United States v. Bauzo-Santiago

United States Court of Appeals
For the First Circuit

No. 15-1280

UNITED STATES OF AMERICA,

Appellee,

v.

JAIME BAUZÓ-SANTIAGO,

Defendant-Appellant.

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

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

Before

Torruella, Thompson, and Barron,
Circuit Judges.

Jorge E. Rivera-Ortíz for appellant.
Mainon A. Schwartz, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Nelson Pérez-Sosa, Assistant United States
Attorney, were on brief, for appellee.

August 8, 2017
 THOMPSON, Circuit Judge. The case up today presents us

with a cautionary tale of what not to say and who not to say it

to, and the consequential aftermath which can flow from such a

slip-up. Here's what happened.

BACKGROUND1

On July 24, 2012, a Puerto Rico Police officer out on

patrol watched Bauzó pull a pistol out of the waistband of his

pants and pitch it into a black SUV. The officer approached Bauzó

and asked him whether he had a license to carry a firearm. When

Bauzó said no (spoiler alert: this isn't "THE" slip-up; read on)

the officer walked over to the SUV, opened the door, and spotted

the gun on the floor of the driver's side of the car. The officer

seized the gun and arrested Bauzó. At the police station, an

officer read Bauzó his rights. Then (spoiler alert: this isn't

"IT" either) Bauzó admitted he was carrying the pistol for his

protection (he sold jewelry and clothing).

At some point before trial would begin, Bauzó (via his

court-appointed attorneys) and the government discussed the

1 Favorably to Bauzó, and because our presentation of the
facts does not impact the outcome of his appeal, we present the
few facts necessary to understand this case in a balanced manner.
See, e.g., United States v. Gonsalves, 859 F.3d 95, 99 n.1 (1st
Cir. 2017) (citing United States v. Rodríguez-Soler, 773 F.3d 289,
290 (1st Cir. 2014) and United States v. Burgos-Montes, 786 F.3d
92, 99 (1st Cir. 2015)) (taking a similar tack in similar
circumstances and noting lack of clarity on how we present facts
in cases where defendant does not challenge the sufficiency of the
evidence).

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possibility of a guilty plea. But apparently things weren't going

so well between Bauzó and his lawyers. In an ex-parte motion to

withdraw, Bauzó's attorneys stated, "[Bauzó] believes that his

counsels have not worked diligently in negotiating a plea agreement

and he does not trust their professional opinions"; his "animosity

toward them is evident." The motion went on, the attorneys had

visited Bauzó in prison on March 7 and 11, 2014, "intend[ing] to

discuss separate plea offers extended by the government," but Bauzó

"completely discarded the offers tendered by counsels." The

attorneys also complained that Bauzó had no interest in helping

them prepare for trial. Bauzó said he had sent a motion to the

trial court via the prison mail system but, the attorneys

continued, the motion's "content is unknown."

On May 20, 2014, a hand-written letter (reader--this is

"THE SLIP") postmarked March 12, 2014, was entered on Bauzó's

docket as a motion to appoint counsel. Bauzó was identified as

the author, and the letter was addressed to Judge Carmen Consuelo

Cerezo (the judge presiding over Bauzó's case at the time). Here's

what that letter said:

I have a situation with my lawyer . . . he has no
interest in my case [and] I do not have good
communications with the lawyer . . . Because of
these reasons I would like to ask of the Honorable
Judge to change counsel . . . if possible. I want
to take advantage to notify you that I, Jaime Bauzó
Santiago . . . have always accepted my
responsibility as to guilt, the only thing that I

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 ask of you is that the time for the weapons law
crime be a reasonable one.

The letter was signed "Jaime Bauzó Santiago."

The trial court granted Bauzó's now-ex lawyers' ex-parte

motion to withdraw and appointed new counsel on May 28, 2014.

Trial Proceedings

Fast forward four months. No plea deal had been reached,

and the government (in preparation for trial) added the March 12th

letter to its trial exhibit list. Bauzó filed a motion in limine

to exclude the letter "purportedly sent" by him--he claimed it was

a statement made during plea negotiations under Federal Rule of

Evidence 410, its admission would be unfairly prejudicial under

Rule 403, and that under either rule the government should not be

allowed to introduce the letter. The court denied his motion.

At trial, the government moved to admit the letter into

evidence as exhibit 3. By way of foundation, an agent with the

Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") who

worked on Bauzó's case testified that he went to the clerk's

office, requested a copy of Docket Entry 94, and received Bauzó's

letter. Bauzó objected and asked the government to explain how it

intended to authenticate the letter as a document written by him.

The government countered that it was for "the jury to decide and

give the weight they can give to that handwriting and statement

admission." The court noted that the letter bore Bauzó's

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signature, overruled his objection, and permitted the government

to admit the letter. The admitted version, redacted to remove any

reference to plea bargaining or the dispute between Bauzó and his

lawyers, read in relevant part as follows: "I want to take

advantage to notify you that I, Jaime Bauzó Santiago . . . have

always accepted my responsibility as to guilt for the weapons law

crime." On cross-examination, the agent said he did not know who

wrote the letter, or whether the signature and handwriting were

authentic--he just picked it up at the clerk's office. Then at

the government's request--and with no objection from Bauzó--the

court took judicial notice of the fact that "Judge Cerezo was the

original judge assigned to this case . . . and that this document,

docket number 94, is still part of the docket of the case." Later,

the government introduced a copy of the Miranda warnings that Bauzó

signed at the station. A second ATF agent testified that she

witnessed Bauzó sign the warnings and write his name.

The government put on other evidence in its case against

Bauzó that is relevant to our task here on appeal. Most notably,

the jury heard testimony from the Puerto Rico Police officer who

saw Bauzó toss the gun, who arrested Bauzó, and to whom Bauzó

admitted that he did not have a license for the gun.

After the close of the evidence and the jury instructions

(which we address at greater length below), the jury convicted

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Bauzó of being a felon in possession of a firearm in violation of

18 U.S.C. § 922(g)(1).

Sentencing

Bauzó was sentenced on February 12, 2015. The Pre-

Sentence Investigation Report ("PSR") determined that Bauzó

qualified as a career criminal under the Armed Career Criminal Act

("ACCA") because he had at least three violent felony convictions.

We will get into the particulars of his sentence later; for now we

note only that the court did not indicate which of Bauzó's prior

convictions were predicates, and that Bauzó did not object to his

career-offender categorization. As a result, Bauzó was subject to

a mandatory-minimum sentence of fifteen years and a career-

offender Guidelines sentencing enhancement. Ultimately, he was

sentenced to fifteen years and eight months in prison.

Bauzó appealed, and that brings us up to today.

ANALYSIS

Here on appeal, Bauzó raises three challenges to what

happened below. First, he argues that the district court erred by

admitting his letter under Rule 410. Second, he challenges the

district court's end-of-trial judicial-notice jury instruction,

claiming it made the jury think he wrote the letter (and so

admitted to doing the crime he was on trial for committing). And

finally, he says the court erred in finding that he qualified as

a career criminal. We review each of these challenges in turn,

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but finding none have merit, we reject them all and affirm his

sentence.

The Letter

Bauzó argues that the district court erred by admitting

his letter under Rule 410, which prohibits the use of certain plea-

bargain-related statements against a defendant in later

proceedings. Specifically, Bauzó claims that the letter's

admission was contrary to Rule 410's purpose of encouraging plea

bargaining, so the district court erred by letting the government

use it against him at trial as evidence of his guilt. The

government disagrees with Bauzó about the purpose of the rule, and

further contends that because the letter is admissible under the

rule's plain language, the court did not err in admitting it.

We review a district court's evidentiary rulings for

abuse of discretion. Burgos-Montes, 786 F.3d at 114. This ruling

rested on an interpretation of law, so we review that de novo.

Id. We find that the district court did not abuse its discretion

in admitting the letter. Here is why Bauzó's arguments don't hold

water.2

2We note that Bauzó did not challenge the act that brought
the letter to the government's attention to begin with--the
district court's entry of the letter on the public docket. The
defendant's apparent purpose in writing the letter was to ask for
Judge Cerezo's help in securing adequate representation, so making
this letter available to the government--then permitting the
government to use the letter against Bauzó--may undermine Bauzó's
Sixth Amendment right to representation. Cf. United States v.

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 The Federal Rules of Evidence are congressional

enactments, so we apply the traditional tools of statutory

interpretation to determine their meaning and scope. Beech

Aircraft Corp. v. Rainey, 488 U.S. 153, 163 (1988). That means we

start with the text of the rule. Id. We must give effect to the

rule's plain meaning, "unless it would produce an absurd result or

one manifestly at odds with the [rule's] intended effect." Colón-

Marrero v. Vélez, 813 F.3d 1, 11 (1st Cir. 2016) (quoting Arnold

v. United Parcel Serv., Inc., 136 F.3d 854, 858 (1st Cir. 1998)).

Indeed, "resort to legislative history typically is inappropriate

when the meaning of a [rule] is plainly discernible from its

words." United States v. Rivera, 131 F.3d 222, 226 (1st Cir. 1997)

(en banc). In considering the meaning of the text, we read a

legislative enactment as a whole, "since the meaning of statutory

language, plain or not, depends on context." Id. at 225 (quoting

Conroy v. Aniskoff, 507 U.S. 511, 515 (1993)). We consider the

rule's history, too, bearing in mind that we must read an amendment

to mean that the legislature intended a substantive change in the

law. Ross v. Blake, 136 S. Ct. 1850, 1858 (2016).

Beverly, 993 F.2d 1531, at *1 (1st Cir. 1993); United States v.
Aguirre, 605 F.3d 351, 358 (6th Cir. 2010) (holding that where a
defendant "has disclosed truthful information to demonstrate
financial inability [to] obtain counsel under the Sixth Amendment,
that information may not thereafter be admitted against him at
trial on the issue of guilt"). But again, Bauzó raised no such
argument on appeal, so we leave it at that.

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 So, we start with the text of the relevant portion of

Rule 410, which prohibits the government from using, in a criminal

case against a defendant who participated in plea discussions, "a

statement made during plea discussions with an attorney for the

prosecuting authority if the discussions did not result in a guilty

plea or they resulted in a later-withdrawn guilty plea." Fed. R.

Evid. 410(a)(4). Bauzó rightly concedes that the plain language

of the rule did not require the judge to exclude his letter--after

all, Bauzó wrote it to the trial judge, not to "an attorney for

the prosecuting authority" as the rule plainly requires. As the

government points out, we've been sticklers about that requirement

in the past. Rule 410 "has been consistently interpreted by the

courts to protect only those statements made by a defendant to the

prosecuting attorney [herself]." United States v. Pérez-Franco,

873 F.2d 455, 461 (1st Cir. 1989) (collecting cases finding plea-

related statements to non-prosecutors admissible); see United

States v. Aponte-Suárez, 905 F.2d 483, 493 (1st Cir. 1990)

("[Defendant's] statement was made to government agents, not to an

attorney. That alone removes the statement from the purview of

Rule 410[a](4)."). Ordinarily that would be the end of the

inquiry.

But, Bauzó argues that the text is not determinative

because the admission of his letter under this plain-meaning

interpretation undermines the very purpose the rule was written to

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serve. His contention obliges us to consider the history of the

rule to determine "whether there is a clearly expressed legislative

intention contrary to the [rule's] language, which would require

[the court] to question the strong presumption that Congress

expresses its intent through the language it chooses." Rivera,

131 F.3d at 226 (second alteration in original) (citation and

internal quotation marks omitted). As Bauzó points out, the

purpose of Rule 410 is "the promotion of [the] disposition of

criminal cases by compromise . . . . [Indeed,] [e]ffective criminal

law administration in many localities would hardly be possible if

a large proportion of the charges were not disposed of by such

compromises." Fed. R. Evid. 410 advisory committee's note to 1972

proposed rules (citation omitted). Plea bargaining is "essential

to the functioning of the criminal justice system[, and]

'[p]roperly administered . . . it is to be encouraged.'" United

States v. Penta, 898 F.2d 815, 817 (1st Cir. 1990) (quoting

Santobello v. New York, 404 U.S. 257, 260 (1971)). Rule 410's

exclusionary rule furthers the purpose of encouraging plea

negotiations by shielding plea-seeking defendants from one risk of

dishing to the other side--after all, if a defendant thought his

plea-bargain pillow talk with the prosecutor would be turned

against him in a later prosecution, that defendant might just keep

his lips zipped. See id. (discussing analogous provision of Fed.

R. Crim. P. 11); Fed. R. Crim. P. 11 advisory committee's note to

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1979 amendments (purpose of Rule 410 is "to permit the unrestrained

candor which produces effective plea discussions");3 United States

v. Stirling, 571 F.2d 708, 731 (2d Cir. 1978) ("[F]or plea

bargaining to work effectively and fairly, a defendant must be

free to negotiate without fear that his statements will later be

used against him." (quoting Herman, 544 F.2d at 796)).

Consistent with Bauzó's proposed reading of Rule 410's

purpose, the rule once provided that "an offer to plead guilty

. . . to the crime charged or any other crime, or . . . statements

made in connection with . . . [such a] plea[] or offer[], is not

admissible in any civil or criminal action . . . against the person

who made the plea or offer." Act of Jan. 2, 1975, Pub. L. No. 93-

595, 88 Stat. 1926; see Herman, 544 F.2d at 795 n.7 (discussing

statutory history of the rule between 1975 and 1976). Bauzó's

letter may well have been excluded under this version of the rule--

indeed, his letter may well be inadmissible under the pre-

amendment-410 analogues in effect in some states today. See, e.g.,

3We refer to the history of Federal Rule of Evidence 410 and
Federal Rule of Criminal Procedure 11 interchangeably here
because, as originally enacted, Rule 410's provisions were to be
"superseded by any inconsistent amendment" to Rule 11, United
States v. Herman, 544 F.2d 791, 795 n.7 (5th Cir. 1977), superseded
by Fed. R. Crim. P. 11(e) as recognized in Penta, 898 F.2d at 818,
and for many years the two were "substantively identical," United
States v. Mezzanatto, 513 U.S. 196, 200 (1995). See also Pérez-
Franco, 873 F.2d at 460 n.6 (noting that Rule 410 conforms to Rule
11). Today, Rule 11 simply provides that the admissibility of
plea-related statements is governed by Rule 410. Fed. R. Crim. P.
11(f).

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State v. Brown, 792 N.W.2d 815, 823 (Minn. 2011) (defendant's

response to judge's questions about his refusal to accept

government's plea deal inadmissible "statement made in connection

with an offer to plead guilty" under state rule identical to pre-

amendment 410); Hill v. State, 768 So. 2d 518, 520 (Fla. Dist. Ct.

App. 2000) (defendant's letter to judge acknowledging wrongdoing,

offering to plead guilty held inadmissible under Fla. Stat. Ann.

§ 90.410 ("an offer to plead guilty" and "statements made in

connection with any of the pleas or offers" are "inadmissible in

any civil or criminal proceeding")); People v. Magana, 22 Cal.

Rptr. 2d 59, 61 (Ct. App. 1993) (observing that state rule barring

evidence of defendant's offers to plead guilty has applied to

affidavit submitted to trial court).

But here's the rub: the rule was amended in 1979 to

clarify that it only excludes statements made to "an attorney for

the prosecuting authority." Fed. R. Evid. 410(a)(4); see id.

advisory committee's note to 1979 amendments (rule changed to

mirror Fed. R. Crim. P. 11). The rule's 1979 amendments were

designed to effectuate its purpose of producing "effective plea

discussions between the 'attorney for the government and the

attorney for the defendant or the defendant when acting pro se'"--

a purpose the advisory committee thought was overshot by the

"broader rule of inadmissibility" derived from a "literal reading

of the language" of the original rule. Fed. R. Crim. P. 11 advisory

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committee's note to 1979 amendments (emphasis added); see 2

McCormick on Evid. § 266 (Kenneth S. Broun, et al. eds., 7th ed.

2016); cf. Olsen v. Correiro, 189 F.3d 52, 60 (1st Cir. 1999)

(reach of Rule 410's plea-promotion policy is limited because "the

plain language of the rule reflects Congress's balancing of the

promotion of compromise against the admission of relevant

evidence"). The substance of Rule 410 hasn't changed since. These

advisory committee notes confirm that the "legislative intention"

behind Rule 410 is reflected in the "language [Congress chose]"--

to exclude only statements made to an attorney for the prosecuting

authority. Rivera, 131 F.3d at 226 (citation omitted). The

amendment was designed to limit the scope of the rule by describing

who the statement must be made to, and remember, we must read this

amendment to create a substantive change in the law. See Blake,

136 S. Ct. at 1858. So, the 1979 amendments doubly foreclose

Bauzó's argument.

One more thing convinces us that Bauzó's letter to the

judge is not covered by Rule 410 (though at this point we doubt we

need say more). Federal Rule of Criminal Procedure 11(c)(1) tells

us what role the trial judge can have in plea negotiations:

absolutely none. Although it was once a "common practice for a

judge to participate in plea discussions," Rule 11 was amended in

1974 to prohibit the practice. Fed. R. Crim. P. 11 advisory

committee's note to 1974 amendments. That means that the

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prohibition was already part of Rule 11 when it was amended in

1979 to protect only plea-related statements to the prosecutor.

See id. And remember, Rule 410 was amended to bring it into line

with the text of Rule 11. Rule 11 (circa 1979) read as a whole,

plus the parallel amendments to Rule 410, equal one more reason to

believe that Rule 410 today does not exclude plea-related

statements made to the judge. And with that, Bauzó's policy

argument hits a dead end.

Bauzó raises two more points about Rule 410 that we

address before we move on. First, he claims that United States v.

Gotti, 457 F. Supp. 2d 395, 402 (S.D.N.Y. 2006), supports his Rule

410 argument and dictates that the letter should be excluded--but

we disagree. In Gotti, the court excluded the titular mob boss's

jailhouse statements that he wanted to "cop out" to the charges

against him--without "saying I did it"--under Rule 403. Id. at

400, 402. (For those not in-the-know, Federal Rule of Evidence

403 permits a trial court to exclude otherwise-relevant evidence

"if its probative value is substantially outweighed" by the danger

of "unfair prejudice" to the movant.) But Gotti does not help

Bauzó at all because the Gotti court excluded the statements under

Rule 403, and Bauzó makes no 403-based argument here on appeal.

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Of course, arguments not raised in the briefs are waived.4 See

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

Bauzó also makes a backup argument--fairness dictates

that the letter be excluded. This court has previously excluded

a defendant's plea-related confession because fairness required

it, even though the confession fell outside the letter of Rule

410: in United States v. Ventura-Cruel, 356 F.3d 55, 62-63 (1st

Cir. 2003), the defendant wrote a confession to a probation officer

to mitigate his sentence after the district court accepted his

guilty plea, but when the court later rejected that plea it allowed

the government to introduce the letter at trial as evidence of the

4
Indeed, even if Bauzó had pressed a 403-based argument on
appeal, his case is not in lockstep with Gotti. The Gotti court
found the statements had essentially zero probative value as to
Gotti's guilt because they were "extraordinarily vague, lacking
any detailed admission of criminal conduct" and "undercut by
Gotti's denials that he committed the alleged crimes." Id. Plus,
the evidence was cumulative of other prosecution evidence that the
charges were weighing on Gotti's mind (the government's other
purported reason for admitting the statements). Id. As to
prejudice, the Gotti court thought Rule 410's policy in favor of
encouraging plea agreements weighed against admitting the
statements because it might allow the jury to unfairly infer the
defendant's guilt from his interest in "copping" a plea. Id.
Bauzó seizes onto this policy point, arguing that here the jury
was permitted to infer his guilt from his interest in pleading
guilty, too. But Bauzó's case is distinguishable. Unlike Gotti,
who expressed interest in a plea and disclaimed any wrongdoing in
the same breath, Bauzó accepted responsibility for his crime in
the letter. So the jury is not inferring guilt simply from his
interest in pleading guilty, but from his admission to the charged
crime. In other words, unlike the statements in Gotti, Bauzó's
have some probative value. But again, Bauzó made no 403 argument
on appeal, so we give no opinion as to the merits of a hypothetical
403 claim.

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defendant's guilt. There the fairness problem was clear-cut:

after the court rejected defendant's plea, defendant was "deprived

of the benefit of his plea bargain but the government was permitted

to use his statements made in reliance on the bargain against him

at his subsequent trial" nonetheless. Id. at 63-64. The same

fairness concern does not come into play here because Bauzó was

not lured into confessing with assurances that it would lead to a

reduced sentence--he seems to have sent the letter completely of

his own volition. Ventura-Cruel is simply not on Bauzó's level.

And Bauzó gives us no other reason to believe that it was unfair

for the court to admit the letter, except that the letter may have

helped convince the jury of his guilt.5 But that type of prejudice

is not sufficient reason to exclude an otherwise lawfully obtained

and voluntarily given confession. See United States v. Munoz, 36

F.3d 1229, 1233 (1st Cir. 1994).

To sum up, the policy of the rule, if it is indeed

different from what is expressed in the text of the rule, does not

extend to require the exclusion of Bauzó's plea-seeking letter to

the judge.6 Nor does Bauzó's fairness argument give us reason to

5 Indeed, when pressed on his fairness rationale at oral
argument, Bauzó repeatedly circled back around to the prejudicial
effect of the confession. And we note here that Bauzó's letter
was not the only confession before the jury--the arresting officer
also testified that he saw Bauzó with the gun, and that Bauzó
admitted to carrying the gun.
6 The only federal authorities interpreting this prong of the
federal rule that we are aware of seem to have reached the same

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find that the letter should be excluded. So as is par for the

course in matters of statutory interpretation, the plain language

and statutory history of Rule 410 tell us what we need to know:

Bauzó's letter is admissible under the version of Rule 410 in

effect today, and so the district court did not abuse its

discretion in admitting the letter at trial.7

The Jury Instruction

Bauzó's next challenge is to the jury instruction on the

issue of judicial notice, which he claims is clearly erroneous and

so prejudicial that he is entitled to a new trial. Here's the

challenged instruction:

Instruction #5: Judicial Notice

I believe that the fact that Judge Cerezo was the
previous judge assigned to this case, that
proceedings were heard before her and before
Magistrate Judge Vélez-Rivé, that the transcripts

conclusion as we do, albeit in passing. United States v. Schuster,
706 F.3d 800, 805 n.3 (7th Cir. 2013) (finding defendant's letter
to judge, in which he admitted to crime but explained how bad he
felt about it in the hopes of mitigating his sentence, was not
inadmissible under Rule 410 because letter not a statement made in
plea discussions with the prosecutor); see also United States v.
Fernandez Martinez, 317 F. App'x 929, 938 (11th Cir. 2009) (letter
to magistrate judge not inadmissible under Rule 410 because court
cannot participate in plea discussions, magistrate not a
prosecutor, and plea discussions not ongoing).
7 Bauzó also contends that the district court erred in finding
he was not engaged in plea discussions at the time he sent the
letter. The letter's addressee--Judge Cerezo--is the dispositive
point here, even if Bauzó was engaged in plea negotiations with
the government at the time, so we need not address the argument.
See Aponte-Suárez, 905 F.2d at 493 (taking the same tack under
similar circumstances).

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 used during the trial are official transcripts and
that the document admitted as government exhibit 3
is filed in the case as docket number 94 can be so
accurately and readily determined that it cannot be
reasonably disputed. You may, therefore,
reasonably treat these facts as proven, even though
no evidence has been presented on these points. As
with any fact, however, the final decision whether
or not to accept them is for you to make. You are
not required to agree with me.

Zeroing in on the phrase "can be so accurately and

readily determined that it cannot be reasonably disputed," in

conjunction with the mention of the letter, Bauzó says the

instruction gave the jury the impression that the judge thought

Bauzó penned the letter and that its contents could not be

reasonably disputed. So, he continues, the instruction improperly

directed the finding of a contested fact--whether Bauzó wrote the

letter accepting responsibility for the crime he was on trial for

committing--and thereby deprived him of a fair trial. The

government counters that Bauzó is misconstruing the instruction:

taken as a whole, the instruction simply explains that the judge

believed the letter was filed on the docket. And that, the

government continues, is not an improper instruction. We agree.

Bauzó did not object to the instruction at trial, so we

review his claim for plain error.8 "When applying the plain error

8
So to prevail on this claim, Bauzó "must show: (1) that an
error occurred (2) which was clear or obvious and which not only
(3) affected [his] substantial rights, but also (4) seriously
impaired the fairness, integrity, or public reputation of judicial
proceedings." United States v. Brown, 669 F.3d 10, 28 (1st Cir.

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standard in the context of jury instructions, [this court] look[s]

at the instructions as a whole to ascertain the extent to which

they adequately explain the law without confusing or misleading

the jury." United States v. Candelario-Santana, 834 F.3d 8, 27

(1st Cir. 2016) (alterations in original) (emphasis added)

(quoting United States v. Fermin, 771 F.3d 71, 80 (1st Cir. 2014)),

cert. denied, 137 S. Ct. 1112 (2017).

This instruction adequately explains the law. A trial

court judge "may judicially notice a fact that is not subject to

reasonable dispute because it . . . can be accurately and readily

determined from sources whose accuracy cannot reasonably be

questioned." Fed. R. Evid. 201(b)(2). And, if a judge takes

judicial notice of a fact in a criminal case, it "must instruct

the jury that it may or may not accept the noticed fact as

conclusive." Id. 201(f). Bauzó himself agrees that the fact of

the letter's docketing is a proper subject of judicial notice.9

2012) (quoting United States v. Fisher, 494 F.3d 5, 9 (1st Cir.
2007)).
9
Indeed, Bauzó's backup argument is that the instruction was
unnecessary because it was already given once before in what he
describes as a more "neutral" way: "Ladies and Gentlemen of the
Jury, I take judicial notice that Judge Cerezo was the original
judge assigned to this case, it was then transferred to me, and
that this document, docket number 94, is still a part of the docket
of the case." Of course, this instruction does not explain to the
jury the effect of judicial notice, nor does it explain what Rule
201 says a jury instruction must--that the jury need not accept
the noticed fact as true. See Fed. R. Evid. 201(f). In any case,
Bauzó does not explain why this mid-trial statement makes the end-
of-trial instructions erroneous, and undeveloped arguments are

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See Kowalski v. Gagne, 914 F.2d 299, 305 (1st Cir. 1990) (courts

may take judicial notice of relevant court records). The

instruction, drawn from the First Circuit's pattern jury

instructions, mirrors the language of the rule and accurately

states the law. See Pattern Criminal Jury Instructions for the

District Courts of the First Circuit § 2.02; United States v.

Bello, 194 F.3d 18, 25-26 (1st Cir. 1999). Bauzó does not argue

otherwise.

What's more, the instructions read as a whole do not

support Bauzó's interpretation. The instruction at issue tells

the jury that the letter was entered on the district court's docket

as entry ninety-four. And, the jury could treat that fact--the

letter's docketing--as proven if it wanted to. The other facts

noticed in the instruction--all procedural matters like the name

of the previous district court judge and the fact that the

transcripts were official--confirm this reading. The instruction

says nothing about the content of the letter, nor can it reasonably

be understood as an instruction that the contents of the letter

are true. Accordingly, we cannot agree with Bauzó's contention

that the instruction directed the jury to find Bauzó authored the

letter, or that the instruction deprived him of a fair trial. Cf.

Bello, 194 F.3d at 26 (judicial-notice instructions, even as to

waived. Zannino, 895 F.2d at 17.

- 20 -
elements of the crime, pose no constitutional concern where jury

instructed that it need not accept noticed element-establishing

fact as conclusive).

The instruction adequately explains the law and is not

confusing or misleading. The instruction was not error--let alone

a plain or obvious one--so we reject this claim, too.

The Sentence

In his final point on appeal, Bauzó challenges his

sentence. Bauzó's PSR found--and the parties agreed--that he had

at least three career-offender predicate convictions, so he was

sentenced as a career offender under 18 U.S.C. § 924(e)(1).10 Bauzó

now contends that the sentencing court erred in counting his prior

convictions as violent felonies. The government argues that

Bauzó's arguments are waived, but that even if they are not his

claims cannot survive plain-error review. We address the waiver

question first, then the parties' arguments about Bauzó's

predicates.

10 Bauzó was also subject to a Guidelines sentencing
enhancement because he had "at least two prior felony convictions
of . . . a crime of violence." U.S. Sentencing Guidelines Manual
§ 4B1.1(a) (U.S. Sentencing Comm'n 2014). In part because of the
application of this enhancement, Bauzó received a Guidelines range
of 188 to 235 months--a range that exceeds his ACCA mandatory-
minimum sentence of fifteen years, or 180 months. Although he
mentions this point in his briefs, Bauzó's arguments are targeted
only at ACCA. The government follows suit. So do we--undeveloped
arguments are waived. See Zannino, 895 F.2d at 17.

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 I. Waiver

The government's first line of attack: Bauzó's argument

is waived. As the government points out, Bauzó (via his court-

appointed attorney) identified himself as a career offender twice.

First, in his response to the government's motion to introduce his

letter, Bauzó pointed out that his "criminal history qualifies him

for the sentencing enhancement found" in 18 U.S.C. § 924(e)(1).

Second, when the sentencing judge pointed out that Bauzó "is an

armed career criminal," Bauzó responded "[c]orrect." The

government argues these concessions amount to waiver--an

intentional relinquishment or abandonment of a known right--so we

cannot review his sentencing arguments on appeal. See United

States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002). Indeed,

"an explicit concession can waive both existing and yet-to-be-

recognized rights," and explicit concessions are exactly what we

have here. United States v. Torres-Rosario, 658 F.3d 110, 116

(1st Cir. 2011) (finding defendant's ACCA argument waived where he

conceded career-offender status below, but excusing waiver in

interests of justice because of an intervening change in law).

For his part, Bauzó contends that we shouldn't hold him to his

concession. We have the discretion to excuse waiver "where justice

so requires," and Bauzó argues that justice requires us to forgive

this waiver because of an intervening change in the law (we get to

that below). Id.

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 But we need not decide whether Bauzó's argument is

irreparably waived because his sentencing argument cannot survive

even the plain-error standard of review we apply to forfeited

claims. See United States v. Delgado-Sánchez, 849 F.3d 1, 7 (1st

Cir. 2017) (taking the same approach under similar circumstances).

Plain error requires Bauzó to show "(1) that an error occurred (2)

which was clear or obvious and which not only (3) affected [his]

substantial rights, but also (4) seriously impaired the fairness,

integrity, or public reputation of the judicial proceedings." Id.

(citation omitted). As we explain, even if the sentencing court

committed some error in assessing Bauzó's prior convictions, his

claim fails at the third prong because he has not shown--or even

argued--that any error affected his substantial rights.

II. ACCA Explainer--The Context for Bauzó's Claims

Before we get into the details of Bauzó's claims, here's

a brief ACCA primer to put his arguments in context. As we

mentioned above, to qualify as a "career criminal" under the

statute--and be exposed to the mandatory-minimum sentence--the

government must show that a defendant has three qualifying

convictions. 18 U.S.C. § 924(e)(1). As relevant here, a

conviction qualifies if it is a "violent felony," id.

§ 924(e)(1)(B), meaning it has "as an element the use, attempted

use, or threatened use of physical force against the person of

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another," id. § 924(e)(2)(B)(i).11 By physical force, the statute

means "violent force . . . capable of causing physical pain or

injury to another person." Johnson v. United States (Johnson I),

559 U.S. 133, 140 (2010). We determine whether an offense fits

the bill using the so-called categorical approach: we check

whether the elements of the crime of conviction require the

government to prove the use, attempted use, or threatened use of

physical force in order to convict. United States v. Castro-

Vazquez, 802 F.3d 28, 35 (1st Cir. 2015) (citing Descamps v. United

States, 133 S. Ct. 2276, 2283 (2013)). If the crime is divisible--

meaning it defines multiple crimes with different elements--then

we follow the modified categorical approach. United States v.

Serrano-Mercado, 784 F.3d 838, 843 (1st Cir. 2015). That means we

look to certain documents known as "Shepard" documents (these

include the indictment, the jury instructions, and the like) to

determine which version of the divisible-statute crime the

defendant committed, then check to see whether that version of the

11 A conviction might also qualify if it is a "serious drug
offense" or if it is one of the act's enumerated crimes of
"burglary, arson, or extortion, [or] involves use of explosives."
18 U.S.C. § 924(e)(1), 924(e)(2)(B)(ii). The former does not apply
here; the latter might--Bauzó has two prior convictions for
aggravated burglary--but because we find the sentencing court did
not commit a clear or obvious error in counting Bauzó's felony
assault and firearms offenses as violent felonies, we need not
reach the parties' burglary-related arguments.

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crime is a violent felony under the categorical approach. Id.

(citing Descamps, 133 S. Ct. at 2281).

The statute also says that crimes involving "conduct

that presents a serious potential risk of physical injury to

another" (the "residual clause") are violent felonies, too. 18

U.S.C. § 924(e)(2)(B)(ii). But the residual clause was invalidated

as unconstitutionally vague in Johnson v. United States (Johnson

II), 135 S. Ct. 2551, 2563 (2015). So, this road to ACCA-qualifier

territory is now closed.

III. Bauzó's Predicates

Bauzó argues that he does not have three ACCA-qualifying

convictions so the sentencing court erred in considering him a

career offender. His reasoning seems to go as follows: His prior

convictions are divisible, so the sentencing court erred by failing

to apply the Descamps modified categorical approach to determine

whether any versions of his crimes of conviction were violent

felonies. The sentencing court also failed to request the Shepard

documents to determine whether Bauzó was in fact convicted of a

career-criminal-qualifier version of any of the predicates

identified in the PSR, and that was error, too. Had the court

done so, it's possible that the court would not find three

qualifying convictions in Bauzó's record. Instead, the court's

career-criminal finding "appears to be implicitly premised on the

residual clause," which we now know to be unconstitutionally vague

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under Johnson II--yet another error, he says. Ergo, Bauzó claims

he is entitled to remand for resentencing. The government

disagrees, arguing that even if the court erred, Bauzó has not

shown that it impacted his substantial rights.

a) The Descamps Error

We start with the alleged error the parties spill the

most ink debating--whether the sentencing court erred in counting

Bauzó's priors as ACCA-qualifiers notwithstanding its failure to

follow the modified categorical approach. Where the defendant's

prior convictions are under divisible statutes, the sentencing

court has committed a clear and obvious error in counting the prior

conviction as a predicate "only if we [are] confident that none of

the distinct offenses set forth" in the statute are violent

felonies. Serrano-Mercado, 784 F.3d at 845 (applying plain-error

review to Guidelines career-criminal finding).12 Here, that is not

the case.

Bauzó has two prior convictions under Article 5.15 of

the Puerto Rico Penal Code for "discharging or pointing firearms."

P.R. Laws Ann. tit. 25, § 458n (2002). He concedes that Article

5.15 is divisible--one version criminalizes willfully firing a gun

12We note here, as we pointed out in Serrano-Mercado, that
ACCA's definition of a "violent felony" is "nearly identical" to
the Guidelines' definition of a "crime of violence," and so "courts
consistently have held that decisions construing one of these
phrases generally inform the construction of the other." 784 F.3d
at 843 n.4 (citation omitted).

- 26 -
in a place where there is a person who could be harmed, and another

criminalizes intentionally pointing a gun towards a person. See

Delgado-Sánchez, 849 F.3d at 10. He claims that version two--

pointing--is not a violent felony because it does not include an

element of "violent force," that is force capable of causing pain

or physical injury. But in Delgado-Sánchez, 849 F.3d at 11, we

recently held that it was not a clear or obvious error for the

sentencing court to count a conviction under version two of Article

5.15 as a crime of violence under § 4B1.2(a) of the Sentencing

Guidelines because pointing a gun towards a person could be a

"threatened use of physical force against the person of another."

(And remember, the "threatened use of physical force" also

satisfies § 924(e)(2)(B)(i).) See also United States v. Collins,

811 F.3d 63, 67 (1st Cir.) (finding Maine's offense of criminal

threatening with a dangerous weapon is a crime of violence under

the Guidelines), cert. denied, 136 S. Ct. 2397 (2016). Bauzó gives

us no reason to second-guess that conclusion now. Under Delgado-

Sánchez, the sentencing court did not commit an error that was

clear or obvious in counting Bauzó's two Article 5.15 convictions

as violent felonies.

Bauzó was also convicted of felony aggravated assault

under Article 95. "Any person who used force or violence upon the

person of another with the intent to injure him" has committed the

misdemeanor version of this crime. P.R. Laws Ann. tit. 33, § 4031

- 27 -
(2001).13 The felony version--Bauzó's crime of conviction--can be

committed in one of seven different ways, and so the parties agree

that this statute is divisible, too. Id. § 4032(2). Bauzó argues

that not all versions of the crime include an element of physical

force capable of causing pain or injury, so the sentencing court

clearly erred in counting his conviction as an ACCA predicate. We

disagree. The felony enhancements include the infliction of

"serious bodily injury . . . on the person assaulted" or the use

of "deadly weapons under circumstances not amounting to an intent

to kill or maim." Id. § 4032(2)(b), (c). Thus the text of sections

4031 and 4032 "strongly suggest the statute's physical-force

element involves the kind of violent force" required by ACCA's

force clause--force "capable of causing physical pain or injury to

another person." Serrano-Mercado, 784 F.3d at 845 (quoting Johnson

I, 559 U.S. at 140); see United States v. Nieves-Borrero, 856 F.3d

5, 8–9 (1st Cir. 2017) (finding no plain error in counting

aggravated battery under Article 122 as a crime of violence because

it "applies only where the defendant has injured another in a

manner that 'requires medical attention [or] specialized

professional outpatient treatment.'" (quoting P.R. Laws Ann. tit.

33, § 4750)); see also United States v. Taylor, 848 F.3d 476, 494

13
Bauzó was convicted of aggravated assault in January 2005,
before the statute was repealed and replaced in May 2005 as part
of Puerto Rico's Penal Code modernization. See Penal Code of the
Commonwealth of Puerto Rico of 2004, No. 149, S.B. 2302, Art. 314.

- 28 -
(1st Cir.) (18 U.S.C. § 111(b) assault with a dangerous weapon and

assault causing bodily injury are crimes of violence), cert.

denied, No. 16-9137, 2017 WL 2119452 (June 12, 2017); United States

v. Whindleton, 797 F.3d 105, 116 (1st Cir. 2015) (Massachusetts

assault with a dangerous weapon is an ACCA predicate). Bauzó gives

us no reason to believe otherwise. That means it was not a clear

or obvious error to count the Article 95 conviction as a violent

felony, either.

b) The Shepard Error

That brings us to Bauzó's next alleged error--the

sentencing court's failure to request the Shepard documents in

order to determine whether he was convicted of a crime-of-violence

modality of each of his predicates. As the government points out,

this claim is a nonstarter. Even if we assume that it was a clear

or obvious error for the sentencing court to fail to request the

Shepard documents of its own accord, Bauzó still cannot prevail

here because he has not shown that any error impacted his

substantial rights. See Delgado-Sánchez 849 F.3d at 11 (taking a

similar approach in similar circumstances); Serrano-Mercado, 784

F.3d at 848 n.6; United States v. Turbides-Leonardo, 468 F.3d 34,

39 (1st Cir. 2006) (same). To make such a showing he must

demonstrate "a reasonable probability that he would be better off

from a sentencing standpoint had the district court not committed

the claimed . . . error." Serrano-Mercado, 784 F.3d at 847

- 29 -
(quoting Turbides-Leonardo, 468 F.3d at 40). Where the error

alleged is the failure to consult the Shepard documents and apply

the modified categorical approach, he must show that if the

sentencing court had actually examined the Shepard documents, it

would find that his previous convictions were not for violent

felonies. Delgado-Sánchez 849 F.3d at 11. But Bauzó does not

show or argue that, if consulted, the Shepard documents would

reveal that he was convicted of non-ACCA-qualifying versions of

Article 5.15 and Article 95.14 That means Bauzó cannot satisfy the

third prong of plain-error review. Turbides-Leonardo, 468 F.3d at

40.

To sum up, it was not a clear or obvious error for the

sentencing court to count three of Bauzó's prior convictions as

career-offender qualifiers. And because he does not argue that

the Shepard documents, if consulted, would show he was convicted

of a non-qualifying version of these predicates, he has not shown

that this error impacted his substantial rights.

14
Not only did Bauzó fail to argue that the Shepard documents,
if consulted, would show that he was convicted of a non-qualifying
version of any of his past crimes, but he made three separate
concessions that one modality of each of these crimes is, in fact,
a violent felony. Our analysis here does not adopt or rely on
these concessions. United States v. Thompson, 851 F.3d 129, 131
(1st Cir. 2017) (concessions as to legal conclusions in criminal
cases not binding on appellate court). But under our plain-error
standard of review, these concessions certainly do not advance his
arguments.

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 c) The Johnson II Error

That leaves one final issue: Bauzó's claim under Johnson

II. Remember, Bauzó argues that his prior convictions do not

qualify under ACCA's force clause, so the sentencing court must

have counted them under the residual clause, but the residual

clause is now invalid, and so Bauzó is entitled to resentencing.15

In light of our finding above--that it was not a clear or obvious

error for the sentencing court to count at least three of Bauzó's

priors as predicates under the force clause--this argument is dead

on arrival. In any case, on plain-error review the defendant bears

the burden of showing that this error occurred. See United States

v. Reed, 830 F.3d 1, 7 (1st Cir. 2016). As Bauzó himself frames

the argument, the court's career-criminal finding was "implicitly

premised" on the residual clause--in other words, there's no

express indication in the record that this is what the court did.

Nor does he argue that he admitted to his career-offender status

because he believed that his prior convictions counted as ACCA

predicates under the residual clause, or point to any case under

which his prior convictions were found to be predicates under the

15
We note here that after this case was briefed and argued,
the Supreme Court determined that the Sentencing Guidelines'
identically worded residual clause does not suffer from the same
constitutional defect. Beckles v. United States, 137 S. Ct. 886,
895 (2017). To the extent that Bauzó intended to challenge his
Guidelines range on this basis, Beckles means the argument goes
nowhere.

- 31 -
residual clause. Under these circumstances, Bauzó has not

demonstrated that the court committed a Johnson II error, let alone

a clear or obvious one, or that any error affected his substantial

rights.

Conclusion

The district court did not abuse its discretion in admitting

the letter, the judicial-notice jury instruction was not plain or

obvious error, and even if Bauzó's sentencing arguments are not

waived, he has not shown any clear or obvious error that impacted

his substantial rights. We affirm Bauzó's conviction and his

sentence.

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