U.S. v. Rodriguez-Castillo

• Decision Date: 17 November 2003
• Docket Number: No. 02-1879.,02-1879.
• Citation: 350 F.3d 1
• Parties: UNITED STATES of America, Appellee, v. Elmer C. RODRIGUEZ-CASTILLO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1

350 F.3d 1

UNITED STATES of America, Appellee, v. Elmer C. RODRIGUEZ-CASTILLO, Defendant, Appellant.

No. 02-1879.

United States Court of Appeals, First Circuit.

Submitted September 8, 2003.

Decided November 17, 2003.

Douglas J. Beaton on brief, for appellant.

H.S. Garcia, United States Attorney, Sonia I. Torres, Chief, Criminal Division, and Aramis G. Ríos, Assistant United States Attorney, on brief, for appellee.

Before SELYA, Circuit Judge, COFFIN and CYR, Senior Circuit Judges.

SELYA, Circuit Judge.

In this appeal, defendant-appellant Elmer C. Rodriguez-Castillo (Rodriguez) raises questions concerning the operation of former Rule 16(a)(1)(B) of the Federal Rules of Criminal Procedure¹ and the imposition of his sentence. Concluding that his arguments lack merit, we affirm the judgment below.

We glean the relevant facts from the change-of-plea colloquy, the presentence investigation report (PSI Report), and the transcript of the disposition hearing. See United States v. Brewster, 127 F.3d 22, 23 (1st Cir.1997); United States v. Dietz, 950 F.2d 50, 51 (1st Cir.1991). In all events, the facts are essentially uncontradicted.

On December 8, 1998, a federal grand jury indicted Rodriguez and three compatriots for various drug-trafficking offenses. Rodriguez initially asserted his innocence. Early in the case, the government supplied him with a summary of his prior criminal record as then known to it. The government's letter of transmittal left no doubt that the criminal history was incomplete. The convictions listed in this hypoplastic summary, without more, would have placed Rodriguez into criminal history category (CHC) II for sentencing purposes.

Despite the plainly incomplete nature of the government's criminal history submission, Rodriguez commenced plea negotiations. He subsequently entered into a plea agreement (the Agreement). Under the Agreement, the government committed itself to dismiss certain charges and embrace a reduced drug-quantity determination in exchange for Rodriguez's plea of guilty to a single count of illegal importation of cocaine in violation of 21 U.S.C. § 952(a).

On March 21, 2002, Rodriguez entered a guilty plea to the importation count and the district court commissioned the preparation of the PSI Report. When compiled, the report included a more accurate description of Rodriguez's criminal past. In particular, it identified a 1989 felony conviction for aggravated unlawful appropriation of property in violation of 33 P.R. Laws Ann. § 4272 that had not been included in the government's earlier summary. That additional conviction pushed Rodriguez into CHC III. As we shall see, this category change had a discernible effect on the guideline sentencing range (GSR).

The drug-quantity compromise contained in the Agreement fixed the weight of the cocaine attributable to Rodriguez at 149 kilograms, and, thus, lowered his base offense level under the sentencing guidelines to 36. Rodriguez was entitled to a three-level credit for timely acceptance of responsibility and a two-level reduction reflecting his minor role in the offense of conviction. See USSG §§ 3E1.1, 3B1.2 (2000). Had he remained in CHC II, his GSR would have been 121-151 months. The switch to CHC III increased his GSR to 135-168 months.

At the disposition hearing, the district court sentenced Rodriguez at the nadir of the applicable GSR, ordering him to serve an incarcerative term of 135 months. This timely appeal followed.

Rodriguez first complains that, during the pre-plea negotiations, the government failed to comply with the strictures of former Rule 16(a)(1)(B) of the Federal Rules of Criminal Procedure. Although one might think that a defendant would know his own criminal history, the rule mandates that, "upon request by the defendant, the government shall furnish to the defendant such copy of the defendant's prior criminal record, if any, as is within the possession, custody, or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government." Id. This language is mandatory, and courts have not hesitated to compel the government to effect such production. See, e.g., United States v. McDaniel, 428 F.Supp. 1226, 1228 (D.Okla.1977).

Here, Rodriguez made a timely request for his criminal history. The government responded with a palpably incomplete summary. The record is murky as to whether the government's partial response reflected the exercise of due diligence. The record is clear, however, that Rodriguez was not misled. The government informed him that its proffer was incomplete, stating in its transmittal letter that it "had been informed that [he] had previously been convicted of a variety of felony offenses" and that it would "supplement [its] response when additional information is received."

The next step was up to Rodriguez. He could have awaited an encyclopedic response or moved to compel one. He chose neither course. Instead, he pursued plea negotiations, struck a final bargain, and changed his plea. In so doing, Rodriguez waived his right to complain about the government's failure to effectuate full and complete compliance with former Rule 16(a)(1)(B). We explain briefly.

A defendant who subscribes an unconditional guilty plea is deemed to have waived virtually all claims arising out of garden-variety errors that may have antedated the plea. See United States v. Cordero, 42 F.3d 697, 698-99 (1st Cir.1994) (collecting cases). Although there is an exception to this principle, see, e.g., id. at 699 (noting that jurisdictional issues are not waived), Rodriguez's case does not fit within its confines. He knowingly entered an unconditional guilty plea; advised the district court during the change-of-plea colloquy that he understood that his guilty plea "waiv[ed][his] right to a trial and all the other rights" associated therewith; and made no claim, then or now, that the sentencing court lacked authority to hear and determine his case.²

To be sure, the pre-plea colloquy between the court and defense counsel was less than a model of clarity, and that colloquy may well have given Rodriguez hope that his CHC would remain at II. But such an interpretation would be unreasonable in light of the government's up-front notice of the distinct possibility that additional information about prior convictions might surface. Hope may, as the aphorist would have it, spring eternal, but the frustration of an expectation founded on hope alone, unanchored in objective reasonableness, is not a cognizable basis for relief on appeal.

That ends this phase of the matter. An unconditional guilty plea waives any and all independent non-jurisdictional claims arising out of alleged errors antedating the plea. Thus, Rodriguez waived his right to insist upon compliance with the provisions of former Rule 16(a)(1)(B) by his decision to plead guilty unconditionally without first having obtained, by a motion to compel or otherwise, his complete criminal record. He cannot now be heard to complain about the government's purported lapse.

Rodriguez's remaining assignment of error need not occupy us for long. He strives to persuade us that the district court erred in not departing downward from the GSR on the ground that his criminal history score (which placed him in CHC III) over-represented his criminal past. We are not convinced.

Ordinarily, a district court's discretionary decision not to depart from the GSR is unappealable. See United States v. Pierro, 32 F.3d 611, 619 (1st Cir.1994); United States v. Jimenez-Otero, 898 F.2d 813, 815 (1st Cir.1990). There are, however, a few isthmian exceptions to this rule. One exception springs into play when a sentencing court's decision not to depart from the GSR results from a misperception of its own authority. See Pierro, 32 F.3d at 619 (explaining that "appellate jurisdiction may attach if it appears that the failure to depart stemmed from the sentencing court's mistaken impression that it lacked the legal authority to deviate from the guideline range or, relatedly, from the court's misapprehension of the rules governing departures") (quoting United States v. Gifford, 17 F.3d 462, 473 (1st Cir.1994)). The basis for the exception is that the sentencing court's determination that it lacked departure authority is not an exercise of discretion, but, rather, a legal judgment (and, thus, appealable as of right). See 18 U.S.C. § 3742(a)(2); see also Jimenez-Otero, 898 F.2d at 814.

Rodriguez relies upon this exception. He notes that the sentencing court commented, in colloquy, that it saw "no way" to go under the low end of the GSR obtained by the use of CHC III. Rodriguez suggests that this remark evinces the court's misperception that it lacked the power to depart.

This suggestion rests on a porous foundation. It takes a bit of dialogue completely out of context. Rodriguez never made a request for a downward departure at the disposition hearing, and the court's comment did not refer to that possibility at all. Rather, the quoted statement was made in connection with the court's determination as to which CHC obtained (and, accordingly, which GSR applied). Consequently, the "lack of authority" exception is plainly inapplicable here.

As a fallback, Rodriguez argues that he made the "functional equivalent" of a departure request. That argument fails. In the first place, the transcript of the disposition hearing reveals that nothing remotely resembling a departure request was made. The argument is, therefore, groundless. In the second place, the argument, even if well-founded, would sink under the weight of the...