United States v. Rivera-Clemente

• Decision Date: 10 February 2016
• Docket Number: No. 13–2275.,13–2275.
• Citation: 813 F.3d 43
• Parties: UNITED STATES of America, Appellee, v. Joel Manuel RIVERA–CLEMENTE, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

813 F.3d 43

UNITED STATES of America, Appellee,

v.Joel Manuel RIVERA–CLEMENTE, Defendant, Appellant.

No. 13–2275.

United States Court of Appeals, First Circuit.

Feb. 10, 2016.

Joseph M. Bethony, with whom Gross, Minsky, Mogul, P.A. was on brief, for appellant.

Francisco A. Besosa–Martínez, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, and Nelson Pérez–Sosa, Assistant United States Attorney, were on brief, for appellee.

Before BARRON and STAHL, Circuit Judges, and SOROKIN,^* District Judge.

SOROKIN, District Judge.

The defendant Joel Manuel Rivera–Clemente pleaded guilty to two offenses in connection with the killing of a security guard at the Sabana Seca Navy Base in Puerto Rico. The district court sentenced him to 322 months in prison. On appeal, the defendant argues error in the district court's failure to apprise him of the consequences of his guilty plea, as required by Federal Rule of Criminal Procedure 11(c)(3)(B), and in the district court's alleged failure to comply with the requirements of 18 U.S.C. § 3553 during the imposition of his sentence. Finding no error warranting reversal, we affirm.

I. Background. We recite the basic facts of the case, which are not in dispute, and reserve some facts for later discussion. Because the defendant pleaded guilty, we draw from the stipulated version of the facts accompanying the plea agreement, United States v. Jones, 551 F.3d 19, 21 (1st Cir.2008), as well as from "the plea colloquy, the unchallenged portions of the pre-sentence investigation report (PSR), and the sentencing hearing transcript." United States v. Ortiz–García, 665 F.3d 279, 281 (1st Cir.2011). On October 19, 2011, the defendant and a minor, denoted E.R.P., entered the Sabana Seca base to steal copper.¹ Immediately thereafter, Frankie Rondon–Rosario, a base security guard, escorted the defendant and E.R.P. from the base. In the course of this interaction, Rondon–Rosario displayed a weapon.

Later that night, the defendant and E.R.P. returned to the base intending to steal what they believed to be Rondon–Rosario's gun. With them were Josean Clemente and another minor, denoted K.T.S., both of whom carried a firearm. Once Rondon–Rosario was identified as the guard who had escorted the defendant from the base earlier that night, Josean Clemente and K.T.S. approached Rondon–Rosario, told him they intended to rob him, and then shot Rondon–Rosario dead. The two shooters then searched the victim and found only a fake firearm.

As is relevant to this appeal, Count One of the superseding indictment charged the defendant with aiding and abetting murder, in violation of 18 U.S.C. §§ 1111, 7(3) & 2, and Count Two charged him with aiding and abetting in the carrying and use of a firearm during and in relation to a crime of violence causing death, in violation of 18 U.S.C. §§ 924(c)(1)(A), 924(j)(1) & 2. Prior to trial, the defendant pleaded guilty to these offenses in a plea agreement entered into under Fed.R.Crim.P. 11(c)(1)(A) & (B).² In the plea agreement, the parties calculated the guideline sentencing range (GSR) for both counts as 270–322 months in prison. The government and the defendant then recommended in the plea agreement a sentence of 276 months in prison. The district court accepted the defendant's guilty plea at the change-of-plea hearing and ordered preparation of a PSR.

At sentencing, the government and the defendant requested the 276–month sentence in accordance with the recommendation in the plea agreement. The district court concurred with the parties' GSR calculations but, contrary to the recommendation of the parties, imposed a high-end guideline sentence of 322 months. The 322–month sentence is forty-six months longer than the term of imprisonment recommended by the parties in the plea agreement.³

II. Discussion. This appeal followed, in which the defendant challenges both the district court's failure to warn him of the consequences of his guilty plea, and its imposition of his sentence. We consider these contentions in turn.

A. Plea Hearing. The defendant contends that the district court violated Fed.R.Crim.P. 11(c)(3)(B) by failing to inform him, at the change-of-plea hearing, that he could not withdraw his guilty plea in the event that the court did not follow the sentencing recommendation in the plea agreement. Because the defendant entered into a plea agreement with the government under Fed.R.Crim.P. 11(c)(1)(B), in which the government recommended a particular sentence, Rule 11 required the court to inform the defendant that he had "no right to withdraw the plea if the court [did] not follow the recommendation...." Fed.R.Crim.P. 11(c)(3)(B). The court did not give this warning at the change-of-plea hearing.

However, at no point prior to the appeal did the defendant seek to withdraw his plea or object to the district court's failure to provide the required warning, so we review only for plain error. Ortiz–García, 665 F.3d at 285. "Plain error review is not appellant-friendly." United States v. Cortés–Medina, 810 F.3d 62, 65 (1st Cir.2016). It requires the defendant to "show that: (1) an error occurred; (2) the error was plain; (3) the error affected the defendant's substantial rights; and (4) the error ‘seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.’ " Ortiz–García, 665 F.3d at 285 (quoting United States v. Rivera–Maldonado, 560 F.3d 16, 19 (1st Cir.2009) ).

The district court's failure to give the warning required by Fed.R.Crim.P. 11(c)(3)(B) is an error that is plain on the record. See United States v. Hernández–Maldonado, 793 F.3d 223, 226 (1st Cir.2015). Moreover, it relates to a "core concern" of Rule 11, namely the defendant's "knowledge of the consequences of the guilty plea." See United States v. Noriega–Millán, 110 F.3d 162, 166–67 (1st Cir.1997).

Whether the error affected the defendant's substantial rights is another matter. "To meet [this] third prong of the plain error test, ‘a defendant who seeks reversal of his conviction after a guilty plea, on the ground that the district court committed plain error under Rule 11, must show a reasonable probability that, but for the error, he would not have entered the plea.’ " Hernández–Maldonado, 793 F.3d at 226 (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) ). This the defendant has failed to do.

To reach this conclusion, we consider a number of factors, including whether "the court made statements at the change-of-plea hearing that put the defendant on plain notice that it was not bound by the plea agreement." United States v. Saxena, 229 F.3d 1, 8 (1st Cir.2000) ; accord Noriega–Millán, 110 F.3d at 168.⁴ We also consider "the defendant's statements at the colloquy, ‘the overall strength of the Government's case and any possible defenses that appear from the record,’ and the inclusion of the warning in the plea agreement." Hernández–Maldonado, 793 F.3d at 226 (quoting Dominguez Benitez, 542 U.S. at 84–85, 124 S.Ct. 2333 ).

Here, despite failing to offer the defendant the Rule 11(c)(3)(B) warning at the plea hearing, the district court advised the defendant that each count carried a maximum punishment of life imprisonment (with the sentence on Count Two running consecutively as a matter of law), and confirmed the defendant understood. On the heels of this warning, the Court explained that it had "the discretion to sentence [the defendant] above the guidelines." Next the Court told the defendant that it was not bound by the sentencing recommendation in his plea agreement.⁵ The defendant then confirmed that he understood. All of these warnings came after the court had unequivocally told the defendant that, as a result of his plea, "[t]here will be no trial."

Moreover, the defendant's plea agreement delineated that "the defendant may not withdraw [his] plea solely as a result of the sentence imposed and the Court is not bound by this plea agreement." See Saxena, 229 F.3d at 8–9 (where the defendant's plea agreement stated that he "may not withdraw his plea of guilty regardless of what sentence is imposed," and where "the court made statements at the change-of-plea hearing that put the defendant on plain notice that it was not bound by the plea agreement," there was no reversible error in the district court's failure to warn the defendant that he could not withdraw his non-binding plea if the court did not follow the plea agreement's sentencing recommendation).

The defendant argues that he did not read or understand the portions of his plea agreement concerning the non-binding nature of the sentencing recommendation or his inability to withdraw his plea. This argument fails. The defendant, who required an interpreter at the change-of-plea hearing, certified in the plea agreement that he read the agreement, that he "carefully reviewed every part of it" with his attorney, and that his lawyer translated the plea agreement into Spanish which left the defendant with "no doubts as to the contents of the agreement." The defendant's attorney confirmed these statements in his separate certification in the plea agreement in which he certified both that he "translated the plea agreement" and that he "explained it in the Spanish language" to the defendant. Moreover, the defendant stated at the plea colloquy that he discussed his guilty plea with his attorney and was satisfied with his lawyer's services. See Dominguez Benitez, 542 U.S. at 85, 124 S.Ct. 2333 (where the defendant's plea agreement was translated into his native language and it "specifically warned that he could not withdraw his plea if the court refused to accept the Government's recommendations," the court concluded that these facts tend "to show that the Rule 11 [ (c)(3)(B) ] error made no difference to the outcome...."); Hernández–Maldonado, 793 F.3d at 226 (finding no plain error in the court's failure to give the Rule 11(c)(3)(B) warning where the...