U.S. v. Turbides-Leonardo

• Decision Date: 14 November 2006
• Docket Number: No. 05-2374.,05-2374.
• Citation: 468 F.3d 34
• Parties: UNITED STATES of America, Appellee, v. Rafael TURBIDES-LEONARDO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 34

468 F.3d 34

UNITED STATES of America, Appellee, v. Rafael TURBIDES-LEONARDO, Defendant, Appellant.

No. 05-2374.

United States Court of Appeals, First Circuit.

Submitted September 22, 2006.

Decided November 14, 2006.

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William W. Fick and Foley Hoag, LLP, on brief, for appellant.

Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson Pérez-Sosa and Thomas F. Klumper, Assistant United States Attorneys, on brief, for appellee.

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

SELYA, Circuit Judge.

Defendant-appellant Rafael Turbides-Leonardo (Turbides) pleaded guilty to one count of illegally reentering the United States following an earlier deportation after his conviction for an aggravated felony. In this sentencing appeal, Turbides attacks both the district court's calculation of his guideline sentencing range (GSR) and the reasonableness of his 48-month sentence. After careful perscrutation, we affirm.

I. BACKGROUND

Turbides is a native and citizen of the Dominican Republic. In 1999, the Immigration and Naturalization Service deported him from the United States following his 1997 felony conviction in the Puerto Rico courts. He illegally reentered the United States sometime between July 2003 and July 2004. On January 31, 2005, the authorities apprehended him as part of an ongoing investigation into drug smuggling, narcotics trafficking, and money laundering. An indictment for illegal reentry followed. See 18 U.S.C. § 1326.

Once Turbides pleaded guilty to the charge, a probation officer prepared a presentence investigation report (PSI Report). The PSI Report contemplated a total offense level (TOL) of 21, a criminal history category of II, and a GSR of 41-51 months. In arriving at the TOL, the probation officer factored in a 16-level enhancement pursuant to USSG § 2L1.2(b)(1)(A) (2004). The enhancement rested upon a determination that Turbides's 1997 conviction, which carried a sentence in excess of 13 months, constituted a conviction for a drug trafficking offense within the purview of the aforementioned sentencing guideline.

Turbides did not object to this determination, nor did he protest any of the other guideline calculations limned in the PSI Report. He did, however, beseech the sentencing court to deviate downward from the GSR. The court demurred and imposed a 48-month incarcerative term. This timely appeal ensued.

II. ANALYSIS

In this forum, the appellant calumnizes both the 16-level enhancement and the overall sentence. We discuss these claims of error sequentially.

A. The Enhancement.

USSG § 2L1.2 directs a 16-level increase in offense level for illegal reentry cases "[i]f the defendant previously was deported . . . [after] a conviction for a felony that is . . . a drug trafficking offense for which the sentence imposed exceeded 13 months. . . ." The commentary to this guideline, set forth in the margin,¹ defines the term "drug trafficking offense" broadly. The PSI Report recommended such an enhancement on the ground that the appellant had committed the charged crime after an earlier "conviction for a drug trafficking offense."

In support of that recommendation, the PSI Report stated that, in 1997, Turbides, while represented by counsel, had been convicted in the Puerto Rico Superior Court of a controlled substance violation. Although the PSI Report explained that details concerning the prior conviction were not readily available, it described the underlying offense as a possession with intent to distribute violation, which had been reduced to two counts of "conspiracy w/intent to dist[ribute] cocaine." The PSI Report further noted that, on December 15, 1997, the appellant received a sentence of "4 years in prison as to each count to be served concurrently with each other."

The appellant offered no objection either to the PSI Report's description of his prior conviction or to its proposed 16-level enhancement. At sentencing, the district court, again without objection, embraced the PSI Report's characterization of the prior conviction as a drug trafficking offense, adopted the suggested GSR, and imposed a within-the-range sentence (48 months).

Before us, the appellant sings a significantly different tune. He argues, for the first time, that there was no information in the district court record concerning his specific offense conduct in relation to the 1997 conviction. He adds that the Puerto Rico statute undergirding that conviction encompasses not only conduct that would qualify as drug trafficking but also conduct that would not qualify;² and that the district court treated his prior conviction as a conviction for a drug trafficking offense without examining either the court documents in the earlier case or the elements of the applicable Puerto Rico statute. Building on this foundation, he asserts that, absent an inquiry into the record of conviction, his prior offense—though admittedly an aggravated felony—could not be deemed a drug trafficking offense. Thus, it should have carried no more than an 8-level enhancement, see USSG § 2L1.2(b)(1)(C), which would have resulted in a GSR of 15-21 months and, presumably, a more lenient sentence.

The appellant concedes that he neither objected to the PSI Report's guidelines calculations nor favored the lower court with the argument that he now stitches together. He nonetheless implores us to treat the argument as forfeited, not waived, and therefore to review it for plain error. See United States v. Olano, 507 U.S. 725, 733-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (differentiating between waivers and forfeitures); United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir.2002) (same). The government disagrees; it sees the appellant's serial failures as a waiver, which would preclude him from raising the argument on appeal. See Rodriguez, 311 F.3d at 437.³

There is a powerful case for waiver here. See D.P.R.R. 132 (stating that objections to a PSI Report must be filed "within 14 days of its disclosure" and warning that, absent a finding "that the basis for the objection was not reasonably available prior to th[at] deadline," the affected party "waives any objection to the [report] by failing to comply with this rule"). This rule cries out for enforcement: a defendant who eschews a warrantable objection to a conclusion reached in a presentence report lulls both the prosecution and the sentencing court into what will prove to be a false sense of security if he is later allowed to do an about-face.

This case is a good example: given the appellant's ready acquiescence in the characterization of his earlier conviction as a drug trafficking offense, few prosecutors would have felt a need to bring in the original record of conviction and few judges would have felt a responsibility to probe the point more deeply. As we observed in United States v. Morillo, 8 F.3d 864, 872-73 (1st Cir.1993), "[a] defendant who accepts the probation department's configuration of the sentencing record without contesting the facts set forth in the PSI Report can scarcely be heard to complain when the sentencing court uses those facts in making its findings." All things considered, we think that what transpired here amounted to a waiver.

Even were we to assume that the appellant's tergiversation comprised no more than a forfeiture, his late-blooming argument would not flourish in the hothouse of plain error review. Such review "entails four showings: (1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant's substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of the judicial proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.2001). As we explain below, the appellant cannot carry the burden that this standard of review imposes.

To put the appellant's claim of error into perspective, we must take a step backward. The Supreme Court has devised a categorical approach for determining whether a prior conviction subsumes a predicate offense. See Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); see generally Conteh v. Gonzales, 461 F.3d 45, 53 (1st Cir. 2006). The categorical approach consists of two steps. See Taylor, 495 U.S. at 602, 110 S.Ct. 2143.

Where a violation of the statute underlying the prior conviction necessarily involves every element of an enumerated predicate offense, the mere fact of conviction establishes that the prior conviction qualifies as a conviction for the predicate offense. Where, however, the underlying statute spans, but is broader than, the elements of the enumerated offense (i.e., where the statute encompasses both conduct that would constitute a predicate offense and conduct that would not), the prior conviction qualifies as a conviction for the predicate offense only when "the jury was actually required to find all of the elements" of the predicate offense. Id. This same approach applies, with variations necessitated by context, to cases in which the prior conviction resulted from a guilty plea rather than a jury verdict. See Shepard v. United States, 544 U.S. 13, 19-20, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).

At the second step of the Taylor analysis, an inquiring court cannot retry the original case but, rather, must restrict its probing to the record of conviction. See Taylor, 495 U.S. at 602, 110 S.Ct. 2143; Conteh, 461 F.3d at 53. In a tried case, the record of conviction will consist mainly of the charging document, jury instructions, and verdict form; in the guilty plea context, the record of conviction will consist mainly of the charging document, written plea agreement, and transcript of the change-of-plea colloquy. See Shepard, 544 U.S. at 26, 125 S.Ct. 1254. In all events, the information used to characterize the putative predicate offense must be "confined to the records of the convicting court." Id. at 23, 125 S.Ct. 1254. Thus, a...