United States v. Colon-Nales

United States Court of Appeals
For the First Circuit

No. 05-1702

UNITED STATES OF AMERICA,
Appellee,

v.

EDUARDO COLON-NALES,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Lafitte, U.S. District Judge]

Before

Boudin, Chief Judge,
Selya, Circuit Judge,
and Saris,* District Judge.

Raymond L. Sanchez Maceira, Assistant Federal Public
Defender, for appellant.
Nelson J. Perez-Sosa, Assistant United States Attorney, with
whom H. S. Garcia, United States Attorney, was on brief, for
appellee.

September 19, 2006
____________________

*
Of the District of Massachusetts, sitting by designation.
SARIS, District Judge.

I. INTRODUCTION

Defendant-appellant Eduardo Colon-Nales appeals his

conviction following a guilty plea to a charge of carjacking with

intent to cause serious bodily harm in violation of 18 U.S.C.

§ 2119(2). At the sentencing hearing, the district court judge

found, beyond a reasonable doubt, that Colon-Nales caused serious

bodily harm to the victim by raping her, and sentenced him to

twenty-five years in prison and five years of supervised release,

the maximum under the statute. Appellant argues that, under Jones

v. United States, 526 U.S. 227, 236, 119 S. Ct. 1215, 143 L. Ed. 2d

311 (1999), serious bodily harm is an element of the offense that

must be either admitted to or proven beyond a reasonable doubt to

a jury. Because Colon-Nales failed to object to this procedure

below, we review for plain error. We affirm the conviction and

sentence.

II. BACKGROUND

On October 8, 2003, a grand jury returned a one-count

indictment charging that Colon-Nales committed a carjacking with

the intent to cause serious bodily harm that resulted in serious

bodily harm, to wit, rape, in violation of 18 U.S.C. § 2119(2).

Although Colon-Nales initially pleaded not guilty to the charge, he

eventually decided to plead guilty, and the court scheduled a

change-of-plea hearing on what was to be the first day of trial,

-2-
September 27, 2004. Prior to the change-of-plea hearing, Colon-

Nales signed a plea agreement pursuant to Fed. R. Crim. P.

11(c)(1)(B) in which he acknowledged that the maximum penalty was

twenty-five years of incarceration, and that the actual penalty he

would receive would be determined by the court. The plea agreement

contained a preliminary calculation of Colon-Nales’s sentence under

the Sentencing Guidelines, which concluded that, depending on

whether the appropriate criminal history category was I or II, the

guidelines sentence would be between 108 and 151 months. The plea

agreement’s preliminary guidelines calculation included a four-

level enhancement due to the victim’s sustaining serious bodily

injury, to wit rape, pursuant to U.S.S.G. § 2B3.1(b)(3)(B).

Appellant agreed to waive all rights under Blakely v. Washington,

542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), as well as

“any right to have facts that determine his offense level under the

Guidelines (including facts that support any specific offense

characteristics or other enhancement or adjustment) alleged in an

indictment and found by a jury beyond a reasonable doubt.”

Colon-Nales also signed a statement of facts which

accompanied the plea agreement, in which he admitted the following

facts. On August 4, 2003, in Santurce, Puerto Rico, Colon-Nales

approached the victim as she was getting into her car to go to

work. He threatened her at knife-point and ordered her into the

rear of the vehicle. Colon-Nales then drove to a secluded area in

-3-
the El Verde area of Rio Grande, where he demanded the victim’s

wristwatch and her ATM and credit cards. Colon-Nales demanded the

victim’s PIN numbers, and she gave him the PIN for her ATM card,

which he wrote down on one of her checks. She could not remember

the PIN number for her credit card. Colon-Nales then joined the

victim in the backseat of the car, took two condoms out of his

pocket, and began to kiss her. Putting on one of the condoms, he

raped her. After that, Colon-Nales drove to an RG Bank ATM, where

he attempted unsuccessfully to withdraw money from her account. He

then drove to a First Bank ATM where he successfully withdrew $500

from the victim’s account. Colon-Nales then drove the victim to

somewhere in Carolina, Puerto Rico, where he exited the vehicle,

released the victim from the backseat, hugged her, asked her

forgiveness, and walked away. The statement of facts further

states that after Colon-Nales was out of sight, the victim

approached a Puerto Rican police cruiser and reported the offense,

after which she was taken to a hospital for treatment.

The change-of-plea hearing was held as scheduled on

September 27, 2004. At the hearing, the judge advised Colon-Nales

of his rights, and confirmed that the court had discretion to

impose any sentence up to the maximum allowed under the statute.

The court also confirmed the provision in the plea agreement in

which Colon-Nales waived all appeals, including appeal of any fact

-4-
alleged in the indictment or enhancing his sentence.1 At first,

when asked directly, Colon-Nales agreed that he had raped the

victim. The court then asked the government to indicate the

evidence it would offer at trial. In response, the prosecutor

recited the above-listed facts and stated that she would prove them

through “witnesses, documentary evidence, videotaped and other

evidence.” The judge then asked Colon-Nales if he agreed with

these facts. When Colon-Nales indicated that he did not agree, the

judge responded, “If you’re not in agreement, then I can’t accept

your plea, and we’ll have to go to trial.” Interjecting, defense

counsel explained that while Colon-Nales disputed that he raped the

victim, “he did agree to enter the plea based on the fact that it

was either that, or trial, which he did not want to go to.”

Defense counsel added that Colon-Nales admitted carjacking at

knife-point, but that he steadfastly denied committing the rape and

that there was no physical evidence corroborating the rape.2

After an off-the-record discussion at sidebar, the

following colloquy occurred:

1
Again, appellant waived all rights under Blakely v.
Washington, including the right to have specific offense
characteristics, enhancements or adjustments alleged in the
indictment determined by a jury beyond a reasonable doubt.
2
At oral argument before us, counsel for the government
indicated that there was some physical evidence against the
defendant in the form of blood in the backseat of the car and
hairs. This evidence was not presented to the court below during
the plea colloquy or sentencing.

-5-
 THE COURT: So you agree – addressing myself to the
defendant, you agree to all the stipulated facts but for
the rape?

THE DEFENDANT: Correct.

THE COURT: Do you also deny kissing her?

THE DEFENDANT: Correct.

THE COURT: Fine. So you didn’t kiss her, you didn’t
use a condom, you did not have sex with her?

THE DEFENDANT: That’s correct.

THE COURT: Fine. But you admit the rest; that you
used a knife, you carjacked and held the victim and drove
through all other places, and also using the ATM card to
get money.

THE DEFENDANT: Correct.

THE COURT: You admit everything but the rape?

THE DEFENDANT: Correct.

THE COURT: So what I’m going to do is I’m going to
have a hearing at sentencing, and then I will have to
decide whether you raped this woman or not, because I
have to do the findings by a preponderance of the
evidence pursuant to this Plea Agreement.

THE DEFENDANT: Correct.

THE COURT: Very well. I’m going to accept the Plea
Agreement, subject to this hearing at sentence.
The Court finds that your decision to plead guilty
has been knowingly, intelligent [sic], voluntarily and
solemnly made, and that you have had the advice and
counsel of a competent and experienced attorney with whom
you say orally and in writing you’re satisfied with the
way he has been representing you.
And since you’ve been held competent to plead now,
and since you have been explained the maximum possible
punishment and also the Sentencing Guidelines as to how
they may apply to your case, and finally, since you
acknowledge the prosecutor’s version of the facts, other
than the rape, I shall accept your guilty plea and enter

-6-
 a judgment of guilty on count one of the indictment.

THE DEFENDANT: Correct.

THE COURT: Let the record show I find there is a
factual predicate for the Change of Plea, for the guilty
plea.

The proceeding was then adjourned. Defense counsel made no

objection to the procedure proposed by the court.3

Colon-Nales then returned for sentencing on April 1,

2005.4 The government called the victim to the stand. She

identified the defendant and testified extensively about the

carjacking, and added the following pertinent details to the

statement of facts accompanying the plea agreement. To begin,

after she was ordered to the backseat by Colon-Nales, he engaged

the car’s child locks, trapping her in the car. When Colon-Nales

started to kiss her, he kept the knife in his hand despite her

pleas that he drop it. The victim also testified that after raping

her, Colon-Nales threatened to kill her if she attempted to escape

3
The defendant also objected to the government’s valuation of
the car which was the subject of the carjacking but agreed that the
court could make the determination of its value at the sentencing
as well. That issue is not on appeal.
4
Prior to the sentencing, Colon-Nales wrote a letter to the
court complaining about his attorney, asking for new counsel and
seeking to withdraw the plea. Defense counsel, an assistant
federal defender, moved to withdraw, and the court denied the
motion. At a hearing on January 11, 2005, the court noted that
numerous identical complaints had come from defendants held at the
same prison as Colon-Nales. The court then found that there was no
misconduct on the part of defense counsel and that there was no
valid reason for withdrawal of the plea. Defendant has not
appealed any of these decisions.

-7-
while he was withdrawing money at the ATM. Defense counsel cross-

examined the victim about certain minor inconsistencies between her

testimony and prior statements, but did not otherwise impeach her.

Despite having a full opportunity to do so, neither the government

nor the defense offered any further evidence. No forensic evidence

was introduced.

At the close of the evidence, the court stated, “The

Court finds that the defendant did willingly, knowingly,

voluntarily and maliciously engage in these activities and that he

did rape the victim. There’s no doubt in my mind that what the

witness testified, the victim, was absolutely the truth.” The

court also noted that the victim corroborated all of the facts in

the statement of facts the defendant previously signed. The court

continued, “So, I find without a shadow of a doubt, not even by a

preponderance of the evidence, but proof beyond a reasonable doubt,

that this defendant raped this victim. Not only that, it was done

with aforethought and malice.” Clearly proceeding under the

mistaken impression that the rape was a sentencing enhancement,

defense counsel noted that the defendant had denied committing the

rape all along, but did not object to the court’s procedure or its

ultimate finding.

Based on the defendant’s higher than originally

anticipated criminal history category, and the court’s conclusion

that the defendant had refused to accept responsibility for the

-8-
crime, the court calculated the actual sentencing guidelines range

to be from 292 to 365 months.5 Noting the defendant’s extensive

criminal history and the egregiousness of the crime, the court

sentenced Colon-Nales to the statutory maximum of 300 months in

prison and five years of supervised release. The court imposed no

fine, but ordered that Colon-Nales pay $3,287.88 in restitution and

a $100 special assessment. Judgment entered on April 4, 2005.

Colon-Nales now argues on appeal that the district court

committed reversible error by deciding at the sentencing hearing

whether the rape occurred rather than submitting the question to a

jury.

III. STANDARD OF REVIEW

Federal Rule of Criminal Procedure 52(b) provides, “A

plain error that affects substantial rights may be considered even

though it was not brought to the court’s attention.” Under this

rule, a court of appeals has “a limited power to correct errors

that were forfeited because not timely raised in district court.”

United States v. Olano, 507 U.S. 725, 731, 113 S. Ct. 1770, 123 L.

Ed. 2d 508 (1993). Under this court’s longstanding precedent,

plain error is an extremely difficult standard to meet. See United

States v. Moran, 393 F.3d 1, 13 (1st Cir. 2004) (stating that

“plain error review tends to afford relief to appellants only for

5
Defendant does not contest the methodology of calculating the
guidelines.

-9-
‘blockbuster’ errors” (quoting United States v. Griffin, 818 F.2d

97, 100 (1st Cir. 1987)); see also United States v. Garcia-Torres,

341 F.3d 61, 66 (1st Cir. 2003) (stating that the plain error

standard “is notoriously difficult to meet”).

Under the plain error standard, the appellant bears the

burden of showing that the trial court committed an error, that the

error was “plain,” and that the error affected the substantial

rights of the appellant. United States v. DeCicco, 439 F.3d 36,

44-45 (1st Cir. 2006) (citing Olano, 507 U.S. at 732). However,

even if the appellant satisfies the first three steps of plain

error review, we are not required to correct the error; rather, we

should do so only when the error “seriously affects the fairness,

integrity or public reputation of judicial proceedings.” Olano,

507 U.S. at 735-36 (internal citation and quotation marks omitted).

As we recently stated, our power to reverse “should be employed

sparingly to correct grave or consequential errors – those that

‘seriously affect the fundamental fairness and basic integrity of

the proceedings conducted below.’” United States v. Padilla, 415

F.3d 211, 221 (1st Cir. 2005) (en banc) (quoting Griffin, 818 F.2d

at 100).

At oral argument, appellant argued that review should be

under the harmless error standard because he objected to the

-10-
enhancement for rape.6 While this is true, Colon-Nales explicitly

agreed to the procedure the court outlined at the change-of-plea

hearing. Defense counsel never objected to the court’s decision to

determine himself at sentencing whether the rape occurred, either

at the plea colloquy or at the sentencing hearing seven months

later. Rather, it is clear that all parties labored under the

erroneous assumption that the court’s finding with respect to the

rape was a sentence enhancement to be determined at the sentencing

hearing and endorsed that procedure. As such, Colon-Nales’s

objection to this procedure was raised for the first time on appeal

and is reviewable only for plain error.

IV. DISCUSSION

Both parties agree that the district court committed

error, and that the error was “plain.” The tripartite carjacking

statute, 18 U.S.C. § 2119, reads as follows:

Whoever, with the intent to cause death or serious bodily
harm takes a motor vehicle that has been transported,
shipped, or received in interstate or foreign commerce
from the person or presence of another by force and
violence or by intimidation, or attempts to do so, shall–

(1) be fined under this title or imprisoned not more than
15 years, or both,

(2) if serious bodily injury (as defined in section 1365
of this title, including any conduct that . . . would

6
In his brief, he suggested perfunctorily that the review
should be “de novo,” citing United States v. DeLuca, 137 F.3d 24,
39 n. 17 (1st Cir. 1998) (holding that sentencing guideline
interpretations are reviewed de novo). Appellant, however,
abandoned that position at oral argument.

-11-
 violate section 2241 or 2242 of this title) results, be
fined under this title or imprisoned not more than 25
years, or both, and

(3) if death results, be fined under this title or
imprisoned for any number of years up to life, or both,
or sentenced to death.

The Supreme Court ruled in Jones v. United States, 526 U.S. 227,

252, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999), that the three

subsections of the statute define “three separate offenses by the

specification of distinct elements, each of which must be charged

by indictment, proven beyond a reasonable doubt, and submitted to

a jury.” Id. See also United States v. Perez-Montanez, 202 F.3d

434, 441 (1st Cir. 2000). Therefore, the government must prove

that serious bodily harm resulted as an element of the offense.

Under sections 2241 and 2242, cross-referenced in the statute,

“serious bodily harm” includes rape committed during a carjacking.

See also Ramirez-Burgos v. United States, 313 F.3d 23, 30 n.8 (1st

Cir. 2002) (noting that “Congress amended § 2119(2) to make clear

that the definition of ‘serious bodily harm’ includes sexual abuse,

as defined in 18 U.S.C. §§ 2241 and 2242 that occurs during the

course of the carjacking.”). As such, for the district court to

find at the sentencing hearing that the rape occurred, albeit

beyond a reasonable doubt, was error. See id. at 29 (finding trial

court’s failure to instruct the jury to determine the element of

whether carjacking resulted in serious bodily injury was error).

Based on the same line of precedent, the error was also

-12-
“plain.” Under step two of Olano, the error must be “obvious” or

“clear under current law.” 507 U.S. at 734. Here, the district

court’s error was clear. The Supreme Court had decided Jones

nearly five years before the change-of-plea hearing, and its rule

is unequivocal. Even though all the parties seemed to believe the

rape was a sentencing enhancement, to do so was plainly erroneous.

Ramirez-Burgos, 313 F.3d at 29 (finding Jones error “plain”).

Although the district court committed a plain error, this

does not end the analysis. The error must also “affect substantial

rights,” meaning “in most cases . . . the error must have been

prejudicial: It must have affected the outcome of the district

court proceedings.” Olano, 507 U.S. at 734. “In other words, the

proponent – the party asserting plain error – must show ‘a

reasonable probability that, but for [the error claimed], the

result of the proceeding would have been different.’” Padilla, 415

F.3d at 221 (quoting United States v. Dominguez-Benitez, 542 U.S.

74, 81-82, 124 S. Ct. 2333, 159 L. Ed. 2d 157 (2004)); see also

United States v. O’Brien, 435 F.3d 36, 40 (1st Cir. 2006) (“Under

Olano, it is enough to sustain the conviction that the result would

quite likely have been the same” despite the errors). In Olano,

the Supreme Court did “not decide whether the phrase “affecting

substantial rights” is always synonymous with “prejudicial” and

acknowledged there may be a “special category of forfeited errors

that can be corrected regardless of their effect on the outcome.”

-13-
507 U.S. at 735.

Prior to the Supreme Court’s decision in United States v.

Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), we

held that a Jones error is not in the “special category of

forfeited errors that can be corrected regardless of their effect

on the outcome, as structural errors were described by the Supreme

Court.” Sustache-Rivera v. United States, 221 F.3d 8, 17 (1st Cir.

2000) (citing Olano, 507 U.S. at 734); see also Perez-Montanez, 202

F.3d at 442 (holding that defendants failed to make a convincing

showing of prejudice or miscarriage of justice under third and

fourth prongs of plain error standard involving a Jones error).

See generally Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827,

1833-37, 144 L.Ed.2d 35 (1999) (holding that the omission of a

single element of a criminal offense from a jury instruction is not

structural error). Thus, under our precedent, treating an element

as a sentencing enhancement has not been considered structural

error. See also United States v. Savarese, 385 F.3d 15, 21 (1st

Cir. 2004) (declining to reverse based on a claimed Apprendi error

under the fourth requirement of the plain error test).

The Supreme Court recently addressed this issue in

Washington v. Recuenco, 126 S. Ct. 2546, 2553, 165 L. Ed. 2d 466

(2006), stating that “only in rare cases” is an error structural,

requiring automatic reversal. Instead, it held: “Failure to submit

a sentencing factor to the jury, like failure to submit an element

-14-
to the jury, is not structural error.” Id. at 253. See also

United States v. Cotton, 535 U.S. 625, 631, 122 S. Ct. 1781, 152 L.

Ed. 2d 860 (2002) (declining to reverse based on erroneous failure

to allege drug quantity in the indictment, which increased

statutory maximum sentence by ten years, under the fourth

requirement in the plain error standard). Thus, the judicial fact-

finding of the rape in violation of Jones is not a structural error

which obviates the requirement that defendant demonstrate

prejudice.

In this case, Colon-Nales has not shown a reasonable

probability that but for the error, the outcome would have been

different. Padilla, 415 F.3d at 221. To begin, the evidence

against Colon-Nales was very strong, so strong in fact, that the

trial judge found that he had committed the rape beyond a

reasonable doubt, and not just by a preponderance of the evidence.

At the sentencing hearing, the victim corroborated each of the

facts alleged by the government and added pertinent details (such

as the colors of the condoms Colon-Nales wore –- fuchsia and lilac)

which added to her credibility. Defense counsel had a full

opportunity to question the victim, and the cross-examination

failed to cast any doubt on the victim’s story in the eyes of the

trial judge. Although there was no forensic evidence in the record

corroborating the rape, neither was there any forensic evidence

inconsistent with the charge of rape. There was also no evidence

-15-
of a motive for the victim to fabricate a rape. Nor is there any

possibility of a mistaken identification in light of Colon-Nales’s

concession that he did the carjacking and the amount of time he and

the victim spent together. Evidence that the victim made an

immediate complaint to the police as soon as Colon-Nales left her

further buttressed her credibility. Defendant has not demonstrated

that the result would have been different if the matter had been

submitted to a jury. See United States v. Escobar-Figueroa, 454

F.3d 40, 52 (1st Cir. 2006) (finding no plain error when defendant

failed to provide any alternative evidence contradicting drug

amount erroneously found at sentencing); Ramirez-Burgos, 313 F.3d

at 30 (affirming carjacking conviction despite judge’s failure to

instruct on serious bodily harm element because of “overwhelming

and uncontroverted evidence that the victim was raped during the

commission of the carjacking”); Perez-Montanez, 202 F.3d at 443

(affirming carjacking conviction under 18 U.S.C. § 2119(3) when

judge failed to instruct the jury that the carjacking had to result

in death because of overwhelming evidence supporting the

conviction).

While defendant asked this Court at oral argument to

vacate the guilty plea and remand for trial, he has not frontally

challenged the validity of his guilty plea on the ground he was not

properly informed of the elements of the offense. Such a challenge

would, however, be unavailing because Defendant has not proven

-16-
there is a reasonable probability that, but for the error, he would

not have entered the plea. See Dominguez-Benitez, 542 U.S. at 83.

At the change of plea hearing defense counsel informed the trial

court of Colon-Nales’s intention not to go to trial. Colon-Nales

was twice made aware of the maximum penalty for the crime, and was

informed that the judge was not bound by the guidelines calculation

in the plea agreement. In the face of such strong evidence of rape

and carjacking, and with little in the record to undercut the

victim’s credibility, we cannot say that Defendant has demonstrated

“it is reasonably probable he would have gone to trial absent the

error.” Id. at 85.

Finally, even if we assume that the error affected

Appellant’s substantial rights, Rule 52(b) permits the court of

appeals to order correction but does not require it to do so.

Olano, 507 U.S. at 33. Appellant must demonstrate that the error

“impugn[ed] the fairness, integrity, or public reputation of the

criminal proceeding as a whole.” Padilla, 415 F.3d at 221.

Treating the serious bodily harm element as a sentencing

enhancement is, at least in this case, “not an error of such

magnitude or consequence that it would undermine faith in the

judicial system were it to stand uncorrected.” Id. Given the

unchallenged nature of the evidence in this case, the parties’

explicit agreement to the procedure followed by the trial judge

over a period of seven months, and the trial judge’s determination

-17-
that a rape occurred beyond a reasonable doubt, this is not a case

in which we are persuaded we should exercise our discretion to

reverse.

Under these circumstances, the greater threat to the

“fairness, integrity and public reputation of judicial proceedings”

would be to send this back for trial (the remedy urged by

defendant), thereby requiring the carjacking and rape victim to

testify twice. We cannot say that affirming the conviction would

result in a “miscarriage of justice.” Olano, 507 U.S. at 736; see

also Cotton, 535 U.S. at 634 (even if omitting drug amount from

indictment affected substantial rights, declining to reverse);

Johnson v. United States, 520 U.S. 461, 470, 117 S. Ct. 1544, 137

L. Ed. 2d 718 (1997) (refusing to exercise discretion to reverse

conviction despite failure to instruct jury on an element of the

offense when evidence supporting the element was “overwhelming” and

“essentially uncontroverted”).

V. CONCLUSION

Because the error committed by the district court did not

affect the defendant’s substantial rights or impair the fairness,

integrity or public reputation of the judicial system, the

conviction and sentence are AFFIRMED.

-18-