USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_________________________
No. 94-1285
UNITED STATES OF AMERICA,
Appellee,
v.
EDDIE CORDERO, a/k/a
EDDIE CORDERO GARCIA,
Defendant, Appellant.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge] ___________________
_________________________
Selya, Circuit Judge, _____________
Coffin, Senior Circuit Judge, ____________________
and Stahl, Circuit Judge. _____________
_________________________
Thornton E. Lallier, by appointment of the court, for _____________________
appellant.
Geoffrey E. Hobart, Assistant United States Attorney, with ___________________
whom Donald K. Stern, United States Attorney, was on brief, for _______________
appellee.
_________________________
December 27, 1994
_________________________
SELYA, Circuit Judge. Defendant-appellant Eddie SELYA, Circuit Judge. ______________
Cordero, also known as Eddie Cordero Garcia, takes issue with the
district court's denial of his motion to suppress certain
evidence, as well as the court's determination that he should be
sentenced as a career offender. Concluding, as we do, that
appellant's legal arguments are unfounded, we affirm his
conviction and sentence.
I I
In February 1993, a federal grand jury indicted
appellant on charges of possessing cocaine with intent to
distribute and conspiring to commit the substantive offense. See ___
21 U.S.C.
841(a)(1), 846. Appellant promptly moved to suppress certain
evidence undergirding the indictment, arguing that the evidence
stemmed from an illegal airport stop involving a codefendant,
Juan Cubero Reyes (Cubero). In June, the district court denied
the motion.
Appellant and his counsel then negotiated a written
plea agreement with the government. The agreement did not
expressly reserve any right of appeal with respect to the
antecedent suppression ruling. On August 30, 1993, pursuant to
the agreement, appellant pled guilty to both counts of the
indictment. Approximately six months later, the district court
pronounced sentence. Among other things, the court invoked the
career offender guidelines, U.S.S.G. 4B1.1-4B1.2 (Nov. 1993),
and imposed a 188-month incarcerative term. This appeal
2
followed.
II II
Appellant's first assignment of error need not occupy
us for long. He asseverates that the most damning evidence
against him was, by and large, the spoiled fruit of a poisonous
tree, see, e.g., Wong Sun v. United States, 371 U.S. 471, 484-85 ___ ____ ________ _____________
(1963), and that, therefore, it should have been suppressed. We
do not reach the merits of this assertion, as appellant failed to
preserve it for review.
A A
In this case, appellant entered an unconditional plea
of guilty to the counts of conviction.1 Such a plea marks the
end of one chapter in the progress of a defendant's case, and,
simultaneously, begins a new chapter. Thus, an unconditional
guilty plea insulates virtually all earlier rulings in the case
from appellate review. See Tollett v. Henderson, 411 U.S. 258, ___ _______ _________
267 (1973). As the Supreme Court explained:
When a criminal defendant has solemnly
admitted in open court that he is in fact
guilty of the offense with which he is
charged, he may not thereafter raise
independent claims relating to the
deprivation of constitutional rights that
occurred prior to the entry of the guilty
plea.
Id. ___
____________________
1The Criminal Rules do provide an avenue through which a
defendant can enter a conditional guilty plea, preserving certain ___________
antecedent rulings for appellate review. See Fed. R. Crim. P. ___
11(a)(2). Cordero, however, did not take this route, but,
instead, chose to enter an unconditional guilty plea. _____________
3
We have assiduously followed the letter and spirit of
Tollett, holding with monotonous regularity that an unconditional _______
guilty plea effectuates a waiver of any and all independent non-
jurisdictional lapses that may have marred the case's progress up
to that point, thereby absolving any errors in the trial court's
antecedent rulings (other than errors that implicate the court's
jurisdiction). See, e.g., Acevedo-Ramos v. United States, 961 ___ ____ _____________ ______________
F.2d 305, 308 (1st Cir.), cert. denied, 113 S. Ct. 299 (1992); _____ ______
Valencia v. United States, 923 F.2d 917, 920 (1st Cir. 1991); ________ ______________
United States v. Wright, 873 F.2d 437, 442 (1st Cir. 1989). The _____________ ______
question in this case, then, is whether Tollett applies. _______
B B
Appellant strives to bring his case within the single
recognized exception to Tollett, theorizing that the lower _______
court's suppression ruling was jurisdictional in nature because
quashing the evidence would, in appellant's words, "have deprived
the Government of virtually all evidence against Eddie Cordero
Garcia," and, therefore, would have precluded a successful
prosecution. However, appellant casts too wide a net: reading
the "jurisdictional defect" exception in so unrestrained a
fashion would create a sinkhole capable of swallowing the rule.
For purposes of the Tollett exception, a jurisdictional defect is _______
one that calls into doubt a court's power to entertain a matter,
not one that merely calls into doubt the sufficiency or quantum
of proof relating to guilt. Cf. Menna v. New York, 423 U.S. 61, ___ _____ _________
62 n.2 (1975) (holding that defendant, by pleading guilty, did
4
not waive a double jeopardy claim because, were the claim well
founded, the government could "not convict petitioner no matter
how validly his factual guilt [might be] established").
Here, the suppression ruling, even if erroneous,2
cannot be termed "jurisdictional" in any meaningful sense of the
word. After all, suppression of the evidence would not have
deprived the district court of power to entertain the case
against appellant; it would simply have made the prosecution's
task more difficult by making a conviction less likely.
Consequently, appellant's initial assignment of error falters.3
III III
____________________
2We do not in any way suggest that error inheres. Indeed,
were we to reach the suppression issue, it seems unlikely that
appellant could prevail. His brief argues, essentially, that the
government learned of the evidence in question by violating
Cubero's Fourth Amendment rights. Even if that is so and the
record before us certainly does not bear out the claim a
defendant cannot succeed in suppressing evidence on Fourth
Amendment grounds unless he can show that his own rights, rather
than a third party's, have been abridged. See United States v. ___ ______________
McDowell, 918 F.2d 1004, 1007 (1st Cir. 1990); United States v. ________ ______________
Soule, 908 F.2d 1032, 1036-37 (1st Cir. 1990); cf. United States _____ ___ _____________
v. Santana, 6 F.3d 1, 8-9 (1st Cir. 1993) (suggesting that a due _______
process defense based on outrageous government misconduct is not
available if the misconduct only harmed third parties, but not
the defendant).
3Appellant also makes a feeble attempt to loosen the grip of
the Tollett doctrine by arguing that constitutional rights cannot _______
be waived except through their "intentional relinquishment or
abandonment." Johnson v. Zerbst, 304 U.S. 458, 464 (1938). But _______ ______
he is hoist with his own petard. At the change-of-plea hearing,
the district court informed appellant that, by pleading guilty,
he would surrender any right to contest his guilt on this, or
other, grounds. Forewarned, appellant nonetheless changed his
plea. Thus, to the extent (if at all) that Zerbst applies, it ______
does not profit Cordero.
5
Appellant's remaining assignment of error is no more
robust. It relates to the district court's decision to classify
appellant as a career offender for purposes of applying the
federal sentencing guidelines. On this issue, waiver is not a
problem: since a defendant's unconditional guilty plea does not
automatically waive the right to appeal matters incident to
sentencing as opposed to guilt, see 18 U.S.C. 3742, this issue ___
is properly before us.4 The more fundamental problem is that
appellant's claim lacks merit.
A A
In general, the career offender provisions apply to an
adult offender who commits a felony "that is either a crime of
violence or a controlled substance offense," having previously
experienced two or more convictions for targeted predicate
offenses, that is, "prior felony convictions of either a crime of
violence or a controlled substance offense." U.S.S.G. 4B1.1
(Nov. 1993); see also United States v. Piper, 35 F.3d 611, 613 ___ ____ ______________ _____
n.1 (1st Cir. 1994), petition for cert. filed (Nov. 14, 1994) _________________________
(No. 94-6876); United States v. Fiore, 983 F.2d 1, 2 (1st Cir. _____________ _____
1992), cert. denied, 113 S. Ct. 1830 (1993). _____ ______
The district court determined that Cordero came within
the encincture of the career offender guidelines. To test this
determination, we must first put it into perspective.
____________________
4Of course, we recognize that some courts have enforced plea
agreements in which defendants agreed to waive the right to
appeal their sentences. See, e.g., United States v. Wiggins, 905 ___ ____ _____________ _______
F.2d 51 (4th Cir. 1990). Appellant's plea agreement contained no
such proviso.
6
In preparing the presentence investigation report (PSI
Report), the probation officer concluded that the career offender
provisions applied. The PSI Report premised the predicate
offense component of this conclusion on two convictions for
aggravated assault recorded in San Juan Superior Court, one
culminating in the imposition of a sentence on April 10, 1987,
and the second culminating in the imposition of a sentence on
October 7, 1987. Appellant does not seriously contest the
suitability of the later conviction for use as a predicate
offense in the career offender calculus. Instead, he
concentrates his fire on the inclusion of the earlier conviction.
The district court gave appellant ample time to obtain
relevant records and marshal his arguments. When he originally
requested a delay in sentencing, the district court ordered a
postponement of roughly eight weeks in duration. When,
thereafter, appellant sought still more time, the district court
again obliged, granting a further seven-week continuance. Due in
part to these extensions, the district court had before it at the
disposition hearing, held on February 28, 1994, the following
information in regard to the disputed conviction:
1. A barebones statement in the PSI Report
to the effect that Cordero was arraigned on a
charge of aggravated assault on December 11,
1986; that he pled guilty to this charge on
January 23, 1987; and that the court
sentenced him on April 10, 1987.
2. A certified copy of the charging document
anent this conviction. This document
memorialized a complaint by the local
district attorney against Cordero "for the
crime of aggravated assault, a felony." The
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document recounted that the offense occurred
"in or about the 11th of October of 1986, in
Rio Piedras, Puerto Rico", when Cordero
"illegally, voluntarily, . . . maliciously,
knowingly, and with criminal intent, caused
serious bodily harm to Mr. Jesus Cortes
Molina, by means of force and violence,
attacking him with a wooden pool stick,
hitting him in the right arm causing a
fracture of the same. . . ."
3. A certified copy of a document entitled
"Sentencia," which described the sentencing
proceedings that took place on April 10,
1987. This document indicated, inter alia, _____ ____
that Cordero was "assisted by his attorney,
Jose M. Ortiz-Miller," during the sentencing
proceedings.5
Based on this information, the district court ruled, over
objection, that the government had proved by a preponderance of
the evidence that the disputed conviction comprised a "countable"
crime of violence for the purpose of determining appellant's
status as a career offender.
Appellant offered several arguments below, two of which
he resuscitates on appeal. First, because the paperwork before
the sentencing court did not affirmatively establish that
appellant was represented by counsel or afforded appropriate
warnings on January 23, 1987 (the date on which his guilt was
determined), he claims that the ensuing conviction was
"presumptively void" and, therefore, not fit for inclusion in the
career offender calculus. Second, he castigates the district
____________________
5The charging papers, as well as the Sentencia, were in
Spanish. A court-appointed interpreter translated them in open
court. Appellant does not impugn either the authenticy of the
documents or the accuracy of the translation.
8
court for applying a preponderance-of-the evidence test in
determining the adequacy of the government's proof anent the two
prior convictions, and insists that a more rigorous standard
should have been employed. We consider these issues seriatim. ________
B B
Emphasizing our decision in United States v. Isaacs, 14 _____________ ______
F.3d 106, 108-10 (1st Cir. 1994), appellant claims that the
documents presented to prove the predicate offense were deficient
because they did not address whether he was represented by
counsel or afforded a colloquy by the court at a critical
juncture. The claim is much too sanguine. It overlooks entirely
the Supreme Court's subsequent decision in Custis v. United ______ ______
States, 114 S. Ct. 1732 (1994). The Custis Court held that a ______ ______
defendant in a federal sentencing proceeding, generally speaking,
"has no . . . right (with the sole exception of convictions
obtained in violation of the right to counsel) to collaterally
attack prior convictions." Id. at 1734. In so holding, Custis ___ ______
significantly restricted the utility of Isaacs. The Custis ______ ______
approach applies full bore in this instance. As we recently
ruled in an analogous case, "[a]lthough Custis considered ______
collateral attack under the Armed Career Criminal Act rather than
the sentencing guidelines themselves, the constitutional question
is the same in each context." United States v. Munoz, 36 F.3d _____________ _____
1229, 1237 (1st Cir. 1994). We, therefore, steer by Custis ______
rather than by Isaacs. ______
Custis prohibits collateral attack on prior state-court ______
9
convictions in federal sentencing proceedings unless the attack
is rooted in a violation of the Sixth Amendment right to counsel.
Thus, Custis renders nugatory appellant's reliance on the ______
ostensible lack of warnings as a basis for brushing aside the
April 1987 conviction. Nonetheless, we must still examine his
claim insofar as it relates to the possible absence of counsel.6
But we do not find any substantial indication in the record that
Cordero was denied counsel or that he proceeded without counsel.
Cordero who had personal knowledge of what transpired in 1987
did not offer any testimony to show that he was, in fact, denied
the help of an attorney. That omission left only the documentary
evidence and, at worst, the documents before the district court
simply fail to clarify whether Cordero had counsel present when
he pleaded guilty.
When the government seeks to prove a predicate offense
for sentencing purposes, it has an initial burden of establishing
the existence of the conviction. See United States v. Unger, 915 ___ _____________ _____
F.2d 759, 761 (1st Cir. 1990), cert. denied, 498 U.S. 1104 _____ ______
(1991). It can satisfy this requirement in divers ways, e.g., by ____
an uncontroverted statement in the PSI Report, by introducing a
certified copy of the judgment, or by some other satisfactory
proffer. Once the government has carried this modest burden, the
conviction is presumed valid for purposes of applying the
____________________
6The record is crystal clear that an attorney represented
appellant at sentencing on April 10, 1987. The record is more
tenebrous, however, as to whether counsel was present on the date
appellant entered his guilty plea. It is this "defect" to which
appellant's hopes are fastened.
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sentencing guidelines. See id. It then becomes the defendant's ___ ___
obligation to produce some evidence of unconstitutionality before
a federal court may disregard the conviction for sentencing
purposes. See United States v. Ruo, 943 F.2d 1274, 1276 (11th ___ _____________ ___
Cir. 1991); United States v. Gallman, 907 F.2d 639, 643 (7th Cir. _____________ _______
1990), cert. denied, 499 U.S. 908 (1991); see also United States _____ ______ ___ ____ _____________
v. Wilkinson, 926 F.2d 22, 28 (1st Cir.) ("Since the number of _________
felony cases where a defendant lacks counsel must be small . . .
, a sentencing court may permissibly infer from the record of the
conviction that the conviction was not obtained
unconstitutionally provided the record contains no reason to
believe the contrary."), cert. denied, 501 U.S. 1211 (1991). _____ ______
Here, appellant produced no evidence of a Sixth
Amendment violation. He did not himself testify, or otherwise
swear, that he was deprived of counsel at a critical time.
Rather, he merely argued that the government had failed
affirmatively to establish that a lawyer's services had been made
available to him. Since the law will presume, in this context,
that a conviction was counselled absent specific evidence to the
contrary, a defendant who desires to challenge a prior conviction
on Sixth Amendment grounds must do more than merely speculate
about theoretical possibilities. In the absence of specific
evidence, the court below had a right to treat the disputed
conviction as constitutional and give it weight in constructing
appellant's sentence.
C C
11
Appellant's final sentence-related argument posits that
the district court erroneously applied the preponderance-of-the-
evidence standard in this criminal case. The argument stalls.
It is settled beyond cavil that facts used at sentencing need
only be proven by a preponderance of the evidence, not beyond a
reasonable doubt. See, e.g., United States v. Gonzalez-Vasquez, ___ ____ _____________ ________________
34 F.3d 19, 25 (1st Cir. 1994); United States v. Tardiff, 969 _____________ _______
F.2d 1283, 1289 (1st Cir. 1992); Wright, 873 F.2d at 441. ______
IV IV
We need go no further. Appellant's contentions are
uniformly unavailing. Hence, his conviction and sentence endure.
Affirmed. Affirmed. ________
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