United States v. Fuentes-Moreno

• Decision Date: 01 April 2020
• Docket Number: No. 18-1907,18-1907
• Parties: UNITED STATES of America, Appellee, v. Freddie A. FUENTES-MORENO, a/k/a Tinta, a/k/a Marca, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

954 F.3d 383

UNITED STATES of America, Appellee,

v.Freddie A. FUENTES-MORENO, a/k/a Tinta, a/k/a Marca, Defendant, Appellant.

No. 18-1907

United States Court of Appeals, First Circuit.

April 1, 2020

Rafael F. Castro Lang for appellant.

John Alex Romano, Criminal Division, United States Department of Justice, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, were on brief, for appellee.

Before Howard, Chief Judge, Torruella and Thompson, Circuit Judges.

THOMPSON, Circuit Judge.

Defendant-Appellant Freddie A. Fuentes-Moreno says the district court abused its discretion in giving him a consecutive 144-month sentence for two robbery convictions, rather than making it concurrent with another sentence he was already serving at the time he was sentenced for the robberies. We disagree and so we affirm.

BACKGROUND

Fuentes's appeal pertains to an offense that occurred in February 2017 but didn't get charged until February 2018. Because Fuentes contests the sentence's consecutive application to a different sentence that he was already set to serve at the time he was charged in 2018, we start by quickly summarizing Fuentes's criminal history.¹

In 2012, Fuentes was indicted for possession of a firearm in furtherance of a drug trafficking crime. See Complaint, United States v. Freddie A. Fuentes-Moreno, No. 12-CR-093 (CCC) (D. P.R. Feb. 3, 2012), ECF No. 1 ("Case No. 12-093"). He entered into a plea agreement and on December 3, 2012, was sentenced to 60 months incarceration and 5 years supervised release. His supervised release began August 19, 2016.

Less than one year into its term, Fuentes violated his release provisions when on March 1, 2017, he was arrested and indicted for being a prohibited person in possession of a firearm. See Complaint, United States v. Freddie A. Fuentes-Moreno, No. 17-CR-148 (GAG) (D. P.R. Mar. 1, 2017), ECF No. 1 ("Case No. 17-148" or the "March 1 firearm offense"). As a result of the new charge, the court revoked Fuentes's supervised release term from Case No. 12-093 on July 12, 2017 and imposed a 10-month revocation sentence (the "Revocation Sentence"). On the new firearm possession charge, Fuentes entered a straight guilty plea (i.e., sans a plea agreement), and on September 12, 2017, he received a 40 months sentence consecutive to the 10-month revocation imposition.

While serving the 10, Fuentes and three co-defendants were indicted for a couple of earlier criminal romps that had occurred before Fuentes was reincarcerated, namely two robberies that had taken place on February 4, 2017 (the "Humacao Robberies").² The first robbery happened in the morning at a gas station in Humacao, Puerto Rico. Alongside his companions, Fuentes, armed with a gun, entered the gas station and demanded money from the gas station attendant. But the employee, protected by a glass enclosure, refused to cooperate and hid. As a result, Fuentes and crew fled with two cellphone chargers and two candy bars. Dissatisfied with their morning spoils, the four co-defendants tried their luck again later in the day at a Humacao supermarket. While one co-defendant remained in the getaway car, Fuentes (still armed) and the others walked into the store and took at gunpoint $1,400 in cash and $800 in merchandise.

In connection with the Humacao Robberies, a grand jury returned a five-count Second Superseding Indictment charging Fuentes and his three co-defendants on February 7, 2018. Fuentes was charged with: 1) two counts of aiding and abetting in interfering with commerce by robbery, in violation of 18 U.S.C. §§ 1951 and 2, (Counts One and Three); 2) two counts of aiding and abetting in carrying, using and brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (Counts Two and Four); and 3) being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count Five).

Fuentes initially pleaded not guilty, but on June 11, 2018, at a Rule 11 change of plea hearing, he entered into a guilty plea as to Counts One and Three of the Second Superseding Indictment (details found in "the Plea Agreement").³ As to the Plea Agreement's sentencing recommendation, Fuentes and the government were in accord: "[t]aking into consideration that Counts Two, Four and Five [would] be dismissed." They "recommend[ed] as to each count of conviction [Counts One and Three] imprisonment sentences of 12 years [144 months], to be served concurrently with each other." Both parties also "reserve[d] the right to recommend at sentencing that the imprisonment sentences imposed in this case be served concurrently to any imprisonment sentence previously imposed on defendant," specifically, the parties reserved the right to request a sentence to run concurrent with the 40 month sentence for the March 1 firearm offense (which to refresh, ran consecutive to the 10 month Revocation Sentence).⁴ In the agreement Fuentes expressly acknowledged certain provisions relevant to the present appeal: 1) the sentence was within the sound discretion of the court and the advisory Sentencing Guidelines, and 2) the court was not bound by the parties' Plea Agreement, sentencing calculations and/or recommendations. Finally, it contained a waiver of appeal provision (the "Waiver Provision" that we'll get to in a minute).

Before accepting Fuentes's guilty plea, the district court assured itself of Fuentes's competency and explained to him all the ramifications of pleading guilty, such as waiving his right to a trial. The judge next recounted the factual events leading to Counts One and Three, and he reconfirmed with Fuentes his decision to plead guilty to those Counts. He then inquired into Fuentes's understanding of both the Sentencing Guidelines and of the judge's absolute discretion to depart from those Guidelines in sentencing Fuentes. After directing the government to spell out the factual events leading to the Counts One and Three charges, and after again confirming Fuentes's decision to plead guilty, the judge accepted the plea and adjudged Fuentes guilty. Lastly, the district judge ordered probation to prepare a Pre-Sentencing Report ("PSR") "to assist in" sentencing which, weeks later, it did.

Here's how the PSR determined Fuentes's sentencing calculus. It laid out the details of Fuentes's background and offenses and assessed a TOL of 24, just as in the Plea Agreement, and a CHC of IV based on eight criminal history points: three for each prior conviction (Case Nos. 12-093 and 17-148; U.S.S.G. § 4A1.1(a) ) and two for committing the robberies while serving his term of supervised release for his 2012 offense ( U.S.S.G. § 4A1.1(d) ). The PSR also noted that in an interview on June 10, 2018, when Fuentes accepted responsibility for the robberies, he also made a statement that "the firearm he possessed [during the Humacao Robberies was] the same that he was charged with in [Case No.] 17-148,"⁵ the March 1 firearm offense.

The PSR further set forth the maximum term of imprisonment -- 20 years -- for Counts One and Three, and based upon a TOL of 24 and CHC of IV, determined the Guidelines imprisonment range was 77-96 months. The PSR then accounted for how the Plea Agreement benefitted Fuentes, as he received: a three-level reduction in his offense level by pleading guilty; a dismissal of the remaining counts; and a joint recommendation of imprisonment sentences of 12 years on each of the pled-to counts, to be served concurrently with each other. The report also noted that had Fuentes been convicted for Counts Two and Four, he would have been subject to a minimum imprisonment of 25 years on each on those counts, to be served consecutive to each other, for a total minimum imprisonment of 50 years, to be then followed by a consecutive term of imprisonment for Counts One and Three.

A few weeks before sentencing, Fuentes notified the government by email of his objections to the PSR, including as relevant here, "Objection 1: Conviction in Criminal Number 17-148 [the March 1 firearm offense] should be considered relevant conduct because the firearm for which he was charged in the aforementioned case is the same used to commit the [Humacao Robberies]." In response Probation filed an Addendum to the PSR the week before the sentencing hearing, stating "[a]t this time, there is no evidence to support that both cases involve the same weapon. As such, cannot be considered relevant conduct in the case." Why Fuentes wanted his March 1 firearm offense to be considered "relevant conduct" to the Humacao Robberies will soon become clear.

At the very beginning of the sentencing hearing held on September 11, 2018, Fuentes's counsel raised this "relevant conduct" issue:

THE COURT : Ms. Carrillo, is there anything you would like to say on behalf of Mr. Fuentes before I pronounce sentence?

FUENTES'S COUNSEL : Your Honor, we just ask the Court -- there is a PSR, which I believe that encompasses all the information this Court needs at the time of imposing sentence. There is only an issue that is pending as to the relevant conduct, to see if it's possible this Court can sentence this Defendant concurrent to the [40 months] sentence that he is right now serving, possession of a firearm, which was a sentence that was imposed on September 2017. At that point in time, this Defendant was arrested with a Glock 26, which was the same firearm that was used in --

THE COURT : We really don't know that.

FUENTES'S COUNSEL : Well, Your Honor, we have a statement of the Defendant that he has informed the Court and myself that it was his firearm. So we do have --

THE COURT : The probation officer wasn't able to corroborate that.

FUENTES'S COUNSEL : But the Government has information that at least the weapon that he used on the commission of this offense was a Glock 26. W

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