United States v. Colon-Rosario

United States Court of Appeals
For the First Circuit
No. 17-2122
UNITED STATES OF AMERICA,
Appellee,
v.
ALEX COLÓN-ROSARIO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Louis Guirola, Jr., U.S. District Judge]
Before
Kayatta, Circuit Judge,
Souter,** Associate Justice,
and Selya, Circuit Judge.
Irma R. Valldejuli on brief for appellant.
Rosa Emilia Rodriguez-Velez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Julia M. Meconiates, Assistant United
States Attorney, on brief for appellee.
April 19, 2019

Of the Southern District of Mississippi, sitting by
designation.
** Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SELYA, Circuit Judge. Dismayed by his 240-month prison
sentence, defendant-appellant Alex Colón-Rosario claims that the
prosecutor committed various breaches of his plea agreement (the
Agreement) during the disposition hearing. Since the appellant
raises these claims for the first time on appeal, our review is
solely for plain error. Discerning none, we affirm the judgment
below.
I. BACKGROUND
We briefly rehearse the relevant facts and travel of the
case. Because this appeal trails in the wake of a guilty plea, we
draw our account from the Agreement, the change-of-plea colloquy,
the presentence investigation report (PSI Report), and the
transcript of the disposition hearing. See United States v.
Coleman, 884 F.3d 67, 69 (1st Cir. 2018).
Following the expiration of a restraining order
previously obtained by the mother of his seven-year-old son, the
appellant began taking the boy to his house for weekend visits.
During these interludes, the appellant voiced threats of violence,
abused his son physically and sexually, and took pornographic
pictures. The boy's mother eventually noticed a significant change
in his behavior and learned of the abuse. On February 7, 2014,
she notified the sex-crimes division of the Puerto Rico Police
Department.
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Matters deteriorated even further when, on March 28,
2014, the son either threatened or attempted to commit suicide
three times during the course of the day. After the third
incident, the boy was hospitalized in a mental institution. He
was discharged after eight days of inpatient care.
We fast-forward to June 3, 2015, when a federal grand
jury sitting in the District of Puerto Rico charged the appellant
with three counts of transporting a minor (his son) with the intent
to engage in criminal sexual activity. See 18 U.S.C. § 2423(a).
The appellant initially maintained his innocence but, in due
course, he entered into the Agreement and pleaded guilty to one
count of the indictment.1 The Agreement embodied the parties'
stipulation to a total offense level (TOL) of 35. This figure
included a two-level enhancement for the parental relationship,
see USSG §2G1.3(b)(1); an eight-level enhancement for the victim's
age, see id. §2G1.3(b)(5); and a three-level reduction for
acceptance of responsibility, see id. §3E1.1(b). Although the
Agreement indicated that other enhancements could be applied, they
were omitted (apparently on purpose) from the offense level
calculation. The Agreement left open the applicable criminal
history category (CHC) but noted that a CHC of I would yield a
guideline sentencing range (GSR) of 168-210 months. Not
1
Pursuant to the Agreement, the other two counts of the
indictment were dismissed at the time of sentencing.
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coincidentally, the Agreement constrained the government to argue
for a sentence of 168 months (the bottom of the putative GSR).
Finally, the Agreement contained a waiver-of-appeal provision,
which would take effect only if the district court sentenced the
appellant "according to [the Agreement's] terms, conditions and
recommendations, or sentence[d] him to any term of incarceration
within the applicable guideline range based on a [TOL] of 35."
The tectonic plates shifted, though, when the probation
department compiled the PSI Report. There, the probation
department recommended a TOL of 43 — a figure reached by beginning
with a higher base offense level and including enhancements that
had not been factored into the guideline calculations used in the
Agreement, such as enhancements for threats or force, the victim's
vulnerability, serious bodily injury, and a pattern of criminal
activity. See id. §§2A3.1(b)(1), 2A3.1(b)(4)(B), 3A1.1(b)(1),
4B1.5(b)(1). In combination with a CHC of I, this increased TOL
boosted the appellant's GSR to life imprisonment. Neither party
objected to the guideline calculations adumbrated in the PSI
Report.
The appellant proceeded to file a sentencing memorandum
seeking a 120-month sentence (the mandatory minimum for the offense
of conviction). The memorandum outlined what he believed were
mitigating factors, such as his impoverished childhood and his
lack of education. The government's sentencing memorandum
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defended the GSR calculated in the Agreement and explained that
this calculation was "result-oriented" in that the government had
tendered the plea offer to protect the victim from the trauma of
a trial. Accordingly, the government asked the court to impose a
168-month sentence.
The disposition hearing was held on October 25, 2017.2
At the hearing, the sentencing court adopted the guideline
calculations set out in the PSI Report (not those limned in the
Agreement). Defense counsel argued for the mandatory minimum
sentence — a 120-month term of immurement. For his part, the
prosecutor argued in support of an incarcerative sentence of 168
months. After considering the contentions of counsel, the PSI
Report, and the factors enumerated in 18 U.S.C. § 3553(a), the
court sentenced the appellant to a prison term of 240 months. This
timely appeal followed.
II. ANALYSIS
The appellant argues that the government failed to honor
the commitments that it undertook in the Agreement. The various
incidents of alleged breach relate to the government's supposed
failure to advocate straightforwardly for the sentence that it had
2Hurricane Maria struck Puerto Rico prior to sentencing. The
United States District Court for the District of Puerto Rico was
forced to close temporarily and the sentencing phase of this case
was conducted in a courtroom located in the Southern District of
Mississippi.
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agreed to recommend. There is, however, a threshold issue
regarding the Agreement's waiver-of-appeal provision. We start
there.
A. The Waiver-of-Appeal Provision.
The government posits that this appeal should be
dismissed because the appellant's opening brief failed to address
the waiver-of-appeal provision at all. In the government's view,
a defendant who signs a plea agreement containing an appeal waiver
and then attempts to appeal must perforce explain, in his opening
brief, why the waiver does not pretermit the appeal. For this
proposition, the government relies on our decision in United States
v. Miliano, in which we held that the defendant had an affirmative
obligation to explain up-front why the waiver-of-appeal provision
in his plea agreement was inapplicable. See 480 F.3d 605, 608
(1st Cir. 2007). We further held that, absent such an explanation,
the defendant "forfeit[ed] any right to contend either that the
waiver should not be enforced or that it d[id] not apply." Id.
Everything depends on context, though, and the
government wrests Miliano from it contextual moorings. The rule
established there pertains only when a colorable question exists
as to whether a waiver-of-appeal provision applies. There is no
such question here.
It is black-letter law that a waiver-of-appeal provision
precludes only those appeals that fall within its scope. See
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United States v. Fernández-Cabrera, 625 F.3d 48, 51 (1st Cir.
2010). In this instance, the waiver-of-appeal provision
obliterated the right to appeal only if the district court
sentenced the appellant "according to [the Agreement's] terms,
conditions and recommendations, or sentence[d] him to any term of
incarceration within the applicable guideline range based on a
[TOL] of 35." It is luminously clear that the sentence imposed
did not fall within those parameters: the sentencing court
eschewed the guideline calculations specified in the Agreement,
adopted a more onerous set of calculations, and imposed a sentence
substantially above the sentencing recommendations described in
the Agreement. Given that the plain language of the waiver-of-
appeal provision makes manifest that it does not apply to the
sentence actually imposed by the district court,3 it would have
served no useful purpose for the appellant to address the appeal
waiver in his opening brief — and he was under no obligation to do
so. See United States v. Ocasio-Cancel, 727 F.3d 85, 89 (1st Cir.
2013) (holding appeal waiver inapplicable when plain meaning of
plea agreement "vitiated the waiver-of-appeal provision in its
3The proof of the pudding is that the government, in its
brief on appeal, argues only that the appellant has defaulted by
failing to address the waiver-of-appeal provision. It does not
argue that the waiver-of-appeal provision can plausibly be read to
bar this appeal. Indeed, the government concedes that "the waiver
of appeal was not triggered because the district court did not
sentence [the appellant] within the total offense level of 35."
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entirety"); cf. Allen v. Att'y Gen. of Me., 80 F.3d 569, 573 (1st
Cir. 1996) (explaining that "[t]he law . . . should not require
litigants to engage in empty gestures").
B. The Appellant's Claims.
This brings us to the appellant's claims of error. Our
starting point is his claim that the prosecutor violated the
Agreement by telling the district court that there were no
mitigating factors in the appellant's case and that the only reason
the government made such a "sweetheart deal" was to avoid exposing
the victim (a young boy) to the rigors of trial. Because the
appellant failed to preserve this claim below, our review is solely
for plain error. See United States v. Duarte, 246 F.3d 56, 60
(1st Cir. 2001).
As we have said, plain error is "a formidable standard
of appellate review." United States v. Saxena, 229 F.3d 1, 5 (1st
Cir. 2000); see Fed. R. Crim. P. 52(b). It requires an appellant
to 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." Duarte, 246 F.3d at 60
(citing Johnson v. United States 520 U.S. 461, 466-67 (1997)).
Within this rubric, an error is deemed to affect an appellant's
substantial rights only when the error "likely affected the outcome
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of the proceedings." United States v. Almonte-Nuñez, 771 F.3d 84,
89 (1st Cir. 2014).
We detect nothing resembling plain error here. The
Agreement committed the government to recommend a sentence of 168
months. Because the appellant's plea rested, in part, on this
promise, the promise had to be fulfilled. See Santobello v. New
York, 404 U.S. 257, 262 (1971). We add, moreover, that in the
plea-agreement context, "we hold the government to 'the most
meticulous standards of both promise and performance.'" United
States v. Montañez-Quiñones, 911 F.3d 59, 64 (1st Cir. 2018)
(quoting Correale v. United States, 479 F.2d 944, 947 (1st Cir.
1973)), cert. denied, ____ S. Ct. _____ (2019) [2019 WL 635196].
Satisfying these standards demands more than mere "lip service."
Saxena, 229 F.3d at 6. Here, however, the government fulfilled
the commitment that it had made. We explain briefly.
To begin, the government's obligation to honor its plea-
agreement commitments does not exist in a vacuum. The government
has a corollary obligation to furnish the sentencing court with
accurate information and to answer the court's questions
forthrightly. See Almonte-Nuñez, 771 F.3d at 90. When carrying
out these duties, the government is under no compulsion to sugar-
coat the facts. See id. at 91.
In the case at hand, the "sweetheart deal" statement to
which the appellant refers was not a spontaneous utterance. To
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the contrary, it was made in response to defense counsel's
assertion that the government had agreed to recommend a bottom-
of-the-range sentence and to allow the appellant to argue for a
downward variance because of mitigating factors in the appellant's
life. This assertion misrepresented the government's rationale,
and the prosecutor had a right — indeed, a duty — to correct the
misrepresentation and inform the sentencing court of the actual
rationale. See id. at 89-90. That is exactly what the prosecutor
did: he explained that "[t]he only reason [the appellant] got
this sweetheart deal [wa]s because of the damage to the victim
that would occur at trial." Since the challenged statement was
made "to correct what the [prosecutor] reasonably viewed as a
misstatement of fact by defense counsel," the statement did not
work a breach of the Agreement. Id. at 90.
In a variation on this theme, the appellant attacks the
"sweetheart deal" comment from a different angle. He suggests
that the comment shows that the government acted in bad faith and
"induce[d] him to plea." But this suggestion is pulled out of
thin air: protecting a minor victim from exposure to trial may
constitute a legitimate reason for offering a defendant a reduced
sentence. Cf. Globe Newspaper Co. v. Super. Ct. for Norfolk Cty.,
457 U.S. 596, 607 (1982) (concluding that state's interest in
"safeguarding the physical and psychological well-being of a minor
[victim] is a compelling one").
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The appellant next asserts that the prosecutor breached
the Agreement by "vigorously" delineating certain aggravating
factors pertaining to his case. He notes that, at the disposition
hearing, the prosecutor made much of the fact that the victim was
the appellant's minor son and recounted that the abuse consisted
of oral sex, sodomy, physical harm, threats of violence, and rape.
This assertion, too, is subject only to plain error review — and
at any rate, it is unavailing.
As we already have indicated, the government has an
affirmative obligation to supply the sentencing court with
accurate facts, including relevant offense characteristics. See
Almonte-Nuñez, 771 F.3d at 90. The appellant was not entitled to
have the government soft-pedal those facts. See id. at 91.
In all events, "[w]hen the parties agree that a defendant
may argue for a particular sentence while the government may argue
for a somewhat stiffer sentence, the government is not constrained
to pull its punches when arguing for the stiffer sentence."
Montañez-Quiñones, 911 F.3d at 65. So it is here. The Agreement
contemplated that the government would recommend a 168-month
sentence and that the appellant would ask for a 120-month sentence.
Consistent with that framework, it was well within bounds for the
prosecutor to recount the offense characteristics and to explain
why those characteristics justified a 168-month sentence rather
than the more lenient sentence that the appellant was seeking.
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That the details of the offense of conviction were repulsive does
not in any way circumscribe the scope of the prosecutor's
permissible advocacy. See id.
In a last ditch effort to snatch victory from the jaws
of defeat, the appellant asseverates that the prosecutor
transgressed the Agreement by telling the sentencing court that
"[t]he nature and circumstances of the offense, the seriousness of
the offense, [and] the requirements for just punishment do not
scream for a [downward] variance or a departure" from the GSR.
Because a 168-month sentence necessitated a downward variance from
the GSR adopted by the sentencing court, the quoted statement — in
the appellant's view — undermined the foundation on which the
proposed 168-month sentence rested. Thus, the appellant says the
prosecutor took with the left hand what he was committed to give
with the right hand.
This asseveration need not detain us. While the quoted
statement is admittedly unclear as to which GSR calculation the
prosecutor had in mind when speaking of the lack of any predicate
for "a variance or a departure" — the GSR mentioned in the
Agreement or the GSR adopted by the court — the prosecutor
clarified any ambiguity within a matter of moments. He told the
court that when he stated that "nothing the defense has said would
imply that [the appellant] deserved a variance," he was referring
to a "variance [from] our calculation [in] the plea agreement."
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When assessing a claim that a prosecutor has breached a plea
agreement, we must consider the sentencing record as a whole. See
Almonte-Nuñez, 771 F.3d at 91. Seen in this light, we discern no
hint of plain error in the challenged statement.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the judgment of the district court is
Affirmed.
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