United States v. Alvira-Sanchez

United States Court of Appeals
For the First Circuit

No. 14-1671

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS LUIS ALVIRA-SANCHEZ,

Defendant, Appellant.

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

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Lynch, Thompson, and Kayatta,
Circuit Judges.

Ines McGillion, on brief for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, Francisco A. Besosa-Martínez, Assistant United
States Attorney, and Rosa Emilia Rodríguez-Vélez, United States
Attorney, on brief for appellee.

October 30, 2015
 KAYATTA, Circuit Judge. Carlos Luis Alvira-Sanchez

alleges that the district court in this case made several errors

in accepting and entering his guilty plea. Alvira-Sanchez made no

objections to any of those purported errors at the time, nor did

he thereafter seek to withdraw his plea, even after he was

sentenced. He now asks that we vacate the acceptance of his plea.

Although several of Alvira-Sanchez's claims of error are

meritorious, no shortcoming in the district court's acceptance of

his plea caused him any harm. Accordingly, we deny Alvira-

Sanchez's request for reversal. At the same time, because the

parties agree that Alvira-Sanchez is entitled to seek a sentencing

reduction under Amendment 782 to the Drug Quantity Table of the

United States Guidelines, we remand solely for consideration of

that request.

I. Background

On October 24, 2013, law enforcement officers entered a

residence located roughly 168 feet from a school to arrest Alvira-

Sanchez on two outstanding warrants. On entry, officers found,

among other things, a loaded Zombie rifle, approximately 2.87 grams

of cocaine, approximately 1.3486 grams of cocaine base,

approximately 2.0247 grams of marijuana, and drug paraphernalia.

On October 30, 2013, Alvira-Sanchez was charged with four counts:

(1) possession of a firearm in a school zone, in violation of 18

U.S.C. § 922(q); (2) possession of cocaine in a school zone, with

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intent to distribute, in violation of 21 U.S.C. § 841; (3)

possession of marijuana in a school zone, with intent to

distribute, in violation of 21 U.S.C. § 841; and (4) possession of

a firearm in furtherance of a drug trafficking crime, in violation

of 18 U.S.C. § 924(c).

On February 19, 2014, Alvira-Sanchez came before the

court to enter a straight guilty plea--i.e., a plea not the product

of a plea bargain--on all counts. After verifying Alvira-Sanchez's

competence to plead, the court explained that pleading guilty

waived the right to trial by jury, the presumption of innocence,

the right to a public trial, and the right to remain silent. The

court next listed the elements of each of the four charged crimes

and verified Alvira-Sanchez's understanding. The court did not,

however, expressly inform Alvira-Sanchez of his right to persist

in a plea of not guilty. See Fed. R. Crim. P. 11(b)(1)(B).

Turning to the penalties, the court stated that "the gun

counts may require a consecutive sentence." The court then

described the penalties "regarding the drugs" as, in relevant part,

"[i]mprisonment of not more than 20 years," "[s]upervised release

of at least three years," and "the payment of a special monetary

assessment," and the penalties "regarding the gun" as, in relevant

part, "at least five years, statutory minimum; not more than life

imprisonment," "supervised release that can go as high as five

years," and "the payment of a special monetary assessment[.]" The

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court concluded by explaining that parole would not be available,

that the court was not bound by the recommendations of the United

States Sentencing Guidelines ("USSG"), and that Alvira-Sanchez

would serve a term of supervised release that "will never be more

than five years." The court did not, however, inform Alvira-

Sanchez that any sentence imposed for count 1 (possession of a

firearm in a school zone), up to a maximum of five years, was

statutorily mandated to run consecutively to any other sentence,

or that count 1 would carry its own concurrent term of supervised

release and special monetary assessment. After Alvira-Sanchez

accepted the government's factual proffer, the court entered his

plea and ordered a Presentence Investigation Report ("PSR").

The PSR as ultimately amended grouped counts 1–3 and

calculated a total offense level of 14 for those counts.1 For

criminal history, the PSR listed five prior arrests, including one

arrest for pending criminal charges and three arrests for past

dismissed charges. The PSR also noted that Alvira-Sanchez had

pled guilty to four unlisted juvenile offenses. The PSR concluded

that Alvira-Sanchez fell within Criminal History Category (CHC) I,

1 The PSR treated count 1 as a specific offense characteristic
of counts 2–3, pursuant to USSG § 3D1.2(c). Although any term of
imprisonment imposed under count 1 was statutorily required to run
consecutively to all others, 18 U.S.C. § 924(a)(4), count 1 did
not require that any term of imprisonment be imposed, and so it
could be grouped with related counts for guidelines purposes. See
USSG § 3D1.1(b)(1), cmt. n.2.

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corresponding to a recommended sentence of 15–21 months for grouped

counts 1–3. Count 4 carried a mandatory minimum sentence of 60

months. It was mandatory that any sentences imposed for counts 1

and 4 run consecutively to all other sentences, and to each other.

Alvira-Sanchez appeared thereafter for sentencing. He

requested a low-end guidelines sentence of 75 months––15 months

for grouped counts 1–3, plus the mandatory consecutive 60-month

sentence for count 4. The court granted his subsidiary request

that it treat the pending charges listed in the PSR's criminal

history section as allegations, but it declined to do the same for

the previously dismissed charges, seeing "no logical, reasonable

explanation, legal or factual or otherwise" as to why the charges

had been dismissed. Looking at the entirety of the PSR's criminal

history section, the court said that "you can tell a mile away

that [Alvira-Sanchez] has been involved for a substantial part of

his life in the business of drug dealing and firearms."

Turning to its obligation to sentence Alvira-Sanchez

under 18 U.S.C. § 3553, the court said that "even though we have

not mentioned 3553(a) by name, it is obvious that all this

discussion surrounds 3553(a), the sentencing factors." Expressing

concern for Puerto Rico's high crime rate and the "real need for

deterrence of criminal conduct," the court sentenced Alvira-

Sanchez to 6 months for count 1, 34 months for counts 2–3, and 60

months for count 4, with all sentences to be served consecutively

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for a total of 100 months. In addition, the court imposed

concurrent terms of supervised release of three years (count 1),

six years (count 2), four years (count 3), and five years (count

4). Finally, the court imposed a $100 monetary assessment for

each count, for a total of $400. Unhappy with his sentence,

Alvira-Sanchez now asks that we vacate the sentence and allow him

to withdraw his plea, or that we remand for a new sentence.

II. Analysis

A. The Plea Colloquy

1. Standard of Review

Because Alvira-Sanchez raised no objection to his plea

colloquy below, he bears the burden of showing: (1) that an error

occurred; (2) that the error was clear or obvious; (3) that the

error impaired his substantial rights; and (4) that the error

"seriously impaired the fairness, integrity, or public reputation

of judicial proceedings." United States v. Duarte, 246 F.3d 56,

60 (1st Cir. 2001).

2. The Consequences of Count 1

Before entering a guilty plea, a court must ensure that

the defendant understands "any maximum possible penalty, including

imprisonment, fine, and term of supervised release." Fed. R. Crim.

P. 11(b)(1)(H). Here, rather than explaining the consequences of

the gun counts (counts 1 and 4) separately, the district court

said merely, in relevant part, "[R]egarding the gun, the statutory

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penalty is at least five years, statutory minimum; not more than

life imprisonment . . . supervised release that can go as high as

five years; plus the payment of a special monetary assessment

that's consecutive." The court accurately stated the penalties

for possession of a firearm in furtherance of a drug trafficking

crime (count 4). See 18 U.S.C. § 924(c)(1)(A)(i)2; 18 U.S.C.

§ 3013(a)(2)(A); 18 U.S.C. § 3583(b)(1); 18 U.S.C. § 3559(a)(1).

The court did not, however, indicate that possession of a firearm

in a school zone (count 1) carried the potential for a separate

term of imprisonment not more than five years, required to run

consecutively, see 18 U.S.C. § 924(a)(4), and its own concurrent

term of supervised release, see 18 U.S.C. § 3583(a).

The government argues that the court's statement that

"the gun counts may require a consecutive sentence" was adequate

notice, but Alvira-Sanchez is correct that nothing in that

formulation served to inform him that the gun counts carried the

potential for "separate multiple sentences rather than a single

sentence, and that the consecutive nature of those sentences was

mandatory as opposed to permissive, and that they must be

consecutive not only to all non-gun counts, but also to each

2 Although 18 U.S.C. § 924(c)(1)(A)(i) does not explicitly
state that it carries the possibility of a life sentence, its
silence as to any maximum sentence creates an implicit maximum
sentence of life. See United States v. O'Brien, 560 U.S. 218, 241
(2010) (Stevens, J., concurring).

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other." Failure to explain correctly the interaction of the

consecutive sentences on the two counts was thus obviously

erroneous. Cf. United States v. Santiago, 775 F.3d 104, 106–07

(1st Cir. 2014) (government conceded that failure to inform

defendant that sentences must run consecutively was an obvious

error).

That error, though, did not affect Alvira-Sanchez's

substantial rights. Given that count 1 does not require any

minimum sentence, see 18 U.S.C. § 924(a)(4), and that Alvira-

Sanchez already knew he risked up to a 20-year term for counts 2–

3 and a consecutive life sentence for count 4, there is no reason

to think that the risk of an additional 5-year term would have

affected Alvira-Sanchez's willingness to plead. He does not allege

as much. See United States v. Romero-Galindez, 782 F.3d 63, 69

(1st Cir. 2015) (finding no plain error where district court

understated the supervised release period by two years at the

change of plea hearing because, inter alia, the discrepancy was

"but a small fraction of the life-imprisonment penalty" defendant

was facing).

The same analysis holds for the district court's failure

to describe accurately count 1's term of supervised release.

Alvira-Sanchez knew that he faced a potential term of supervised

release under count 4 that would "never be more than five years."

Because supervised release terms must run concurrently, see 18

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U.S.C. § 3624(e), and because no authorized term of supervised

release under 18 U.S.C. § 3583 exceeds five years, any term of

supervised release under count 1 could not have increased Alvira-

Sanchez's total exposure. Alvira-Sanchez nevertheless argues that

the number of concurrent supervised release terms being served is

consequential, as it could affect the consequences should he

violate his conditions of release. Alvira-Sanchez fails, however,

to allege that such an indirect and potential ramification of the

plea would have affected his decision to plead guilty, had he been

properly informed of count 1's concurrent supervised release term.

Nor would such an allegation be remotely persuasive.

Nor did the failure to inform Alvira-Sanchez of count 1's

potential for an added monetary assessment likely affect his

decision to plead. The court mentioned a monetary assessment in

connection with the gun charges and did not specify any dollar

amount. Alvira-Sanchez elected to plead without knowing what his

financial liability might be. It is not likely that the omission

impaired Alvira-Sanchez's substantial rights because it is not

likely that he would have reversed course had he known that he

faced two assessments of unknown value in connection with the gun

charges, rather than one.

3. The Right to Persist in Pleading Not Guilty

Alvira-Sanchez complains for the first time on appeal

that the district court never in so many words confirmed that he

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understood that, as Federal Rule of Criminal Procedure 11(b)(1)(B)

states in a straightforward manner, he had "the right to plead not

guilty, or having already so pleaded, to persist in that plea."

Rather, the district court asked Alvira-Sanchez if he understood

that he was waiving "the right that you have to put the government

through the burden of proving you guilty beyond a reasonable doubt

without you having to prove your innocence." Whether this

description of the right was, by itself, an insufficient

circumlocution or, instead, a practical elaboration that might

stand on its own, we need not decide.3 Rather, the transcript as

a whole makes clear that Alvira-Sanchez knew that he was not

compelled to persist in pleading guilty. Cf. United States v.

Cotal-Crespo, 47 F.3d 1, 8 (1st Cir. 1995) (finding plea colloquy

"adequate" when it was clear from context, inter alia, "that the

defendants understood that they had the right to persist in their

innocence and go to trial," but cautioning that "for the sake of

judicial economy and fundamental fairness, the best way to ensure

that Rule 11 is complied with is to explicitly comply with Rule

11").

Notably, the district court asked Alvira-Sanchez toward

the conclusion of the colloquy, "Do you still want to plead?"

thereby implying that it was still Alvira-Sanchez's choice whether

3 The government offers no argument one way or the other.

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or not to plead. Even Alvira-Sanchez's brief on appeal implicitly

concedes this point by arguing that the court's explanation at the

hearing of the criminal charges against him affected his decision

to plead guilty. Accordingly, even if we were to assume that the

lack of an express reference to the right to persist in a plea of

not guilty was error, such an error could not have affected Alvira-

Sanchez's substantial rights. Cf. United States v. Borrero-

Acevedo, 533 F.3d 11, 18 (1st Cir. 2008) ("It is defendant's

burden" on plain error review to show that but for the error "he

would otherwise not have pled guilty. If the record contains no

evidence in defendant's favor, his claim fails.").

B. The Monetary Assessment and Supervised Release

Alvira-Sanchez briefly argues that the three-year

supervised release term and $100 monetary assessment sentences

imposed for count 1 were contrary to statute. 18 U.S.C.

§ 924(a)(4) reads in relevant part, "Except for the authorization

of a term of imprisonment of not more than 5 years made in this

paragraph, for the purpose of any other law a violation of section

922(q) [possession of a firearm in a school zone] shall be deemed

to be a misdemeanor." Thus reading his § 922(q) count (count 1)

to be a misdemeanor, Alvira-Sanchez asserts that the maximum

permitted supervised release term under 18 U.S.C. § 3583(b)(3) is

1 year, and the maximum permitted monetary assessment under 18

U.S.C. § 3013(a)(1)(A)(iii) is $25.

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 But the statutory language is not as clear as Alvira-

Sanchez contends. 18 U.S.C. § 3559(a)(4) classifies an offense as

a Class D felony "if the maximum term of imprisonment authorized

is less than ten years but five or more years." One could construe

18 U.S.C. § 924(a)(4) as establishing that a § 922(q) offense is

a misdemeanor except where misdemeanor and felony are

distinguished by their authorized terms of imprisonment. This may

not be the most persuasive reading, but this circuit has never

addressed the question. Some courts have taken Alvira-Sanchez's

reading. See United States v. Rivera-Concepcion, No. 07-169 CCC,

2007 WL 1852608, at *2 n.1 (D.P.R. 2007); but see id. at *2 (stating

amount of monetary assessment for § 922(q) violation as $100).

Others, however, have at least implicitly understood a § 922(q)

violation to constitute a Class D felony for sentencing purposes.

See Hough v. United States, No. 3:13-cv-143-FDW, 2015 WL 127881,

at *1 (W.D.N.C. 2015) (three years' supervised release for § 922(q)

violation). The statute's imprecise language and the fact that

other courts have fallen prey to the same error, if error indeed

there was here, demonstrate that any misconstruction on the part

of the district court was not obviously erroneous. Cf. United

States v. Richard, 234 F.3d 763, 771 (1st Cir. 2000) (declining to

resolve a question of statutory interpretation on plain error

review because "the law in this circuit was not 'obvious'" when

the district court imposed its sentence).

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C. The Government's Factual Proffer

Alvira-Sanchez argues that it was plain error for the

district court to accept his guilty plea despite the fact that the

government proffered no facts showing that he possessed a firearm

outside his residence. See 18 U.S.C. § 922(q)(2)(B) (prohibition

on possessing a firearm in a school zone does not apply "on private

property not part of school grounds"). However, the question

relevant to the sufficiency of the evidence in a plea proffer "is

not whether a jury would, or even would be likely, to convict: it

is whether there is enough evidence so that the plea has a rational

basis in facts." United States v. Gandia-Maysonet, 227 F.3d 1, 6

(1st Cir. 2000). Many crimes are proved by reasonably probative

circumstantial evidence, and a rational jury could conclude due to

the nature of the seized gun and evidence of Alvira-Sanchez's

involvement in the drug trade that he did not keep his gun

dutifully at home. Other juries appear to have inferred § 922(q)

violations based on guns found at private residences. See, e.g.,

United States v. Nieves-Castaño, 480 F.3d 597, 598–99 (1st Cir.

2007).

Even if the district court did commit error by accepting

the government's proffer, the error was not obvious. A proffer

establishes a sufficient factual basis for a guilty plea if it

touches all the elements of the crime. See United States v. Piper,

35 F.3d 611, 615–16 (1st Cir. 1994) ("[The district court] need

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not gratuitously explore points removed from the elements of the

offense."). Alvira-Sanchez points to no circuit precedent

establishing whether "possession outside the home" is an element

of a § 922(q) offense, or whether "possession inside the home" is

an affirmative defense. If the latter, then the government had no

obligation to proffer evidence to rebut an anticipated defense.

And even if the former, the law is sufficiently unsettled that any

error in accepting the government's proffer was not obvious. Cf.

Richard, 234 F.3d at 771 (no obvious error when law in circuit

unsettled).

D. Amendment 782

If a defendant is sentenced to a prison term based on a

sentencing range that the Sentencing Commission later lowers, a

district court may reduce the defendant's sentence if such a

reduction is consistent with the Commission's policy statements.

18 U.S.C. § 3582(c)(2). Amendment 782, effective November 1, 2014,

reduced by two levels the offense levels associated with certain

drug quantities. The parties agree that Amendment 782 reduced

Alvira-Sanchez's base offense level on his drug counts (counts 2–

3) from 14 to 12. This amendment reduces Alvira-Sanchez's

recommended sentencing range for grouped counts 1–3 from 15–21

months to 10–16 months. In light of the Sentencing Commission's

policy statement authorizing a court to consider reducing a

defendant's sentence if Amendment 782 reduces the guideline range

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applicable to that defendant, see USSG § 1B1.10(a)(1), remand is

appropriate, as both parties recognize.

E. Assignment on Remand

Where there is reason to think that a judge will base

sentencing determinations on unreliable or inaccurate information,

remand to a different judge is warranted. See, e.g., United States

v. Craven, 239 F.3d 91, 103 (1st Cir. 2001) (remand to different

judge where original judge had reviewed off-record evidence);

United States v. Curran, 926 F.2d 59, 64 (1st Cir. 1991) (same).

Moreover, a case can be assigned to a different judge on remand if

the original judge displayed a "deep-seated favoritism or

antagonism that would make fair judgment impossible." Yosd v.

Mukasey, 514 F.3d 74, 78 (1st Cir. 2008) (quoting Liteky v. United

States, 510 U.S. 540, 555 (1994)). The record evinces no such

antagonism here. Alvira-Sanchez points to several purported

indications of the district court's personal bias against him.

However, none hold water.

First, Alvira-Sanchez raised no objection to the court's

decision to call its own bailiff to testify at Alvira-Sanchez's

initial suppression hearing. Second, the court's decision not to

credit Alvira-Sanchez's testimony at that suppression hearing does

not evince bias. Cf. Yosd, 514 F.3d at 75 (finding no error in

the Board of Immigration Appeals' decision to remand an asylum

applicant's case to an immigration judge who had previously found

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him not to be credible). Third, the district court's disapproval

of Alvira-Sanchez's criminal history does not evince bias. We

have found it to be "within the district judge's discretion to

find that the defendant's criminal history score did not adequately

represent either the seriousness of his past criminal behavior or

the likelihood of his recidivism." United States v. Flores-

Machicote, 706 F.3d 16, 22 (1st Cir. 2013). Finally, the district

court's expression of its views on the failings of Puerto Rico's

court system was linked to an individualized consideration of

Alvira-Sanchez's criminal history and so did not reflect

unwillingness to consider Alvira-Sanchez's specific case. See id.

at 21–22.

Moreover, the record indicates that the district court

did consider Alvira-Sanchez's unique circumstances. At the

change-of-plea hearing, the court demanded an exact drug quantity

from defense counsel: "I will expect some sort of lab result at

the time of sentencing that tells how much of each substance you

have. . . . I'm not going to guess about this. I need to know."

When considering Alvira-Sanchez's objections to the PSR's criminal

history section at the sentencing hearing, the court insisted on

considering each past incident separately: "Wait. Wait. Let's go

one by one. . . . Let's not deal in wholesale here." Finally,

after accurately walking through the applicable sentencing

calculations based on Alvira-Sanchez's individualized PSR, the

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court expressed sympathy for Alvira-Sanchez: "I see in [him] also

a young individual, a person who had perhaps no guidance. I feel

sorry for that. But I have to make this distasteful exercise."

Taken together, the record gives no reason to believe

that the district judge is incapable of fairly hearing Alvira-

Sanchez's request for a sentencing reduction on remand.

III. Conclusion

We affirm the conviction based on the entry of a guilty

plea and remand solely for consideration of a sentence reduction

under Amendment 782.

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