United States Court of Appeals
For the First Circuit
No. 08-2463
UNITED STATES OF AMERICA,
Appellee,
v.
ONEIDA CARRASCO-DE-JESÚS, a/k/a BRENDA RÍOS-GONZÁLEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
Before
Selya, Lipez and Howard, Circuit Judges.
Mariángela Tirado-Váles on brief for appellant.
Rosa Emilia Rodriguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Chief, Appellate Division, and Julia M. Meconiates,
Assistant United States Attorney, on brief for appellee.
December 11, 2009
SELYA, Circuit Judge. Defendant-appellant Oneida
Carrasco-de-Jesús, also known as Brenda Ríos-González, attacks her
sentence as both procedurally flawed and substantively
unreasonable. Concluding, as we do, that her attack lacks force,
we affirm.
I. BACKGROUND
A federal grand jury in the District of Puerto Rico
charged the appellant with participation in a conspiracy to issue
and use counterfeit checks. See 18 U.S.C. §§ 371, 513. After some
preliminary skirmishing, not relevant here, the appellant pleaded
guilty pursuant to a negotiated plea agreement (the Agreement). We
draw the background facts from the Agreement, the transcripts of
the change-of-plea and sentencing hearings, and the amended
presentence investigation report (PSI Report). See United States
v. Calderón-Pacheco, 564 F.3d 55, 56 (1st Cir. 2009); United States
v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991).
Given the circumscribed nature of the issues on appeal,
we can succinctly summarize the events leading up to the
indictment. For roughly a year, the appellant and two cohorts
conspired to make counterfeit checks purporting to originate with
banks (specifically, Banco Popular and FirstBank). The
coconspirators passed these bogus checks at various mercantile
establishments in Puerto Rico.
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In general, the scheme operated along the following
lines. A coconspirator, Josué Francisco-Serrano Nieves, would
produce counterfeit checks bearing the actual name and routing
number of one of the banks along with a fictitious account number.
Another coconspirator (either the appellant or Heilmary Rodríguez)
would then visit a retail emporium (e.g., Sears, Office Max, Pep
Boys), purchase merchandise, and pay with a home-made check.
The coconspirators acquired goods worth many thousands of
dollars before the authorities cracked the case. A federal
indictment was returned while the appellant was in custody in a
Puerto Rican penitentiary, and the district court issued a writ of
habeas corpus ad prosequendum to secure her appearance in the
district court. The appellant's guilty plea followed apace.
This brings us to the Agreement, which stipulated a base
offense level (BOL) of six for the offense of conviction (the
counterfeiting conspiracy). See USSG §2B1.1(a)(2). The government
agreed to recommend a sentence at the lower end of the applicable
guideline sentencing range (GSR). To assist in establishing that
range, the district court directed the probation department to
prepare a PSI Report.
Determining that the amount of loss attributable to the
conspiracy exceeded $30,000, the probation officer added six more
levels to the stipulated BOL. See id. §2B1.1(b)(1)(D). Because the
appellant accepted responsibility for the offense of conviction, she
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received a two-level credit. See id. §3E1.1(a). Her adjusted
offense level was, therefore, ten.
The appellant had only two countable criminal history
points accruing directly from past offenses. At the time of federal
sentencing, however, she had begun to serve two-year concurrent
Puerto Rico sentences for having (i) passed a fraudulent check in
the sum of $101.60 and (ii) furnished false information to public
officials in order to procure an electoral card that she then used
to facilitate the check-passing crime. These offenses did not
impact her criminal history score because the probation officer
classified them as relevant conduct with respect to the federal
offense. See id. §1B1.3; see also United States v. Eisom, ___ F.3d
___, ___ (1st Cir. 2009) [2009 WL 3669746, at *4] (explicating
relevant conduct concept). Nevertheless, two more criminal history
points were added because the appellant was under a term of
probation when she committed the federal offense. USSG §4A1.1(d).
The net result of these computations was the appellant's
placement in criminal history category III. Combined with her
adjusted offense level (ten), this placement yielded a GSR of ten
to sixteen months.
The appellant was detained pursuant to the previously
mentioned writ of habeas corpus from February 8, 2008, until after
sentencing. The parties agree that this period of detention counted
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toward her fulfillment of her Puerto Rico sentences but did not
count toward her sentence for the offense of conviction.
The district court conducted a disposition hearing on
October 14, 2008. The appellant beseeched the court to impose a
ten-month prison term, concurrent with the undischarged portion of
her Puerto Rico sentences. The court expressed concern about a
concurrent sentence, noting that the Puerto Rico offenses involved
a particularly serious matter: electoral fraud. The court worried
that yielding to the appellant's importunings would reduce the
earlier sentences to a "slap on the wrist." In addition, the court
commented that the federal sentencing guidelines attached a similar
degree of seriousness to the offense of conviction.
Citing USSG §5G1.3(b), discussed infra, the appellant
countered that the court was under a "mandate" to impose a
concurrent sentence. The government suggested that the matter was
within the court's discretion. The court concluded that it had
discretion to impose a concurrent sentence, but found that the
totality of the circumstances militated against doing so. The court
then imposed an incarcerative sentence of twelve months and one day,
to run consecutively to the undischarged portion of the appellant's
Puerto Rico sentences. This timely appeal followed.
II. DISCUSSION
Three issues warrant discussion. The first involves the
effect of a waiver-of-appeal provision contained in the Agreement.
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The second involves the sentencing court's failure to fashion a
concurrent sentence. The third involves the reasonableness of the
sentence ultimately imposed. We address these issues sequentially.
A. Waiver of Appeal.
The Agreement contains, inter alia, the following
paragraph:
The defendant hereby agrees that if this
Honorable Court accepts this plea agreement and
sentences her according to its terms,
conditions, and recommendation, the defendant
waives and surrenders her right to appeal the
judgment and sentence in this case.
The appellant argued in her opening brief that this provision was
a nullity because the lower court neither sentenced her in
accordance with the Agreement nor used the concurrent sentence
mechanism. While this argument may not be foolproof — the Agreement
left open the criminal history category calculation; that
calculation, combined with the stipulated offense level, yielded a
GSR of ten to sixteen months; and the sentence imposed is arguably
at the "lower end" of that range — we need not delve into it. By
eschewing any reliance on the waiver-of-appeal provision, the
government has rendered that analysis superfluous.
The intentional relinquishment of a known right results
in a waiver. Eisom, ___ F.3d at ___ [2009 WL 3669746, at *2]
(citing United States v. Olano, 507 U.S. 725, 733 (1993)). In
criminal cases, waiver doctrine is commonly invoked to bar a
defendant's assertion of a claim. See, e.g., id. Nevertheless,
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what is sauce for a defendant's goose is most often sauce for the
government's gander. In line with that precept, waiver doctrine has
been applied against the government in criminal cases, where
appropriate.1 See, e.g., United States v. Moran, 393 F.3d 1, 11
(1st Cir. 2004).
Where, as here, the government's relinquishment of a known
right relates to a waiver-of-appeal provision in a plea agreement,
there is usually little reason to disregard that election. Cf.
United States v. Guadelupe-Rivera, 501 F.3d 17, 20 n.3 (1st Cir.
2007) (accepting the government's concession at oral argument anent
the unenforceability of a particular waiver-of-appeal provision).
Here, the government affirmatively disclaimed the waiver-
of-appeal provision, see Appellee's Br. at 6 n.3, and we see no
justification for proceeding sua sponte to inquire into its
preclusive effect.
B. Procedural Reasonableness.
The appellant asseverates that the challenged sentence is
procedurally unreasonable because the sentencing court failed
1
Of course, we have discretion to overlook waiver by the
government in a criminal case when circumstances justify us in
doing so. See United States v. Borrero-Acevedo, 533 F.3d 11, 15
n.3 (1st Cir. 2008); United States v. Rose, 104 F.3d 1408, 1414
(1st Cir. 1997); see also United States v. Moran, 393 F.3d 1, 11
(1st Cir. 2004) (acknowledging this discretion, but declining to
exercise it). There is nothing in the record of this case that
commends such a practice to us.
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properly to apply USSG §5G1.3(b). Before considering the substance
of this asseveration, we comment upon the standard of review.
In United States v. Booker, 543 U.S. 220 (2005), the
Supreme Court effected a sea change in the law of federal
sentencing. Booker made it pellucid that the sentencing guidelines
were advisory and that appellate courts should review sentences for
reasonableness. Id. at 245, 260-61. In a subsequent case, Gall v.
United States, 552 U.S. 38 (2007), the Court clarified that
reasonableness review is functionally equivalent to review for abuse
of discretion. Id. at 51. The Justices mapped out a bifurcated
process for assessing the reasonableness of a sentence: an inquiring
court first should determine whether the sentencing court committed
any procedural error2 and, second, should evaluate the sentence's
substantive reasonableness. Id.
The appellant's section 5G1.3(b) claim is a claim of
procedural unreasonableness. See United States v. Cruz-Rodríguez,
541 F.3d 19, 35 (1st Cir. 2008). At a high level of generality, it
may be said that rulings challenged as procedurally unreasonable are
subject to review for abuse of discretion. See United States v.
Martin, 520 F.3d 87, 92 (1st Cir. 2008). But abuse of discretion
2
The Court listed several examples of procedural error, such
as "failing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to consider
the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence — including an explanation for any deviation from the
Guidelines range." Gall, 552 U.S. at 51.
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is not a monolithic standard. Within its margins, embedded issues
may receive attention under more narrowly focused standards. Thus,
embedded questions of law engender de novo review and embedded
findings of fact engender clear-error review. See Nat'l Ass'n of
Chain Drug Stores v. New Eng. Carps. Health Benefits Fund, 582 F.3d
30, 45 (1st Cir. 2009); see also United States v. Snyder, 136 F.3d
65, 67 (1st Cir. 1998) (explaining that review of legal error is
non-deferential and that a district court perforce abuses its
discretion when it commits a material error of law). Because the
claim of error now before us rests upon the interpretation of a
guideline provision, that claim engenders de novo review. See
United States v. Vasco, 564 F.3d 12, 22 (1st Cir. 2009); United
States v. Rivera, 448 F.3d 82, 84 (1st Cir. 2006); see also United
States v. Robinson, 433 F.3d 31, 35 (1st Cir. 2005) (holding that
Booker did not alter the standard of review for claims that require
a determination of the meaning of a sentencing guideline).
Against this backdrop, we turn to the appellant's claim
that USSG §5G1.3(b) required the court below to impose a concurrent
sentence.
A sentencing court's choice between a consecutive or a
concurrent sentence with respect to a defendant who is subject to
an undischarged state-court term of imprisonment is normally
discretionary. See 18 U.S.C. § 3584(a). But when exercising its
discretion, the sentencing court is under a direction to consider
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the factors enumerated in 18 U.S.C. § 3553(a), including any
applicable sentencing guidelines or policy statements. Id.
§ 3584(b).
One such guideline is USSG §5G1.3(b), which provides, with
various exceptions, for a concurrent or partially concurrent
sentence when there is a previously imposed but undischarged term
of imprisonment that has "resulted from another offense that is
relevant conduct to the instant offense of conviction" if the
relevant conduct offense "was the basis for an increase in the
offense level" for the offense of conviction.
Section 5G1.3(b) sets up a tightly imbricated framework,
and this case does not require us to sketch its complete
architecture. For present purposes, it suffices to say that, in
order to gain its benefit, a defendant must prove that she satisfies
each and every element of the guideline. See United States v. Lino,
493 F.3d 41, 44 (1st Cir. 2007). One such element is whether the
relevant conduct offense — that is, the offense underpinning the
undischarged term of imprisonment — was the basis for an increase
in the offense level for the offense of conviction. See id.; United
States v. Rouse, 362 F.3d 256, 261 (4th Cir. 2004).
As said, a bogus check for $101.60 underpinned in part the
convictions on which the appellant's earlier Puerto Rico sentences
were based. The appellant contends that this check was considered
as an overt act of the charged conspiracy and formed part of the
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basis for the six-level increase in her offense level. See USSG
§2B1.1(b)(1)(D) (providing for such an increase if the loss
attributable to the offense of conviction and all relevant conduct
exceeds $30,000).
The factual predicate on which this contention depends is
disputed. The government maintains that the check for $101.60 was
not used at all in calculating the amount of loss (and, thus, in
setting the adjusted offense level). To prove this point, the
government attached to its opening brief in this court a copy of the
ledger purportedly used in preparing the relevant section of the PSI
Report. The appellant objects to this proffer. That objection is
well-taken. Because the ledger was not made part of the record in
the court below, what we wrote in United States v. Kobrosky, 711
F.2d 449 (1st Cir. 1983), is dispositive here:
We are an appellate tribunal, not a nisi prius
court; evidentiary matters not first presented
to the district court are, as the greenest of
counsel should know, not properly before us.
Id. at 457. The government, in a supplementary brief, now concedes
this point.
Even with the exclusion of the ledger, the appellant is
still in deep water. A defendant bears the burden of proving the
applicability of a guideline provision that will ameliorate her
sentence. See United States v. McLaughlin, 378 F.3d 35, 39 (1st
Cir. 2004); United States v. Sanchez, 354 F.3d 70, 74 (1st Cir.
2004); United States v. Mangos, 134 F.3d 460, 466 (1st Cir. 1998).
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In this instance, that burden requires the appellant to show, among
other things, that the check for $101.60 was used in calculating her
adjusted offense level. The record is utterly silent on this
subject;3 there is no hint that the $101.60 check was used to
enhance the appellant's offense level. A lack of evidence on a
critical point is an insurmountable obstacle for the party who has
the burden of proof on that point. Consequently, the silent record,
in itself, defeats the appellant's claim.
Even had the $101.60 check been used in computing the
amount of loss, the appellant's claim would not succeed. According
to unrebutted arithmetic in the PSI Report, the aggregate loss in
this case exceeded $50,000. The threshold for the six-level offense
level increase was $30,000. Thus, the check for $101.60, even if
counted, could not properly be said to have formed the basis for an
offense level "increase" within the meaning of USSG §5G1.3(b). We
explain briefly.
The term "basis" denotes a foundation or support on which
something else rests. See Webster's Third New Int'l Dict. 182
(2002) (defining "basis" as "the bottom of anything considered as
a foundation for the parts above"); Black's Law Dict. 171 (9th ed.
2009) (defining "basis" as "an underlying condition"). Consistent
3
To be sure, the $101.60 check is mentioned once in the
amended PSI Report — but only as an overt act of the conspiracy.
It is not mentioned in connection with the offense level
computation.
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with this definition, the Sentencing Commission itself appears to
regard the "basis" language as causal. See USSG §5G1.3(b), cmt.
n.2(A) (explaining that section 5G1.3(b) applies in cases in which
"the prior offense . . . has resulted in an increase in the . . .
offense level for the instant offense" (emphasis supplied)). Courts
have taken the same approach. See, e.g., Rouse, 362 F.3d at 261
(contrasting the plain language of the current guideline with the
fact that "[p]rior to the amendment, a prior offense could be 'fully
taken into account' even if inclusion of the offense as relevant
conduct did not effect a change in the defendant's offense level").
In short, the text of the guideline is inconsistent with an
interpretation, such as that urged by the appellant, under which an
incremental loss that would not have affected the offense level
could nonetheless be regarded as forming the "basis" for an increase
in that level.4 We fail to see how an item of loss that has no
effect on the offense level can serve as the "foundation" of that
level.
We hold, therefore, that USSG §5G1.3(b) did not require
the district court to impose a concurrent sentence in this case.
4
In United States v. Caraballo, 200 F.3d 20, 26 n.9 (1st Cir.
1999), we reached a somewhat different decision, but we did so
under a different version of the guideline. See USSG §5G1.3(b)
(1998). That earlier version was modified by the Sentencing
Commission's promulgation in 2003 of Amendment 660. That amendment
clarified the guideline's meaning and made Caraballo something of
an anachronism. See Lino, 493 F.3d at 45. It is the clarified
version of the guideline with which we are concerned.
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The appellant's claim of procedural unreasonableness has
another dimension. She asserts that the sentencing court erred in
failing to consider the factors made relevant to the sentencing
determination by 18 U.S.C. § 3553(a).5 Assuming, without deciding,
that this claim of error has been preserved, we find it groundless.
The court's statement of its reasons for its choice of a
sentence plainly takes into account the section 3553(a) factors.
For example, the court explicitly considered the appellant's
troubled childhood, difficult family circumstances, and other
personal characteristics. In the last analysis, however, the court
attached more weight to the appellant's extensive criminal history,
the seriousness of her past and present crimes, her failure to
capitalize on previous opportunities for rehabilitation, the need
for deterrence, and society's interest in promoting respect for the
law. The court also appears to have found that the appellant's non-
federal crimes were distinct from her federal crime.
5
These factors include:
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the
need for the sentence imposed — (A) to reflect the
seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense; (B)
to afford adequate deterrence to criminal conduct; (C) to
protect the public from further crimes of the defendant;
. . . (6) the need to avoid unwarranted sentence
disparities among defendants with similar records . . .;
and (7) the need to provide restitution to any victims of
the offense.
18 U.S.C. § 3553(a).
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A criminal defendant is entitled to a weighing of the
section 3553(a) factors that are relevant to her case, not to a
particular result. Here, the sentencing court's careful
consideration of the statutory factors and its explanation of its
reasoning satisfy the obligations imposed by section 3553(a).
The bottom line, then, is that the sentencing court had
discretion to impose either a consecutive or a concurrent sentence.
See USSG §5G1.3(c); see also USSG §5G1.3, cmt. (backg'd.) (2007).
The court studied that choice and, for aught that appears, weighed
all the appropriate factors. Its declination to impose a concurrent
sentence was a quintessential judgment call, free from procedural
error.
C. Substantive Reasonableness.
The appellant's final claim of error challenges the
substantive reasonableness of the district court's decision to run
the sentence consecutively. In particular, she posits that the
sentence violates the parsimony principle of 18 U.S.C. § 3553(a),
which states that the sentence imposed should be "sufficient, but
not greater than necessary." In her view, the "appropriate total
punishment" for her aggregate convictions (Puerto Rico and federal)
should have been no more than twelve months and one day. The only
way for the district court to effectuate that modest level of
punishment would have been to make her sentence concurrent with the
undischarged portion of her Puerto Rico sentences.
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We need not tarry. The appellant's argument misreads the
district court's comments at the disposition hearing. The court did
not declare that twelve months and one day was a sufficient period
of immurement for all of the crimes but, rather, determined that the
offense of conviction alone warranted incarceration of that
duration.
Second — and dispositively — a sentencing court's ultimate
responsibility is to articulate a plausible rationale and arrive at
a sensible result. See Martin, 520 F.3d at 91. Here, the court
voiced its concern that the GSR understated the severity of the
offense of conviction and pointed out that if it were to impose a
concurrent sentence, the appellant would in effect get a free ride
(or nearly a free ride) with respect to the offense of conviction;
that is, she would serve no time for that offense beyond what she
was bound in any event to serve for the Puerto Rico convictions.
Given all of the circumstances, the court determined that the case
warranted a consecutive sentence of twelve months and one day. This
sentence, plausibly explained, fell comfortably within the universe
of reasonable alternatives available to the sentencing court. No
more is exigible. We hold, without serious question, that the
challenged sentence is not substantively unreasonable.6
6
The appellant alludes to the unpublished decision in United
States v. Díaz-Fontánez, 317 F. App'x 9, 10 (1st Cir. 2008), to
support her argument that a concurrent sentence would have achieved
the appropriate total punishment. That allusion compares plums
with pomegranates. In Díaz-Fontánez the government had stipulated
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III. CONCLUSION
We need go no further. For the reasons elucidated above,
we conclude that the district court did not commit an abuse of
discretion and, therefore, uphold the challenged sentence.
Affirmed.
to the fact that the conduct underlying the prior state conviction
was the basis for an increase in the offense level referable to the
federal offense. That is quite different from the situation here.
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