U.S. v. Nunez-Rodriguez

• Decision Date: 27 February 1996
• Docket Number: NUNEZ-RODRIGUE,No. 95-1887,D,95-1887
• Parties: UNITED STATES of America, Appellee, v. Josee Antonioefendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 14

92 F.3d 14

UNITED STATES of America, Appellee, v. Josee Antonio NUNEZ-RODRIGUEZ, Defendant, Appellant.

No. 95-1887.

United States Court of Appeals, First Circuit.

Heard Feb. 27, 1996.

Decided Aug. 14, 1996.

Rafael F. Castro Lang, San Juan, PR, for appellant

Rosa Emilia Rodrguez-Velez, Executive Assistant United States Attorney, Hato Rey, PR, with whom Guillermo Gil, United States Attorney, Jose A. Quiles-Espinosa, Senior Litigation Counsel, and Nelson Jose Perez-Sosa, Assistant United States Attorney, were on brief, for appellee.

Before TORRUELLA, Chief Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.

CYR, Circuit Judge.

Appellant Jose Antonio Nunez-Rodriguez ("Nunez") challenges the life sentence imposed upon him for "carjacking", see 18 U.S.C. § 2119(3), and the consecutive five-year sentence imposed for using a firearm in relation to a crime of violence, see id. § 924(c)(1), § 2. We vacate the district court judgment and remand for further proceedings.

I BACKGROUND

At an apartment in Santurce, Puerto Rico, on the evening of June 7, 1994, Nunez and four other persons laid plans to free two prisoners from the Bayamon Regional Jail. The conspirators agreed to search out a vehicle bearing government license plates to facilitate the planned entry upon the jail premises. During their meeting, Nunez saw an associate accept delivery of a handgun. Later the same evening, after driving around San Juan for several hours, Nunez and two associates spotted Jose Jaime Pierluisi-Urrutia ("Pierluisi"), brother of the Secretary of Justice of the Commonwealth of Puerto Rico, as he returned home around midnight in a car with government plates.

After parking their own car, Nunez and an associate approached the unsuspecting Pierluisi as he began unloading the trunk. The associate brandished a handgun and demanded the car keys. After relinquishing the keys without protest, Pierluisi was summarily murdered by the associate with a shot to the back of his head as Nunez prepared to drive away in the Pierluisi vehicle. Following the murder, Nunez drove the Pierluisi vehicle to the housing development where he lived.

The next day, after learning that the FBI had been inquiring as to his whereabouts, Nunez presented himself for questioning. Although he readily admitted his involvement in the carjacking, he steadfastly maintained that he had been abducted, threatened with a gun, and forced to participate. During a subsequent consensual search of the apartment where he lived, FBI agents seized a briefcase and passport, as well as clothing and credit cards, belonging to the victim.

After Nunez was indicted, he offered to cooperate with the government provided he received total immunity from prosecution. More than seven months after his confession, and less than a week prior to the scheduled trial, Nunez finally pled guilty to the charges without the benefit of a plea agreement. Subsequently he filed a pro se motion to set aside his guilty pleas, which he withdrew following the appointment of new counsel. The district court ultimately sentenced Nunez to life imprisonment plus sixty months, after refusing downward adjustments for acceptance of responsibility and "minor participation," and rejecting a downward departure request based on "reduced mental capacity."

II DISCUSSION

A. "Acceptance of Responsibility" ( U.S.S.G. § 3E1.1 ) ¹

Nunez first contends that the district court committed reversible error in refusing to adopt a presentence report ("PSR") recommendation that he receive a three-point reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. ²

Nunez maintains that he met his burden of proof under U.S.S.G. § 3E1.1, see United States v. Gonzales, 12 F.3d 298, 300 (1st Cir.1993), since all the competent evidence in the PSR was "consistent" with his acceptance of responsibility: he voluntarily surrendered soon after the crime, see U.S.S.G. § 3E1.1, comment. (n.1(d)) (Nov. 1994), assisted investigators in recovering the victim's personal possessions, see id. (n.1(e)), cooperated with the FBI and entered a "straight" plea (i.e., without exacting a plea bargain), see United States v. Vance, 62 F.3d 1152, 1160 (9th Cir.1995), and expressed sincere remorse at the change-of-plea hearing and at sentencing (e.g., crying in court, and stating that he was "sorry" for the victim's family). Nunez further contends that the district court erred by relying on other factors it deemed "inconsistent" with acceptance of responsibility, including Nunez' continuing and willful failure to disclose the names of some of his accomplices. ³ This factor, Nunez maintains, can be relevant only to a defendant's entitlement to a § 5K1.1 downward departure for "substantial assistance to [law enforcement] authorities." See U.S.S.G. § 5K1.1. ⁴

1. The District Court Sentencing Decision

In denying Nunez a downward adjustment under § 3E1.1, the district court apparently relied on two grounds. First, Nunez delayed his guilty plea for six months, until five days before the scheduled trial, thereby presumably leaving the government no alternative but to prepare for trial. See U.S.S.G. § 3E1.1, comment. (n.1(g)) (court considers timeliness of defendant's manifestation of acceptance of responsibility) (Nov. 1994). Second, the court noted that during the six-month delay, Nunez had offered inconsistent versions of the relevant events. ⁵ See id. comment. (n.1(a)) (court considers whether defendant "truthfully admitt[ed] the offense comprising the offense of conviction."). Since a guilty plea does not entitle a defendant to a downward adjustment under § 3E1.1, see id. comment (n.3) (guilty plea and "truthful admission" are "significant evidence" of acceptance of responsibility but "may be outweighed by [inconsistent] conduct of the defendant ..."), normally a trial court's decision to deny a § 3E1.1 adjustment would be affirmed on these grounds. Id. comment. (n. 5) ("The sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review.").

The district court made other statements during the sentencing hearing, however, which are reasonably understood to indicate that the court declined a § 3E1.1 adjustment on an independent ground; that is, Nunez' purported inability or ongoing refusal to disclose the names of other collaborators. As the precise import of the district court's statements in this regard is critical, we recite its statements at length.

After describing, as incredible, Nunez' initial story that he had been abducted by armed strangers, see supra p. 3, the district court observed:

A defendant who accepts responsibility must do more than that when he's involved in a conspiracy and where [ ] human life is involved. He must come forward and identify and help authorities get the other people. He has stated time and time again that he doesn't know these other people.

Now, he spent with these people some hours in an apartment, planning a crime. He drives around ... cruising in the rear seat while he is telling the public and the Court that he was forced ... to sit on the front seat with the gun pointed at him. When he stepped out of the car, the other ... unidentified male got out of the car with a gun. Now, we don't know whether [Nunez] was wearing [or] carrying the gun, or the other people [were], ... because the track record of this defendant is that he cannot be believed.

And therefore for those reasons I'm not accepting the two-points downward adjustment for acceptance of responsibility. I don't think the defendant has done that. When he comes forward and identifies the other people, if he does that, then that might be a different story. But he's protecting others and that's why he has done all these things.

Tr. at 39-40 (emphasis added). Later, once again after discussing Nunez' inconsistent versions of the relevant events on June 7, 1994, the district court observed:

[In his second version,] Nunez rode in the rear seat. So there was no one pointing a gun at him. And for four hours, if he tells the court and the authorities that he hasn't ---- he cannot recognize those two ---- at least those other two individuals, I'm not going to buy that.... Nunez turned several items [of the victim's property] over to those who he had originally met at the apartment. Again, how could he say that he cannot identify those people? He is protecting them. And I know it. I'm pointing to the defendant.

Tr. at 43-44. Nunez responded: "I'm afraid." The court did not respond.

Later, in summarizing its guidelines sentencing calculations, the district court added:

The defendant has not identified ---- although the court finds that he can ---- the other individuals who participated in the crime. These are considered to have been elements of a strategy to manipulate the judicial proceedings, among other things, towards establishing a tailor-made plea agreement conditioned on his own terms, failing to yield to this sort of bargain, and this occurred at the beginning where the defendant said I'll plead guilty if I get "X" type of sentence.... A defendant qualifies for a [§ 3E1.1] reduction when he truthfully admits the conduct comprising the offense of conviction and does not falsely deny or frivolously contest relevant conduct that the Court has determined to be true and also does not keep to himself the identity of other coconspirators.

Tr. at 46-47. After defense counsel objected to its consideration of the "informer" criterion, the district court responded:

[M]y point is that if anyone commits a crime with one or more persons, knowing those persons, does not come forward to the authorities, giving the names of those persons, then you cannot have a full acceptance of responsibility because that entails precisely a catharsis, a full remorse by disclosing the whole thing, being truthful and not concealing...