United States v. Rodriguez-Adorno

United States Court of Appeals
For the First Circuit

No. 16-1114

UNITED STATES OF AMERICA,

Appellee,

v.

RUBÉN RODRÍGUEZ-ADORNO,

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

Howard, Chief Judge,
Selya and Barron, Circuit Judges.

Virginia G. Villa on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Thomas F. Klumper, Assistant United States
Attorney, Senior Appellate Counsel, on brief for appellee.

March 29, 2017
 SELYA, Circuit Judge. Defendant-appellant Rubén

Rodríguez-Adorno, represented by newly-appointed counsel, attempts

to reinvent his case on appeal. His appellate briefing is long on

rhetoric and short on facts, and none of the issues that he

advances was raised below. Discerning no plain error, we affirm

the challenged conviction and sentence.

I. BACKGROUND

We briefly rehearse the background and travel of the

case, drawing the facts from the change-of-plea colloquy, the

uncontested portions of the presentence investigation report (PSI

Report), and the sentencing transcript. See United States v.

Dávila-González, 595 F.3d 42, 45 (1st Cir. 2010); United States v.

Dietz, 950 F.2d 50, 51 (1st Cir. 1991).

For about eight years, beginning around 2002, the

appellant participated in a drug-trafficking conspiracy run out of

a public housing project in Carolina, Puerto Rico. The drug ring

dealt in a cornucopia of controlled substances, including crack

cocaine, powder cocaine, heroin, marijuana, and assorted

prescription medications. The appellant functioned mostly as a

retail seller, peddling drugs throughout the project and its

environs. At other times, he served as a lookout, standing watch

while his confederates completed sales.

In May of 2010, a federal grand jury returned a six-

count indictment charging 70 persons (including the appellant)

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with a laundry list of offenses. As relevant here, count one

charged the appellant and others with conspiring to possess with

intent to distribute a panoply of controlled substances within a

protected location. See 21 U.S.C. §§ 841(a)(1), 846, 860. Other

counts charged the appellant with aiding and abetting the

distribution of heroin, cocaine, and marijuana within 1,000 feet

of a public housing project and with conspiring to possess a

firearm and ammunition during and in relation to the commission of

drug-trafficking crimes.

The appellant was not arrested until June of 2014.

Roughly four months later, he entered into a written plea agreement

(the Agreement), agreeing to plead guilty to count one. As part

of the bargain, the government agreed to dismiss the other charges

against him.

In the Agreement, the parties stipulated that the

appellant possessed at least 500 grams, but less than 2,000 grams,

of cocaine, notwithstanding that the drug ring was alleged to have

distributed "multiple kilograms" of several different kinds of

drugs. As a result, the appellant faced a statutory maximum

sentence of eighty years in prison. See 21 U.S.C. §§ 841(b)(1)(B),

860(a).

The Agreement included a number of provisions bearing

upon the appellant's prospective sentence (acknowledging, though,

that the sentencing court was neither bound nor constrained by any

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of these provisions). Of particular pertinence for present

purposes, the parties suggested a total offense level of 25, but

they did not stipulate to any criminal history category (CHC).

Instead, they agreed that if the appellant's CHC proved to be I or

II, he could argue for a sentence as low as sixty months and the

government could argue for a sentence as high as seventy months.

If, however, the appellant's CHC equaled or exceeded III, both

parties would recommend a sentence at the low end of whatever

guideline sentencing range (GSR) resulted. Regardless of what his

CHC turned out to be, the appellant promised not to ask for a

sentence of less than sixty months.

At the change-of-plea hearing, the court began by

offering to read the charges. The appellant declined the offer,

indicating that he knew the nature of the charges against him.

The court nonetheless proceeded to describe the relevant charges

in detail and also described the manner and means by which the

appellant and his coconspirators had allegedly carried out their

illicit activities. The appellant acknowledged that he had acted

in the manner that the court portrayed and confirmed that he wished

to plead guilty to the conspiracy count.

The court reminded the appellant that it was not bound

by the Agreement but, rather, was obliged to make its own guideline

calculations and could impose "any sentence provided by the law."

The appellant confirmed that he understood the court's position.

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In due course, the court accepted the appellant's guilty plea and

ordered the preparation of the PSI Report.

When the final version of the PSI Report emerged, it

identified four clusters of convictions aggregating to more than

ten individual convictions, two of which the probation officer

thought sufficient to serve as predicates for a career offender

enhancement under the sentencing guidelines. With this in mind,

the report recommended that the court set the appellant's total

offense level at 31 and place him in CHC VI. These recommendations

yielded a GSR of 188-235 months.

At the disposition hearing, the government urged the

court to impose a 100-month term of immurement.1 By contrast, the

appellant sought a sharply variant sentence and urged the court to

impose a seventy-month term of immurement. The court, after

adopting the guideline calculations adumbrated in the PSI Report,

sentenced the appellant to a 235-month incarcerative term — a

sentence that was within, but at the top of, the GSR. In fashioning

this sentence, the court considered, inter alia, the appellant's

personal characteristics, health, criminal history, and the nature

1 Because the Agreement did not specifically mention the
career offender enhancement, the government chose not to take that
enhancement into account in arriving at its sentencing
recommendation. Consequently, it recommended a sentence at the
low end of a hypothetical GSR, that is, a GSR calculated without
regard to the appellant's career offender status.

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of his participation in the offense of conviction. This timely

appeal followed.

II. ANALYSIS

The appellant challenges both his conviction and his

sentence. We discuss only those claims that show some slight

promise and summarily reject the remainder of his asseverational

array.

A. Conviction.

The appellant's principal plaint with respect to his

conviction is that his guilty plea was not knowing and voluntary.

We start our examination of this plaint with first principles:

before accepting a defendant's guilty plea, a court must "inform

the defendant of, and determine that [he] understands, . . . the

nature of each charge." Fed. R. Crim. P. 11(b)(1)(G); see United

States v. Jones, 778 F.3d 375, 382 (1st Cir. 2015). This

obligation extends to "the charges against [the defendant] and the

spectrum of possible penalties to which an admission of guilt will

expose him." United States v. Jimenez, 512 F.3d 1, 3 (1st Cir.

2007).

Seizing upon this requirement, the appellant insists

that the district court twice erred at the change-of-plea hearing:

when it failed to read count one of the indictment verbatim and

when it failed to inform him properly about the consequences of

his plea. Because he did not raise either of these claims below,

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our review is for plain error. See United States v. Vonn, 535

U.S. 55, 59 (2002). Plain error review imposes a heavy burden.

Under that daunting standard, the appellant 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. Duarte, 246 F.3d 56,

60 (1st Cir. 2001).

The appellant's first claim does not withstand even

cursory inquiry: the sentencing court simply was not obliged to

read the indictment verbatim. As we have noted, "Rule 11 does not

require a district court either to spout a fixed catechism or to

use a set of magic words." Jones, 778 F.3d at 382. By the same

token, it does not require that the court explore in minute detail

every nook and cranny of the charging document. See id.; United

States v. Cruz-Rivera, 357 F.3d 10, 13 (1st Cir. 2004). Reading

an indictment may be sufficient to inform a defendant of the

charges against him, see Jones, 778 F.3d at 382, but it is by no

means the only avenue through which a sentencing court can achieve

that end, see United States v. Cotal-Crespo, 47 F.3d 1, 6 (1st

Cir. 1995).

The appellant's more weighty claim is that the court's

failure to read count one verbatim rendered him unable to

"understand the scope of the offense to which he . . . plead[ed]

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guilty." At bottom, though, this claim rests on revisionist

history: at the change-of-plea hearing, the appellant affirmed

several times that he understood the charges and intended to plead

guilty. A defendant's admission that the allegations against him

are true is ordinarily sufficient proof that he understands the

charges. See United States v. Dunfee, 821 F.3d 120, 128 (1st Cir.

2016) (noting that declarations in open court "carry a strong

presumption of verity" (quoting United States v. Santiago Miranda,

654 F.3d 130, 138 (1st Cir. 2011))); United States v. Smith, 511

F.3d 77, 85 (1st Cir. 2007) (similar).

This case falls within that general rule, not within the

long-odds exception to it. The relevant inquiry on appeal focuses

on the totality of the circumstances, including "the attributes of

the particular defendant, the nature of the specific offense, and

the complexity of the attendant circumstances." Jones, 778 F.3d

at 382 (quoting United States v. Ramos-Mejía, 721 F.3d 12, 15 (1st

Cir. 2013)). In this instance, the court informed the appellant

that he was charged with conspiring to "knowingly and intentionally

possess with intent to distribute controlled substances." It then

described the offense conduct in some detail (including particular

methods and locations) and identified the appellant's role within

the conspiracy. The appellant confirmed his understanding of those

charges. No more was exigible to render the appellant's plea

knowing and voluntary.

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 The appellant next contends that because neither the

Agreement nor the district court mentioned in haec verba that he

might be subject to the career offender enhancement,2 he did not

appreciate the consequences of his guilty plea. But this

contention mixes plums with pomegranates: the fact that the

appellant was not explicitly informed of the possibility of a

career offender enhancement does not mean that he was not

appropriately informed of the consequences of his plea. See

Jimenez, 512 F.3d at 3. After all, the Agreement specifically

contemplated that the appellant's CHC might be elevated and

established a sentencing framework that took account of that

possibility. The change-of-plea colloquy alluded to this

framework and, echoing the Agreement, warned the appellant that

the court would make its own guideline calculations and could

impose a sentence up to the statutory maximum for the offense of

conviction. These warnings were adequate. At this relatively

early stage in the process (that is, at the change-of-plea stage),

the court was not obligated to predict the future and "inform the

defendant . . . of the exact manner in which [his] future guideline

calculations may evolve." Jones, 778 F.3d at 383 (citing Fed. R.

2 The sentencing guidelines prescribe a career offender
enhancement when a defendant has "at least two prior felony
convictions of either a crime of violence or a controlled substance
offense." United States v. Montoya, 844 F.3d 63, 72 (1st Cir.
2016) (quoting USSG §4B1.1(a)). The enhancement serves both to
increase a defendant's offense level and to elevate his CHC. See
USSG §4B1.1(b).

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Crim. P. 11 advisory committee's note (1989 amendment) (discussing

same)). "Any other rule would put the cart before the horse,

requiring the court to get the functional equivalent of a full

[PSI Report] before it could accept a guilty plea." Id.

The appellant's final conviction-related claim has a

patina of plausibility. He points out that the court recited an

incorrect statutory maximum at the change-of-plea hearing. See

Fed. R. Crim. P. 11(b)(1)(H) (requiring court to notify defendant

of "any maximum possible penalty" that he faces). The error itself

is patent: at the change-of-plea hearing, the court told the

appellant that he faced a maximum possible sentence of forty years

when, in fact, he faced a maximum possible sentence of eighty

years. See 21 U.S.C. §§ 841(b)(1)(B), 860(a).

Although this error satisfies the first two elements of

the plain error test, it nonetheless falters at the third step:

the appellant has not shown that the error affected his substantial

rights. To make such a showing in this context, a defendant must

identify "a reasonable probability that but for some error, he

would not have pleaded guilty." United States v. Ocasio-Cancel,

727 F.3d 85, 89 (1st Cir. 2013) (citing, inter alia, United States

v. Davila, 133 S. Ct. 2139, 2147 (2013)). The appellant makes no

such argument, much less the requisite showing. At any rate, the

Agreement accurately stated the eighty-year statutory maximum for

the offense of conviction; and there is nothing in the record to

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suggest that the appellant — who was negotiating with the

government for a sentence well below the statutory maximum — was

influenced unfairly by the district court's slip of the tongue.3

See United States v. Romero-Galindez, 782 F.3d 63, 67-68 (1st Cir.

2015) (applying similar logic to hold that misstatement of term of

supervised release did not affect validity of defendant's plea).

To say more about the appellant's challenges to his

conviction would be to paint the lily. After examining all of the

appellant's arguments in this regard, it is readily apparent that

plain error is plainly absent.

B. Sentence.

The appellant's sentence-related arguments are no more

substantial. His briefing is muddled, and it is often unclear

whether he attempts to tie his claims to alleged procedural bevues

underlying his sentence or to its purported lack of substantive

reasonableness. In an abundance of caution, we address both

aspects.

In general, sentencing claims are addressed under a two-

step pavane. See United States v. Martin, 520 F.3d 87, 92 (1st

Cir. 2008). First, we address those claims that affect the

procedural integrity of the sentence. See id. Second, we address

3 We note that the PSI Report stated the correct statutory
maximum, and the appellant expressed no surprise upon receipt.
Nor did he seek to withdraw his guilty plea.

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any residual question as to the substantive reasonableness of the

sentence. See id.

In this case, the appellant accuses the district court

of neglecting to give proper consideration to the factors

enumerated in 18 U.S.C. § 3553(a). Specifically, he contends that

the court did not mull the nature and circumstances of the offense

of conviction, his history and characteristics, and the need to

avoid unwarranted sentencing disparity. These contentions lack

any semblance of force.

As a threshold matter, the standard of review looms as

a formidable obstacle. The appellant did not raise any such claims

below and, thus, appellate review is for plain error. See Jimenez,

512 F.3d at 3; Duarte, 246 F.3d at 60.

Here, moreover, the court stated at the disposition

hearing that it had "taken into consideration all of the

. . . 3553 factors." This statement itself is entitled to some

weight, see Dávila-González, 595 F.3d at 49, and the appellant

points to nothing in the record that serves to suggest the

contrary.

In any event, a sentencing court has broad discretion to

weigh and balance the section 3553(a) factors. See United States

v. Flores-Machicote, 706 F.3d 16, 23 (1st Cir. 2013). The court

may treat those factors as a whole: "it is not required to address

those factors, one by one, in some sort of rote incantation when

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explicating its sentencing decision." United States v. Dixon, 449

F.3d 194, 205 (1st Cir. 2006).

Against this backdrop, we turn to the appellant's more

particularized plaints. To begin, his suggestion that the

sentencing court misperceived the nature and circumstances of the

crime is woven out of whole cloth. While he claims that the court

did not understand the "exact nature" of his participation in the

conspiracy and, therefore, could not tailor a sentence to his role

in the offense, the record belies this claim. At sentencing, the

court recounted many pertinent details of the offense, including

the appellant's service as a seller, and his admission that he had

handled between 500 and 2,000 grams of crack cocaine in the course

of the enterprise. Seen in this light, the suggestion that the

court did not understand the nature and circumstances of the

offense appears groundless.

Relatedly, the appellant claims that the court

misconstrued statements in the PSI Report regarding his history

and characteristics, causing the court to give his difficult family

circumstances and struggles with addiction short shrift. This

claim, too, strains credulity. The record reflects that the court,

before pronouncing sentence, paid specific heed to the appellant's

family circumstances, history of substance abuse, and health, and

factored those considerations into its sentencing calculus. The

appellant's remonstrance, then, boils down to nothing more than a

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contention that the court did not give potentially mitigating

factors, such as the appellant's history and characteristics, the

weight that the appellant would have liked. We have stated, with

a regularity bordering on the monotonous, that such qualitative

judgments fall comfortably within a sentencing court's purview.

See, e.g., United States v. Bermúdez-Meléndez, 827 F.3d 160, 165

(1st Cir. 2016); Flores-Machicote, 706 F.3d at 23. Accordingly,

the appellant's quarrel with this aspect of the sentencing court's

rationale falls short of a showing of error (plain or otherwise).

The appellant's claim of sentencing disparity is equally

unpersuasive. Refined to bare essence, his argument is that the

court failed to consider that many of his codefendants received

lesser sentences. This oversight, he says, transgressed the

congressional directive to "avoid unwarranted sentence disparities

among defendants with similar records who have been found guilty

of similar conduct." 18 U.S.C. § 3553(a)(6). This claim is doubly

flawed.

For one thing, when Congress enacted section 3553(a)(6),

it was concerned "mainly with minimization of disparities among

defendants nationally rather than with disparities among

codefendants engaged in a common conspiracy."4 United States v.

4 To be sure, the appellant makes a passing suggestion in his
reply brief that his sentence is greater "than the majority of
defendants convicted of drug offenses who are Career Offenders."
This suggestion, though, is both conclusory and undeveloped. At

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Floyd, 740 F.3d 22, 39 (1st Cir. 2014) (quoting United States v.

Vargas, 560 F.3d 45, 52 (1st Cir. 2009)).

For another thing, the appellant has not shown that any

of his proposed comparators — an undefined subset of his

coconspirators — were similarly situated to him. Although his

brief contains a barebones list of the various coconspirators and

their sentences, the appellant comments upon only one particular

coconspirator — a coconspirator who allegedly played a more

significant role in the conspiracy but received a lesser sentence.

However, he presents no information about this coconspirator's

specific criminal involvement, his criminal history, his career

offender status, or his cooperation (if any) with the government.

A credible claim of sentencing disparity requires that

the proponent furnish the court with enough relevant information

to permit a determination that he and his proposed comparators are

similarly situated. See United States v. Reyes-Santiago, 804 F.3d

453, 467 (1st Cir. 2015). That information must enable the court

to "compare apples to apples." Id. Here, however, the appellant

utterly failed to lay any foundation on which to build a claim of

sentencing disparity. See United States v. Demers, 842 F.3d 8, 15

(1st Cir. 2016).

any rate, the appellant does not make any effort to show that the
offenders to whom this suggestion refers were similarly situated.

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 Finally, we address the appellant's somewhat amorphous

claim that his sentence is substantively unreasonable.5 The

"linchpin" of substantive reasonableness review is an assessment

of whether the sentencing court supplied a "plausible sentencing

rationale" and reached a "defensible result." Martin, 520 F.3d at

96. In the course of such a review, an appellate court is generally

not at liberty to second-guess a sentencing court's reasoned

judgments. See United States v. Clogston, 662 F.3d 588, 593 (1st

Cir. 2011). After all, there is typically not a single reasonable

sentence but, rather, a broad range of reasonable sentences that

can apply in any given case. See Martin, 520 F.3d at 92.

Even though the appellant did not raise this claim below,

we assume — favorably to the appellant — that our review is for

abuse of discretion. See United States v. Pérez, 819 F.3d 541,

547 (1st Cir.), cert. denied, 137 S. Ct. 111 (2016); United States

v. Ruiz-Huertas, 792 F.3d 223, 228 & n.4 (1st Cir.), cert. denied,

136 S. Ct. 258 (2015). We discern none here.

Before imposing sentence, the district court recounted

the appellant's extensive criminal history, which included a

number of violent crimes, specific threats to individuals, and

weapons offenses.6 The court observed that, even though the

5To the extent (if at all) that this claim depends upon the
appellant's plaint about sentencing disparity, it fails for the
reasons previously stated.
6 The appellant takes umbrage at the district court's
description of several of his prior offenses. Although the court's

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defendant had been convicted of and served time for several

offenses, he continued to engage in criminal conduct.

Consequently, the court levied a sentence at the high end of the

GSR to protect the public, deter the appellant, and provide condign

punishment. This was doubtless a plausible sentencing rationale.

So, too, the court reached a defensible result. Within-

guidelines sentences are entitled to a presumption of

reasonableness, see Rita v. United States, 551 U.S. 338, 347

(2007), and a defendant who seeks to challenge such a sentence

bears a heavy burden, see United States v. Pelletier, 469 F.3d

194, 204 (1st Cir. 2006). The appellant has not carried that

burden: the nature of his crime, combined with his extensive

criminal history, made it reasonable for the court to look to the

upper reaches of the GSR. The sentence imposed, though stiff, is

within the wide universe of substantively reasonable sentences.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

the appellant's conviction and sentence are

Affirmed.

language could have been more precise, any misconception about the
peripheral details about which the appellant complains was not
central to its analysis. Hence, any error in this regard was
harmless.

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