United States Court of Appeals
For the First Circuit
Nos. 01-2377
01-2380
01-2382
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE MOLINA-MARRERO,
Defendant, Appellant.
No. 01-2451
UNITED STATES OF AMERICA,
Appellee,
v.
RENE CORE-AYALA,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Lynch, Circuit Judge,
Coffin and Campbell, Senior Circuit Judges.
William M. Palmer, by Appointment of the Court, on brief for
appellant Molina-Marrero.
Raul S. Mariani Franco, by Appointment of the Court, on brief
for appellant Core-Ayala.
H. S. Garcia, United States Attorney, Sonia I. Torres,
Assistant United States Attorney, Thomas F. Klumper, Assistant
United States Attorney, on brief for appellee.
February 14, 2003
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COFFIN, Senior Circuit Judge. These are two criminal appeals
involving sentencing issues.
Appellant Molina-Marrero
Appellant Molina-Marrero pleaded guilty to counts in three
indictments. All three involved appellant and a number of
associates in robberies (of a bank, a car dealership, and a Loomis
Fargo truck), the use of firearms, and the taking of money and
vehicles. He was sentenced to 87 months of imprisonment on one
count in each indictment to run concurrently, together with a five-
year consecutive term on a second count in one indictment, and
supervised release terms. A requirement of restitution was also
imposed.
Appellant's sole argument on appeal focuses on the district
court's refusal, without specific findings of fact, to grant a two-
point downward adjustment based on his playing a minor role in the
armored car robbery. We review the court's decision for clear
error. See United States v. Ortiz-Santiago, 211 F.3d 146, 148-49
(lst Cir. 2000). The hurdle faced by appellant is to identify
"evidence [that] overwhelmingly demonstrates that [he] played a
part that makes him substantially less culpable than the average
participant in the convicted offense." United States v. Brandon,
17 F.3d 409, 460 (lst Cir. 1994).
In this case, the Presentence Report (PSR) described a highly
structured and meticulous conspiracy to rob a Loomis Fargo truck at
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a branch of Banco Popular. The planning was done during the week
before the event. No fewer than eight persons were involved. One
provided a radio for use as a police scanner. Several vehicles
carrying the conspirators drove to the vicinity of the bank to
await arrival of the truck. Three began surveillance at a bus
stop. Two carried pistols and one a semi-automatic rifle, which
was later fired. Another began surveillance from a nearby hot dog
cart. Appellant arrived and also began surveillance. Two donned
masks and, with two others, confronted two truck guards, pointed a
gun at the driver, disarmed a passenger guard, and took a bag of
currency from the guards. The masked conspirators brandished a
pistol and a rifle. Appellant had kept up his surveillance and, at
the conclusion of the robbery, drove one of the getaway vehicles.
It is clear that the court was well within its discretion in
viewing this portrayal as one in which each conspirator's assigned
role – surveillance, confrontation, seizing currency, and driving
getaway vehicles – was vital to the success of the enterprise, so
that appellant could be deemed substantially as culpable as his
partners.
We have noted that the court's articulated reasons for
imposing a particular sentence, as required by 18 U.S.C. § 3553(c),
should be supported by "'reasonably specific findings,'" United
States v. Van, 87 F.3d 1, 2 (lst Cir. 1996) (citation omitted). We
have found "minimal compliance" with this obligation when the court
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relied upon a PSR that "provided a sufficient basis for meaningful
appellate review." Id. at 2-3; see also United States v. Cruz, 981
F.2d 613, 617-18 (lst Cir. 1992).
It is clear from the sentencing transcript that the court was
well aware of the circumstances of the robbery as described in the
PSR. Most of the colloquy between the court and counsel concerned
the imposition of added points to appellant's sentence based on his
partners' brandishing of weapons and the government's refusal to
recognize the extent of appellant's cooperation. Only one comment
was directed to appellant's role in the offense.
The court, in its response to the arguments of counsel, dealt
in detail with appellant's remarks concerning brandishing,
pointing out that the interrelated roles indicated that appellant
shared the same intent as his co-defendants. Then it added that
appellant's "participation is not that of a minor participant and
the court will not grant him a two level decrease." On this
record, we hold that the court committed no reversible error.
Appellant Core-Ayala
The Loomis Fargo indictment is the one in which appellant
Core-Ayala pleaded guilty. The two matters at issue are Count Two,
charging robbery plus actions and threats of force, including
threats of shooting others to death, and Count Three, using and
carrying firearms in connection with the robbery. Appellant was
described in the PSR as donning a black mask, carrying a .38
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caliber pistol, confronting two Loomis truck guards outside a bank,
pointing a gun at the driver, disarming the passenger guard, and
brandishing his pistol.
Although the offense level prescribed for the robbery in the
Sentencing Guidelines was 20, the court, noting the existence of
prior convictions for crimes of violence, in accordance with
Guideline § 4B1.1, imposed a sentence based on the much higher
level for career offenders, 32, and a higher Criminal History
category of VI. After a reduction of 3 levels for acceptance of
responsibility, the result was a total offense level of 29. The
appropriate range of sentence was 151 to 188 months. The court
imposed a sentence on Count Two of 151 months and the mandatory
consecutive five-year sentence on Count Three, together with
ancillary provisions regarding supervised release, restitution, and
fines.
Appellant raises two issues: whether the court erred in
applying the career offender sentence enhancement and whether his
plea of guilty was knowing and voluntary. Since, however, the Plea
Agreement accompanying appellant's plea included a waiver of any
right to appeal the sentence imposed pursuant to that agreement,
the controlling question is whether appellant's plea was knowing
and voluntary.
We apply the three-point inquiry we articulated in United
States v. Teeter, 257 F.3d 14, 24-25 (lst Cir. 2001). We assess
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the clarity and scope of the waiver in the Plea Agreement. We
similarly scrutinize the change of plea hearing transcript,
focusing on the defendant's knowledge and volition. Finally, a
miscarriage of justice, including a plain error in sentencing, may
be a basis for refusing to honor the waiver.
First, the Plea Agreement. It began with a description of the
charges in Counts Two and Three, the maximum penalty of the former
being twenty years and the mandatory consecutive imprisonment term
under the latter being five years. Subsequent paragraphs affirmed
appellant's awareness of the wide discretion of the court
concerning sentencing guideline calculations or stipulations; the
possibility of the court, under the Sentencing Guidelines, ordering
a fine; and his awareness that his sentence would be within the
judge's discretion acting under the Guidelines, up to the statutory
maxima. If a maximum sentence were imposed, this would not justify
a withdrawal of a guilty plea. Other provisions attested that
appellant was satisfied with his attorney and with the statement of
facts concerning the offenses set forth in the Agreement. The
Agreement also affirmed that it represented the complete agreement
between the government and appellant, that the government had not
made any other promises or representations, and that there were no
other terms or conditions. As noted, appellant also waived any
right to appeal.
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Central to appellant's claim of involuntariness is Paragraph
Seven. This sets forth an agreement between the government and
defendant that the Guidelines indicated a base offense level for
Count Two of 20; that defendant's acceptance of responsibility
lowered this to 17; that this level and a Criminal History Category
of III yielded a sentencing range of 30 to 37 months. The United
States agreed to recommend 30 months. In fact, the government did
recommend 30 months, unavailingly. Appellant claims that his
attorney told him that the government's recommended sentence
included his past convictions and that neither his attorney nor the
government had told him that his prior criminal record "made the
agreed stipulation virtually worthless," and was merely a
recommendation to the court.
On its face, the Plea Agreement states exactly the non-binding
nature of the government's recommendation and the unrestricted
discretion, within the Guidelines, of the court. If there were any
doubt about this, it would be erased by a reading of the transcript
of the hearing on the change of plea. This was a lengthy and
meticulous interrogation by the court, addressed to appellant's
understanding of the indictment, the specific offense facts, and
the constitutional rights that the plea was surrendering. Very
specifically, in addressing Paragraph Seven containing the
government's recommendation, the court pointed out that it would
make its own review and, after the probation officer reported,
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determine if appellant fell in a different Criminal History
category, and that a higher category would result in a greater
sentence. Appellant affirmatively indicated his understanding.
The requirements of Fed. R. Crim. P. 11 were faithfully
complied with. The whole point of striving for clear and specific
plea agreements and meticulous and comprehensive inquiries at
change of plea hearings would be missed if such proceedings could
be plummeted into further litigation by claims that attorneys did
not communicate with their clients or misinformed them. As the
court observed in United States v. Foster, 68 F.3d 86 (4th Cir.
1995), any misinformation a defendant received from his attorney
can be corrected by proper information from the court at the Rule
11 hearing; the court noted that "'the criminal justice system must
be able to rely on the subsequent dialogue between the court and
the defendant,'" id. at 88(citation omitted). Only if there were
some reliable indicia of such misinformation or lack of vital
communication could we say that a miscarriage of justice had
trumped procedural regularity.
Such is not the instant case. Appellant charges error in
applying the career offender guidelines because of a lack of notice
of this possibility, a failure to meet a heightened burden of
proof, and excessive remoteness of the prior convictions.
As for the basic due process requirement of "'reasonable
notice and an opportunity to be heard regarding the possibility of
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an enhanced sentence for recidivism,'" Damerville v. United States,
197 F.3d 287, 290 (7th Cir. 1999) (citation omitted); see also
United States v. Craveiro, 907 F.2d 260, 264 (lst Cir. 1990), two
copies of the PSR were sent to appellant's then counsel on May 18,
2000, fourteen months before sentencing. This report made
perfectly clear that on March 18, 1985, and on July 12, 1989,
appellant had pleaded guilty to aggravated assault in the former
case and attempted murder in the latter, receiving prison terms of
three and five years respectively. These elevated appellant's
criminal history as a career offender under Guideline § 4B1.1 to
Criminal Category VI. While a subsequent attorney for appellant
did not receive a copy until April 19, 2001, appellant not only was
apparently given the PSR before, but also exercised an opportunity
to note his objections.
Moreover, the nature of appellant's objections to the PSR
effectively answers appellant's challenge to the sufficiency of the
evidence of prior convictions. For appellant's only attack on that
evidence was not the sufficiency of proof but that the convictions
were more than ten years old. This fact leads directly to
appellant's final basis for challenge, that of remoteness.1 Under
Guidelines §§ 4B1.1 and 4A1.2(e), sentences over one year and one
1
Appellant seeks belatedly in his appellate brief to challenge
his 1985 conviction for attempted assault on the ground that there
was no proof that he had actually served time in prison. This
argument, of course, comes far too late in the day.
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month for crimes of violence may be counted as prior convictions if
the crimes were committed within fifteen years of the crime
currently under review. Both crimes noted above meet these
requirements.
We note finally that we are lacking any basis for concluding
that appellant would not have pleaded guilty and would have fared
better had he been made aware of the likelihood of being assigned
career offender status. As it turned out, the court not only made
his federal sentence run concurrently with a state sentence, but
also sentenced at the bottom of the applicable range. And
appellant's own final assessment in his objections to the PSR was
less than compelling. His conclusion was that "this [Criminal
History III] misrepresentation by the Government could have
triggered a wrong decision to plea [sic] by defendant." Under the
circumstances we have discussed, we conclude that appellant has not
reached the high threshold of demonstrating a miscarriage of
justice. In short, we find no basis for concluding that
appellant's plea of guilty was other than knowing and voluntary.
Accordingly, for the above reasons, both judgments are
AFFIRMED.
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