United States Court of Appeals
For the First Circuit
No. 02-1879
UNITED STATES OF AMERICA,
Appellee,
v.
ELMER C. RODRIGUEZ-CASTILLO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin and Cyr, Senior Circuit Judges.
Douglas J. Beaton on brief for appellant.
H.S. Garcia, United States Attorney, Sonia I. Torres, Chief,
Criminal Division, and Aramis G. Ríos, Assistant United States
Attorney, on brief for appellee.
November 17, 2003
SELYA, Circuit Judge. In this appeal, defendant-
appellant Elmer C. Rodriguez-Castillo (Rodriguez) raises questions
concerning the operation of former Rule 16(a)(1)(B) of the Federal
Rules of Criminal Procedure1 and the imposition of his sentence.
Concluding that his arguments lack merit, we affirm the judgment
below.
We glean the relevant facts from the change-of-plea
colloquy, the presentence investigation report (PSI Report), and
the transcript of the disposition hearing. See United States v.
Brewster, 127 F.3d 22, 23 (1st Cir. 1997); United States v. Dietz,
950 F.2d 50, 51 (1st Cir. 1991). In all events, the facts are
essentially uncontradicted.
On December 8, 1998, a federal grand jury indicted
Rodriguez and three compatriots for various drug-trafficking
offenses. Rodriguez initially asserted his innocence. Early in
the case, the government supplied him with a summary of his prior
criminal record as then known to it. The government's letter of
transmittal left no doubt that the criminal history was incomplete.
The convictions listed in this hypoplastic summary, without more,
1
Effective December 1, 2002, a new rule, redesignated as Rule
16(a)(1)(D), replaced former Rule 16(a)(1)(B). The substance of
the rule remains the same, but the wording has changed slightly
(e.g., the new version states that "the government must furnish"
certain information whereas the original version states that "the
government shall furnish" such information). Since the events in
this case transpired before the effective date of the revision, we
refer throughout to the original version.
-2-
would have placed Rodriguez into criminal history category (CHC) II
for sentencing purposes.
Despite the plainly incomplete nature of the government's
criminal history submission, Rodriguez commenced plea negotiations.
He subsequently entered into a plea agreement (the Agreement).
Under the Agreement, the government committed itself to dismiss
certain charges and embrace a reduced drug-quantity determination
in exchange for Rodriguez's plea of guilty to a single count of
illegal importation of cocaine in violation of 21 U.S.C. § 952(a).
On March 21, 2002, Rodriguez entered a guilty plea to the
importation count and the district court commissioned the
preparation of the PSI Report. When compiled, the report included
a more accurate description of Rodriguez's criminal past. In
particular, it identified a 1989 felony conviction for aggravated
unlawful appropriation of property in violation of 33 P.R. Laws
Ann. § 4272 that had not been included in the government's earlier
summary. That additional conviction pushed Rodriguez into CHC III.
As we shall see, this category change had a discernible effect on
the guideline sentencing range (GSR).
The drug-quantity compromise contained in the Agreement
fixed the weight of the cocaine attributable to Rodriguez at 149
kilograms, and, thus, lowered his base offense level under the
sentencing guidelines to 36. Rodriguez was entitled to a three-
level credit for timely acceptance of responsibility and a two-
-3-
level reduction reflecting his minor role in the offense of
conviction. See USSG §§3E1.1, 3B1.2 (2000). Had he remained in
CHC II, his GSR would have been 121-151 months. The switch to CHC
III increased his GSR to 135-168 months.
At the disposition hearing, the district court sentenced
Rodriguez at the nadir of the applicable GSR, ordering him to serve
an incarcerative term of 135 months. This timely appeal followed.
Rodriguez first complains that, during the pre-plea
negotiations, the government failed to comply with the strictures
of former Rule 16(a)(1)(B) of the Federal Rules of Criminal
Procedure. Although one might think that a defendant would know
his own criminal history, the rule mandates that, "upon request by
the defendant, the government shall furnish to the defendant such
copy of the defendant's prior criminal record, if any, as is within
the possession, custody, or control of the government, the
existence of which is known, or by the exercise of due diligence
may become known, to the attorney for the government." Id. This
language is mandatory, and courts have not hesitated to compel the
government to effect such production. See, e.g., United States v.
McDaniel, 428 F. Supp. 1226, 1228 (D. Okla. 1977).
Here, Rodriguez made a timely request for his criminal
history. The government responded with a palpably incomplete
summary. The record is murky as to whether the government's
partial response reflected the exercise of due diligence. The
-4-
record is clear, however, that Rodriguez was not misled. The
government informed him that its proffer was incomplete, stating in
its transmittal letter that it "had been informed that [he] had
previously been convicted of a variety of felony offenses" and that
it would "supplement [its] response when additional information is
received."
The next step was up to Rodriguez. He could have awaited
an encyclopedic response or moved to compel one. He chose neither
course. Instead, he pursued plea negotiations, struck a final
bargain, and changed his plea. In so doing, Rodriguez waived his
right to complain about the government's failure to effectuate full
and complete compliance with former Rule 16(a)(1)(B). We explain
briefly.
A defendant who subscribes an unconditional guilty plea
is deemed to have waived virtually all claims arising out of
garden-variety errors that may have antedated the plea. See United
States v. Cordero, 42 F.3d 697, 698-99 (1st Cir. 1994) (collecting
cases). Although there is an exception to this principle, see,
e.g., id. at 699 (noting that jurisdictional issues are not
waived), Rodriguez's case does not fit within its confines. He
knowingly entered an unconditional guilty plea; advised the
district court during the change-of-plea colloquy that he
understood that his guilty plea "waiv[ed] [his] right to a trial
and all the other rights" associated therewith; and made no claim,
-5-
then or now, that the sentencing court lacked authority to hear and
determine his case.2
To be sure, the pre-plea colloquy between the court and
defense counsel was less than a model of clarity, and that colloquy
may well have given Rodriguez hope that his CHC would remain at II.
But such an interpretation would be unreasonable in light of the
government's up-front notice of the distinct possibility that
additional information about prior convictions might surface. Hope
may, as the aphorist would have it, spring eternal, but the
frustration of an expectation founded on hope alone, unanchored in
objective reasonableness, is not a cognizable basis for relief on
appeal.
That ends this phase of the matter. An unconditional
guilty plea waives any and all independent non-jurisdictional
claims arising out of alleged errors antedating the plea. Thus,
Rodriguez waived his right to insist upon compliance with the
provisions of former Rule 16(a)(1)(B) by his decision to plead
guilty unconditionally without first having obtained, by a motion
to compel or otherwise, his complete criminal record. He cannot
now be heard to complain about the government's purported lapse.
2
We emphasize the unconditional nature of the plea because a
defendant may tender a conditional guilty plea and still preserve
antecedent claims of error. See Fed. R. Crim. P. 11(a)(2); see
also United States v. Caraballo-Cruz, 52 F.3d 390, 392 (1st Cir.
1995) (discussing effect of conditional plea). Rodriguez did not
avail himself of this option.
-6-
Rodriguez's remaining assignment of error need not occupy
us for long. He strives to persuade us that the district court
erred in not departing downward from the GSR on the ground that his
criminal history score (which placed him in CHC III)
overrepresented his criminal past. We are not convinced.
Ordinarily, a district court's discretionary decision not
to depart from the GSR is unappealable. See United States v.
Pierro, 32 F.3d 611, 619 (1st Cir. 1994); United States v. Jimenez-
Otero, 898 F.2d 813, 815 (1st Cir. 1990). There are, however, a
few isthmian exceptions to this rule. One exception springs into
play when a sentencing court's decision not to depart from the GSR
results from a misperception of its own authority. See Pierro, 32
F.3d at 619 (explaining that "appellate jurisdiction may attach if
it appears that the failure to depart stemmed from the sentencing
court's mistaken impression that it lacked the legal authority to
deviate from the guideline range or, relatedly, from the court's
misapprehension of the rules governing departures") (quoting United
States v. Gifford, 17 F.3d 462, 473 (1st Cir. 1994)). The basis
for the exception is that the sentencing court's determination that
it lacked departure authority is not an exercise of discretion,
but, rather, a legal judgment (and, thus, appealable as of right).
See 18 U.S.C. § 3742(a)(2); see also Jimenez-Otero, 898 F.2d at
814.
-7-
Rodriguez relies upon this exception. He notes that the
sentencing court commented, in colloquy, that it saw "no way" to go
under the low end of the GSR obtained by the use of CHC III.
Rodriguez suggests that this remark evinces the court's
misperception that it lacked the power to depart.
This suggestion rests on a porous foundation. It takes
a bit of dialogue completely out of context. Rodriguez never made
a request for a downward departure at the disposition hearing, and
the court's comment did not refer to that possibility at all.
Rather, the quoted statement was made in connection with the
court's determination as to which CHC obtained (and, accordingly,
which GSR applied). Consequently, the "lack of authority"
exception is plainly inapplicable here.
As a fallback, Rodriguez argues that he made the
"functional equivalent" of a departure request. That argument
fails. In the first place, the transcript of the disposition
hearing reveals that nothing remotely resembling a departure
request was made. The argument is, therefore, groundless. In the
second place, the argument, even if well-founded, would sink under
the weight of the aforementioned jurisdictional bar. See Pierro,
32 F.3d at 619.
Rodriguez next asseverates that even in the absence of a
departure request, the district court should have departed sua
sponte. His starting point is uncontroversial: it cannot be
-8-
gainsaid that a sentencing court has the authority to depart on its
own volition. See, e.g., USSG §4A1.3; see generally United States
v. Burns, 501 U.S. 129, 138 (1991) (describing procedure to be
employed when district court essays a sua sponte departure under
USSG §5K2.0). Nevertheless, the idea that a sentencing court's
failure to depart sua sponte creates an appealable issue is a novel
one. We find it unsurprising that Rodriguez cites to no case law
supporting the notion. After all the decision to depart is
typically an exercise of discretion and, absent a focused request
by one of the parties, it would be surpassingly difficult to hold
that the sentencing court abused its discretion in not departing.
Cf. United States v. Reveron Martinez, 836 F.2d 684, 687 (1st Cir.
1988) (holding that a district court has no duty sua sponte to
consider a change of venue in a criminal case).
From a conceptual standpoint, Rodriguez's asseveration is
also unconvincing. Its chief flaw is that it runs contrary to our
usual rule for preserving claims of error. Because the departure
issue was not raised in the district court, analogous precedents
suggest that we should simply hold it unpreserved for appeal. See
Malave v. Carney Hosp., 170 F.3d 217, 222 (1st Cir. 1999)
(discussing the "bedrock rule of appellate practice that . . .
matters not raised in the trial court cannot be hawked for the
first time on appeal"); see also United States v. LaGuardia, 902
F.2d 1010, 1012-13 (1st Cir. 1990) (stating, in a case where a
-9-
departure had not been requested below, that the "usual praxis"
would be "to ignore [the issue] on appeal").
We are aware that one respected court has granted plain
error review in an instance in which a defendant failed to preserve
a departure argument for appeal. See United States v. Draffin, 286
F.3d 606, 609 (D.C. Cir. 2002). We need not decide today the
correctness of that approach. In the best of circumstances, "[t]he
plain error hurdle is high." United States v. Hunnewell, 891 F.2d
955, 956 (1st Cir. 1989). To vault that hurdle, an appellant must
make a fourfold showing: "(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). This case
stumbles over each of the four elements.
The short of it is that Rodriguez's argument for a
departure is not very strong. The facts may not even be sufficient
to support a discretionary departure; they surely are not
sufficient to mandate one. We discern no error (let alone any
obvious error) in the sentencing court's failure to depart
downward. Finally, Rodriguez points to nothing that suggests that
a downward departure is needed either to forestall a miscarriage of
justice or to restore public confidence in the criminal justice
system. We conclude, therefore, that Rodriguez's belated quest for
-10-
a departure does not come close to satisfying the criteria
established for plain error review.3 Compare United States v.
Belk, 346 F.3d 305, ___ (2d Cir. 2003) [No. 02-1636, slip op. at
14], in which the court wrote that "[t]o the extent that plain
error forfeiture analysis under Fed. R. Crim. P. 52(b) extends to
a district court's failure to depart downwardly," it found "no
plain error in the District Court's failure sua sponte to consider
and grant a vertical downward departure."
We need go no further. We hold that (i) Rodriguez's
guilty plea effectively foreclosed his right to complain about any
shortfall in the government's compliance with the strictures of
former Rule 16(a)(1)(B), and (ii) his search for a downward
departure is doomed by his failure to ask the sentencing court for
one. For the sake of completeness, we add that even if the lower
court's failure to depart sua sponte is reviewable for plain error
— a matter on which we take no view — Rodriguez's appeal would
languish.
Affirmed.
3
This conclusion reinforces the Draffin court's intuition that
"[a]s a practical matter denying review of the failure to depart
sua sponte and reviewing it for plain error will ordinarily yield
the same result: the sentence will be upheld." 286 F.3d at 609-
10.
-11-