United States v. Almonte-Nuñez

• Decision Date: 14 November 2014
• Docket Number: No. 13–1896.,13–1896.
• Citation: 771 F.3d 84
• Court: U.S. Court of Appeals — First Circuit
• Parties: UNITED STATES of America, Appellee, v. Edwin Omar ALMONTE–NUÑEZ, Defendant, Appellant.

771 F.3d 84

UNITED STATES of America, Appellee

v.Edwin Omar ALMONTE–NUÑEZ, Defendant, Appellant.

No. 13–1896.

United States Court of Appeals, First Circuit.

Nov. 14, 2014.

Heather Golias, with whom Law Office of Heather Golias was on brief, for appellant.

John A. Mathews II, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, were on brief, for appellee.

Before HOWARD, SELYA and STAHL, Circuit Judges.

Opinion

SELYA, Circuit Judge.

When the government enters into a plea agreement with a criminal defendant, it acquires a duty to carry out the obligations it has undertaken in both letter and spirit. This duty devolves upon the government's attorneys. But those attorneys, as officers of the court, remain bound by their corollary duty to provide full and accurate information about the offense and the offender to the sentencing court. As this case illustrates, these dual obligations sometimes require prosecutors to walk a fine line.

I. BACKGROUND

We draw the facts from the plea agreement, the change-of-plea colloquy, the presentence investigation report (PSI Report), and the transcript of the disposition hearing.See United States v. Fernández–Cabrera, 625 F.3d 48, 50 (1st Cir.2010).

Early on the morning of September 30, 2011, Puerto Rico police officers pursued a car in Caparra Heights. The car careened into a pole and defendant-appellant Edwin Omar Almonte–Nuñez was observed clambering out of the wreck. The defendant threw a pistol on the floor as he went. He and a passenger were arrested.

There had been a robbery in the neighborhood, leaving an injured victim behind. During a search incident to arrest, some of the victim's property (including her passport) was found in the suspects' possession.

The defendant admitted participating in the robbery. He further admitted using the pistol to strike the victim, a 78–year–old widow. The victim explained in a sworn statement that the defendant had placed the pistol to her forehead, threatened to shoot her, twice struck her in the face with the pistol, and restrained her against a wall. The victim suffered grievous injuries, including the loss of her right eye.

A federal grand jury subsequently returned a superseding indictment that charged the defendant in pertinent part with robbing an individual of a United States passport in violation of 18 U.S.C. § 2112 (count 1), brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (count 2), and being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (count 3). After initially maintaining his innocence, the defendant executed a plea agreement (the Agreement) and entered guilty pleas to all counts. See Fed.R.Crim.P. 11(c)(1)(B).

In the Agreement, the government and the defendant agreed to a series of guideline calculations, culminating in a total offense level of 25. The parties pledged that neither of them would argue for any further offense-level adjustments. The defendant's criminal history category (CHC) was left open and, thus, his guideline sentencing range (GSR) was undetermined. Nevertheless, the Agreement allowed the defendant to argue for sentences on counts 1 and 3 at the low end of whatever GSR emerged and allowed the government to argue for high-end sentences on those counts. With respect to count 2, the parties jointly agreed to advocate an 84–month sentence (to run consecutive to whatever sentences the court imposed on the other counts).

The Agreement made clear that these sentencing recommendations were not binding on the district court. To guard against the possibility that the court might reject the proposed calculations, the defendant agreed to waive his right to appeal only if he was “sentenced in accordance with the terms and conditions set forth in the Sentence Recommendation provisions” of the Agreement.

We fast forward to March 14, 2013, when the probation department submitted an amended PSI Report. This version contained certain information not included in the Agreement's stipulated facts. Pertinently, the PSI Report noted that the victim had been threatened with death and restrained during the robbery. With this in mind, the PSI Report suggested that the defendant's total offense level should be 29 (not 25). See USSG § 2B3.1(b)(2)(F) (providing two-level enhancement for threat of death); id. § 2B3.1(b)(4)(B) (providing two-level enhancement for restraining victim). It further recommended that the defendant be placed in the highest available CHC: VI.

At a sentencing conference held on April 16, 2013, two noteworthy developments occurred. First, the court related its inclination to adopt the two new enhancements proposed in the PSI Report. Second, the court stated that it regarded the parties' sentencing recommendation on counts 1 and 3 as too lenient.

The disposition hearing convened on June 14, 2013. The defendant did not object to the appropriateness of CHC VI. He did, however, object to the threat-of-death adjustment, arguing that this enhancement would constitute double counting in light of the charge limned in count 2. The Assistant U.S. Attorney (AUSA) agreed that a threat-of-death adjustment would constitute double counting. The court acquiesced, and that proposed adjustment dropped out of the case.

The court followed up by asking the AUSA whether the proposed restraint adjustment would be double counting. She replied that it would not. The defendant did not challenge the accuracy of this response but nonetheless beseeched the court to use the total offense level adumbrated in the Agreement (25). Later in the proceeding, the defendant objected to inclusion of the restraint adjustment, maintaining that the government had not mentioned that element in the plea negotiations and that, in all events, there was insufficient evidence to justify a finding that the victim had been restrained. The AUSA rejoined that the government had provided full discovery and that the victim impact statement furnished a factual basis for the two-level restraint enhancement. At the same time, however, the AUSA assured the court that the government stood by the sentencing recommendations delineated in the Agreement.

This exchange concluded with the court advising the parties that it was inclined to incorporate the restraint enhancement into the offense-level calculation. Doing so would boost the defendant's offense level to 27, resulting in a GSR of 130 to 162 months.

The court then heard arguments about what sentence to impose. The defendant's lawyer argued that, if the court used an offense level of 27, it should impose a bottom-of-the-range 130–month sentence on counts 1 and 3. While the AUSA reiterated that the government stood by the Agreement and its sentencing recommendations, she referenced the seriousness of the offenses, the various aggravating factors, and the need for deterrence. When the court made clear that the higher GSR would apply, the AUSA recommended 137–month sentences on counts 1 and 3.

Not coincidentally, 137 months represented the high end of the GSR that would have applied if the court had stuck with an offense level of 25. The court continued to press the AUSA about the restraint enhancement, whereupon the AUSA repeated that there was a factual basis for the enhancement but asked the court to impose a sentence in accordance with the Agreement's sentence recommendation provisions (in other words, a sentence premised on an offense level of 25).

The rest is history. The court applied the restraint enhancement and set the defendant's total offense level at 27. The GSR for counts 1 and 3 thus became 130 to 162 months. The court sentenced the defendant to concurrent 150–month incarcerative terms on those counts, to be followed by the agreed 84–month incarcerative term on count 2. This timely appeal followed.

II. ANALYSIS

In this venue, the defendant presses two claims of error. First, he says that the government breached the Agreement and that, therefore, he should be resentenced before a different judge. Second, he says that the 150–month sentence on count 3 must be vacated because it exceeds the statutory maximum for that count.

There is, however, a threshold issue: the government contends that the waiver-of-appeal clause contained in the Agreement bars our review of the defendant's claims of error. We start there.

A. Appeal Waiver.

It is black-letter law that a criminal defendant may waive his right to appeal. See United States v. Teeter, 257 F.3d 14, 23 (1st Cir.2001). We will enforce such a waiver as long as “the defendant knowingly and voluntarily agreed to its terms and enforcement would not result in miscarriage of justice.” United States v. McCoy, 508 F.3d 74, 77 (1st Cir.2007) (citing Teeter, 257 F.3d at 24–26 ).

Of course, a waiver of appeal precludes only those appeals that fall within its scope. See Fernández–Cabrera, 625 F.3d at 51 ; McCoy, 508 F.3d at 77. In determining whether an appeal is within the scope of a waiver provision, we interpret a plea agreement according to traditional contract-law principles. See United States v. Murphy–Cordero, 715 F.3d 398, 400 (1st Cir.2013). Here, the terms of the waiver-of-appeal clause are unequivocal: the defendant is foreclosed from appealing only if he was “sentenced in accordance with the terms and conditions set forth in the Sentence Recommendation provisions” of the Agreement.

As to counts 1 and 3, the sentence recommendation provisions contemplated a total offense level of 25 (with no further offense-level adjustments) and a sentence within the ensuing GSR. Thus, for the defendant to have been sentenced in accordance with the terms of the sentence recommendation provisions, he would have had to be sentenced within a GSR derived from an offense level of 25. Such a GSR, even at the highest possible CHC (VI), tops out at 137...