United States v. Alvarado-Merced

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 09-2622
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN A. RUIZ-GONZÁLEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Lipez, Stahl and Howard,
Circuit Judges.
Maria Soledad Ramirez Becerra, by Appointment of the Court, on
brief for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, and Rosa
Emilia Rodríguez-Vélez, United States Attorney, on brief for
appellee.
August 25, 2011
STAHL, Circuit Judge. The defendant, Juan A. Ruiz-
González, pled guilty to conspiracy to distribute and/or possess
with the intent to distribute controlled substances in violation of
21 U.S.C. §§ 841(a)(1), 846, and 860. He was sentenced by the
district court to 72 months in prison and now appeals, arguing that
the district court erred in considering his prior criminal
convictions in reaching the sentencing decision. Ruiz-González
further asserts that the amendment to the sentencing guidelines
promulgated in response to the Fair Sentencing Act of 2010 ("FSA")
should apply retroactively to him. For the reason explained below,
we dismiss this appeal.
I. Facts & Background
On July 28, 2009, Ruiz-González appeared before a
magistrate judge to plead guilty, pursuant to a plea agreement, to
count one of a multi-count indictment. After a hearing, the
magistrate judge recommended that the district court accept the
guilty plea, and the district court subsequently followed that
recommendation.
The plea agreement described the crime to which the
defendant pled as follows:
[The defendant] and other persons, did
knowingly and intentionally, combine,
conspire, and agree . . . to knowingly and
intentionally possess with the intent to
distribute and/or to distribute controlled
substances, to wit: in excess of one (1)
kilogram of heroin . . .; and/or in excess of
fifty (50) grams of cocaine base . . .; and/or
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in excess of five (5) kilograms of
cocaine . . .; and/or in excess of one hundred
(100) kilograms of marijuana . . . within one
thousand (1,000) feet of the real property
comprising a public or private school, as
prohibited by [§§ 841(a)(1), 860]. All in
violation of [§ 846].
The agreement specified that, "based on the stipulated and agreed
amount of narcotics possessed by the defendant, that is, at least
thirty-five (35) grams but less than fifty (50) grams of cocaine
base, the penalty for the offense shall be, a term of imprisonment
of not less than five (5) years . . . ." Although the agreement
set the defendant's total offense level at 26, the parties did not
stipulate to a criminal history category ("CHC"). Instead, they
agreed that (1) if the defendant was found to be in CHC I, the
defendant could request a sentence of 63 months and the government
could recommend a sentence of 78 months; (2) if the defendant was
found to be in CHC II, the defendant could request a sentence of 70
months and the government could recommend a sentence of 78 months;
and (3) if the defendant was found to be in CHC III or higher, both
parties agreed to recommend a sentence at the low end of the
guideline range. Notably, the agreement included a waiver of
appeal that read as follows: "The defendant hereby agrees that if
[the district court] accepts this Plea Agreement and sentences him
according to its terms, conditions and recommendations, defendant
waives and surrenders his right to appeal the judgment and sentence
in this case."
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The pre-sentence investigation report ("PSR") concluded
that the defendant fell into CHC I with a total offense level of
26, and therefore his guideline range was 63 to 78 months. The PSR
also listed several incidents that resulted in criminal convictions
for the defendant between 1983 and 1993. These included a
controlled substance violation and a conviction for possession of
a firearm without authorization. Because of their age, however,
these convictions did not yield any criminal history points.
On October 30, 2009, the district court convened a
sentencing hearing. In keeping with the terms of the plea
agreement, the government urged the court to impose a 78-month
sentence and the defendant requested a 63-month sentence. The
district court acknowledged that the defendant's prior convictions
did not yield any criminal history points, but explained that those
convictions were nonetheless relevant to the sentencing decision:
If [the defendant] had been brought to this
court . . . [there] would be consecutive
violations of drugs, and a weapon, and he
would have been considered a felon in
possession, if it had been brought to this
court, because he has a controlled substance
violation of 10/10/87 . . . and he has a
weapons violation . . . . also . . . he has a
domestic violence case, which was reduced to a
simple aggression back in 1993 which this
court is also not counting, but I am still
concerned because he continues with some
proclivity to get himself involved in drug
cases.
After finding that the defendant's total offense level
was 26 and his CHC was I, the district court imposed a special
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assessment of $100.00 and sentenced the defendant to 72 months in
prison, followed by 8 years of supervised release.1 The district
court explained that this sentence was based on the plea agreement
and the factors listed in 18 U.S.C. § 3553(a). The district court
again cited the defendant's prior criminal convictions and noted
that it was "impressed with the [defendant's] proclivity to drug
cases, [his] proclivity to use weapons, which although those
violations did not receive any points, it allows the Court to go to
the middle range [of the applicable guideline range]."
After the sentence was announced, defense counsel
objected to the district court's consideration of the defendant's
prior convictions, arguing that "the guidelines say when a crime
[was] committed over 15 years [ago], it should not be counted."
The district court clarified that it had only considered the
controlled substance and weapon convictions, and then explained, "I
didn't count [the convictions] for criminal history. I only
counted [them] [in determining] where I'm placing him within [the
guideline range] . . . ." Shortly after the sentencing hearing,
the defendant filed a motion for reconsideration and/or correction
1
The transcript of the sentencing hearing quoted the district
court as describing the defendant's guideline range as "63 to 68."
It is unclear whether this reflects a typographical error or a
misstatement by the district court. Regardless, other portions of
the transcript indicate that the district court was well aware that
72 months was in the middle of the applicable guideline range.
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of sentence, which the district court denied after holding another
hearing.
II. Discussion
A waiver of appeal will generally be honored if it was
knowing and voluntary. Sotirion v. United States, 617 F.3d 27, 33
(1st Cir. 2010); United States v. Teeter, 257 F.3d 14, 24 (1st Cir.
2001). However, "even if the waiver is knowing and voluntary, we
retain discretion not to enforce the waiver if it would result in
a 'miscarriage of justice.'" Sotirion, 617 F.3d at 33 (quoting
Teeter, 257 F.3d at 25).
The defendant does not dispute that he waived his right
to appeal knowingly and voluntarily. Rather, the defendant
contends that enforcing the waiver would constitute a miscarriage
of justice. Specifically, the defendant takes issue with the
district court's consideration of his twenty-year-old criminal
convictions. The defendant claims that these convictions "w[ere]
not sufficient to conclude that [the defendant] will repeat the
conduct in the future" and that the district court's reasoning
"resulted in a penalty that was harsher than necessary to achieve
the purposes of sentencing." He argues that the "sentence [was]
procedurally incorrect because the [district court's] explanation
as to why the recommended sentence of 63 months . . . was not
reasonable is not reliable[,]" and the sentence was substantively
unreasonable because he deserved a more lenient sentence.
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"Th[e] miscarriage of justice exception is meant only for
'egregious cases' and is to be applied 'sparingly and without undue
generosity.'" Id. at 36 (citing Teeter, 257 F.3d at 25-26). It
"'requires a strong showing of innocence, unfairness, or the like,'
and is 'demanding enough to prevent defendants who have agreed to
waive their right to appeal from successfully pursuing
garden-variety claims of error[.]'" Id. (internal citations
omitted). In determining whether the miscarriage of justice
threshold has been reached, this court considers, among other
things, "the clarity of the error, its gravity, its
character . . ., the impact of the error on the defendant, the
impact of correcting the error on the government, and the extent to
which the defendant acquiesced in the result." Teeter, 257 F.3d at
26. For example, we have observed that a miscarriage of justice
occurs when a sentencing court considers a constitutionally
impermissible factor such as the defendant's race. Id. at 25 n.9.
A miscarriage of justice may also occur when the district court
plainly errs in sentencing a defendant, such as where the sentence
exceeds the maximum penalty permitted by law. Id. at 25 n.10.
In the case at hand, enforcing the waiver would not
result in a miscarriage of justice. First, neither the district
court's consideration of the defendant's old convictions, nor its
explanation that its within-the-guideline sentence was based in
part on those convictions, were procedural errors giving rise to a
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miscarriage of justice. Not only does the defendant fail to cite
any authority supporting the argument that the district court's
reasoning was procedurally flawed, but he concedes in his brief
that there is "no limitation on the information concerning the
background character and conduct of [the defendant] [that may be
considered] for the purpose of imposing a sentence." See also 18
U.S.C. § 3661 ("No limitation shall be placed on the information
concerning the background, character, and conduct of a person
convicted of an offense which a court of the United States may
receive and consider for the purpose of imposing an appropriate
sentence."); id. § 3553(a)(1) (instructing court to consider, among
other things, "the history and characteristics of the defendant");
U.S.S.G. § 1B1.4 ("In determining the sentence to impose within the
guideline range . . . the court may consider, without limitation,
any information concerning the background, character and conduct of
the defendant, unless otherwise prohibited by law."). Regardless,
the defendant certainly does not explain how any such procedural
error was so grave or egregious as to cause a miscarriage of
justice, and we cannot see how allowing this sentence to stand
would result in a miscarriage of justice.
Second, the 72-month sentence was substantively
reasonable. Although a sentence within the applicable guideline
range is not presumed reasonable, a defendant challenging the
substantive reasonableness of such a sentence bears a heavy burden,
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even when the right to appeal has not been waived. See United
States v. Madera-Ortiz, 637 F.3d 26, 30 (1st Cir.), cert. denied,
180 L. Ed. 2d 260 (2011). The defendant here has not met that
burden. To the extent he argues that the sentence did not
appropriately reflect certain mitigating considerations, we
disagree. We see nothing about the defendant's circumstances that
required the district court to impose a more lenient sentence.
Just because the district court did not weigh the mitigating
factors as heavily as the defendant would like, it does not mean
that the sentence was substantively unreasonable. Cf. id. at 32("That the court below chose not to give greater weight to [various
mitigating factors] . . . represented a judgment call. Within wide
margins, not approached here, such judgment calls are for the
sentencing court, not for this court."). Nor do we think the
sentence was substantively unreasonable because the district court
considered the defendant's prior convictions. Although more than
twenty years elapsed between those convictions and the guilty plea
in the instant case, it was not unreasonable for the district court
to reject a bottom-of-the-range request — in favor of a 72-month,
middle-of-the-range sentence — because of the defendant's criminal
record and what that record portends for the defendant's ability to
avoid criminal activity in the future. See § 3553(a) (instructing
sentencing court to consider, among other things, "the history and
characteristics of the defendant" and "the need for the sentence
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. . . to protect the public from further crimes of the defendant").
In short, the district court advanced "a plausible sentencing
rationale" to support "a defensible result," see West v. United
States, 631 F.3d 563, 572 (1st Cir. 2011), and the sentence was
substantively sound.
Lastly, we turn to the defendant's claim that changes to
the sentencing guidelines promulgated pursuant to the FSA should
apply retroactively to him. The defendant was sentenced in 2009.
The FSA was enacted on August 3, 2010, the emergency guideline
amendment promulgated in response to the FSA took effect on
November 1, 2010, and the permanent guideline amendment is
scheduled to take effect on November 1, 2011. See United States v.
Douglas, 644 F.3d 39 (1st Cir. 2011) (setting forth the timeline of
the relevant developments). As the defendant acknowledges, absent
some directive from Congress or the Sentencing Commission
("Commission"), a sentencing court should generally apply the
guidelines that "are in effect on the date the defendant is
sentenced." § 3553(a)(4)(A)(ii). We recognize that the Commission
recently voted "to give retroactive effect to its proposed
permanent amendment to the federal sentencing guidelines that
implements the [FSA]." News Release, U.S. Sentencing Comm'n, U.S.
Sentencing Comm'n Votes Unanimously to Apply Fair Sentencing Act of 2010 Amendment
to the Fed. Sentencing Guidelines Retroactively (June 30, 2011) (available at
http://www.ussc.gov/Legislative_and_Public_Affairs/Newsroom/Press_Releases/201106
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30_Press_Release.pdf); see also U.S. Sentencing Comm'n Notice of Final Action
Regarding Amendment to Policy Statement § 1B1.10, 76 Fed. Reg. 41332 (July 13,
2011); U.S. Sentencing Comm'n Notice of Submission to Congress of Amendments to
Sentencing Guidelines and Request for Comment, 76 Fed. Reg. 24960 (May 3, 2011).
Unless Congress halts the Commission's plans, retroactivity will
accompany the permanent amendment when that amendment takes effect
on November 1, 2011. News Release, U.S. Sentencing Comm'n, supra.
No matter how this turns out, however, the defendant's request for
resentencing under the new guideline regime is premature. Cf.
United States v. Williams, 630 F.3d 44, 52-53 (1st Cir. 2010)
(concluding that appellant's request for retroactive application of
guideline amendment was premature because the Commission had yet to
issue the permanent guideline amendment or determine whether that
amendment would apply retroactively), cert. denied, 131 S. Ct. 2122(2011). If and when the permanent amendment becomes retroactive,
the defendant "is free to petition for resentencing pursuant to 18
U.S.C. § 3582(c)(2)."2 Cf. id. at 53.
III. Conclusion
For the foregoing reasons, the defendant's appeal is
dismissed.
2
We express no opinion about the merits of any such future
petition.
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