United States Court of Appeals
For the First Circuit
No. 03-2538
UNITED STATES OF AMERICA,
Appellee,
v.
RAMON A. VEGA-MARTINEZ
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Selya, Dyk,* and Howard, Circuit Judges.
Michael R. Hasse, for appellant.
Thomas F. Klumper, Assistant United States Attorney, with
whom H.S. Garcia, United States Attorney, Nelson Pérez-Sosa,
Senior Appellate Attorney, were on brief, for appellee.
October 7, 2005
*
Of the United States Court of Appeals for the Federal
Circuit, sitting by designation.
HOWARD, Circuit Judge. Defendant Ramon Vega-Martinez
appeals from a judgment of conviction entered following his guilty
plea to a charge of conspiring to distribute narcotics. Vega
contends that his guilty plea was involuntary and that he is
entitled to resentencing under United States v. Booker, 125 S. Ct.
738 (2005). We affirm.
I.
Vega was indicted in October 2002 for participating in a
drug distribution conspiracy. See 21 U.S.C. §§ 841(a)(1)(A) & 846.
Vega's son was an indicted co-conspirator. Vega initially pleaded
not guilty but subsequently agreed to change his plea. The plea
agreement recommended a sentencing guidelines calculation yielding
a sentence of 72 months of imprisonment but recognized that the
district court retained the authority to sentence Vega as it saw
fit. See Fed. R. Crim. P. 11 (c)(3)(B).
The same day that Vega entered into the plea agreement,
he appeared before a magistrate judge who conducted the change of
plea colloquy. The magistrate judge filed a report recommending
that the district court accept the plea. The district court
adopted the magistrate judge's recommendation and accepted the
plea. Three days later, Vega's son also pleaded guilty pursuant to
a separate plea agreement.
During the presentence process, Vega told the probation
officer that he was not a supervisor of the drug conspiracy to
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which he had pleaded guilty. This claim conflicted with the terms
of the plea agreement, which called for a sentence enhancement
because Vega was a supervisor of the conspiracy. See U.S.S.G. §
3B1.1 (2003).
At sentencing, Vega's counsel argued that the court
should impose a sentence of 70 months -- the lowest sentence within
the guideline range for which Vega qualified -- even though the
plea agreement recommended a 72-month sentence. The district court
rejected this request and imposed the recommended 72-month
sentence. This appeal followed.
II.
Vega seeks to set aside his plea and challenges the
lawfulness of the resulting sentence. Regarding the plea, he
contends that the magistrate judge failed to conduct a sufficiently
detailed inquiry at the change of plea hearing to assure that the
plea was voluntary. Vega also argues that his plea was involuntary
because his attorney fundamentally misunderstood the terms of the
plea agreement. Concerning the sentence, Vega contends that there
is a reasonable probability that the district court would have
imposed a more lenient sentence had it understood at the time of
sentencing that the guidelines were only advisory.
A. The Plea
Vega does not contend that the magistrate judge failed to
inquire about the voluntariness of his plea. Rather, he argues
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that the magistrate judge was required to conduct a more searching
inquiry into the voluntariness of the plea because Vega's son was
a co-defendant who was also pleading guilty. According to Vega,
the prospect that he might be pleading guilty to secure a more
advantageous deal for his son gave rise to a duty to perform a more
rigorous voluntariness colloquy than ordinarily is required.
Vega raised no objection in the district court to the
change-of-plea colloquy. "An unobjected-to error in the Rule 11
colloquy is reversible error only upon a showing of plain error."
United States v. Mescual-Cruz, 387 F.3d 1, 7 (1st Cir. 2004). To
satisfy the plain-error standard, the defendant must show (1) an
error, (2) that was clear or obvious, (3) which affected the
defendant's substantial rights and (4) seriously undermined the
fairness, integrity or public reputation of the judicial
proceeding. See United States v. Gandia-Maysonet, 227 F.3d 1, 5
(1st Cir. 2000).
Vega has not cited any case imposing a duty on the
district court to conduct a more rigorous plea colloquy because one
of the defendant's close family members is pleading guilty in the
same case. He relies instead on cases involving "packaged pleas"
to argue for such a rule.
In a packaged-plea situation, the prosecutor offers "a
benefit or detriment to all [the defendants] in order to persuade
the entire group of defendants to plead guilty." Mescual-Cruz, 387
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F.3d at 7. Such plea arrangements are permissible, but they do
increase the possibility of an involuntary plea because of the all-
or-nothing nature of the bargain. See id. While not mandating
special procedures in packaged-plea situations, we have encouraged
trial courts to conduct the plea colloquy in such cases with
"sensitivity to the issue of voluntariness in light of [the]
pressures" inherent in packaged pleas. Id. at 8.
The case before us does not raise the same concerns.
Neither the plea agreement entered into by Vega nor the agreement
signed by his son was contingent on anything that happened in the
other's case. Vega and his son were represented by separate
counsel and pleaded guilty on different dates. In short, nothing
about these proceedings connected Vega's plea to his son's.
In any event, even under our packaged-plea cases, the
colloquy conducted by the magistrate judge adequately assured that
the plea was voluntary. The magistrate judge asked Vega whether
anybody had forced, threatened, coerced or intimidated him into
pleading guilty. This open-ended question provided Vega with an
opportunity to indicate that his son's situation affected his
decision to plead guilty. See id. at 9-10 (holding that a similar
inquiry was sufficient to ascertain the voluntary nature of the
plea in a packaged-plea situation). He did not do so. Nor did he
claim at any point during the remainder of the district court
proceeding that his decision to plead guilty was affected by his
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son's situation. The record suggests no error, plain or
otherwise.1
Vega also argues that he did not enter the guilty plea
voluntarily because his counsel had a fundamental misunderstanding
of the plea agreement. He argues that his counsel's error infected
his understanding of the legal proceeding, thereby rendering his
guilty plea involuntary.
This argument founders at the threshold because there is
nothing to suggest that Vega's counsel misunderstood the plea
agreement. In the agreement, Vega agreed with the recommended
imposition of a 72-month sentence. At sentencing, however, Vega's
counsel argued for the imposition of a 70-month sentence, the
lowest sentence within the applicable guideline range. Vega
contends that this shows that his counsel did not understand the
agreement. We disagree. The plea agreement did not bind the
district court to impose the sentence recommended by the parties.
See Fed. R. Crim. P. 11(c)(3)(B). As we read the record, Vega's
counsel was merely attempting to convince the court to exercise its
discretion to impose a sentence lower than that recommended in the
agreement. This does not evince a misunderstanding of the
1
Vega argues that the district court should have invalidated
his plea as involuntary because he claimed during the presentence
investigation that he was not a supervisor of the conspiracy, even
though he had admitted otherwise in the plea agreement. Since Vega
did not, during the plea hearing, change his position regarding his
role in the conspiracy, it was not plain error for the district
court to accept Vega's plea as voluntary.
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agreement, but rather an attempt by counsel to secure every
possible benefit for his client.
B. The Sentence
By way of supplemental briefing, Vega argues that his
case should be remanded for resentencing in light of the Supreme
Court's ruling in Booker that the sentencing guidelines are
advisory. See 125 S. Ct. at 764-75. He acknowledges that this
argument was not raised before the district court and that our
review is for plain error. See United States v. Figuereo, 404 F.3d
537, 541 (1st Cir. 2005). As a predicate to relief under this
standard, the defendant must demonstrate a reasonable probability
that the court would have imposed a more favorable sentence if it
had not erroneously considered itself constrained by the
guidelines. See United States v. Antonakopoulos, 399 F.3d 68, 75
(1st Cir. 2005). We are not "overly demanding as to proof of
[such] probability where, either in the existing record or by
plausible proffer, there is reasonable indication that [the court]
might well have reached a different result under advisory
guidelines." United States v. Heldeman, 402 F.3d 220, 224 (1st
Cir. 2005).
Vega contends that, because he had no criminal record,
became involved in drugs only at the behest of his son, and
suffers from diabetes, the district court might have sentenced him
more leniently under advisory guidelines. The first two of these
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grounds were presented to the court at the sentencing hearing. In
pronouncing the sentence, the court indicated that the guidelines
had taken into account all of the relevant factors for setting the
appropriate length of incarceration. The court gave no indication
that Vega's sentence was too long in light of these factors. See
Figuereo, 404 F.3d at 541-42.
Vega's diabetes condition was mentioned in the
presentence report, but it was not argued by defense counsel as a
ground for leniency. In some cases, a health condition may be
grounds for a Booker remand. See Heldeman, 402 F.3d at 224. But
under the plain-error standard, the burden of demonstrating an
entitlement to relief rests with the defendant. See
Antonakopoulos, 399 F.3d at 80. Other than stating that he has
diabetes, Vega has not provided information about the symptoms of
his condition, the course of his treatment, or an explanation why
his condition could not be managed in prison. Vega thus has not
met his burden of demonstrating a reasonable probability that the
district court would have imposed a more favorable sentence on
account of his diabetes. See United States v. Kornegay, 410 F.3d
89, 100 (1st Cir. 2005) (stating that, under the plain-error
standard, the defendant must present "specific facts" to justify a
remand).
III.
For the reasons stated, the judgment is affirmed.
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