United States v. Cueto-Nunez

United States Court of Appeals
For the First Circuit

No. 16-1700

UNITED STATES OF AMERICA,

Appellee,

v.

JULIO CUETO-NÚÑEZ,

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, Kayatta, and Barron,
Circuit Judges.

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

August 25, 2017
 BARRON, Circuit Judge. Julio Cueto Núñez pled guilty to

one count of attempting to enter the United States after previously

having been removed from the United States due to an aggravated

felony, in violation of 8 U.S.C. § 1326(b)(2). Cueto was sentenced

to a 57-month term of imprisonment, followed by a 3-year term of

supervised release, subject to thirteen so-called "standard"

conditions. Cueto now challenges a number of different aspects of

his sentence. We affirm.

I.

Cueto, a citizen of the Dominican Republic, was removed

from the United States in 2010, following his convictions for

several offenses including robbery and possession of a weapon

without a license in the Superior Court of San Juan, Puerto Rico.

More than five years later, on November 8, 2015, a vessel with

Cueto (along with sixty other people) on board was apprehended by

the United States Coast Guard. Cueto was then transferred into

the custody of the United States Border Patrol.

On November 12, 2015, Cueto was charged with one count

of violating 8 U.S.C. § 1326(b)(2), a statute that prohibits an

"alien previously removed from the United States subsequent to a

conviction for an aggravated felony" from "knowingly and

intentionally attempt[ing] to enter the United States" without

first having obtained the consent of the Attorney General or the

Secretary of Homeland Security "to reapply for admission into the

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United States." Id. On February 16, 2016, Cueto waived the right

to an indictment and, the same day, pled guilty to a one-count

information, pursuant to a plea agreement.

Cueto's plea agreement set forth his base offense level

under the United States Sentencing Guidelines as eight, pursuant

to U.S.S.G. § 2L1.2(a). The parties then recommended the following

adjustments to this proposed base offense level: first, pursuant

to U.S.S.G. § 2L1.2(b)(1)(A), a sixteen-point upward adjustment

because Cueto was previously removed after a conviction for a crime

of violence; second, pursuant to U.S.S.G. § 3E1.1(a) and (b), a

three-point downward adjustment for acceptance of responsibility;

and third, pursuant to U.S.S.G. § 5K3.1, a two-point downward

adjustment because of Cueto's participation in a "fast-track"

early disposition program. Thus, the total offense level

recommended to the District Court by the parties in the plea

agreement was nineteen. The plea agreement did not, however, state

Cueto's criminal history category. Instead, the plea agreement

set forth a table of recommended sentencing ranges based on Cueto's

proposed total offense level of nineteen. As a result, the parties

agreed "to recommend a sentence at the lower end of the applicable

Guideline Sentencing Range for a total offense level of 19 when

combined with [Cueto's] criminal history category as determined by

the Court."

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 Prior to Cueto's sentencing hearing, the Probation

Office prepared a presentence investigation report (PSR). The

PSR, too, determined that Cueto's base offense level was eight.

And, like the plea agreement, the PSR calculated a total offense

level by applying a sixteen-level upward adjustment to the base

offense level because of Cueto's prior removal after a conviction

for a crime of violence, pursuant to § 2L1.2(b)(1)(A) of the

guidelines, and a three-level downward adjustment because of

Cueto's acceptance of responsibility and cooperation with

authorities, pursuant to § 3E1.1(a) and (b). The PSR, however,

did not apply the two-level "fast-track" downward adjustment

recommended in the plea agreement. Thus, the PSR determined that

Cueto's total offense level was twenty-one. Nevertheless, the PSR

did provide that "[a]s the defendant has entered into a plea

agreement," he would "benefit from a two (2) level adjustment for

participating in the Fast-Track Program." After examining Cueto's

prior conviction record, the PSR then determined that Cueto's

criminal history category was IV. On the basis of Cueto's total

offense level of twenty-one and criminal history category of IV,

the PSR specified that the recommended Guidelines Sentencing Range

applicable to Cueto was fifty-seven to seventy-one months of

imprisonment.

Cueto was sentenced on May 10, 2016. At sentencing, the

District Court also calculated a base offense level of eight for

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Cueto, pursuant to U.S.S.G. § 2L1.2(a). In calculating Cueto's

total offense level, the District Court then applied a sixteen-

level upward adjustment because of Cueto's prior removal after a

conviction for a crime of violence, pursuant to § 2L1.2(b)(1)(A)

of the guidelines, and a three-level downward adjustment for

acceptance of responsibility, pursuant to § 3E1.1(a) and (b) of

the guidelines. The District Court, however, declined to apply

the "fast-track" downward adjustment, "because of Mr. Cueto's

criminal history." Thus, the District Court set Cueto's total

offense level at twenty-one. A total offense level of twenty-one,

combined with a criminal history category of IV, yielded a

guidelines sentencing range of fifty-seven to seventy-one months'

imprisonment. Despite the government's advocating a sentence of

forty-six months of imprisonment, the District Court sentenced

Cueto to a term of imprisonment of fifty-seven months, and a term

of supervised release of three years. The term of supervised

release was accompanied by the requirement that Cueto observe "the

standard conditions of supervised release recommended by the

United States Sentencing Commission and adopted by this Court."

Cueto now appeals both the term of imprisonment and the

conditions of supervised release.1

1 While Cueto's plea agreement contained a waiver of his right
to appeal "the judgment and sentence in this case," provided that
Cueto was "sentenced in accordance with the terms and conditions
set forth in the Sentencing Recommendation provisions of this Plea

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 II.

Cueto challenges the term of imprisonment on three

grounds: first, that the District Court erred procedurally in not

accepting the government's recommendation for a "fast-track"

adjustment; second, that the District Court erred procedurally by

inadequately explaining the term of imprisonment and by failing to

consider certain mitigating factors; and third, that the District

Court erred substantively in imposing an unreasonable term of

imprisonment. We consider each contention in turn.

A.

Section 5K3.1 of the guidelines, the "fast-track"

provision, provides that "[u]pon motion of the Government, the

court may depart downward not more than four levels pursuant to an

early disposition program authorized by the Attorney General of

the United States and the United States Attorney for the district

in which the court resides." (emphasis added). Cueto acknowledges

that the word "may" in that provision gives a district court the

discretion to determine whether to apply that downward adjustment

or not, and thus we review this preserved challenge for abuse of

Agreement," the government acknowledges that this waiver does not
bar Cueto's challenges. The government notes that the "Sentencing
Recommendation" section of the plea agreement "recommend[ed] a
sentence at the lower end" of a guidelines range calculated on the
basis of a total offense level of nineteen, while Cueto was
sentenced on the basis of a total offense level of twenty-one, and
thus the government agrees with Cueto that his waiver is
unenforceable.

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discretion. See United States v. Ruiz-Huertas, 792 F.3d 223, 226

(1st Cir.) (citing United States v. Flores-Machicote, 706 F.3d 16,

20 (1st Cir. 2013)(noting that courts of appeals' evaluation of a

sentencing court's "judgment calls for abuse of discretion"),

cert. denied, 136 S. Ct. 258 (2015)); United States v. Shand, 739

F.3d 714, 716 (2d Cir. 2014) (holding that § 5K3.1 "vests sole

discretion to grant departures on Government motions with district

court judges."). But, Cueto argues, the District Court abused its

discretion because it first accepted Cueto's guilty plea pursuant

to a plea agreement that obligated the government to move for a

fast-track adjustment and then declined to apply that adjustment,

thereby depriving Cueto of "the benefit of the bargain."

We are not persuaded. The plea agreement was a bargain

struck with the government, in which the government agreed to

recommend a two-level downward fast-track adjustment. And the

government did so, stating at sentencing that "the United States

stands by the plea agreement" and "recommend[s] a sentence of 46

months." The plea agreement -- executed pursuant to Rule

11(c)(1)(B) of the Federal Rules of Criminal Procedure -- did not

obligate the District Court to sentence the defendant in accordance

with the government's recommendations when the District Court

accepted Cueto's guilty plea. See Fed. R. Crim. P. 11(c)(1)(B)

(noting that attorneys for the government and the defendant may

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agree to "recommend . . . a particular sentence or sentencing

range" (emphasis added))".

Cueto separately contends that, given the District

Court's apparent concerns about his criminal history, the

Magistrate Judge who presided over Cueto's change-of-plea hearing

"should have told him" at that hearing "that [the District Court]

would not accept [the] agreement." In pressing this contention,

Cueto points to a portion of his change-of-plea colloquy where he

suggests that the Magistrate Judge "induced the plea by promising

the fast-track departure."

The record belies this contention, however. During the

exchange Cueto identifies, the record reflects the Magistrate

Judge's statement that the Magistrate Judge possessed an "original

of [Cueto's] fast track plea agreement, which is being made

pursuant to Rule 11(c)(1)(b)." The Magistrate Judge thus

accurately described the plea agreement itself, which is entitled

a "fast track plea agreement." Nowhere in the portion of the

change-of-plea colloquy that Cueto points to did the Magistrate

Judge suggest that Cueto was guaranteed the benefit of the two-

level fast-track adjustment. In fact, the record shows that the

plain terms of the plea agreement reflected the advisory nature of

that agreement, and that the Magistrate Judge explained to Cueto

at his change-of-plea hearing that "any sentence imposed by the

Court is entirely in the discretion of the sentencing Judge" and

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thus "that the terms that appear on the plea agreement are only a

recommendation and [thus] not mandatory."

B.

As a fallback, Cueto contends that, even if the District

Court properly calculated the guidelines range applicable to him,

the District Court erred by failing to articulate its reasons for

imposing the term of imprisonment that the District Court imposed.

Because Cueto did not make this objection to the District Court,

our review is for plain error. United States v. Pérez, 819 F.3d

541, 546 (1st Cir. 2016). "To establish plain error, an appellant

must show that (1) an error occurred (2) which was clear or obvious

and which not only (3) affected the appellant's substantial rights

but also (4) seriously impaired the fairness, integrity, or public

reputation of judicial proceedings." Id. at 546-47 (citation and

modifications omitted). Cueto cannot show plain error here.

We have previously explained that, where, as here, "the

court imposes a sentence that comes within the [guidelines

sentencing range], the burden of adequate explanation is

lightened." Id. at 547 (citation omitted). We have further noted

that, in a situation like this one, involving a within-guidelines

sentence, "it is sufficient for the sentencing court simply to

identify the main factors driving its determination." United

States v. Sepúlveda-Hernández, 817 F.3d 30, 33 (1st Cir. 2016)

(citation omitted).

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 Here, the record reveals that the District Court

emphasized that it "considered the . . . sentencing factors set

forth" in 18 U.S.C. § 3553(a), described several aspects of Cueto's

biography, and then explained that the sentence the District Court

imposed "reflects the seriousness of the offense, promotes respect

for the law, protects the public from further crimes by Mr. Cueto,

and addresses the issues of deterrence and punishment." The

District Court's explanation thus closely matches the explanation

we upheld in Pérez as "sufficient" on plain error review "to

satisfy [the] lightened burden" of explaining a within-guidelines

sentence. See 819 F.3d at 547.

Cueto does separately contend that the District Court

failed to consider certain mitigating factors about his biography,

including his "traumatic childhood." But, we have held that the

fact that "the district court handed down a harsher sentence than

[the defendant] desired does not reveal an inattentiveness" to the

mitigating factors the defendant wished the District Court to

consider, "but rather that [the District Court] weighed them

differently than [the defendant] did." United States v. Butler-

Acevedo, 656 F.3d 97, 101 (1st Cir. 2011). Moreover, we must give

the District Court's statement that it considered the sentencing

factors set forth in § 3553(a) "some weight." United States v.

Vega-Salgado, 769 F.3d 100, 105 (1st Cir. 2014).

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 Here, the "difficult" nature of Cueto's childhood, among

other mitigating factors, was brought to the District Court's

attention during sentencing, and the District Court later

summarized other portions of Cueto's personal history. We thus

conclude that the District Court did not commit a clear or obvious

error in failing to explain specifically why it did not believe

that those mitigating factors merited a below-guidelines sentence.

See Butler-Acevedo, 656 F.3d at 101 (noting that district courts

are "not required to address each" of the § 3553(a) factors, "one

by one, in some sort of rote incantation" (modifications omitted)).

C.

Finally, Cueto contends that the District Court erred by

imposing a term of imprisonment that was substantively

unreasonable, particularly given the District Court's departure

from the recommendation made by the government. Cueto contends

that he preserved this challenge by "challenging the denial of

fast-track relief" and thus "request[ing] a lower sentence than

the one he received." On that basis, Cueto contends that our

review is for abuse of discretion. We need not resolve the

question whether Cueto preserved this challenge, however. We have

previously explained that the standard of review that applies to

a defendant's unpreserved challenge to the substantive

reasonableness of his sentence is "somewhat blurred," Ruiz-

Huertas, 792 F.3d at 228. Here, as in Ruiz-Huertas, "we need not

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resolve this apparent anomaly," for even "[a]ssuming, favorably to

the defendant, that the abuse of discretion standard applies, the

outcome would be the same." Id.

We further explained in that case that "[a] challenge

directed at substantive reasonableness is usually a heavy lift,

and reversal is particularly unlikely when the sentence fits within

the compass of a properly calculated guideline sentencing range."

Id. at 228-29 (citations and modifications omitted). Cueto, who

points to nothing in the record that would make the District

Court's choice of a sentence at the low end of the range under the

sentencing guidelines a substantively unreasonably one, cannot

make that heavy lift here.

III.

Cueto also challenges nine of the standard conditions of

supervised release that the District Court imposed. He contends

that a number of them are too vague, another is too onerous because

it fails to consider his financial circumstances, and yet another

violates his Fifth Amendment rights. For support, he cites United

States v. Kappes, which concluded that a number of similar

conditions failed plain error review. 782 F.3d 828, 844 (7th Cir.

2015). He also contends that, in any event, the District Court

failed to provide an adequate explanation as to why these

conditions, or at least why all of them, were imposed on him.

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 The government responds, initially, that, because Cueto

is almost certain to be removed upon his release -- and is

therefore extremely unlikely to be subjected to the conditions he

takes issue with -- his challenge to these conditions of release

is not ripe. We addressed a similar issue in United States v.

Medina, 779 F.3d 55, 66-67 (1st Cir. 2015). There, the defendant,

a sex offender, challenged the "District Court's requirement that

he submit to penile plethysmograph, or PPG, testing, if the sex

offender treatment program he must participate in as a condition

of his supervised release requires such testing." Id. at 64. The

government contended that the challenge was not ripe because the

"PPG-testing condition[]" was a "contingent" one, insofar as there

was some uncertainty as to whether the defendant would, in fact,

be required to undergo that form of testing. Id. at 66. We

disagreed. Id. at 67. We explained that "a challenge to even a

contingent supervised release condition" may be "ripe, and 'not

hypothetical'" as long as the "judgment explicitly spell[s] out

the condition and the defendant challenge[s] 'the . . . condition

itself, not its application or enforcement.'" Id. at 66 (quoting

United States v. Davis, 242 F.3d 49, 51 (1st Cir. 2001) (per

curiam)). We further explained that the defendant "was sentenced

to thirty months in prison in July of 2013," which meant that, at

the time our opinion was issued in March of 2015, the defendant

"could be subject to the condition he challenges in the near term,

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when he is released from prison and the treatment program

commences." Id. at 67. And, in Davis, on which Medina relied, we

explained in holding that the defendant's challenge to the

supervised release condition at issue was "not hypothetical" that

the defendant's "term of supervised release will commence in less

than two months," at which point the defendant would "be subject

to the challenged condition imposed by the district court." Davis,

242 F.3d at 51.

Here, Cueto still has forty-nine months left in his

sentence. Moreover, as the government points out, Cueto conceded

in his plea agreement that "he has no legal status in [this

country] . . . and will likely be removed from the United States

upon completion of his sentence." In fact, the government notes

in its briefing to us -- and Cueto does not dispute -- that the

"Department of Homeland Security has already lodged a detainer for

Cueto's arrest because he is an illegal alien subject to removal

and deportation proceedings." The government thus contends that,

unlike in Davis and Medina, "it is a matter of conjecture" whether

Cueto will be subjected to the standard conditions of supervised

to which he objects.

Despite the features of this case that appear to make it

different from Medina and Davis, Cueto makes no argument on appeal

as to why his challenge to these conditions is ripe. But, even if

we were to overlook Cueto's failure in that regard and assume that

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his challenge to these conditions is ripe for review, it would

fail. As the government points out, Cueto never raised any

objections below to the conditions that he now challenges, even

though the guidelines themselves "flatly recommend the standard

conditions" of supervised release, United States v. Tulloch, 380

F.3d 8, 13 (1st Cir. 2004) (citing U.S.S.G. § 5D1.3(c)); Cueto's

plea agreement referenced a term of three years' supervised release

as included within the maximum penalty to which Cueto could be

sentenced and separately noted that Cueto's sentence "[would] be

imposed in accordance with the [g]uidelines"; and the District

Court explicitly stated at sentencing that, "[u]pon release from

confinement, Mr. Cueto shall be placed on supervised release for

a term of three years" and that Cueto "shall observe the standard

conditions of supervised release recommended by the United States

Sentencing Commission and adopted by this Court." Thus, Cueto

must meet the demanding test imposed by the plain error standard

of review, which requires him to show that "(1) an error occurred

(2) which was clear or obvious and which not only (3) affected the

appellant's substantial rights but also (4) seriously impaired the

fairness, integrity, or public reputation of judicial

proceedings." Pérez, 819 F.3d at 546-47; see United States v.

Roy, 506 F.3d 28, 30 (1st Cir. 2007) (noting that the plain error

test "set[s] a very high threshold and deliberately so"). But,

Cueto makes no argument on appeal as to how he can satisfy this

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demanding standard, as he contends only that our review must be

for abuse of discretion.

Of course, in challenging the conditions as too vague or

onerous, Cueto does rely on Kappes. And Kappes found the

conditions at issue there invalid even in the event that plain

error applied. 782 F.3d at 844. But Cueto makes no argument as to

why we must do similarly in considering his challenge to these

conditions. And he fails to make any such argument notwithstanding

that our own precedent approves a number of the conditions that

Cueto now challenges, see United States v. Stergios, 659 F.3d 127,

134 (1st Cir. 2011) (concluding that, should a defendant find his

conditions of supervised release, as implemented by the probation

officer, "unduly restrictive upon his release, he need only speak

with his supervising officer and, if that does not succeed, raise

the issue with the district court"); United States v. Padilla, 415

F.3d 211, 214, 221-22 (1st Cir. 2005) (en banc) (rejecting a

delegation-based challenge to the authority of a probation officer

"to determine the maximum number of [drug] tests to be

administered" during the defendant's term of supervised release);

rejects another of his challenges for reasons that apply here as

well, see United States v. York, 357 F.3d 14, 24-25 (1st Cir. 2004)

(rejecting a Fifth Amendment-based challenge to the condition that

requires a defendant to "answer truthfully all inquiries by the

probation officer and follow the instructions of the probation

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officer"), and there is out-of-circuit precedent that, contra

Kappes, approves the rest of the challenged conditions, see United

States v. Llantada, 815 F.3d 679, 682 (10th Cir. 2016); United

States v. Muñoz, 812 F.3d 809, 819 (10th Cir. 2016); United States

v. Phillips, 704 F.3d 754, 768 (9th Cir. 2012); United States v.

Soltero, 510 F.3d 858, 866-67 (9th Cir. 2007) (per curiam); United

States v. Nash, 438 F.3d 1302, 1307 (11th Cir. 2006) (per curiam).

Cueto separately contends that the District Court

plainly erred in failing to provide sufficient explanation for its

decision to impose the standard conditions of supervised release

that he now challenges. We reject this challenge, too. We have

already noted that the "[g]uidelines flatly recommend the standard

conditions, without qualification[] or prerequisite." Tulloch,

380 F.3d at 13. We further explained in United States v.

Garrasteguy, 559 F.3d 34, 42 (1st Cir. 2009), that "[a]ny

conditions of supervised release that a sentencing court chooses

to impose must, of course, be supported by the record." But, we

emphasized, "this requirement can be satisfied without a written

or oral explanation of the reasons supporting the condition if we

can infer the court's reasoning by comparing what was argued by

the parties or contained in the pre-sentence report with what the

court did." Id. On appeal, Cueto does not point to any specific

condition of supervised release that he contends were unjustified

in light of the record before the District Court. [Blue Br. 30]

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Thus, we conclude that Cueto cannot show that the District Court

plainly erred in providing the level of explanation concerning the

imposition of the standard conditions of supervised release that

Cueto now challenges.

For these reasons, we reject Cueto's challenge to the

nine separate conditions of supervised release to which he objects.

IV.

For these reasons, the judgment of the District Court

is affirmed.

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