U.S. v. Ortiz-Torres, 03-2456.
| Decision Date | 26 May 2006 |
| Docket Number | No. 03-2572.,No. 04-1871.,No. 03-2534.,No. 03-2458.,No. 03-2456.,03-2456.,03-2458.,03-2534.,03-2572.,04-1871. |
| Parties | UNITED STATES, Appellee, v. Orlando ORTIZ-TORRES, a/k/a Landy, a/k/a Orlando Torres-Ortiz, Defendant, Appellant. United States, Appellee, v. Omar Cosme-Piri, a/k/a Chiquito, Defendant, Appellant. United States, Appellee, v. Raymond Torres-Santiago, Defendant, Appellant. United States, Appellee, v. José Renovales-Vélez, a/k/a Pipe, Defendant, Appellant. United States, Appellee, v. Julio Mattei-Albizu, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Mauricio Hernàndez-Arroyo for appellant Orlando Ortiz-Torres.
Raúl S. Mariani-Franco for appellant Omar Cosme-Piri.
Bruce Green for appellant Raymond Torres-Santiago.
José R. Olmo-Rodríguez for appellant Jose Renovales-Vélez.
Luis M. Cháves-Ghigliotty for appellant Julio Mattei-Albizu.
Nelson Pérez-Sosa, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, was on brief, for Appellee.
Before LIPEZ, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge* and HOWARD, Circuit Judge.
Orlando Ortiz-Torres, Omar Cosme-Piri, Raymond Torres-Santiago, José Renovales-Vélez, and Julio Mattei-Albizu appeal their convictions and sentences for conspiracy to distribute multi-kilogram quantities of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. We affirm.
Appellants were members of a drug-trafficking organization that operated drug distribution points in and around La Plena Ward in Juana Díaz, Puerto Rico from 1994 to 2001.1 A grand jury indicted each of them with conspiring to distribute "multi-kilogram quantities" of heroin, cocaine, cocaine base, and marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and with a forfeiture allegation of up to $1 million pursuant to 18 U.S.C. § 982. Appellant Mattei-Albizu entered a straight plea of guilty to conspiring to possess with intent to distribute and conspiring to distribute at least 3.5 kilograms but less than 5 kilograms of cocaine. After a jury was empaneled, the remaining appellants each pled guilty to conspiracy to possess with intent to distribute cocaine as part of a package plea agreement.
Appellants raise numerous claims of error on appeal. Cosme-Piri and Ortiz-Torres challenge their convictions on the ground that their guilty pleas were not voluntary. Cosme-Piri, Ortiz-Torres, Renovales-Vélez, and Mattei-Albizu raise an assortment of challenges to their sentences. Lastly, each appellant requests a remand for sentencing in accordance with United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We address each claim in turn.
Cosme-Piri and Ortiz-Torres ask us to vacate their convictions and remand their cases for trial on the ground that their guilty pleas were not voluntary. While the entry of a guilty plea "does not preclude an attack on the plea's voluntariness," United States v. Sahlin, 399 F.3d 27, 31 (1st Cir.2005), because neither appellant sought to withdraw his guilty plea before the district court, we review the district court's acceptance of their pleas for plain error. United States v. Mescual-Cruz, 387 F.3d 1, 7 (1st Cir.2004) (citing United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002)), cert. denied, 543 U.S. 1175, 1176, 125 S.Ct. 1389, 1392, 161 L.Ed.2d 158, 160 (2005).
To establish that the district court committed error in accepting their guilty pleas, appellants must point to a "fundamental defect" in the change of plea hearing itself. See United States v. Bierd, 217 F.3d 15, 19 (1st Cir.2000); see also Sahlin, 399 F.3d at 31 (). Appellants argue that the joint change of plea hearing was fundamentally defective because it failed to ensure that their guilty pleas, entered as part of a package plea agreement, were truly voluntary. As in many such "package plea" arrangements, the government offered the entire group of defendants charged in connection with the La Plena drug point a favorable plea and sentencing recommendation on the condition that all the co-defendants enter guilty pleas.
We have previously recognized that such package deals create a significant risk that one defendant will plead guilty against his will in order for his co-defendants to obtain the offered benefit. United States v. Abbott, 241 F.3d 29, 34 (1st Cir.2001); United States v. Martinez-Molina, 64 F.3d 719, 732-33 (1st Cir.1995). Thus, we have crafted two safeguards designed to minimize this risk of coercion. Mescual-Cruz, 387 F.3d at 8 (citing Martinez-Molina, 64 F.3d at 732-33). First, the prosecution should inform the district court that the defendant's guilty plea is part of a package deal. Id. Second, the district court should carefully ascertain the voluntariness of the defendant's plea during the Rule 11 colloquy, with an eye toward minimizing the risk of co-defendant coercion inherent in the package-plea context. Id.
The record of the Rule 11 proceeding below reflects that both safeguards were observed. First, there is little doubt that the district court was fully aware that all the defendants, save for Mattei-Albizu, were entering their pleas as part of a package deal. At the joint change of plea hearing, in the presence of all defendants and their respective counsel, the government disclosed to the court that the individual pleas were part of a package deal. Indeed, on several occasions throughout the change of plea hearing the district court specifically referred to the package nature of defendants' pleas.
Second, the district court's Rule 11 inquiry was more than sufficient to guard against the risk of co-defendant coercion. The court individually questioned the defendants, asking whether they were threatened or coerced by "anyone" or "anybody" into entering their individual guilty pleas. Although this alone was likely sufficient, see, e.g., Mescual-Cruz, 387 F.3d at 9 ("anyone" or "anybody"); United States v. Sanchez-Barreto, 93 F.3d 17, 23 (1st Cir.1996) ("anyone"), the court inquired further. It specifically named each co-defendant and asked whether any of them had threatened or coerced Ortiz-Torres or Cosme-Piri into pleading guilty, thereby probing whether the increased likelihood of co-defendant coercion in the package-plea context had affected either of their decisions to plead guilty.
In light of these additional safeguards, the district court was entitled to rely upon Cosme-Piri's and Ortiz-Torres's representations, made under oath, that they were neither coerced nor threatened into making their pleas. See United States v. Marrero-Rivera, 124 F.3d 342, 349 (1st Cir.1997). The only indication of the contrary comes from Cosme-Piri's and Ortiz-Torres's general allegations of coercion on appeal, which are insufficient, absent record support, to invalidate their guilty pleas. See Sanchez-Barreto, 93 F.3d at 23. Finding no error, plain or otherwise, in the district court's acceptance of their guilty pleas, we affirm Ortiz-Torres's and Cosme-Piri's convictions.
The entry of a guilty plea does not itself waive a defendant's right to challenge the ensuing sentence. United States v. Gonzalez-Mercado, 402 F.3d 294, 301 (1st Cir.2005). Renovales-Vélez, Cosme-Piri, Ortiz-Torres, and Mattei-Albizu advance such challenges.
Renovales-Vélez argues that the district court erred by failing to impose his federal sentence concurrently with his undischarged term of state imprisonment as required under Guideline § 5G1.3(b) (2002).2 Like his co-defendants, Renovales-Vélez was charged with distributing more than five kilograms of both cocaine and cocaine base, more than one kilogram of heroin, and more than fifty pounds of marijuana. However, also like all but one of his co-defendants, Renovales-Vélez entered into a plea agreement, pursuant to which he pled guilty to conspiracy to possess with intent to distribute at least 150 kilograms of cocaine, in return for the government's recommendation of 252 months' imprisonment. The parties further agreed that if Renovales-Vélez's presentence investigation revealed convictions for offenses that took place during the time period of the conspiracy, they would not be counted in determining his criminal history category.
Ultimately, Renovales-Vélez's presentence report listed four prior drug-related convictions in the Superior Court of Puerto Rico: on December 21, 1994, Renovales-Vélez was arrested for possession of cocaine with intent to distribute for which he was sentenced to three years' imprisonment; on January 25, 1995, he was arrested and charged with the second and third offenses, possession of marijuana and heroin with the intent to distribute, for which he was sentenced to a total of six years' imprisonment; and on February 23, 1995, he was arrested and charged with possession with the intent to distribute cocaine, for which he was sentenced to two years' imprisonment.3 Although he received a sentence of eleven-years' imprisonment on the four offenses, Renovales-Vélez had served only 35 months of that sentence before being transferred to federal custody to face the instant charges.
Since his prior drug offenses occurred during the period of the charged cocaine trafficking conspiracy, the presentence report recommended that they be treated as overt acts, resulting in zero criminal history points. Consistent with the recommendation of the presentence report and the agreement of the parties, the district court assessed Renovales-Vélez zero criminal history points for his prior convictions, leaving him with a criminal history category of I. Recognizing that Renovales-Vélez had been incarcerated due to these prior convictions during a significant portion of the charged...
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