmed that he was taking no
other medications besides the ones he had already mentioned and
that he had not consumed alcohol in the past 24 hours. When asked
"what is it that you want to do today here in court?" Llanos-
Falero responded "I want to plead guilty." The sentencing judge
asked Llanos-Falero's counsel if he had any doubts as to Llanos-
Falero's "competence to plead at this time," to which counsel
responded "No, your honor." The sentencing judge concluded that
"[b]ased on his answers to my questions and his appropriate
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demeanor, I find . . . Aurelio Llanos-Falero to be competent to
enter his plea of guilty."
The sentencing judge also asked if Llanos-Falero's
counsel had "fully explain[ed] the plea agreement" to Llanos-
Falero and whether counsel was satisfied as to Llanos-Falero's
understanding of the plea agreement, and counsel responded that he
had explained the plea agreement and that he was satisfied as to
Llanos-Falero's understanding of it. The sentencing judge asked
Llanos-Falero repeatedly whether he understood that the judge
could enter a sentence "that is either more severe or less severe
than any sentence you may anticipate, or even the sentence being
recommended in the plea agreement, except that, as to Count Two,
I cannot sentence you for anything less than [60] months." Llanos-
Falero responded that he did understand. The sentencing judge
concluded:
It's the finding of the Court in the case of the United
States versus Aurelio Llanos-Falero that Mr. Llanos is
fully competent and capable of entering an informed
plea, that he is aware of the nature of the charges and
the consequences of the plea, and that his plea of guilty
is a knowing and voluntary one, supported by an
independent basis in fact containing each of the
essential elements of the offense.
Mr. Llanos' plea is, therefore, accepted, and he is now
adjudged guilty of that offense.
After submission of the Pre-Sentence Investigation
Report, the court delivered Llanos-Falero's sentence on December
2, 2014. The sentencing judge noted that "[t]he parties had agreed
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on a sentence of 72 months as to Count One and 60 months as to
Count Two, for a total of 132 months of imprisonment, which f[ell]
below the [G]uideline[s] range reflected in the [P]re-[S]entence
[I]nvestigation [R]eport." The court concluded that "an
appropriate sentence [wa]s at the lower end of the [G]uideline[s]
range for Count One, plus 60 months for Count Two." The court
sentenced Llanos-Falero to "a term of 77 months as to Count One
and 60 months as to Count Two, to be served consecutive to each
other, for a total of 137 months." The sentencing judge further
ordered that "[t]he total amount of imprisonment w[ould] run
consecutively to any prior criminal conviction imposed by [Puerto
Rico]." The court also sentenced Llanos-Falero to two concurrent
five-year terms of supervised release. When the court asked
Llanos-Falero's counsel whether he had anything to add, counsel
stated: "Mr. Llanos is being sentenced to a little more than four
years [more] than his co-Defendants, [at least one of whom] also
planned the robbery with him. . . . In addition, he [would] not
be standing before this Court if he had not admitted [his guilt]
because that was the main evidence." When the sentencing judge
observed "This is something that you agreed to," counsel replied
"I am just asking for a concurrency with Count One with the [Puerto
Rico] charges." The court denied the request. This appeal
followed.
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II.
Llanos-Falero raises three issues on appeal.2 He argues
that the district court violated Rule 11 of the Federal Rules of
Criminal Procedure by failing to inquire sufficiently into the
effect of Llanos-Falero's medication on his capacity to make an
intelligent and voluntary plea. See Fed. R. Crim. P. 11. He
further argues that the sentencing court committed a Rule 11
violation by failing to "warn[] or advise[] [him] that it had
discretion to impose the sentence to run concurrently or
consecutively." Finally, he argues that the sentence imposed is
unreasonable because of its difference in duration from the
sentence proposed in the plea agreement and the district court's
failure to take into account Llanos-Falero's admission of guilt
and the effect of depression on his actions. All three claims
fail. We address them in turn.
2 The government argues that we could dismiss this appeal
because Llanos-Falero "fails to explain why this appeal should be
entertained, given the existence of a waiver-of-appeal clause in
the plea agreement he signed." The government does concede,
however, that if Llanos-Falero had addressed the issue, he could
have made a reasonable argument that the waiver clause is
inapplicable, because it was contingent on his being sentenced in
accordance with the plea agreement, and the sentence imposed
departed from that recommendation. Llanos-Falero argues in turn
that he did not address the appellate waiver clause "because it is
patently inapplicable" in light of the sentence imposed, and so he
had no obligation to discuss it. We need not resolve this dispute.
Because the issues Llanos-Falero raises on appeal all fail, we
bypass the appellate-waiver issue and proceed to the merits.
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The parties agree that we should review Llanos-Falero's
claim as to the district court's failure to inquire sufficiently
into his medications under a plain error standard. Under this
standard, Llanos-Falero 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. Padilla, 415 F.3d 211, 218 (1st
Cir. 2005) (en banc) (quoting United States v. Duarte, 246 F.3d
56, 60 (1st Cir. 2001)). He cannot meet this rigorous standard.
First, Llanos-Falero makes little "attempt to meet the four-part
test" for plain error, and his sparse briefing risks waiver of the
issue. United States v. Pabon, 819 F.3d 26, 33 (1st Cir. 2016);
see also United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
But even if the claim were properly presented, it would fail.
Llanos-Falero relies on United States v. Parra-Ibañez,
936 F.2d 588 (1st Cir. 1991). In that case, during a change-of-
plea hearing, the district court discovered through questioning
that the defendant had been under treatment for a "mental or
emotional condition" and had taken Ativan, Halcion, and Restoril
within 24 hours of the hearing. Id. at 591. There, "[t]he
[district] court did not undertake to explore whether any of the
medications identified by [the defendant] affected his ability to
enter a voluntary and intelligent plea," id., although "at other
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points in the hearing, [the district court did] inquire as to [the
defendant's] general ability to comprehend the proceedings,"
including asking the defendant's counsel and the prosecution
whether they had any doubts as to the defendant's competence to
plead, id. at 591–92. Earlier, the court had held a competency
hearing and determined on the basis of psychiatric testimony that
although the defendant "had undergone psychiatric treatment and
had a history of drug abuse," he was competent to plead guilty.
Id. at 591.
We held that although the appellant had made no
objection, id. at 593, the district court had been "obligated by
Rule 11 to ask further questions," such as "what dosages [of
medication the defendant] had ingested and what effects, if any,
such medications might be likely to have on [the defendant's]
clear-headedness," id. at 596. We have clarified since that the
reversible error in Parra-Ibañez concerned the failure to make any
further inquiry whatsoever. See United States v. Kenney, 756 F.3d
36, 46–47 (1st Cir. 2014); Cody v. United States, 249 F.3d 47, 53
(1st Cir. 2001) (emphasizing that the sentencing judge in Parra-
Ibañez "failed to follow up with any question whatsoever about
whether the defendant's medication affected his competence to
plead"); Miranda-González v. United States, 181 F.3d 164, 166 (1st
Cir. 1999) (”The absolute failure to investigate further once
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apprised of the recent ingestion of drugs doomed the plea entered
by the defendant[] in Parra-Ibañez . . . .").
Here, the district court's colloquy with Llanos-Falero
was enough to satisfy Parra-Ibañez. The district court, upon
learning that Llanos-Falero was under medication taken twice daily
and that he had taken dosages that morning, immediately asked "Do
you feel okay today?" to which Llanos-Falero answered "Yes, I do,
sir"; and "Can you make a voluntary and knowing plea?" to which
Llanos-Falero responded "Yes, I can, sir." The colloquy reads
naturally as an inquiry into whether the medications Llanos-Falero
had taken before the hearing impaired his ability to plead. In
addition, after receiving assurances from Llanos-Falero's attorney
that the attorney had no doubts as to Llanos-Falero's competence
to plead, the sentencing judge concluded that Llanos-Falero was
competent "[b]ased on his answers to my question and his
appropriate demeanor."
We have held that similar questions, combined with
explicit findings as to the defendant's demeanor, meet the
standards of Rule 11. See United States v. Morrisette, 429 F.3d
318, 322–23 (1st Cir. 2005); see also United States v. Rodríguez-
León, 402 F.3d 17, 25 n.8 (1st Cir. 2005) (refusing to "second-
guess" district court's judgment based on defendant's demeanor).3
3 The fact that the district court did not inquire as to
the identity of the third medication does not change our result:
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Indeed, it is difficult to imagine plain error where, as here, the
district court, upon learning that the defendant had taken
medication, immediately (1) asked the defendant if he was all right
and received a response that he was; (2) received further
assurances from defendant's counsel -- ironically, the same
attorney who now raises this issue on appeal -- as to the
defendant's competence to plead; and then (3) articulated a
conclusion that the defendant was competent based on those
responses and the defendant's demeanor during the colloquy. The
colloquy here clearly met Rule 11's requirements.
The parties also agree that Llanos-Falero's claim that
the district court violated Rule 11 by not sufficiently informing
him of the consequences of his pleading guilty is subject to plain
error review. Specifically, Llanos-Falero contends that "[t]he
failure of the district court to warn, or advise, Llanos-Falero
that it had discretion to impose the sentence to run concurrently
or consecutively denied him the opportunity to make a knowing and
voluntary plea of guilt." As with his first claim, Llanos-Falero's
failure to elaborate clearly how this purported lapse by the
district court meets the four-part test for plain error risks
waiver. See Pabon, 819 F.3d at 33. Regardless, the claim fails.
"[T]here is certainly no settled rule that a hearing cannot proceed
unless precise names and quantities of drugs have been identified."
United States v. Savinon-Acosta, 232 F.3d 265, 269 (1st Cir. 2000);
see also Kenney, 756 F.3d at 47 (same).
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Rule 11 requires the sentencing court to "advise the
defendant that the defendant has no right to withdraw the plea if
the court does not follow the recommendation or request." Fed. R.
Crim. P. 11(c)(3)(B). The district court made that advisement and
Llanos-Falero said that he understood it. Moreover, Llanos-
Falero's plea agreement also explained that concept and required
Llanos-Falero to acknowledge that even if the district court
sentenced him to the statutory maximums for Counts One and Two
(twenty-five years and life imprisonment, respectively), he could
not withdraw a guilty plea "for that reason alone." Given the
information in the plea agreement and the disclaimers made by the
district court at the change of plea hearing, both of which Llanos-
Falero acknowledged, Llanos-Falero cannot show "a reasonable
probability that, but for [the error claimed], the result . . .
would have been different." Padilla, 415 F.3d at 221 (first
alteration in original) (quoting United States v. Dominguez
Benitez, 542 U.S. 74, 82 (2004)).
Finally, Llanos-Falero challenges the sentence imposed
on the grounds that it is unreasonably longer than the sentence
proposed by the plea agreement and that it did not take into
account Llanos-Falero's admission of guilt or his assertion that
he was severely depressed when he participated in the robbery.
The parties dispute the applicable standard of review, but we need
not decide that issue, because Llanos-Falero's claim fails even
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under abuse of discretion review, which is the most appellant-
friendly standard that could apply.
The district court permissibly exercised its discretion
when it ordered Llanos-Falero's federal sentence to run
consecutively with his Puerto Rico sentences, resulting in a
sentence eight years longer than the one proposed in the plea
agreement. Both the Guidelines and our case law recognize that a
sentencing judge generally has the discretion to impose a new
sentence consecutively with a previous undischarged sentence. See
U.S.S.G. § 5G1.3(d); United States v. Carrasco-de-Jesús, 589 F.3d
22, 27 (1st Cir. 2009).
The district court imposed a sentence "at the lower end
of the [G]uideline[s] range for Count One, plus [the mandatory
minimum of] 60 months for Count Two," to be served consecutively
with Llanos-Falero's Puerto Rico sentences. There is no evidence
in the record that Llanos-Falero's Puerto Rico convictions for
possession of a submachine gun and for domestic violence have any
relation to his federal convictions related to the bank robbery,
nor does Llanos-Falero suggest any connection. At the final
sentencing hearing, the district court gave a lengthy recitation
of the details of the offenses, the findings in the Pre-Sentence
Investigation Report, and the rationale behind the Guidelines
calculation for Llanos-Falero's sentence, and concluded that the
Guidelines calculation in the Pre-Sentence Investigation Report
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"satisfactorily reflect[ed] the components of Mr. Llanos' offense
by considering its nature and circumstances," an inquiry that
plainly fulfilled its obligation to consider the factors
enumerated in 18 U.S.C. § 3553(a). The district court's decision
to impose the sentence consecutively with Llanos-Falero's Puerto
Rico sentences was arrived at through the proper procedure, was
entirely reasonable, and was clearly not an abuse of discretion.
Llanos-Falero's argument that the district court
committed reversible error because it "did not take into account
the fact that if [he] had not admitted [to] the crime, he would
have never been convicted and the fact that the crime was [the]
result of aberrant behavior caused by a severe depression" is
meritless. As with his other arguments, this claim is conclusory
and underdeveloped: Llanos-Falero gives no explanation as to why
and how these factors would have affected the district court's
calculus. And the record undercuts the claim. Llanos-Falero made
a partial confession shortly after being indicted, and he agreed
in his plea agreement that the government could obtain a conviction
"by physical and documentary evidence, including, but not limited
to testimony, photographs, videos, documents, toll records,
statements, and other physical evidence."
In any event, "these potentially mitigating factors were
before the district court at sentencing," and "[t]here is not the
slightest reason to think that the district court overlooked them."
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United States v. Cortés-Medina, 819 F.3d 566, 570–71 (1st Cir.
2016). The sentence imposed was well within the Guidelines range
and deserves "a presumption of reasonableness." Id. at 572(quoting Rita v. United States, 551 U.S. 338, 347 (2007)). In
these circumstances, Llanos-Falero "must adduce fairly powerful
mitigating reasons and persuade us that the district court was
unreasonable in balancing pros and cons." Id. (quoting United
States v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011)). He has
not satisfied this burden.
III.
We affirm the district court's sentence.
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