U.S. v. Carrasco-De-Jesus

• Decision Date: 11 December 2009
• Docket Number: No. 08-2463.,08-2463.
• Citation: 589 F.3d 22
• Court: U.S. Court of Appeals — First Circuit
• Parties: UNITED STATES of America, Appellee, v. Oneida CARRASCO-DE-JESÚS, a/k/a Brenda Ríos-González, Defendant, Appellant.

589 F.3d 22

UNITED STATES of America, Appellee, v. Oneida CARRASCO-DE-JESÚS, a/k/a Brenda Ríos-González, Defendant, Appellant.

No. 08-2463.

United States Court of Appeals, First Circuit.

Submitted October 9, 2009.

Decided December 11, 2009.

Mariángela Tirado-Váles on brief for appellant.

Rosa Emilia Rodriguez-Vélez, United States Attorney, Nelson Pérez-Sosa,

Chief, Appellate Division, and Julia M. Meconiates, Assistant United States Attorney, on brief for appellee.

Before SELYA, LIPEZ and HOWARD, Circuit Judges.

SELYA, Circuit Judge.

Defendant-appellant Oneida Carrasco-de-Jesús, also known as Brenda Ríos-González, attacks her sentence as both procedurally flawed and substantively unreasonable. Concluding, as we do, that her attack lacks force, we affirm.

I. BACKGROUND

A federal grand jury in the District of Puerto Rico charged the appellant with participation in a conspiracy to issue and use counterfeit checks. See 18 U.S.C. §§ 371, 513. After some preliminary skirmishing, not relevant here, the appellant pleaded guilty pursuant to a negotiated plea agreement (the Agreement). We draw the background facts from the Agreement, the transcripts of the change-of-plea and sentencing hearings, and the amended presentence investigation report (PSI Report). See United States v. Calderón-Pacheco, 564 F.3d 55, 56 (1st Cir. 2009); United States v. Dietz, 950 F.2d 50, 51 (1st Cir.1991).

Given the circumscribed nature of the issues on appeal, we can succinctly summarize the events leading up to the indictment. For roughly a year, the appellant and two cohorts conspired to make counterfeit checks purporting to originate with banks (specifically, Banco Popular and FirstBank). The coconspirators passed these bogus checks at various mercantile establishments in Puerto Rico.

In general, the scheme operated along the following lines. A coconspirator, Josué Francisco-Serrano Nieves, would produce counterfeit checks bearing the actual name and routing number of one of the banks along with a fictitious account number. Another coconspirator (either the appellant or Heilmary Rodríguez) would then visit a retail emporium (e.g., Sears, Office Max, Pep Boys), purchase merchandise, and pay with a home-made check.

The coconspirators acquired goods worth many thousands of dollars before the authorities cracked the case. A federal indictment was returned while the appellant was in custody in a Puerto Rican penitentiary, and the district court issued a writ of habeas corpus ad prosequendum to secure her appearance in the district court. The appellant's guilty plea followed apace.

This brings us to the Agreement, which stipulated a base offense level (BOL) of six for the offense of conviction (the counterfeiting conspiracy). See USSG § 2B1.1(a)(2). The government agreed to recommend a sentence at the lower end of the applicable guideline sentencing range (GSR). To assist in establishing that range, the district court directed the probation department to prepare a PSI Report.

Determining that the amount of loss attributable to the conspiracy exceeded $30,000, the probation officer added six more levels to the stipulated BOL. See id. § 2B1.1(b)(1)(D). Because the appellant accepted responsibility for the offense of conviction, she received a two-level credit. See id. § 3E1.1(a). Her adjusted offense level was, therefore, ten.

The appellant had only two countable criminal history points accruing directly from past offenses. At the time of federal sentencing, however, she had begun to serve two-year concurrent Puerto Rico sentences for having (i) passed a fraudulent check in the sum of $101.60 and (ii) furnished false information to public officials in order to procure an electoral card that she then used to facilitate the check-passing crime. These offenses did not impact her criminal history score because the probation officer classified them as relevant conduct with respect to the federal offense. See id. § 1B1.3; see also United States v. Eisom, 585 F.3d 552, 557-58 (1st Cir.2009) (explicating relevant conduct concept). Nevertheless, two more criminal history points were added because the appellant was under a term of probation when she committed the federal offense. USSG § 4A1.1(d).

The net result of these computations was the appellant's placement in criminal history category III. Combined with her adjusted offense level (ten), this placement yielded a GSR of ten to sixteen months.

The appellant was detained pursuant to the previously mentioned writ of habeas corpus from February 8, 2008, until after sentencing. The parties agree that this period of detention counted toward her fulfillment of her Puerto Rico sentences but did not count toward her sentence for the offense of conviction.

The district court conducted a disposition hearing on October 14, 2008. The appellant beseeched the court to impose a ten-month prison term, concurrent with the undischarged portion of her Puerto Rico sentences. The court expressed concern about a concurrent sentence, noting that the Puerto Rico offenses involved a particularly serious matter: electoral fraud. The court worried that yielding to the appellant's importunings would reduce the earlier sentences to a "slap on the wrist." In addition, the court commented that the federal sentencing guidelines attached a similar degree of seriousness to the offense of conviction. Citing USSG § 5G1.3(b), discussed infra, the appellant countered that the court was under a "mandate" to impose a concurrent sentence. The government suggested that the matter was within the court's discretion. The court concluded that it had discretion to impose a concurrent sentence, but found that the totality of the circumstances militated against doing so. The court then imposed an incarcerative sentence of twelve months and one day, to run consecutively to the undischarged portion of the appellant's Puerto Rico sentences. This timely appeal followed.

II. DISCUSSION

Three issues warrant discussion. The first involves the effect of a waiver-of-appeal provision contained in the Agreement. The second involves the sentencing court's failure to fashion a concurrent sentence. The third involves the reasonableness of the sentence ultimately imposed. We address these issues sequentially.

A. Waiver of Appeal.

The Agreement contains, inter alia, the following paragraph:

The defendant hereby agrees that if this Honorable Court accepts this plea agreement and sentences her according to its terms, conditions, and recommendation, the defendant waives and surrenders her right to appeal the judgment and sentence in this case.

The appellant argued in her opening brief that this provision was a nullity because the lower court neither sentenced her in accordance with the Agreement nor used the concurrent sentence mechanism. While this argument may not be foolproof—the Agreement left open the criminal history category calculation; that calculation, combined with the stipulated offense level, yielded a GSR of ten to sixteen months; and the sentence imposed is arguably at the "lower end" of that range—we need not delve into it. By eschewing any reliance on the waiver-of-appeal provision, the government has rendered that analysis superfluous.

The intentional relinquishment of a known right results in a waiver. Eisom, 585 F.3d at 555-56 (citing United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). In criminal cases, waiver doctrine is commonly invoked to bar a defendant's assertion of a claim. See, e.g., id. Nevertheless, what is sauce for a defendant's goose is most often sauce for the government's gander. In line with that precept, waiver doctrine has been applied against the government in criminal cases, where appropriate.¹ See, e.g., United States v. Moran, 393 F.3d 1, 11 (1st Cir.2004).

Where, as here, the government's relinquishment of a known right relates to a waiver-of-appeal provision in a plea agreement, there is usually little reason to disregard that election. Cf. United States v. Guadalupe-Rivera, 501 F.3d 17, 20 n. 3 (1st Cir.2007) (accepting the government's concession at oral argument anent the unenforceability of a particular waiver-of-appeal provision).

Here, the government affirmatively disclaimed the waiver-of-appeal provision, see Appellee's Br. at 6 n. 3, and we see no justification for proceeding sua sponte to inquire into its preclusive effect.

B. Procedural Reasonableness.

The appellant asseverates that the challenged sentence is procedurally unreasonable because the sentencing court failed properly to apply USSG § 5G1.3(b). Before considering the substance of this asseveration, we comment upon the standard of review.

In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court effected a sea change in the law of federal sentencing. Booker made it pellucid that the sentencing guidelines were advisory and that appellate courts should review sentences for reasonableness. Id. at 245, 260-61, 125 S.Ct. 738. In a subsequent case, Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), the Court clarified that reasonableness review is functionally equivalent to review for abuse of discretion. Id. at 51, 128 S.Ct. 586. The Justices mapped out a bifurcated process for assessing the reasonableness of a sentence: an inquiring court first should determine whether the sentencing court committed any procedural error² and, second, should evaluate the sentence's substantive reasonableness. Id.

The appellant's section 5G1.3(b) claim is a claim of procedural unreasonableness. See United States v. Cruz-Rodríguez, 541 F.3d 19, 35 (1st Cir.2008). At a high level of generality, it may be said that rulings challenged as procedurally unreasonable are subject to review for abuse of discretion. See United States v. Martin, 520 F.3d 87, 92 (1st Cir.2008). But abuse of discretion is not a monolithic standard. Within its margins, embedded...