U.S. v. Pizarro-Berrios

Citation448 F.3d 1
Decision Date05 May 2006
Docket NumberNo. 04-2062.,04-2062.
PartiesUNITED STATES of America, Appellee, v. Roy PIZARRO-BERRÍOS, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Jorge L. Armenteros-Chervoni, for appellant.

Germán A. Rieckehoff, Assistant United States Attorney, with whom Nelson Pérez-Sosa, Assistant United States Attorney, and H.S. García, United States Attorney, were on brief, for appellee.

Before BOUDIN, Chief Judge, TORRUELLA and SELYA, Circuit Judges.

TORRUELLA, Circuit Judge.

Defendant-Appellant Roy Pizarro-Berríos ("Pizarro") pled guilty pursuant to a straight plea (i.e., without a plea agreement) to conspiracy to commit credit card, bank fraud, and conspiracy to launder money. He now appeals, arguing that his plea was not knowing and intelligent and challenging his sentence. We affirm in part, vacate in part, and remand to the district court.

I.

Pizarro participated in a conspiracy involving the use of counterfeit credit cards, forged checks, and false identification documents to purchase merchandise from various businesses. The merchandise was used either for the conspirators' benefit or resold, with the earnings being distributed to members of the conspiracy. The conspiracy ran from December 2002 through November 2003. Pizarro's role in the conspiracy was to make purchases at local businesses using the counterfeit credit cards.1

In April 2003, Pizarro was arrested and put in state custody after attempting to make a purchase at a supermarket in the town of Canóvanas, Puerto Rico, using a forged check. While being held in state custody, Pizarro gave an oral statement (the "confession")2 to Agent Israel Santiago-Monserrate ("Santiago") of the Puerto Rico Police Department, discussing the details of the conspiracy and his involvement in it. Santiago transcribed the confession and Pizarro signed the document. Pizarro was incarcerated in state prison on July 7, 2003. On August 21, 2003, Pizarro entered a guilty plea to the state charges and was sentenced to two years in prison.

Meanwhile, the other conspirators were arrested by federal authorities. On December 3, 2003, Pizarro was released from state prison pursuant to a writ of habeas corpus ad prosequendum so that he could face federal charges for his involvement in the conspiracy. On December 8, a federal grand jury returned an indictment against the members of the conspiracy. Counsel was appointed for Pizarro on December 10. On January 28, 2004, a twelve-count superseding indictment issued. The superseding indictment charged Pizarro with conspiracy to commit credit card fraud, in violation of 18 U.S.C. §§ 371, 1029(a) ("Count One"); bank fraud, in violation of 18 U.S.C. §§ 2, 1344 ("Count Two"); conspiracy to launder money, in violation of 18 U.S.C. § 1956(a)(1) and (h) ("Count Three"); and identification fraud, in violation of 18 U.S.C. § 1028(a)(4) ("Count Nine").

According to the government, Pizarro spoke with federal agents prior to his federal indictment and indicated that he wanted to cooperate with the government. Some of these conversations were summarized in what the FBI calls 302 forms.3 The government eventually offered Pizarro a plea agreement, which he decided not to take after consulting with his counsel. According to the government, the Assistant United States Attorney ("AUSA") handling the case told Pizarro's counsel that none of Pizarro's statements summarized in the 302 forms would be used at trial.

On February 24, 2004, Pizarro filed a motion for change of plea. At a change of plea hearing held before the district court on March 1, 2004, Pizarro entered a straight guilty plea to Counts One through Three. Count Nine was dismissed.4 Pizarro's Presentence Report ("PSR") assigned him a base offense level of 6. After relevant enhancements and reductions were calculated, Pizarro's total offense level was 26.5 Combined with a Criminal History Category of II, the applicable Guidelines range was 70-87 months' imprisonment.

The PSR referenced the confession Pizarro had provided to Agent Santiago, as well as the statements found in the 302 forms. Upon reading the PSR, Pizarro's counsel called the Probation Officer, Andrea Cribben ("Cribben"). Cribben told Pizarro's counsel that she had received the confession from the case agent. According to Pizarro, his counsel also contacted AUSA Juan Milanés, who said that he was unaware of the existence of the confession and that he had not provided any 302 forms because he did not have to provide them until trial. On June 4, 2004, the government faxed the 302 forms to Pizarro's counsel, and on June 8, the government faxed the confession.

On June 9, 2004, Pizarro filed a motion arguing that the government had violated Rule 16 of the Federal Rules of Criminal Procedure6 and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), because it had not provided Pizarro with either the confession or the FBI 302 forms before Pizarro pled guilty. Although Pizarro stated in the motion that the government's actions called into question the voluntariness and intelligence of his guilty plea, he did not ask that he be allowed to withdraw his plea; rather, he asked that the district court adopt his interpretation of the Sentencing Guidelines.

The government filed an opposition to Pizarro's motion on June 16, 2004, stating that it never intended to use the 302 forms at trial and therefore did not have to disclose them under Rule 16(a)(1)(A). The government also stated that the case agent did not receive the confession until May 4, 2004, after he had contacted state police to gather documents to prepare the case for presentation. As soon as the case agent received the confession, he forwarded it to Cribben, who used it in the PSR. The agent also sent the document — which was in the Spanish language — to a translator and forwarded a translated copy to the U.S. Attorney's Office on June 7. The confession was then faxed to Pizarro's counsel the following day. According to the government, therefore, no one involved in the case either knew or could have known of the confession's existence prior to May 4, 2004, meaning that the confession could not have been given to Pizarro before he pled guilty on March 1, 2004.

Pizarro was sentenced on July 1, 2004. At the sentencing hearing, the district court denied Pizarro's motion regarding the alleged discovery violations. The court accepted the PSR's calculations, but gave Pizarro a three-level (instead of a two-level) reduction for acceptance of responsibility, which resulted in a Guidelines range of 63-78 months' imprisonment. The district court sentenced Pizarro to 70 months' imprisonment as to Counts Two and Three and 60 months' imprisonment as to Count One, to be served concurrently with each other and the state sentence.7 However, in its written judgment, the court stated that Pizarro's federal prison term would run consecutively to his state sentence. Pizarro now appeals, arguing that his plea was not knowing and intelligent because the government failed to disclose the confession or the 302 forms; that he should be re-sentenced pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); that his sentence included some improperly applied enhancements; and that the written judgment should be corrected so that Pizarro's federal prison term runs concurrently with his state prison term, in accordance with the district court's oral pronouncement of sentence.

II.
A. Rule 16 Violations and Withdrawal of Plea

We have stated that a "district court may allow withdrawal [of a guilty plea] for `a fair and just reason.'" United States v. Padilla-Galarza, 351 F.3d 594, 597 (1st Cir.2003) (quoting Fed.R.Crim.P. 11(d)(2)(B)). Among the relevant factors a court should consider are

whether a plea was voluntary, intelligent, knowing and complied with Rule 11; the force of the reasons offered by the defendant; whether there is a serious claim of actual innocence; the timing of the motion; and any countervailing prejudice to the government if the defendant is allowed to withdraw his plea.

Id.

Pizarro appears to argue that his guilty plea was not knowing and intelligent because of failures of the prosecutor to disclose (allegedly in violation of Rule 16) both a confession and various statements given by Pizarro. The supposed Rule 16 violations were raised in the district court but not as a reason for withdrawing the plea. So far as we can tell, Pizarro has not sought to withdraw his plea either in the district court or his brief to this Court.

Further, Pizarro has never explained why the disclosure of his prior confession or statements would have caused him not to plead guilty. If anything, disclosure would seem rather to have encouraged a guilty plea. Of course, if Pizarro were asserting that the government had withheld exculpatory evidence, this would be quite a different matter, but there is no such suggestion.

About the best we can make out from the brief is that Pizarro is not interested in a withdrawal of plea at all but may be pressing the following conjecture: that if the government had turned over the confession and other statements at an earlier stage, counsel might have been able to persuade his client to accept an earlier and better plea offer from the government. But this argument, obviously resting on considerable conjecture, is not itself expressly developed in Pizarro's brief in this court or supported with any precedent for such a use of Rule 16.

As it happens, it is uncontested that the federal agents did not know about the confession until well after the plea. As for the 302 forms, Pizarro makes no claim that at the time he pled guilty he was ignorant of the fact that he had made statements to the FBI agents during various interviews. There is an argument that the forms should have been disclosed based on Rule 16 language not cited by the government, but we have no...

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