United States Court of Appeals
For the First Circuit
No. 14-1444
UNITED STATES OF AMERICA,
Appellee,
v.
MELVIN HERNÁNDEZ-MALDONADO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Torruella, Lynch, and Lipez,
Circuit Judges.
Charles Allan Hope and Cunha & Holcomb, P.C., on brief for
appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Tiffany V. Monrose, Assistant United States
Attorney, on brief for appellee.
July 17, 2015
LYNCH, Circuit Judge. Melvin Hernández-Maldonado pled
guilty in October 2013 to being a prohibited person in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1), and was
sentenced to 115 months imprisonment.
He now seeks to vacate his plea because the district
court did not warn him that he could not withdraw his plea if the
court did not follow the parties' sentencing recommendations, as
required by Federal Rule of Criminal Procedure 11(c)(3)(B), though
the plea agreement did contain this warning. Under the plea
agreement, the government agreed to recommend 92 months
imprisonment, and Hernández-Maldonado agreed to request 60 months.
The plea agreement specified the sentencing guideline range was
between 92 and 115 months, with a maximum penalty of 120 months.
Hernández-Maldonado also challenges his 115 month sentence as
unreasonable.
We affirm Hernández-Maldonado's conviction and sentence.
Hernández-Maldonado has failed to demonstrate a reasonable
probability that, but for the district court's failure to advise
him that he could not withdraw his plea if it did not follow the
government's recommendation, he would not have entered the plea.
Furthermore, the sentence the district court imposed was
procedurally and substantively reasonable.
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I.
We confine our discussion of the facts to those necessary
to frame the issues on appeal. The relevant facts are not in
dispute. On March 23, 2012, a woman told two Puerto Rico Police
Department agents that a man was being robbed and pointed to him.
The agents observed three individuals in a 2001 Ford Explorer SUV
wearing masks. When the individuals in the SUV saw the agents,
they left the scene, first in the SUV and then on foot. The agents
pursued the individuals and saw the driver was carrying a firearm.
One agent saw the driver toss the firearm and then remove his mask
and shirt as he ran. The agent recovered the firearm -- a pistol
with an attached "chip," which allowed the pistol to fire
automatically. The driver was later identified as Hernández-
Maldonado. The investigation revealed that the SUV was stolen and
that Hernández-Maldonado had previously been convicted on two
occasions of crimes punishable by more than one year imprisonment.
One of these convictions was for murder. Hernández-Maldonado was
on probation for that crime when he was arrested.
II.
Hernández-Maldonado, through different counsel, seeks to
vacate his guilty plea because the district court failed to meet
the requirement of Federal Rule of Criminal Procedure 11(c)(3)(B)
that, "[t]o the extent the plea agreement is of the type specified
in Rule 11(c)(1)(B), the court must advise the defendant that the
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defendant has no right to withdraw the plea if the court does not
follow the recommendation or request." Because there was no
objection, the district court's failure to give the required
warning is reviewed for plain error. See United States v.
Dominguez Benitez, 542 U.S. 74, 76 (2004); United States v.
Borrero-Acevedo, 533 F.3d 11, 15 (1st Cir. 2008) (citing United
States v. Vonn, 535 U.S. 55, 58-59 (2002)). Hernández-Maldonado
must prove "(1) an error, (2) that is clear or obvious, (3) which
affects his substantial rights . . . and which (4) seriously
impugns the fairness, integrity, or public reputation of the
proceeding." United States v. Correa-Osorio, 784 F.3d 11, 18 (1st
Cir. 2015).
Because it is clear that the defendant has established
the first two prongs, this case turns on the third prong of the
plain error test, effect on substantial rights. See Borrero-
Acevedo, 533 F.3d at 17. To meet the third prong of the plain
error test, "a defendant who seeks reversal of his conviction after
a guilty plea, on the ground that the district court committed
plain error under Rule 11, must show a reasonable probability that,
but for the error, he would not have entered the plea." Dominguez
Benitez, 542 U.S. at 83. Hernández-Maldonado has failed to make
this showing.
We look to the full record. Id. at 80 (citing Vonn, 535
U.S. at 74-75). Relevant factors include, inter alia, the
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defendant's statements at the colloquy, "the overall strength of
the Government's case and any possible defenses that appear from
the record," and the inclusion of the warning in the plea
agreement. See id. at 84-85.
Hernández-Maldonado signed a plea agreement, which
itself contained the required warning. He stated that he had time
to consult with his attorney and was satisfied with the attorney's
services. Further, he acknowledged that under the plea agreement,
he surrendered the right to appeal if the court sentenced pursuant
to the recommendation -- suggesting Hernández-Maldonado understood
he could appeal if the court did not sentence according the
recommendation.
Whether or not Hernández-Maldonado subjectively believed
he had a strong case, the question is whether he has met his burden
of showing a reasonable probability that he would not have pled
guilty if the missing warning had been administered. See id. at
83. Hernández-Maldonado has not come close to meeting that burden.
He is no neophyte to the criminal justice system. He voluntarily
entered into a plea agreement and received the benefit of a 92-
month sentence recommendation from the government, below the
maximum penalty. This "plea agreement . . . specifically warned
that he could not withdraw his plea if the court refused to accept
the Government's recommendations. This fact, uncontested by
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[Hernández-Maldonado], tends to show that the Rule 11 error made
no difference to the outcome here." Id. at 85.
III.
Hernández-Maldonado also argues that the district
court's 115-month sentence, at the top of the guideline
recommendation and five months below the 120 month maximum, was
unreasonable. He contends that his "history and characteristics,"
including his completion of high school and steady employment
despite a troubled childhood, dictated a lower sentence.
Hernández-Maldonado acknowledges that he did not object to the
sentence at sentencing and concedes that his sentence is reviewed
for plain error. See United States v. Ruiz-Huertas, ___ F.3d ___,
2015 WL 4086319, at *2 (1st Cir. July 7, 2015). We recognize that
other circuits have not required a defendant to object at
sentencing to preserve a substantive reasonableness challenge.
Id. at *4 (collecting cases). "This court, however, has held . . .
that a failure to interpose an objection in the district court to
the substantive reasonableness of a sentence begets plain error
review." Id. (avoiding the question and assuming the abuse of
discretion standard applies);1 see also United States v. Murphy-
1
We note that Hernández-Maldonado waived any challenge to
the standard of review by acknowledging in his brief that plain
error review applies. See Correa-Osorio, 784 F.3d at 21 (citing
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)). Even
if we assume that the abuse of discretion standard applies,
Hernández-Maldonado's challenge still fails. Cf. Ruiz-Huertas,
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Cordero, 715 F.3d 398, 402 (1st Cir. 2013) ("We discern no error,
plain or otherwise.").
We review sentences for procedural and substantive
reasonableness. Ruiz-Huertas, 2015 WL 4086319, at *1. The
district court's sentence was neither procedurally nor
substantively unreasonable.
To the extent Hernández-Maldonado challenges the
procedural reasonableness of his sentence, that claim fails. Cf.
United States v. Crespo-Ríos, 787 F.3d 34, 37 n.3 (1st Cir. 2015)
("The lack of an adequate explanation can be characterized as
either a procedural error or a challenge to the substantive
reasonableness of the sentence."). Procedural reasonableness
includes "that the district court committed no significant
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." United States v. Martin, 520 F.3d
87, 92 (1st Cir. 2008) (quoting Gall v. United States, 552 U.S.
38, 51 (2007)) (internal quotation marks omitted). The district
court did not improperly calculate the guidelines range, fail to
2015 WL 4086319, at *4.
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consider the § 3553(a) factors, or commit any other procedural
error.
Hernández-Maldonado's sentence was also substantively
reasonable. "[T]here is almost always a range of reasonable
sentences for any given offense. . . . [T]he linchpin of a
reasonable sentence is a plausible sentencing rationale and a
defensible result." United States v. Santiago-Rivera, 744 F.3d
229, 234 (1st Cir. 2014) (internal citations and quotation marks
omitted). Furthermore, reversals in substantive reasonableness
challenges are "particularly unlikely when . . . the sentence
imposed fits within the compass of a properly calculated
[guidelines sentencing range]." Ruiz-Huertas, 2015 WL 4086319, at
*4 (alterations in original) (quoting United States v. Vega-
Salgado, 769 F.3d 100, 105 (1st Cir. 2014)) (internal quotation
marks omitted).
Hernández-Maldonado has prior convictions, including one
for murder. When he was on probation,2 he was in a stolen vehicle,
in a mask, in possession of a machine gun. In an attempt to evade
the Puerto Rico Police Department, he ran across a highway,
creating danger not only to the police but those on the road. The
district court explicitly stated that it reviewed the guideline
calculations and considered Hernández-Maldonado's education level,
2 The government apparently misspoke at sentencing when it
said that Hernández-Maldonado was on parole.
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lack of substance abuse, and the absence of a history of mental or
emotional health problems. "While a sentencing court must consider
all of the applicable [18 U.S.C. §] 3553(a) factors, it is not
required to address those factors, one by one, in some sort of
rote incantation when explicating its sentencing decision."
United States v. Dixon, 449 F.3d 194, 205 (1st Cir. 2006); see
also Ruiz-Huertas, 2015 WL 4086319, at *2. We find the district
court committed no error and its sentence was reasonable.
IV.
For the reasons set forth above, we affirm Hernández-
Maldonado's conviction and sentence.
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