United States v. Llanos-Falero

United States Court of Appeals
For the First Circuit

No. 15-1070

UNITED STATES OF AMERICA,

Appellee,

v.

AURELIO J. LLANOS-FALERO,

Defendant, Appellant.

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

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Howard, Chief Judge,
Torruella and Lynch, Circuit Judges.

José R. Olmo-Rodríguez on brief for appellant.
Mainon A. Schwartz, Assistant United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States
Attorney, on brief for appellee.

January 30, 2017
 LYNCH, Circuit Judge. The district court sentenced

Aurelio Llanos-Falero to 137 months of imprisonment after he pled

guilty to bank robbery, see 18 U.S.C. §§ 2113(a), 2113(d), and 2,

and to brandishing a firearm during and in relation to a crime of

violence, see id. §§ 924(c)(1)(A)(ii), and 2. The district court

ordered that this sentence run consecutively with Llanos-Falero's

sentences for Puerto Rico law convictions for domestic assault and

illegal possession of a submachine gun. Llanos-Falero appeals the

district court's sentence, arguing that the sentencing judge

failed to make the proper inquiry into the effects of Llanos-

Falero's medication on his competence to enter a plea, that the

sentencing judge failed to warn Llanos-Falero before accepting his

plea that his federal sentence might be imposed consecutively with

his Puerto Rico sentences, and that the consecutively imposed

federal sentence is unreasonable. We affirm the sentence.

I.

In June 2011, while serving a four-year probation

sentence for a robbery, Llanos-Falero conspired with at least two

associates to rob a Banco Santander de Puerto Rico branch in Cabo

Rojo, Puerto Rico. As admitted in his plea agreement, he "selected

the branch, conducted surveillance on the bank, planned the method

of the robbery, including the use and carrying of a firearm in the

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presence of customers and employees, as well as the entry and

egress points to and from the bank."

On June 24, 2011, an associate of Llanos-Falero drew

police away from the vicinity of the bank with a bogus 911 call

while Llanos-Falero drove two other associates to the bank. The

two associates entered the bank, one of them took out a loaded 12-

gauge shotgun, and they ordered those inside the bank to the floor.

They stole approximately $38,813 of deposits insured by the Federal

Deposit Insurance Corporation. Because one of the bank employees

was able to activate the bank's silent alarm, the two associates

were arrested about ten minutes after the start of the robbery.

Initially, they did not disclose Llanos-Falero's participation in

the robbery. As a result, Llanos-Falero was not arrested at that

time in connection with the robbery.

After the robbery and before being charged with federal

crimes for his participation in it, Llanos-Falero committed a

number of other offenses. In October 2012, he was sentenced by a

Puerto Rico court to 1 year and 9 months of imprisonment for two

counts of domestic violence. In 2013, he pled guilty to charges

stemming from illegal possession of a submachine gun in 2012 and

was sentenced by a Puerto Rico court to a further 7 years of

incarceration.

Llanos-Falero was indicted for federal crimes related to

the bank robbery in April 2014, while serving his Puerto Rico law

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sentences.1 The indictment charged three counts: an aiding and

abetting violation of armed robbery, see 18 U.S.C. §§ 2113(a),

2113(d), and 2 (Count One); an aiding and abetting violation of

brandishing a firearm during and in relation to a crime of

violence, see id. §§ 924(c)(1)(A)(ii), and 2 (Count Two); and being

a felon in knowing possession of a firearm in interstate commerce,

see id. §§ 922(g)(1), 924(a)(2) (Count Three).

Pursuant to a plea agreement, Llanos-Falero pled guilty

to the first two counts on July 3, 2014. The parties recommended,

"[a]fter due consideration of the relevant factors enumerated in

18 U.S.C. § 3553(a)," an adjusted advisory Sentencing Guidelines

offense level of 22 for Count One, and did not stipulate as to

criminal history category. A Pre-Sentence Investigation Report,

prepared for Llanos-Falero's sentencing, concluded that Llanos-

Falero had 11 criminal history points and a criminal history

category of V. The plea agreement recommended "a sentence of 72

months as to Count One and 60 months for Count Two to be served

consecutively for a total sentence of 132 months, or 11 years of

imprisonment." The plea agreement further stated that "[t]he

parties jointly recommend[ed], as to Count One, that this federal

1 It is unclear how or when authorities became aware of
Llanos-Falero's role in the robbery. Llanos-Falero did admit his
involvement one day after he was indicted.

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sentence be imposed to run concurrently with defendant's

Commonwealth of Puerto Rico sentence currently being served."

Through the plea agreement, Llanos-Falero "knowingly and

voluntarily waive[d] the right to appeal the judgment and sentence

in [his federal] case, provided that [he was] sentenced in

accordance with the terms and conditions set forth in the Sentence

Recommendation provision of [the] Plea Agreement." He further

acknowledged that he was "aware that his sentence [wa]s within the

sound discretion of the judge and of the advisory nature of the

Guidelines"; that "the [district court] [wa]s not a party to this

Plea and Forfeiture Agreement and thus [wa]s not bound by this

agreement or the sentencing calculations and recommendations

contained"; that "the [district court] ha[d] jurisdiction and

authority to impose any sentence within the statutory maximum set

for the offense to which [he] [wa]s pleading guilty"; that "the

[district court] m[ight] accept or reject the Plea and Forfeiture

Agreement"; and that "[s]hould the Court impose a sentence up to

the maximum established by statute, [he] c[ould not], for that

reason alone, withdraw his guilty plea, and w[ould] remain bound

to fulfill all of the obligations under this Plea and Forfeiture

Agreement."

On July 3, 2014, the district court held a change-of-

plea hearing. In the course of the hearing, the sentencing judge

asked if Llanos-Falero had been recently treated for a mental

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illness. Llanos-Falero responded that he had been treated for

bipolar disorder and stress. In response to the sentencing judge's

questions, Llanos-Falero also said that he had been prescribed

"Elavil, Vistaril, and another" medication, that he continued to

take those medications twice a day, and that he had taken them the

morning of the hearing. When asked "Do you feel okay today?" by

the sentencing judge, immediately after that colloquy, Llanos-

Falero responded "Yes, I do, sir." The sentencing judge asked

next "Can you make a voluntary and knowing plea?" to which Llanos-

Falero replied "Yes, I can, sir."

In response to further questioning, Llanos-Falero said

that he had been treated for addiction to marijuana and Percocet,

but had stopped treatment around two and a half months before the

hearing, and that he had last used marijuana or Percocet

approximately two years prior. He confirmed that he was taking no

other medications besides the ones he had already mentioned and

that he had not consumed alcohol in the past 24 hours. When asked

"what is it that you want to do today here in court?" Llanos-

Falero responded "I want to plead guilty." The sentencing judge

asked Llanos-Falero's counsel if he had any doubts as to Llanos-

Falero's "competence to plead at this time," to which counsel

responded "No, your honor." The sentencing judge concluded that

"[b]ased on his answers to my questions and his appropriate

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demeanor, I find . . . Aurelio Llanos-Falero to be competent to

enter his plea of guilty."

The sentencing judge also asked if Llanos-Falero's

counsel had "fully explain[ed] the plea agreement" to Llanos-

Falero and whether counsel was satisfied as to Llanos-Falero's

understanding of the plea agreement, and counsel responded that he

had explained the plea agreement and that he was satisfied as to

Llanos-Falero's understanding of it. The sentencing judge asked

Llanos-Falero repeatedly whether he understood that the judge

could enter a sentence "that is either more severe or less severe

than any sentence you may anticipate, or even the sentence being

recommended in the plea agreement, except that, as to Count Two,

I cannot sentence you for anything less than [60] months." Llanos-

Falero responded that he did understand. The sentencing judge

concluded:

It's the finding of the Court in the case of the United
States versus Aurelio Llanos-Falero that Mr. Llanos is
fully competent and capable of entering an informed
plea, that he is aware of the nature of the charges and
the consequences of the plea, and that his plea of guilty
is a knowing and voluntary one, supported by an
independent basis in fact containing each of the
essential elements of the offense.

Mr. Llanos' plea is, therefore, accepted, and he is now
adjudged guilty of that offense.

After submission of the Pre-Sentence Investigation

Report, the court delivered Llanos-Falero's sentence on December

2, 2014. The sentencing judge noted that "[t]he parties had agreed

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on a sentence of 72 months as to Count One and 60 months as to

Count Two, for a total of 132 months of imprisonment, which f[ell]

below the [G]uideline[s] range reflected in the [P]re-[S]entence

[I]nvestigation [R]eport." The court concluded that "an

appropriate sentence [wa]s at the lower end of the [G]uideline[s]

range for Count One, plus 60 months for Count Two." The court

sentenced Llanos-Falero to "a term of 77 months as to Count One

and 60 months as to Count Two, to be served consecutive to each

other, for a total of 137 months." The sentencing judge further

ordered that "[t]he total amount of imprisonment w[ould] run

consecutively to any prior criminal conviction imposed by [Puerto

Rico]." The court also sentenced Llanos-Falero to two concurrent

five-year terms of supervised release. When the court asked

Llanos-Falero's counsel whether he had anything to add, counsel

stated: "Mr. Llanos is being sentenced to a little more than four

years [more] than his co-Defendants, [at least one of whom] also

planned the robbery with him. . . . In addition, he [would] not

be standing before this Court if he had not admitted [his guilt]

because that was the main evidence." When the sentencing judge

observed "This is something that you agreed to," counsel replied

"I am just asking for a concurrency with Count One with the [Puerto

Rico] charges." The court denied the request. This appeal

followed.

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 II.

Llanos-Falero raises three issues on appeal.2 He argues

that the district court violated Rule 11 of the Federal Rules of

Criminal Procedure by failing to inquire sufficiently into the

effect of Llanos-Falero's medication on his capacity to make an

intelligent and voluntary plea. See Fed. R. Crim. P. 11. He

further argues that the sentencing court committed a Rule 11

violation by failing to "warn[] or advise[] [him] that it had

discretion to impose the sentence to run concurrently or

consecutively." Finally, he argues that the sentence imposed is

unreasonable because of its difference in duration from the

sentence proposed in the plea agreement and the district court's

failure to take into account Llanos-Falero's admission of guilt

and the effect of depression on his actions. All three claims

fail. We address them in turn.

2 The government argues that we could dismiss this appeal
because Llanos-Falero "fails to explain why this appeal should be
entertained, given the existence of a waiver-of-appeal clause in
the plea agreement he signed." The government does concede,
however, that if Llanos-Falero had addressed the issue, he could
have made a reasonable argument that the waiver clause is
inapplicable, because it was contingent on his being sentenced in
accordance with the plea agreement, and the sentence imposed
departed from that recommendation. Llanos-Falero argues in turn
that he did not address the appellate waiver clause "because it is
patently inapplicable" in light of the sentence imposed, and so he
had no obligation to discuss it. We need not resolve this dispute.
Because the issues Llanos-Falero raises on appeal all fail, we
bypass the appellate-waiver issue and proceed to the merits.

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 The parties agree that we should review Llanos-Falero's

claim as to the district court's failure to inquire sufficiently

into his medications under a plain error standard. Under this

standard, Llanos-Falero must show "(1) that an error occurred (2)

which 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." United States v. Padilla, 415 F.3d 211, 218 (1st

Cir. 2005) (en banc) (quoting United States v. Duarte, 246 F.3d

56, 60 (1st Cir. 2001)). He cannot meet this rigorous standard.

First, Llanos-Falero makes little "attempt to meet the four-part

test" for plain error, and his sparse briefing risks waiver of the

issue. United States v. Pabon, 819 F.3d 26, 33 (1st Cir. 2016);

see also United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

But even if the claim were properly presented, it would fail.

Llanos-Falero relies on United States v. Parra-Ibañez,

936 F.2d 588 (1st Cir. 1991). In that case, during a change-of-

plea hearing, the district court discovered through questioning

that the defendant had been under treatment for a "mental or

emotional condition" and had taken Ativan, Halcion, and Restoril

within 24 hours of the hearing. Id. at 591. There, "[t]he

[district] court did not undertake to explore whether any of the

medications identified by [the defendant] affected his ability to

enter a voluntary and intelligent plea," id., although "at other

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points in the hearing, [the district court did] inquire as to [the

defendant's] general ability to comprehend the proceedings,"

including asking the defendant's counsel and the prosecution

whether they had any doubts as to the defendant's competence to

plead, id. at 591–92. Earlier, the court had held a competency

hearing and determined on the basis of psychiatric testimony that

although the defendant "had undergone psychiatric treatment and

had a history of drug abuse," he was competent to plead guilty.

Id. at 591.

We held that although the appellant had made no

objection, id. at 593, the district court had been "obligated by

Rule 11 to ask further questions," such as "what dosages [of

medication the defendant] had ingested and what effects, if any,

such medications might be likely to have on [the defendant's]

clear-headedness," id. at 596. We have clarified since that the

reversible error in Parra-Ibañez concerned the failure to make any

further inquiry whatsoever. See United States v. Kenney, 756 F.3d

36, 46–47 (1st Cir. 2014); Cody v. United States, 249 F.3d 47, 53

(1st Cir. 2001) (emphasizing that the sentencing judge in Parra-

Ibañez "failed to follow up with any question whatsoever about

whether the defendant's medication affected his competence to

plead"); Miranda-González v. United States, 181 F.3d 164, 166 (1st

Cir. 1999) (”The absolute failure to investigate further once

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apprised of the recent ingestion of drugs doomed the plea entered

by the defendant[] in Parra-Ibañez . . . .").

Here, the district court's colloquy with Llanos-Falero

was enough to satisfy Parra-Ibañez. The district court, upon

learning that Llanos-Falero was under medication taken twice daily

and that he had taken dosages that morning, immediately asked "Do

you feel okay today?" to which Llanos-Falero answered "Yes, I do,

sir"; and "Can you make a voluntary and knowing plea?" to which

Llanos-Falero responded "Yes, I can, sir." The colloquy reads

naturally as an inquiry into whether the medications Llanos-Falero

had taken before the hearing impaired his ability to plead. In

addition, after receiving assurances from Llanos-Falero's attorney

that the attorney had no doubts as to Llanos-Falero's competence

to plead, the sentencing judge concluded that Llanos-Falero was

competent "[b]ased on his answers to my question and his

appropriate demeanor."

We have held that similar questions, combined with

explicit findings as to the defendant's demeanor, meet the

standards of Rule 11. See United States v. Morrisette, 429 F.3d

318, 322–23 (1st Cir. 2005); see also United States v. Rodríguez-

León, 402 F.3d 17, 25 n.8 (1st Cir. 2005) (refusing to "second-

guess" district court's judgment based on defendant's demeanor).3

3 The fact that the district court did not inquire as to
the identity of the third medication does not change our result:

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Indeed, it is difficult to imagine plain error where, as here, the

district court, upon learning that the defendant had taken

medication, immediately (1) asked the defendant if he was all right

and received a response that he was; (2) received further

assurances from defendant's counsel -- ironically, the same

attorney who now raises this issue on appeal -- as to the

defendant's competence to plead; and then (3) articulated a

conclusion that the defendant was competent based on those

responses and the defendant's demeanor during the colloquy. The

colloquy here clearly met Rule 11's requirements.

The parties also agree that Llanos-Falero's claim that

the district court violated Rule 11 by not sufficiently informing

him of the consequences of his pleading guilty is subject to plain

error review. Specifically, Llanos-Falero contends that "[t]he

failure of the district court to warn, or advise, Llanos-Falero

that it had discretion to impose the sentence to run concurrently

or consecutively denied him the opportunity to make a knowing and

voluntary plea of guilt." As with his first claim, Llanos-Falero's

failure to elaborate clearly how this purported lapse by the

district court meets the four-part test for plain error risks

waiver. See Pabon, 819 F.3d at 33. Regardless, the claim fails.

"[T]here is certainly no settled rule that a hearing cannot proceed
unless precise names and quantities of drugs have been identified."
United States v. Savinon-Acosta, 232 F.3d 265, 269 (1st Cir. 2000);
see also Kenney, 756 F.3d at 47 (same).

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 Rule 11 requires the sentencing court to "advise the

defendant that the defendant has no right to withdraw the plea if

the court does not follow the recommendation or request." Fed. R.

Crim. P. 11(c)(3)(B). The district court made that advisement and

Llanos-Falero said that he understood it. Moreover, Llanos-

Falero's plea agreement also explained that concept and required

Llanos-Falero to acknowledge that even if the district court

sentenced him to the statutory maximums for Counts One and Two

(twenty-five years and life imprisonment, respectively), he could

not withdraw a guilty plea "for that reason alone." Given the

information in the plea agreement and the disclaimers made by the

district court at the change of plea hearing, both of which Llanos-

Falero acknowledged, Llanos-Falero cannot show "a reasonable

probability that, but for [the error claimed], the result . . .

would have been different." Padilla, 415 F.3d at 221 (first

alteration in original) (quoting United States v. Dominguez

Benitez, 542 U.S. 74, 82 (2004)).

Finally, Llanos-Falero challenges the sentence imposed

on the grounds that it is unreasonably longer than the sentence

proposed by the plea agreement and that it did not take into

account Llanos-Falero's admission of guilt or his assertion that

he was severely depressed when he participated in the robbery.

The parties dispute the applicable standard of review, but we need

not decide that issue, because Llanos-Falero's claim fails even

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under abuse of discretion review, which is the most appellant-

friendly standard that could apply.

The district court permissibly exercised its discretion

when it ordered Llanos-Falero's federal sentence to run

consecutively with his Puerto Rico sentences, resulting in a

sentence eight years longer than the one proposed in the plea

agreement. Both the Guidelines and our case law recognize that a

sentencing judge generally has the discretion to impose a new

sentence consecutively with a previous undischarged sentence. See

U.S.S.G. § 5G1.3(d); United States v. Carrasco-de-Jesús, 589 F.3d

22, 27 (1st Cir. 2009).

The district court imposed a sentence "at the lower end

of the [G]uideline[s] range for Count One, plus [the mandatory

minimum of] 60 months for Count Two," to be served consecutively

with Llanos-Falero's Puerto Rico sentences. There is no evidence

in the record that Llanos-Falero's Puerto Rico convictions for

possession of a submachine gun and for domestic violence have any

relation to his federal convictions related to the bank robbery,

nor does Llanos-Falero suggest any connection. At the final

sentencing hearing, the district court gave a lengthy recitation

of the details of the offenses, the findings in the Pre-Sentence

Investigation Report, and the rationale behind the Guidelines

calculation for Llanos-Falero's sentence, and concluded that the

Guidelines calculation in the Pre-Sentence Investigation Report

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"satisfactorily reflect[ed] the components of Mr. Llanos' offense

by considering its nature and circumstances," an inquiry that

plainly fulfilled its obligation to consider the factors

enumerated in 18 U.S.C. § 3553(a). The district court's decision

to impose the sentence consecutively with Llanos-Falero's Puerto

Rico sentences was arrived at through the proper procedure, was

entirely reasonable, and was clearly not an abuse of discretion.

Llanos-Falero's argument that the district court

committed reversible error because it "did not take into account

the fact that if [he] had not admitted [to] the crime, he would

have never been convicted and the fact that the crime was [the]

result of aberrant behavior caused by a severe depression" is

meritless. As with his other arguments, this claim is conclusory

and underdeveloped: Llanos-Falero gives no explanation as to why

and how these factors would have affected the district court's

calculus. And the record undercuts the claim. Llanos-Falero made

a partial confession shortly after being indicted, and he agreed

in his plea agreement that the government could obtain a conviction

"by physical and documentary evidence, including, but not limited

to testimony, photographs, videos, documents, toll records,

statements, and other physical evidence."

In any event, "these potentially mitigating factors were

before the district court at sentencing," and "[t]here is not the

slightest reason to think that the district court overlooked them."

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United States v. Cortés-Medina, 819 F.3d 566, 570–71 (1st Cir.

2016). The sentence imposed was well within the Guidelines range

and deserves "a presumption of reasonableness." Id. at 572

(quoting Rita v. United States, 551 U.S. 338, 347 (2007)). In

these circumstances, Llanos-Falero "must adduce fairly powerful

mitigating reasons and persuade us that the district court was

unreasonable in balancing pros and cons." Id. (quoting United

States v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011)). He has

not satisfied this burden.

III.

We affirm the district court's sentence.

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