United States Court of Appeals
For the First Circuit
No. 15-1312
UNITED STATES OF AMERICA,
Appellee,
v.
JEFFREY DELGADO-LÓPEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Lynch, Circuit Judges.
Linda Backiel on brief for appellant.
Mainon A. Schwartz, Assistant United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Rosa Emilia Rodríguez-Vélez, United States Attorney,
on brief for appellee.
September 21, 2016
LYNCH, Circuit Judge. Charged with being an armed member
of a drug-dealing conspiracy, Jeffrey Delgado-López pleaded
guilty. The district court accepted Delgado-López's plea and
sentenced him to 33 months in prison for the drug count of the
indictment, as well as 60 consecutive months for the accompanying
weapons count. Delgado-López did not attempt to withdraw his plea
before the district court.
Delgado-López now seeks to vacate both his guilty plea
and his sentence. He argues that we must vacate his plea on Count
Six, the weapons charge, because it was neither "knowing" nor
rooted in a factual basis. He also asserts that the district court
erred by augmenting his Guidelines sentencing range on a mistaken
belief that Delgado-López was on probation for a separate offense
when he committed the crimes at issue here. Finding no error on
either score, we affirm.
I.
Delgado-López was indicted on April 23, 2014, as one of
48 defendants who had allegedly conspired to sell heroin, cocaine,
and marijuana at public-housing projects in Mayagüez, Puerto Rico.
The government agreed to abandon Counts Two through Five of the
indictment if Delgado-López would agree, in exchange, to plead
guilty to Count One, which charged him with participating in the
conspiracy to possess illegal drugs with intent to distribute, see
21 U.S.C. §§ 841(a)(1), 846, 860, and Count Six, which charged him
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with using or carrying a firearm in furtherance of the conspiracy,
see 18 U.S.C. §§ 2, 924(c)(1)(A).
Delgado-López took the deal. On October 29, 2014, at
his change-of-plea hearing, he stated that he was competent to
plead, felt satisfied with his attorney, understood that he was
waiving his constitutional right to a trial, and understood the
nature and consequences of each charge to which he was pleading
guilty. With respect to the weapons count, he told the district
judge that he understood the charge but that the underlying
allegation -- that he had used or carried a weapon -- was "a lie."
The judge then explained that, "[w]hether [the allegation was]
completely true or not completely true," Delgado-López was
choosing to plead guilty to avoid the possibility that the
government had enough evidence to prove the weapons charge at
trial -- in which case, as the judge had explained earlier,
Delgado-López would likely receive a considerably harsher
sentence. Delgado-López confirmed that he understood that choice,
that his attorney had explained the situation to him, and that he
wanted to go forward with the plea.
Sentencing took place months later on February 12, 2015.
Delgado-López did not object in court to the Presentence
Investigation Report ("PSR"), which contained, in pertinent part,
two additional criminal-history points in the calculation of his
Guidelines range for participating in the conspiracy while he was
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on probation. See U.S.S.G. § 4A1.1(d). That enhancement moved
Delgado-López from Criminal History Category I to Category II,
thereby shifting his Guidelines range for Count One upward from
30-37 months to 33-41 months. See id. ch. 5, pt. A. The district
court chose to impose a 33-month sentence for Count One, at the
bottom of the agreed-upon Guidelines range, as well as a mandatory-
minimum 60-month sentence for Count Six. See 18 U.S.C.
§ 924(c)(1)(A)(i).
This timely appeal under 28 U.S.C. § 1291 followed.
II.
Delgado-López failed to object to either of the two
purported errors he now identifies. So he faces the "heavy burden"
of plain-error review and must prove not only a clear error but
also that the error "affected [his] substantial rights [and]
seriously impaired the fairness, integrity, or public reputation
of judicial proceedings." United States v. Ramos-Mejía, 721 F.3d
12, 14 (1st Cir. 2013) (quoting United States v. Duarte, 246 F.3d
56, 60 (1st Cir. 2001)). He cannot meet this burden.
A. Guilty Plea
Delgado-López first claims that his guilty plea was not
"knowing" with respect to Count Six. At the outset, we agree with
Delgado-López that the appeal waiver in his plea agreement does
not bar this claim. "After all, if a plea is invalid, the plea
agreement (and, thus, the waiver provision contained within it)
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disintegrates." Id. But we need not dwell further on a moot
point. We find no error, much less plain error,1 in the district
court's decision to accept Delgado-López's plea. See, e.g., United
States v. Chambers, 710 F.3d 23, 27, 29 (1st Cir. 2013) (bypassing
a similar waiver provision to reach, and reject, defendant's merits
claim of involuntariness).
District courts must ensure that a defendant understands
the nature of the charges against him before accepting his guilty
plea. Fed. R. Crim. P. 11(b)(1)(G). A standard Rule 11 colloquy
generally suffices. See, e.g., Ramos-Mejía, 721 F.3d at 15 ("[A]
district court [ordinarily may] 'ascertain that a defendant is
aware of the nature of the charge against him by reading the charge
in the indictment to the defendant and obtaining his competent
acknowledgment that he understands the charge.'" (quoting United
States v. Delgado-Hernández, 420 F.3d 16, 26 (1st Cir. 2005))).
Having reviewed the transcript of Delgado-López's Rule
11 hearing, we are satisfied that the district court met these
standards. The judge not only allowed but "beg[ged]" Delgado-
López to confer with his lawyer until he understood the plea
1 Because accepting the plea was not error, we need not
consider the additional hurdles that plain-error review places in
Delgado-López's path. For example, even if he could identify a
"clear or obvious" error, he would still need to show "a reasonable
probability that, but for the error, he might not have pled
guilty." United States v. Urbina-Robles, 817 F.3d 838, 842 (1st
Cir. 2016). It is clear that Delgado-López would have faced a
much harsher sentence if he had been convicted after a trial.
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agreement, including the disputed charge under § 924(c)(1)(A) for
using or carrying a weapon. The judge then paused the hearing,
telling Delgado-López and his attorney to take as much time as
they needed to discuss the proposed deal. When Delgado-López
returned to court, over three hours later, the judge carefully
reiterated the mechanics, elements, and consequences of the plea
agreement -- including an accurate synopsis of § 924(c)(1)(A).
Delgado-López now argues, belatedly, that intellectual
and educational limitations impaired his understanding. That
contention is not adequately supported by the record. The judge
explained each point to Delgado-López until he said he understood,
and we see this case as one in which "the circumstances attendant
to the charged crime were straightforward . . . [and] a reading of
the charge sufficed." Ramos-Mejía, 721 F.3d at 15.
Finally, Delgado-López contends that the record fails to
establish a factual basis for the weapons charge. He points to
his statement during the change-of-plea hearing -- that the
allegation that he had been an armed seller was "a lie" -- and
highlights the circumstantial nature of the government's evidence.
However, the government's "necessary showing" to overcome this
argument "is fairly modest," id. at 16, and the record contains an
adequate factual basis for the plea on Count Six. The government
was prepared to present evidence that a marshal witnessed a man
throwing a gun from the window of an apartment, whose only
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occupants were Delgado-López and his wife. And two of Delgado-
López's alleged cooperators were prepared to testify about his
guilt on that count. Given that the government's burden was "only
[to] show a rational basis in fact for the defendant's guilt,"
id., there was no error in the district court's decision to accept
these allegations as sufficient.
B. Sentence
We also find no error, plain or otherwise, in the
calculation of Delgado-López's Guidelines range.2 Section 4A1.1(d)
imposes a two-point enhancement in a Criminal History Category
calculation "if the defendant committed the instant offense while
under any criminal justice sentence, including probation . . . ."
It has long been clear that "a sentencing court may
consider facts contained in the [PSR] as reliable evidence," in
the absence of any defense objection. United States v. Cruz, 120
F.3d 1, 2 (1st Cir. 1997) (en banc); accord United States v.
Fernández-Cabrera, 625 F.3d 48, 54 (1st Cir. 2010); United States
v. Cintrón-Echautegui, 604 F.3d 1, 6 (1st Cir. 2010). The district
court was entitled to rely on the unobjected-to finding of the
2 We do not decide whether Delgado-López has waived, and
not merely forfeited, this claim. But "[t]here is a powerful case
for waiver here," because "a defendant who eschews a warrantable
objection to a conclusion reached in a presentence report lulls
both the prosecution and the sentencing court into what will prove
to be a false sense of security if he is later allowed to do an
about-face." United States v. Turbides-Leonardo, 468 F.3d 34, 38
(1st Cir. 2006).
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probation officer that Delgado-López had still been on probation
for prior offenses when he joined the drug conspiracy. And even
if we were persuaded that the two-point enhancement constituted
clear error, we would remain unconvinced that there is a
"reasonable probability that the trial court, but for the error,
would have imposed a different, more favorable sentence." United
States v. Padilla, 415 F.3d 211, 221 (1st Cir. 2005) (en banc).
Delgado-López's 33-month sentence on Count One is squarely within
the lower Guidelines range to which he says he was entitled.
III.
For the foregoing reasons, we reject Delgado-López's
claims of error and affirm his conviction and sentence.
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