Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 10-1202
UNITED STATES,
Appellee,
v.
RAYMOND COLE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Torruella, Boudin and Lipez,
Circuit Judges.
Joshua L. Gordon on brief for appellant.
Seth R. Aframe, Assistant United States Attorney, and John P.
Kacavas, United States Attorney, on brief for appellee.
March 17, 2011
Per Curiam. In the aftermath of a home invasion in which
a victim was beaten and prescription drugs were stolen, Raymond
Cole pled guilty to drug and Hobbs Act offenses in violation of 21
U.S.C. § 841(a)(1) & 844 and 18 U.S.C. § 1951. The plea agreement
memorialized a Rule 11(c)(1)(C) plea, i.e., an agreement containing
a recommendation that would bind the district court once the court
accepted the plea agreement - a "C-type" plea.
The plea agreement did not reference any criminal history
category, potential offense level, or calculation based on the
sentencing guidelines. That is, it did not attempt any computation
of any potential offense level and it made no projected
determination of any likely sentencing range under the guidelines.
Rather, the agreement simply recited that:
The parties agree that the defendant
will be sentenced to a term of
imprisonment which may not be less
than ten and one-half (10½) years
nor more than fifteen (15) years.
The parties agree that the United
States will request that the Court
sentence defendant to a fifteen (15)
year term of imprisonment.
A Presentence Report (PSR) was prepared and the court
sustained Cole's objection to a 2 level adjustment for a vulnerable
victim, but, nonetheless, remarked that nothing turned on the
vulnerable victim calculation because the case involved a C-type
plea. The resulting sentencing range as calculated by reference to
the guidelines was 120-150 months.
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In accordance with the plea agreement, Cole argued for a
10½ year sentence, while the government argued for a 15 year
sentence. The court opined that the C-type plea agreement was
reasonable and that the high end was particularly warranted, noting
that this home invasion, in which violent infliction of serious
physical injury occurred, encompassed robbery of a victim's
prescription drugs; that the crime was calculated and deliberate in
its commission; that Cole had demonstrated through his criminal
history and his parole violations that he was unable or unwilling
to comply with the requirements of the law and that there was a
need to protect society from future violent crimes from Cole who
was a recidivist. The court, therefore, sentenced Cole to a 15
year term of imprisonment.
On appeal, Cole argues that the 15 year term of
imprisonment constituted a variance from the guidelines -- the 15
year (180 months) term exceeded the high end of the otherwise
applicable guideline range (120-150 months) by 30 months -- and
that the district court erred in imposing a variance in absence of
the 4 day notice required by Local Criminal Rule of the United
States District Court for the District of New Hampshire Rule
32.1(i) ("LCrR 32.1(i)").
That rule provides:
Any party requesting a departure
under the sentencing guidelines
and/or a variance must file a motion
specifying the grounds for relief
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and legal authority for the
departure and/or variance. This
motion shall be filed no later than
four (4) days prior to the scheduled
sentencing, and a copy shall be
served upon opposing counsel and the
probation officer.
Cole concedes that Fed. R. Crim. P. 32(h) does not
require notice in advance of a court's imposition of a variance
from the guideline range. Irizarry v. United States, 553 U.S. 708
(2008). So, instead, he relies solely on LCrR 32.1(i). Cole also
concedes that the issue was not preserved below, so review is for
plain error.
Cole's reliance on LCrR 32.1(i) is misplaced because the
sentence was not a variance at all. As the district court made
clear at the sentencing hearing, he was not sentencing Cole
pursuant to the sentencing guidelines or based on any variance from
those guidelines. Rather, the court sentenced Cole pursuant to his
C-type plea and the stipulated sentencing range contained in that
plea agreement (which was agreed to without any reference at all to
the sentencing guidelines). See United States v. Rivera-Martinez,
607 F.3d 283 (1st Cir. 2010), (concluding that a sentence is based
on the C-type agreement, notwithstanding the fact that the district
court may also be required to compute a corresponding sentencing
range pursuant to the sentencing guidelines), petition for cert.
filed, 79 U.S.L.W. 3062 (U.S. Jul 19, 2010) (No. 10-113).
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In any event, even were LCrR 32.1(i) applicable, and
assuming dubitante the legitimacy of Cole's claim that the plea
agreement would not constitute notice sufficient for purposes of
LCrR 32.1(i), it was not plain error for the district court to
impose the 15 year sentence despite the alleged absence of the 4
day notice. The characteristics of plain error are familiar: (1)
an error that (2) 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. See, e.g., United States v. Vargas-de-Jesus, 618 F.3d
59, 67 (1st Cir. 2010). Even if this standard is met, a reviewing
court may, but is not required to, afford relief. Id. Cole's
claim falters on several of the plain error prongs.
Assuming the district court erred in imposing the 15 year
sentence in the absence of the notice required by LCrR 32.1(i),
that error was neither clear nor obvious. While the provisions of
LCrR 32.1(i) are clearly applicable to a request for a variant
sentence, it was neither clear nor obvious that LCrR 32.1 (i) would
also apply to a C-type plea agreement that was not in any way
dependent on any guideline calculation.
Further, it is hard to see how Cole was prejudiced by the
lack of notice. Were we to find error, a notice deficiency could
be easily cured upon remand. Cole, however, appears to contend
(without citation to any authority) that, upon remand, the
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government would be barred from curing any deficiency. Rather, he
argues that, since he prevailed in his objection to the vulnerable
victim adjustment, he should get the benefit of the reduction it
produced and the appropriate remedy is a resentencing "with orders
that the non-noticed variance cannot be employed." In effect, he
wants the sentencing range capped at 150 months (which was the high
end of the sentencing range calculated pursuant to the guidelines
without the vulnerable victim adjustment) even though, in his C-
type agreement, he stipulated to a sentencing range of 10½ - 15
years (126-180 months). Cole also ignores the district court's
rumination that, in the absence of the C-type agreement, it likely
would have departed upward from 15 years.
Lastly, even were there error in sentencing Cole to 15
years without the prior notice provided by LCrR 32.1(i), it does
not seriously impair the fairness, integrity, or public reputation
of the judicial proceedings to sentence Cole in conformity with a
plea agreement in which he freely and voluntarily stipulated that
a sentence of 15 years was within the range of the agreed-to
sentencing range and would be the sentence that the government
would request.
The judgment and sentence of the district court is
affirmed. Loc. R. 27.0(c).
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