United States v. Romero-Galindez

• Decision Date: 03 April 2015
• Docket Number: No. 13–2205.,13–2205.
• Citation: 782 F.3d 63
• Parties: UNITED STATES, Appellee, v. Angel Enrique ROMERO–GALINDEZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

782 F.3d 63

UNITED STATES, Appellee

v.Angel Enrique ROMERO–GALINDEZ, Defendant, Appellant.

No. 13–2205.

United States Court of Appeals, First Circuit.

April 3, 2015.

Kendys Pimentel Soto on brief for appellant.

Rosa Emilia Rodríquez–Vélez, United States Attorney, and Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee.

Before LYNCH, Chief Judge, HOWARD and THOMPSON, Circuit Judges.

Opinion

THOMPSON, Circuit Judge.

Following a guilty plea on a weapons charge, Angel Romero–Galindez, who many years earlier had four times over been convicted of murder, was sentenced as an armed career criminal to twenty years imprisonment. Claiming an assortment of errors permeated the proceedings below, Romero–Galindez appeals, asking this court to vacate his guilty plea and sentence. Having carefully considered the matter, we affirm.

BACKGROUND

Since 1997, Romero–Galindez, who was convicted of committing four murders between the ages of sixteen and seventeen, had been serving time in the Puerto Rico state correctional system.¹ In 2012, the then thirty-one year old, had been granted parole and was staying at some type of rehabilitation center. According to Romero–Galindez, he received a call at the center from his sister, who expressed concern for her life following a gang shoot-out at the housing project where Romero–Galindez had grown up. Worried, Romero–Galindez left the center to speak with the involved gang members and, once the issue was resolved, reportedly contacted his probation officer to turn himself in.

On March 27, 2012, Puerto Rico police officers, having learned that Romero–Galindez, a state fugitive because of his departure from the rehabilitation facility, was residing at the public housing project, went there and arrested him. Romero–Galindez consented to a search of the apartment, which resulted in the seizure of an AK–47 assault rifle and ammunition. He admitted the rifle was his.

Federal authorities stepped in and Romero–Galindez was charged with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1). Following plea negotiations, Romero–Galindez, who was represented by counsel throughout all court proceedings, waived his right to a trial by jury and sought to plead guilty. The plea agreement indicated that the minimum term of imprisonment required by statute was “no less than fifteen years (15) and no more than life in prison.” It also reflected the parties' agreement that should Romero–Galindez not be found an armed career criminal, the government would recommend he be sentenced at the higher end of that range, while the defense would advocate for the lower end. The parties stipulated, however, that should Romero–Galindez turn out to be an armed career criminal, the parties would recommend a fifteen-year sentence.

The change of plea hearing took place on January 18, 2013 before a magistrate judge. Upon questioning, Romero–Galindez informed the judge that the plea agreement had been explained to him and that he understood what it said. The government reiterated that, in the event Romero–Galindez was found to be an armed career criminal (which defense counsel conceded was a near guarantee), the parties were suggesting the fifteen-year mandatory minimum sentence. The judge went on to explain the penalty faced by Romero–Galindez. She indicated that the § 922(g)(1) charge carried a maximum penalty of ten years imprisonment and three years supervised release but, if Romero–Galindez was found to have violated the Armed Career Criminal Act, “then you're considered a career criminal, and then the statutory maximum does not apply.” After some more back and forth, Romero–Galindez pled guilty and the judge found him qualified to do so.

The magistrate judge issued a report and recommendation. In it, she indicated that Romero–Galindez expressed his understanding of the maximum penalties, which the report stated was not less than fifteen years imprisonment or more than life, with a term of supervised release of not more than five years. The report recommended the guilty plea be accepted, which the district court judge then did.

The presentence investigation report (PSR) issued. Romero–Galindez's base offense level was put at 26 but the enhancement for his armed career criminal status brought him up to 33. With three points taken off for acceptance of responsibility, the total offense level ended up at 30. The PSR noted the statutory minimum penalty was fifteen years and the maximum was life. The guideline range, given the total offense level of 30 and criminal history category of VI, was 180 to 210 months imprisonment (fifteen to seventeen and a half years). The report also noted that the statutory term of release was not more than five years, and the guideline range for supervised release was two to five years.

Romero–Galindez's sentencing hearing took place over three days, the important date for our purposes being August 19, 2013, when his sentence was handed down.² Though the government stood by its fifteen-year sentence recommendation, the district judge was unconvinced. Emphasizing Romero–Galindez's four prior murder convictions and the fact that an AK–47 is an offensive weapon, the judge indicated the statutory minimum would not be a sufficient deterrent. Though the judge went through the Guidelines calculation delineated in the PSR, he was clear that “the court is going to provide a statutory sentence, not a guideline sentence.” He then sentenced Romero–Galindez to 240 months (twenty years) in prison, with five years of supervised release to follow.

Romero–Galindez timely appealed, challenging both the validity of his plea and the reasonableness of his sentence.

VALIDITY OF PLEA

Romero–Galindez says his plea was not knowing and voluntary because the judge failed to inform him of the statutory minimum (fifteen years) and maximum (life) at the change of plea hearing, and got the maximum term of supervised release wrong, calling it three years instead of five. The government, for unknown reasons, only addresses the second half of this argument. While it does not dispute that the term of supervised release was stated incorrectly, it claims it does not matter because it is clear from the record that Romero–Galindez was aware of the correct term and the difference between the stated and actual term of years is not so great.

Since Romero–Galindez did not object or seek to set aside his plea below, review is for plain error only. United States v. Santiago, 775 F.3d 104, 106 (1st Cir.2014). The rubric is familiar; there must be (1) an error, (2) that was plain, (3) which affected substantial rights, and (4) seriously impacted “the fairness, integrity or public reputation of judicial proceedings.” Id.

The error here is plain. Rule 11 of the Federal Rules of Criminal Procedure provides that at the change of plea hearing “the court must inform the defendant of, and determine that the defendant understands ... any maximum possible penalty, including imprisonment, fine, and term of supervised release.” Fed.R.Crim.P. 11(b)(1)(H). The court must do the same for “any mandatory minimum penalty.” Fed.R.Crim.P. 11(b)(1)(I). None of this was done here. While the magistrate judge explained that the § 922(g)(1) maximum penalty of ten years imprisonment would not apply if Romero–Galindez was found to be an armed career criminal (as he had been charged), she never went on to say what the mandatory minimum and maximum penalty would be in that event. And, as the government concedes, the judge also misstated the maximum term of supervised release as being three years rather than five.

Nonetheless, even though the judge clearly erred, Romero–Galindez's claim falters under the plain error requirement that his substantial rights be affected, which requires that Romero–Galindez “show a reasonable probability that, but for the error, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) ; see also Santiago, 775 F.3d at 107. This he cannot do.

In support of his claim of error, Romero–Galindez relies on United States v. Rivera–Maldonado, 560 F.3d 16 (1st Cir.2009) and United States v. Santo, 225 F.3d 92 (1st Cir.2000).

In Rivera–Maldonado, the defendant was erroneously informed in both the plea agreement and the change of plea colloquy that he faced, at most, three years of supervised release, when in fact the maximum was life. 560 F.3d at 17–18. The correct term of supervised release was contained in the later-issued PSR, and relied upon at sentencing by the judge who sentenced the defendant to supervised release for life. Id. at 19. As in this case, all were in agreement that the error was plain. Id. Emphasizing the “dramatically altered ... sentencing stakes for the defendant,” this court went on to find a reasonable probability that the defendant would not have entered the plea had he understood his exposure. Id. at 21.

Similarly, in Santo, we found that the defendant having been informed in the plea agreement, and at the change of plea hearing, that the mandatory minimum was five years imprisonment instead of the correct ten years (which he was ultimately sentenced to) was an error that reasonably could have affected his decision to change his plea to guilty.³ 225 F.3d at 101. As in Rivera–Maldonado, the correct information was provided to the defendant in the PSR and at sentencing. Santo, 225 F.3d at 96.

There are some important differences between the above cases and the one at hand. We start with Romero–Galindez's minimum and maximum term of imprisonment.

Significantly, unlike in Rivera–Maldonado and Santo, the mandatory minimum and maximum term of imprisonment was stated correctly in the plea agreement, a document that Romero–Galindez acknowledged at the plea hearing that he understood. At the plea hearing, the magistrate judge never contradicted the...