United States v. Flete-Garcia

• Decision Date: 23 May 2019
• Docket Number: 18-1116,Nos. 18-1067,s. 18-1067
• Parties: UNITED STATES of America, Appellee, v. Fulvio FLETE-GARCIA, a/k/a Fubio, a/k/a Israel Pagan Torres, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

925 F.3d 17

UNITED STATES of America, Appellee,

v.Fulvio FLETE-GARCIA, a/k/a Fubio, a/k/a Israel Pagan Torres, Defendant, Appellant.

Nos. 18-1067

18-1116

United States Court of Appeals, First Circuit.

May 23, 2019

Mark W. Shea, with whom Shea & LaRocque, LLP, was on brief, for appellant.

Yael T. Epstein, Attorney, Tax Division, Department of Justice, with whom Richard E. Zuckerman, Principal Deputy Assistant Attorney General, S. Roberts Lyons, Chief, Criminal Appeals & Tax Enforcement Policy Section, Stanley J. Okula, Jr., White Plains, NY, and Alexander P. Robbins, Attorneys, Tax Division, and Andrew E. Lelling, United States Attorney, were on brief, for appellee.

Before Kayatta, Circuit Judge, Souter,^* Associate Justice, and Selya, Circuit Judge.

SELYA, Circuit Judge.

Having identified defendant-appellant Fulvio Flete-Garcia as the architect of a massive swindle, the government charged him with a litany of fraud-based crimes. Following four days of trial, Flete-Garcia threw in the towel and entered a straight guilty plea to all 48 counts of the indictment. Prior to sentencing, though, Flete-Garcia experienced buyer's remorse and attempted to withdraw his guilty plea. The district court denied this motion, as well as sentencing-related motions for discovery and for an evidentiary hearing. It then sentenced Flete-Garcia to 132 months' imprisonment and ordered him to make restitution in the amount of $7,737,486.10. Flete-Garcia appeals, raising a gallimaufry of alleged errors. Finding his asseverational array long on perfervid rhetoric but short on substance, we affirm.

I. BACKGROUND

We briefly rehearse the background of this appeal, reserving further elaboration for our subsequent discussion of the issues. We draw the facts from the trial record, the change-of-plea colloquy, the undisputed portions of the presentence investigation report (PSI Report), and the transcript of the disposition hearing. See United States v. Arias-Mercedes, 901 F.3d 1, 4 (1st Cir. 2018) ; United States v. Fernández-Santos, 856 F.3d 10, 14 n.1 (1st Cir. 2017).

For over half a decade, Flete-Garcia orchestrated and operated a lucrative tax-fraud conspiracy. To further this criminal enterprise, Flete-Garcia stole personal identification information (PII) from Puerto Rico residents and used this information to prepare and file fraudulent federal income tax returns.¹ These fraudulent returns generated refund checks, which Flete-Garcia deposited (through intermediaries) for his own benefit.

Flete-Garcia's scheme involved a handful of co-conspirators. One such co-conspirator assisted in the preparation of the fraudulent tax returns, while others assisted by cashing refund checks. When a co-conspirator's accounts were frozen, Flete-Garcia simply moved on to another individual and another set of accounts.

Flete-Garcia's scheme was nothing if not ambitious. In hindsight, the government says that it has been able to account for over $7 million in funds fraudulently obtained from the Internal Revenue Service (IRS) as well as $5 million, more or less, that would have been paid but for the detection of the fraud.

The plucked chickens eventually came home to roost. On March 9, 2017, a federal grand jury sitting in the District of Massachusetts returned a 48 count superseding indictment charging Flete-Garcia with conspiracy to defraud the United States (count 1), see 18 U.S.C. § 371 ; access device fraud (counts 2 and 3), see id. § 1029; conversion of government property (counts 4 through 20), see id. § 641; aggravated identity theft (counts 21 through 37), see id. § 1028A; and money laundering (counts 38 through 48), see id. § 1956(a)(1)(B)(i). Flete-Garcia initially maintained his innocence, a jury was empaneled, and trial commenced on July 10, 2017. During the first four days of trial, the government presented the bulk of its evidence (including nineteen of twenty-three witnesses), and Flete-Garcia cross-examined nearly all of the government's witnesses. As the fourth day of trial wound

down, Flete-Garcia indicated that he wished to change his plea. He told the court that no one had pressured him into this decision but, rather, he had "started thinking about [his] family."

The district court engaged in a careful change-of-plea colloquy, see Fed. R. Crim. P. 11, and Flete-Garcia admitted his guilt with respect to all 48 counts. Once the court accepted the plea, it discharged the jury.

Shortly thereafter, Flete-Garcia retained new counsel. He also wrote a pro se letter to the district court maintaining that his trial was tainted and that he wanted to "null[ ] or void" his guilty plea. The court advised both Flete-Garcia and his new lawyer that it considered this letter to be without force and that any plea-withdrawal motion should be made by counsel. Relatedly, the court postponed sentencing at Flete-Garcia's request.

Flete-Garcia's new lawyer filed a flurry of motions. These filings included a motion to withdraw Flete-Garcia's guilty plea, a motion to compel discovery, and a motion for an evidentiary hearing to determine the amount of loss. Meanwhile, the probation office prepared the PSI Report, which (when issued) recommended certain guideline calculations. The probation office began its calculations by constituting a single group comprising counts 1 through 20 and counts 38 through 48. See USSG § 3D1.2(c), (d). It then formed a second group comprising counts 21 through 37. See id. § 2B1.6. Because the offense level for the money laundering counts contained in the first group carried the highest offense level, the PSI Report calculated the guideline sentencing range (GSR) by reference to those counts. See id. § 3D1.3(a). The ensuing calculation started with a base offense level of 6, see id. § 2B1.1, and added several enhancements. These included a twenty-level enhancement for amount of loss, see id. § 2B1.1(b)(1)(K); a two-level enhancement because the offenses of conviction involved more than ten victims, see id. § 2B1.1(b)(2)(A)(i); a four-level enhancement for Flete-Garcia's leadership role, see id. § 3B1.1(a); and a two-level enhancement because the money laundering convictions implicated 18 U.S.C. § 1956, see USSG § 2S1.1(b)(2)(B). As an offset, the PSI Report recommended a two-level reduction for acceptance of responsibility. See id. § 3E1.1(a).

These calculations yielded a total offense level of 32 which, coupled with a criminal history category of III, produced a GSR of 151-188 months. To complete the picture, the PSI Report recommended restitution in the amount of $7,737,486.10.

Flete-Garcia objected to many aspects of the PSI Report, including (as pertinent here) the enhancements for number of victims and amount of loss. He also objected to the restitution amount.

On December 18, 2017, the district court denied Flete-Garcia's motion for an evidentiary hearing concerning amount of loss. Two days later, the court convened the disposition hearing. At that time, it heard and denied Flete-Garcia's remaining motions, including his motion to withdraw his guilty plea and his motion to compel discovery. The court also heard and rejected Flete-Garcia's renewed arguments as to why an evidentiary hearing would be useful in determining amount of loss.

The district court then turned to the task of fashioning Flete-Garcia's sentence. After entertaining additional arguments from both sides, the court accepted most of the guideline calculations limned in the PSI Report. The court, however, sustained the government's objection and ruled that Flete-Garcia — who had only pleaded guilty near the end of the trial and thereafter had sought to unbuckle himself from his guilty plea — was not entitled to an offense-level reduction for acceptance of responsibility.

The district court proceeded to sentence Flete-Garcia to a downwardly variant 132-month term of immurement and ordered him to make restitution in the amount of $7,737,486.10. This timely appeal followed. In it, Flete-Garcia calumnizes his conviction and sentence on several fronts. We start with his claim that he should have been allowed to withdraw his guilty plea. Next, we deal with his claims of sentencing-related error (including those arising out of the denial of his motions for discovery and for an evidentiary hearing). We then treat with his attack on the restitution order and end with his ineffective assistance of counsel claim.

II. WITHDRAWAL OF GUILTY PLEA

Because Flete-Garcia's motion to withdraw his guilty plea was filed before the imposition of sentence, it is governed by Federal Rule of Criminal Procedure 11(d)(2)(B). Under this rule, "[a] defendant may withdraw a plea of guilty ... after the court accepts the plea, but before it imposes sentence if ... the defendant can show a fair and just reason" for its withdrawal. Despite its permissive nature, this standard "does not endow [a defendant] with an unfettered right to retract a guilty plea." United States v. Merritt, 755 F.3d 6, 9 (1st Cir. 2014). The devoir of persuasion rests with the movant, and we review the district court's denial of such a motion solely for abuse of discretion. See id.

A court's scrutiny of a plea-withdrawal motion must take into account the totality of the relevant circumstances. See id.; see also United States v. Caramadre, 807 F.3d 359, 366 (1st Cir. 2015). This canvass includes consideration of whether the plea was voluntary, intelligent, and knowing when tendered; the strength of the reason(s) proffered in support of the motion to withdraw; the timing of the request; and the force of any claim of actual innocence. See United States v. Dunfee, 821 F.3d 120, 127 (1st Cir. 2016) (per curiam); Merritt, 755 F.3d at 9. If the defendant makes a prima facie showing of an entitlement to relief, the court must then factor into the decisional calculus the prejudice, if any, that may accrue to the government as a result of allowing the plea to be withdrawn. See Merritt, 755 F.3d at 9.

In the district court — as here — Flete-Garcia...