United States v. Torres-Vazquez

United States Court of Appeals
For the First Circuit

No. 12-1903

UNITED STATES OF AMERICA,

Appellee,

v.

EDGARDO TORRES-VÁZQUEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José A. Fusté, U.S. District Judge]

Before

Howard, Selya and Lipez,

Circuit Judges.

Anita Hill Adames for appellant.
Carlos R. Cardona, Assistant United States Attorney, with whom
Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, were on brief, for appellee.

September 27, 2013
 SELYA, Circuit Judge. This case involves a defendant who

pleaded guilty to conspiracy to commit promotional money

laundering, stipulated to the amount of money laundered, and

received a within-the-range prison sentence. His appeal seeks to

vitiate his guilty plea on grounds of factual insufficiency. For

good measure, the appeal asserts a claim of sentencing error. After

careful consideration, we leave the defendant where we found him.

The stage is easily set. On November 9, 2011, a federal

grand jury sitting in the District of Puerto Rico indicted

defendant-appellant Edgardo Torres-Vázquez for his role in a money

laundering conspiracy. The appellant initially maintained his

innocence but later entered a guilty plea to a single count of

conspiracy to launder monetary instruments in violation of 18

U.S.C. § 1956(a)(1)(A)(i).

As a precursor to his change of plea, the appellant and

the government entered into a plea agreement (the Agreement) that

contained, among other things, a statement of facts, which the

appellant vouchsafed was "accurate in every respect." The

Agreement also embodied a stipulation to the effect that the

appellant was accountable for the laundering of more than

$1,000,000 but less than $2,500,000.

The Agreement proposed a specific sentencing outcome. In

it, the parties concurred that the adjusted offense level under the

federal sentencing guidelines was 27 — a figure that took into

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account a 16-level enhancement corresponding to the stipulated

value of the laundered funds. See USSG §2B1.1(b)(1)(I). Treating

the appellant as a first-time offender (Criminal History Category

I), the parties suggested that a guideline sentencing range (GSR)

of 70-87 months was appropriate. They agreed jointly to recommend

a prison sentence at the bottom of the GSR — 70 months — and not to

advocate for any upward or downward variances.

Finally, the Agreement included a waiver-of-appeal

provision. This provision purported to foreclose the appellant's

right to appeal as long as the district court sentenced him in

accordance with the terms of the Agreement.

On March 1, 2012, the district court convened a change-

of-plea hearing. In the course of a lengthy colloquy with the

appellant, the court read the charge and obtained the appellant's

acknowledgment that he knowingly participated in the described

activities. In addition, the court confirmed that the appellant

had "decided to voluntarily waive [his] right to appeal" his

sentence. The court then accepted the Agreement, took the plea,

and continued the matter pending the preparation of a presentence

investigation report (PSI Report).

On June 26, 2012, the district court held the disposition

hearing. The court began by confirming that there were no

objections to the factual account limned in the PSI Report. It

then reiterated the key facts surrounding the appellant's

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involvement in the money laundering conspiracy. Having completed

these preliminaries and heard the appellant's allocution, the court

imposed the mutually recommended 70-month incarcerative sentence.

This timely appeal ensued.

We pause at the outset to note that the waiver-of-appeal

provision does not end our inquiry. It is common ground that

"[w]here, as here, an appeal challenges the validity of the plea

itself, a waiver-of-appeal provision lacks force" with respect to

that challenge. United States v. Ramos-Mejía, 721 F.3d 12, 14 (1st

Cir. 2013). Consequently, we proceed to consider on the merits the

appellant's entreaty that the district court erred in accepting his

guilty plea.

Our standard of review is familiar. Because the claimed

lack of a sufficient factual foundation was not raised below, we

review the district court's acceptance of the guilty plea only for

plain error. See United States v. Negrón-Narváez, 403 F.3d 33, 37

(1st Cir. 2005). Thus, we will sustain the assignment of error

only if the appellant can demonstrate: "(1) that an error occurred

(2) which was clear or obvious and which not only (3) affected the

defendant's substantial rights, but also (4) seriously impaired the

fairness, integrity, or public reputation of judicial proceedings."

United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). The

appellant cannot satisfy these requirements.

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 Federal Rule of Criminal Procedure 11(b)(3) ordains that

"[b]efore entering judgment on a guilty plea, the court must

determine that there is a factual basis for the plea." Seizing on

this requirement, the appellant contends that the record fails to

establish a sufficient factual basis to ground his plea.

Specifically, he submits that the government's proffered facts

establish only that he transported money, and that transportation

simpliciter is inadequate to satisfy the statutory requirements

that a "financial transaction" be attempted and that the funds in

issue be derived from a "specified unlawful activity." 18 U.S.C.

§ 1956(a)(1).

The record belies this contention. To establish a

sufficient factual foundation for a plea, "the government need only

show a rational basis in fact for the defendant's guilt." Ramos-

Mejía, 721 F.3d at 16. This showing can be achieved even if the

government does not "support every element of the charged crime by

direct evidence." Id. After all, "[a] Rule 11 inquiry is not

designed to prove a criminal defendant's guilt beyond all doubt."

United States v. Jiminez, 498 F.3d 82, 87 (1st Cir. 2007). As long

as the record evinces "some basis for thinking that the defendant

is at least arguably guilty," no more is exigible. Ramos-Mejía,

721 F.3d at 16 (internal quotation marks omitted).

To support a conspiracy conviction, the government must

show "that a conspiracy existed and that a particular defendant

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agreed to participate in it" with the intention of committing the

specified underlying offense. United States v. Sepulveda, 15 F.3d

1161, 1173 (1st Cir. 1993). Such a conspiracy may exist even if

its ultimate objective is not accomplished. See United States v.

David, 940 F.2d 722, 735 (1st Cir. 1991). Moreover, proof of a

defendant's involvement in a conspiracy "may consist of indirect

evidence, including inferences drawn from acts performed in

furtherance of the conspiracy." Id. The needed facts "may be

gleaned either from the defendant's admissions or from the

prosecution's version of the evidence (to the extent that it is

acknowledged by the defendant)." Jiminez, 498 F.3d at 86.

With this framework in place, we move from the general to

the specific. Here, the facts proffered at the change-of-plea

hearing and acknowledged as accurate by the appellant indicate that

the appellant and a coconspirator traveled from Puerto Rico to

Panama to attend a meeting with four other persons. One of these

individuals was operating as a confidential source (CS) for the

Drug Enforcement Administration. The purpose of that meeting,

which took place in September of 2010, was to discuss the

transportation of money for the purchase of drugs.

In Miami four months later, the appellant reviewed the

details of this scheme with a coconspirator and the CS.

Subsequently, the appellant and a coconspirator exchanged several

telephone calls with the CS in order to coordinate the appellant's

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delivery of $1,665,000 to finance the purchase of the drug load.1

On March 10 — while the appellant was on his way to meet with the

CS — the Puerto Rico police stopped his vehicle. This routine

traffic stop resulted in the seizure of $1,664,044 in cash.

In the Agreement, the appellant admitted that these facts

were "accurate in every respect." During the change-of-plea

colloquy, he also admitted both that the described events comprised

the factual basis for his guilty plea and that he knew the seized

funds were the proceeds of illicit drug trafficking.

There was more. A claim that a guilty plea rests on an

insufficient factual basis, raised for the first time on appeal,

opens the entire record for appellate inspection. See United

States v. Dominguez Benitez, 542 U.S. 74, 80 (2004); United States

v. Delgado-Hernández, 420 F.3d 16, 28 (1st Cir. 2005). In this

case, the PSI Report summarized the events surrounding the

appellant's transportation of over $1,600,000 of drug money to be

used to finance further drug purchases. At the disposition

hearing, the court confirmed that the appellant had no objection to

the factual account contained in the PSI Report. In the absence of

such an objection, the PSI Report is itself proof of the recited

facts. See United States v. Zorrilla, 982 F.2d 28, 30-31 (1st Cir.

1992).

1
The record is obscure as to whether this coconspirator is
the same coconspirator with whom the appellant met in Miami. For
present purposes, it makes no difference.

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 We need not paint the lily. Intent to launder money can

be proven either through the defendant's own statements or through

circumstantial evidence, or through a combination of admissions and

circumstances. See United States v. Cruzado-Laureano, 404 F.3d

470, 483 (1st Cir. 2005). Based upon the appellant's extensive

admissions and the circumstances surrounding his possession and

transportation of over $1,600,000 in drug-derived cash, a rational

factfinder could conclude that the appellant intended to complete

a financial transaction; that he collogued with others to this end;

that he was aware that the funds in question were the proceeds of

unlawful activities; and that those funds were to be used to

purchase drugs. It follows inexorably that there was no error,

plain or otherwise, in the district court's acceptance of the

appellant's guilty plea.

This leaves only the appellant's claim of sentencing

error. Refined to bare essence, this claim posits that there was

an inadequate factual basis for the 16-level sentencing enhancement

applied by the district court because the government did not prove,

piece by piece, the unlawful provenance of the predicate funds.2

2
While this claim of error is almost certainly foreclosed by
the waiver-of-appeal provision, see, e.g., United States v.
Chambers, 710 F.3d 23, 30 (1st Cir. 2013); United States v.
Calderón-Pacheco, 564 F.3d 55, 58 (1st Cir. 2009), the shortest
distance between two points is a straight line. With this in mind,
we think it is simpler and more direct to dispose of the claim on
the merits.

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 This claim is hopeless. As we have said, the appellant

admitted in no uncertain terms both that the cash seized was

derived from illicit drug trafficking and that he knew as much. To

cinch matters, the Agreement contains a frank stipulation to this

effect. A party is normally bound by a stipulation accepted by the

district court. See United States v. Rivera-Rodríguez, 489 F.3d

48, 59 (1st Cir. 2007). The appellant has not identified any

plausible reason for relieving him from the stipulation that he

entered into with his eyes wide open. Under these circumstances,

the stipulation removed any necessity for independent proof of the

stipulated facts. See United States v. Silva, 554 F.3d 13, 23-24

(1st Cir. 2009); United States v. Serrano-Beauvaix, 400 F.3d 50, 54

(1st Cir. 2005); United States v. Meade, 175 F.3d 215, 223 (1st

Cir. 1999).

We need go no further. For the reasons elucidated above,

the conviction and sentence are affirmed.

Affirmed.

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