U.S. v. Vazquez-Molina

• Decision Date: 15 November 2004
• Docket Number: No. 03-2655.,03-2655.
• Citation: 389 F.3d 54
• Parties: UNITED STATES of America, Appellee, v. Carlos VAZQUEZ-MOLINA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 54

389 F.3d 54

UNITED STATES of America, Appellee, v. Carlos VAZQUEZ-MOLINA, Defendant, Appellant.

No. 03-2655.

United States Court of Appeals, First Circuit.

Submitted September 21, 2004.

Decided November 15, 2004.

Charles F. Willson and Nevins & Nevins LLP on brief for appellant.

H.S. Garcia, United States Attorney, Nelson Pérez Sosa and Thomas F. Klumper, Assistant United States Attorneys, on brief for appellee.

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

SELYA, Circuit Judge.

After defendant-appellant Carlos Vazquez-Molina pleaded guilty to a charge of conspiracy to possess cocaine with intent to distribute, 21 U.S.C. §§ 841(a), 846, the district court sentenced him to serve a 136-month incarcerative term. Vazquez-Molina now challenges his sentence on two grounds: (i) that the district court's explanation for fixing the sentence at a particular point in the guideline sentencing range (GSR) failed to satisfy the command of 18 U.S.C. § 3553(c)(1) and (ii) that the court indulged in impermissible double counting when deciding upon the sentence.

On appeal, our first task is to answer a question of first impression in this circuit concerning the appropriate standard of review. Once that chore is completed, we filter the appellant's contentions through that screen. When all is said and done, we affirm the sentence.

I. Background

The factual predicate for the offense of conviction is immaterial for purposes of this sentencing appeal. We are concerned here solely with the facts relevant to the imposition of sentence. Those facts require only a lacedaemonian account.

Following the return of the indictment, the appellant maintained his innocence for some time. On July 15, 2003, he entered into an agreement with the government that entailed, among other things, an admission of guilt on the conspiracy charge and the dismissal of a related forfeiture count. Interstitially, the plea agreement contained stipulations that the charged conspiracy, insofar as it pertained to the appellant, involved at least three and one-half but less than five kilograms of cocaine, USSG § 2D1.1(c)(5); that the appellant occupied a supervisory position in the drug ring, id. § 3B1.1(a); and that a firearm was possessed during the commission of the offense, id. § 2D1.1(b)(1). Under the sentencing guidelines, this combination of factors yielded an adjusted offense level of 34. The appellant's timely acceptance of responsibility, conceded by the government, reduced his total offense level (TOL) to 31. See id. § 3E1.1. The plea agreement did not specify either the appellant's criminal history score or criminal history category (CHC), but the parties nonetheless agreed to recommend a GSR of 121-151 months to the sentencing court.

At the change-of-plea hearing, the court conducted an impeccable colloquy. In the course of that colloquy, it presented the appellant with the aforementioned stipulations and the appellant readily acknowledged them. The court thereupon accepted the change of plea and directed the preparation of a presentence investigation report (the PSI Report).

The probation officer determined that when the appellant committed the underlying offense, he was on probation for state charges related to the illegal appropriation of sixteen pedigreed horses and a sum of money. See P.R. Laws Ann. tit. 33, §§ 4272(b), 4286(b). The PSI Report memorialized this finding and recommended that the appellant's criminal history score be increased by one point due to the prior offense and two points due to the probation violation. See USSG § 4A1.1(c)-(d). These additions placed the appellant solidly within CHC II and, combined with a TOL of 31, yielded a GSR of 121-151 months.¹

The district court convened the disposition hearing on November 6, 2003. The court inquired if the appellant had read the PSI Report and it received an affirmative response. The court then queried the appellant and his counsel about corrections to the PSI Report. They interposed none that are of consequence here.

During the proceedings that ensued, the appellant's lawyer argued for a sentence at the bottom of the GSR, emphasizing that the appellant had admitted his guilt, exhibited remorse, and sought psychiatric care for depression. The prosecutor, without any developed argumentation, suggested a sentence at the high end of the GSR. The district court settled upon a midpoint in the range (136 months). The court reasoned that "[s]ince the defendant is [a] second offender, a sentence in the middle of the guideline range will serve the objectives of punishment and deterren[ce]."

Following the pronouncement of sentence, the court asked if the parties had anything to add or to say. In reply, the appellant's counsel made a series of requests, viz., that his client be allowed to surrender voluntarily, to serve his sentence at a federal penitentiary in Florida, and to enroll in a drug-treatment program while incarcerated. At no time was an objection interposed to the sufficiency of the court's explanation as to why it chose a 136-month sentence.

II. Analysis

In this venue, the principal thrust of the appellant's argument is that the district court gave too cursory an explanation for choosing the sentence (and, thus, committed reversible error). Additionally, the appellant claims that the court's reference to him as a second offender was confusing, unfair, and constituted double counting, as his criminal history score already had taken into account his second-offender status.

We begin our discussion by delineating the applicable standard of review. We then visit separately each of the appellant's asseverations.

A. Standard of Review

Conventionally, appellate courts review the interpretation and application of statutes de novo, United States v. Carroll, 105 F.3d 740, 744 (1st Cir.1997), and factual findings for clear error, United States v. St. Cyr, 977 F.2d 698, 701 (1st Cir.1992). Here, however, the appellant did not raise the issue of the district court's ostensible noncompliance with section 3553(c)(1) at the time of sentencing. This omission presents a threshold issue that is of novel impression in this circuit.

The courts of appeals are divided on what effect a defendant's silence at sentencing has on an appeal that seeks to contest the sentencing court's failure to comply with section 3553(c)(1). Two of our sister circuits have characterized the failure to raise a section 3553(c)(1) objection in the trial court as a waiver. See United States v. McCabe, 270 F.3d 588, 590 (8th Cir.2001); United States v. Caicedo, 937 F.2d 1227, 1236 (7th Cir.1991). The Ninth Circuit has characterized that sort of default as a forfeiture. See United States v. Vences, 169 F.3d 611, 613 (9th Cir.1999). Two other courts of appeals, while not discussing the distinction between waiver and forfeiture, have reviewed unpreserved section 3553(c)(1) objections for plain error. See United States v. Merlino, 349 F.3d 144, 161 (3d Cir.2003); United States v. James, 46 F.3d 407, 407 (5th Cir.1995). That is tantamount to treating such defaults as forfeitures. See United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

In United States v. Rodriguez, 311 F.3d 435 (1st Cir.2002), we delineated the taxonomy of waiver and forfeiture. "A party waives a right when he intentionally relinquishes or abandons it," whereas he forfeits the right if he "fails to make a timely assertion of [it]." Id. at 437. For purposes of appellate review, the distinction is important. While a waived issue normally may not be resurrected on appeal, a forfeited issue may be reviewed for plain error. Id. This case, therefore, requires us to take sides in the aforedescribed circuit split.

We think that the view espoused by the Ninth Circuit, and impliedly adopted by the Third and the Fifth Circuits, better reflects the realities of this situation. For aught that appears, the appellant, at the time of sentencing, did not make a conscious, informed decision to forgo a section 3553(c)(1) challenge. Rather, he simply let the opportunity slip (whether by oversight, inadvertence, or ignorance is unimportant for this purpose). Where, as here, an appellant merely neglects to raise a claim before the trial court, forfeiture more aptly captures the nature of the default. Accordingly, we hold that, absent some basis for finding an express waiver, the failure to raise a section 3553(c)(1) objection in the trial court is a forfeiture. The appellant's claim is, therefore, subject to review for plain error.

To some extent, that may be a Pyrrhic victory. The jurisprudence of plain error is not appellant-friendly. Under that regime, an appellant must demonstrate: "(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 judicial proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.2001). We move next to the application of that standard.

B. Adequacy of the Explanation

As said, the appellant's principal plaint is that the sentencing court's contemporaneous explanation for the length of his sentence was insufficient as a matter of law. In voicing this plaint, the appellant does not contest either the GSR itself or the components used to construct it. Rather, he embraces the GSR, emphasizes the applicability of section 3553(c)(1), and builds his argument around what that provision requires.

Section 3553(c)(1) is part of a larger statutory scheme. Pertinently, the scheme requires that, in federal criminal cases, the sentencing court "shall state in open court the reasons for its imposition of the particular sentence." 18 U.S.C. § 3553(c). This command refers to the court's determination of the applicable GSR. From that point forward, the district court has virtually unbridled discretion in choosing a sentence within the...