United States v. Miranda-Martinez

• Decision Date: 24 June 2015
• Docket Number: 14–1244.,Nos. 14–1149,s. 14–1149
• Citation: 790 F.3d 270
• Parties: UNITED STATES of America, Appellee, v. Santos J. MIRANDA–MARTINEZ, a/k/a Santitos, a/k/a Chiquitin, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

790 F.3d 270

UNITED STATES of America, Appellee

v.Santos J. MIRANDA–MARTINEZ, a/k/a Santitos, a/k/a Chiquitin, Defendant, Appellant.

Nos. 14–1149

14–1244.

United States Court of Appeals, First Circuit.

June 24, 2015.

Raymond E. Gillespie on brief for appellant.

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

Before KAYATTA, SELYA, and BARRON, Circuit Judges.

Opinion

KAYATTA, Circuit Judge.

Santos J. Miranda–Martinez (“Miranda”) appeals his sentence following his guilty plea to drug trafficking crimes. He argues that he is entitled to resentencing because the government breached the terms of his plea agreement, and because the district court erroneously imposed a two-level firearm enhancement under the United States Sentencing Guidelines. Finding neither argument persuasive, we affirm.

I. Background

Miranda was indicted in 2011 in the District of Puerto Rico for conspiring to import cocaine into the United States (count one) and conspiring to possess cocaine with the intent to distribute (count two). In 2012, a second indictment charged that, with respect to a different conspiracy, Miranda conspired to possess heroin, cocaine, and marijuana with the intent to distribute (count one); aided and abetted the distribution of those controlled substances (counts two through four); and conspired to possess firearms in furtherance of a drug trafficking crime (count five). At Miranda's request, the two cases were consolidated for his change of plea hearing and sentencing. Miranda pled guilty to count one in both indictments pursuant to a plea agreement with the government.

The district court sentenced Miranda to 293 months' imprisonment for count one in each of the two cases, with the terms to be served concurrently, and dismissed the remaining counts in both indictments. The district court calculated the guidelines range using a total offense level above that recommended by the parties in the plea agreement, and also imposed a firearm enhancement not contemplated in the agreement, thereby permitting Miranda to appeal his sentence notwithstanding the plea agreement's waiver of appeal clause.¹ See United States v. Fernández–Cabrera, 625 F.3d 48, 51 (1st Cir.2010).

II. Discussion

A. The Alleged Breach of the Plea Agreement

Miranda first argues that the government violated the plea agreement when one of the prosecutors stated facts known to the government relating to his possession of firearms during the time period alleged in the second indictment. Because Miranda did not make this argument in the district court, we review for plain error. See Puckett v. United States, 556 U.S. 129, 133–34, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). While Puckett stated that plain error review applies “in the usual fashion” to forfeited arguments that the government breached a plea agreement, id. at 134, 129 S.Ct. 1423, the Supreme Court also observed in Santobello v. New York, 404 U.S. 257, 263, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), that the fault with respect to the government's failure to uphold its end of a plea agreement “rests on the prosecutor, not on the sentencing judge.” And we have ourselves said the same. United States v. Riggs, 287 F.3d 221, 225 (1st Cir.2002) (“Although plain error review usually applies to errors committed by the court, we have also assessed governmental breaches of plea bargains, in the absence of a contemporaneous objection, under this same standard.”). In any event, for the following reasons, we find that the prosecutor's comments at Miranda's sentencing hearing likely did not violate the plea agreement, and therefore could not have constituted plain error.

1. The Plea Agreement

The plea agreement stipulated that Miranda's base offense level should be thirty-six due to the amount and type of controlled substances involved in the conspiracies, and that a downward variance of three levels should apply due to his acceptance of responsibility. The plea agreement also stipulated that the parties “agree that no further adjustments or departures to the defendant's base offense level shall be sought,” and it obligated each party to recommend a sentence within the guidelines range corresponding to the agreed-upon total offense level of thirty-three. That recommendation did not bind the district court, even once it accepted the guilty plea. See Fed.R.Crim.P. 11(c)(1)(B). Rather, the agreement specified that Miranda understood “that the sentence will be left entirely to the sound discretion of the [district court] in accordance with the advisory Sentencing Guidelines.”

2. The Prosecutor's Statements

The presentence investigation report (“PSR”) conveyed that a Drug Enforcement Administration agent learned that Puerto Rico police seized a semi-automatic handgun from Miranda in 2007, that they seized guns from his co-conspirators, and that another one of his co-conspirators carried a gun throughout the period of time covered by the conspiracy in the second indictment. As we explain in more detail below, those facts, if accepted by the district court, called for a two-level enhancement in the guidelines sentencing calculations. See U.S.S.G. § 2D1.1(b)(1). Miranda objected to the PSR's reliance on such an enhancement. In addressing that objection at the beginning of the sentencing hearing, the district court observed of its own account that the PSR recited that “members of the Police of Puerto Rico seized a semiautomatic handgun from [Miranda]. He denies it. I believe there's a record for that; so, your objection is denied.” Counsel then argued the point. He asserted that Miranda himself had no gun; but conceded that “[i]n this case, every single defendant [other than Miranda] ..., they did possess firearms,” and that another defendant who accompanied Miranda to a meeting had a firearm. Counsel also argued that the connection between this case and the alleged 2007 seizure of a gun from Miranda himself was unclear, even if the seizure occurred.

When Miranda's counsel finished his argument, the following colloquy ensued:

District Court: Government?

....

Prosecutor Castellón–Miranda: .... We were the prosecutor [sic] assigned to the case of 12–769, which arises from the drug conspiracy in Juana Díaz. [Miranda] was identified as one of the leaders of this organization, and several cooperators identified the defendant as one that would go to the drug point armed and who would carry firearms in this case. So, the fact that he was arrested, it was also a fact known to the witnesses of the Government. And I understand that the weapon was seized by the Police of Puerto Rico also.

Defense Counsel: Can I have a moment with the prosecutor, Judge.

(Government and defense counsel confer.)

Prosecutor Hernández–Vega: And, Your Honor, at this time AUSA Olga Castellón clarified what the evidence in that case was. Nonetheless, as part of the plea negotiations, the government reached a plea agreement in which that enhancement was not contemplated; and the total offense level was in consideration of the amount of drugs in relation to the cases and his acceptance of responsibility for a total offense level of 33. Nonetheless, with candor to the Court, we have to indicate what the evidence is and how the incident relates to the offense.

Defense Counsel: Did you mention that with respect to the plea agreement this was not contemplated in it.

Prosecutor Hernández–Vega: Yes.

The Court: That's what she stated. Of course I was very clear to counsel and the defendant that I am not bound by the plea agreement. And there is evidence that the government has to the effect that he did possess weapons during—sometime during the conspiracy in this case. So, the objection is denied.

In thereafter sentencing Miranda, the district court included the two-level enhancement in its guidelines calculations, explaining its reasoning as follows:

As it was foreseeable that dangerous weapons, including firearms, would be possessed during the drug trafficking conspiracy, a two-level increase is warranted.... As you notice, Counsel, if it was foreseeable that firearms would be possessed.

Miranda now argues on appeal that Assistant U.S. Attorney Castellón's statements breached the government's promise not to seek any upward enhancements.

3. Analysis

The applicable law bearing on the prosecutor's conduct seeks to balance competing aims. On the one hand, several opinions of this court expressly provide that “[t]he government's review of the facts of the case ... cannot constitute a breach of the plea agreement [when] they [are] relevant to the court's imposition of sentence; no limitation can be placed, by agreement or otherwise, on this information.” United States v. Gonczy, 357 F.3d 50, 53 (1st Cir.2004) ; see also United States v. Saxena, 229 F.3d 1, 6 (1st Cir.2000) (noting that under 18 U.S.C. § 3661, “[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence” (alteration in original) (internal quotation marks omitted)); United States v. Hogan, 862 F.2d 386, 389 (1st Cir.1988) (sentencing judge “has a right to expect that the prosecutor and the probation department” will “give him all relevant facts within their ken”). Thus, “[t]he mere furnishing” of facts concerning the background, character, and conduct of the defendant “gives us little pause.” Saxena, 229 F.3d at 6.

On the other hand, we have acknowledged that certain factual “omission [s], helpful to the defendant,” may be “an implicit part of the bargain” in a plea agreement. United States v. Yeje–Cabrera, 430 F.3d 1, 28 (1st Cir.2005). In Gonczy, for example, we held that a prosecutor breached a plea agreement when he began a sentencing argument by recommending a sentence according...