United States v. Alvira-Sanchez, 14–1671.

• Decision Date: 30 October 2015
• Docket Number: No. 14–1671.,14–1671.
• Citation: 804 F.3d 488
• Parties: UNITED STATES of America, Appellee, v. Carlos Luis ALVIRA–SANCHEZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

804 F.3d 488

UNITED STATES of America, Appellee

v.Carlos Luis ALVIRA–SANCHEZ, Defendant, Appellant.

No. 14–1671.

United States Court of Appeals, First Circuit.

Oct. 30, 2015.

Ines McGillion, on brief for appellant.

Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, Francisco A. Besosa–Martínez, Assistant United States Attorney, and Rosa Emilia Rodríguez–Vélez, United States Attorney, on brief for appellee.

Before LYNCH, THOMPSON, and KAYATTA, Circuit Judges.

Opinion

KAYATTA, Circuit Judge.

Carlos Luis Alvira–Sanchez alleges that the district court in this case made several errors in accepting and entering his guilty plea. Alvira–Sanchez made no objections to any of those purported errors at the time, nor did he thereafter seek to withdraw his plea, even after he was sentenced. He now asks that we vacate the acceptance of his plea. Although several of Alvira–Sanchez's claims of error are meritorious, no shortcoming in the district court's acceptance of his plea caused him any harm. Accordingly, we deny Alvira–Sanchez's request for reversal. At the same time, because the parties agree that Alvira–Sanchez is entitled to seek a sentencing reduction under Amendment 782 to the Drug Quantity Table of the United States Guidelines, we remand solely for consideration of that request.

I. Background

On October 24, 2013, law enforcement officers entered a residence located roughly 168 feet from a school to arrest Alvira–Sanchez on two outstanding warrants. On entry, officers found, among other things, a loaded Zombie rifle, approximately 2.87 grams of cocaine, approximately 1.3486 grams of cocaine base, approximately 2.0247 grams of marijuana, and drug paraphernalia. On October 30, 2013, Alvira–Sanchez was charged with four counts: (1) possession of a firearm in a school zone, in violation of 18 U.S.C. § 922(q) ; (2) possession of cocaine in a school zone, with intent to distribute, in violation of 21 U.S.C. § 841 ; (3) possession of marijuana in a school zone, with intent to distribute, in violation of 21 U.S.C. § 841 ; and (4) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c).

On February 19, 2014, Alvira–Sanchez came before the court to enter a straight guilty plea—i.e., a plea not the product of a plea bargain—on all counts. After verifying Alvira–Sanchez's competence to plead, the court explained that pleading guilty waived the right to trial by jury, the presumption of innocence, the right to a public trial, and the right to remain silent. The court next listed the elements of each of the four charged crimes and verified Alvira–Sanchez's understanding. The court did not, however, expressly inform Alvira–Sanchez of his right to persist in a plea of not guilty. See Fed.R.Crim.P. 11(b)(1)(B).

Turning to the penalties, the court stated that “the gun counts may require a consecutive sentence.” The court then described the penalties “regarding the drugs” as, in relevant part, “[i]mprisonment of not more than 20 years,” “[s]upervised release of at least three years,” and “the payment of a special monetary assessment,” and the penalties “regarding the gun” as, in relevant part, “at least five years, statutory minimum; not more than life imprisonment,” “supervised release that can go as high as five years,” and “the payment of a special monetary assessment[.]” The court concluded by explaining that parole would not be available, that the court was not bound by the recommendations of the United States Sentencing Guidelines (“USSG”), and that Alvira–Sanchez would serve a term of supervised release that “will never be more than five years.” The court did not, however, inform Alvira–Sanchez that any sentence imposed for count 1 (possession of a firearm in a school zone), up to a maximum of five years, was statutorily mandated to run consecutively to any other sentence, or that count 1 would carry its own concurrent term of supervised release and special monetary assessment. After Alvira–Sanchez accepted the government's factual proffer, the court entered his plea and ordered a Presentence Investigation Report (“PSR”).

The PSR as ultimately amended grouped counts 1–3 and calculated a total offense level of 14 for those counts.¹ For criminal history, the PSR listed five prior arrests, including one arrest for pending criminal charges and three arrests for past dismissed charges. The PSR also noted that Alvira–Sanchez had pled guilty to four unlisted juvenile offenses. The PSR concluded that Alvira–Sanchez fell within Criminal History Category (CHC) I, corresponding to a recommended sentence of 15–21 months for grouped counts 1–3. Count 4 carried a mandatory minimum sentence of 60 months. It was mandatory that any sentences imposed for counts 1 and 4 run consecutively to all other sentences, and to each other.

Alvira–Sanchez appeared thereafter for sentencing. He requested a low-end guidelines sentence of 75 months—15 months for grouped counts 1–3, plus the mandatory consecutive 60–month sentence for count 4. The court granted his subsidiary request that it treat the pending charges listed in the PSR's criminal history section as allegations, but it declined to do the same for the previously dismissed charges, seeing “no logical, reasonable explanation, legal or factual or otherwise” as to why the charges had been dismissed. Looking at the entirety of the PSR's criminal history section, the court said that “you can tell a mile away that [Alvira–Sanchez] has been involved for a substantial part of his life in the business of drug dealing and firearms.”

Turning to its obligation to sentence Alvira–Sanchez under 18 U.S.C. § 3553, the court said that “even though we have not mentioned 3553(a) by name, it is obvious that all this discussion surrounds 3553(a), the sentencing factors.” Expressing concern for Puerto Rico's high crime rate and the “real need for deterrence of criminal conduct,” the court sentenced Alvira–Sanchez to 6 months for count 1, 34 months for counts 2–3, and 60 months for count 4, with all sentences to be served consecutively for a total of 100 months. In addition, the court imposed concurrent terms of supervised release of three years (count 1), six years (count 2), four years (count 3), and five years (count 4). Finally, the court imposed a $100 monetary assessment for each count, for a total of $400. Unhappy with his sentence, Alvira–Sanchez now asks that we vacate the sentence and allow him to withdraw his plea, or that we remand for a new sentence.

II. Analysis

A. The Plea Colloquy

1. Standard of Review

Because Alvira–Sanchez raised no objection to his plea colloquy below, he bears the burden of showing: (1) that an error occurred; (2) that the error was clear or obvious; (3) that the error impaired his substantial rights; and (4) that the error “seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” United States v. Duarte, 246 F.3d 56, 60 (1st Cir.2001).

2. The Consequences of Count 1

Before entering a guilty plea, a court must ensure that the defendant understands “any maximum possible penalty, including imprisonment, fine, and term of supervised release.” Fed.R.Crim.P. 11(b)(1)(H). Here, rather than explaining the consequences of the gun counts (counts 1 and 4) separately, the district court said merely, in relevant part, “[R]egarding the gun, the statutory penalty is at least five years, statutory minimum; not more than life imprisonment ... supervised release that can go as high as five years; plus the payment of a special monetary assessment that's consecutive.” The court accurately stated the penalties for possession of a firearm in furtherance of a drug trafficking crime (count 4). See 18 U.S.C. § 924(c)(1)(A)(i)² ; 18 U.S.C. § 3013(a)(2)(A) ; 18 U.S.C. § 3583(b)(1) ; 18 U.S.C. § 3559(a)(1). The court did not, however, indicate that possession of a firearm in a school zone (count 1) carried the potential for a separate term of imprisonment not more than five years, required to run consecutively, see 18 U.S.C. § 924(a)(4), and its own concurrent term of supervised release, see 18 U.S.C. § 3583(a).

The government argues that the court's statement that “the gun counts may require a consecutive sentence” was adequate notice, but Alvira–Sanchez is correct that nothing in that formulation served to inform him that the gun counts carried the potential for “separate multiple sentences rather than a single sentence, and that the consecutive nature of those sentences was mandatory as opposed to permissive, and that they must be consecutive not only to all non-gun counts, but also to each other. ” Failure to explain correctly the interaction of the consecutive sentences on the two counts was thus obviously erroneous.Cf. United States v. Santiago, 775 F.3d 104, 106–07 (1st Cir.2014) (government conceded that failure to inform defendant that sentences must run consecutively was an obvious error).

That error, though, did not affect Alvira–Sanchez's substantial rights. Given that count 1 does not require any minimum sentence, see 18 U.S.C. § 924(a)(4), and that Alvira–Sanchez already knew he risked up to a 20–year term for counts 2–3 and a consecutive life sentence for count 4, there is no reason to think that the risk of an additional 5–year term would have affected Alvira–Sanchez's willingness to plead. He does not allege as much. See United States v. Romero–Galindez, 782 F.3d 63, 69 (1st Cir.2015) (finding no plain error where district court understated the supervised release period by two years at the change of plea hearing because, inter alia, the discrepancy was “but a small fraction of the life-imprisonment penalty” defendant was facing).

The same analysis holds for the district court's failure to describe accurately count 1's term of supervised release. Alvira–Sanchez knew that he faced a potential term of supervised release under count 4 that would “never be more than five years.” Because supervised release...