United States Court of Appeals
For the First Circuit
No. 15-2120
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN FRANCISCO EMILIO CARBAJAL-VÁLDEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Lynch, Selya and Stahl,
Circuit Judges.
Daniel N. Marx, Foley Hoag LLP, and Fick & Marx LLP on brief
for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Mainon A. Schwartz, Assistant United
States Attorney, on brief for appellee.
November 3, 2017
SELYA, Circuit Judge. In this appeal, defendant-
appellant Juan Francisco Emilio Carbajal-Váldez advances two
claims of error. First, he contends that the district court erred
in imposing a sentencing enhancement based largely on his admission
that he captained the cocaine-laden boat used in the smuggling
attempt. Second, he contends that the government breached a plea
agreement between the parties both in responding to the district
court about the prospective enhancement and in supporting the
resultant sentence on appeal. Concluding, as we do, that these
contentions are unpersuasive, we affirm.
I. BACKGROUND
Because this appeal follows a guilty plea, "we draw the
facts from the plea colloquy, the uncontested portions of the
presentence investigation report, and the sentencing transcript."
United States v. Nuñez, 852 F.3d 141, 143 (1st Cir. 2017). After
accepting an offer of $50,000 to transport drugs from Venezuela to
Puerto Rico, the appellant embarked on an ill-fated voyage with
two fellow seamen and a large quantity of cocaine. Just before
midnight on March 16, 2015, a Puerto Rico Police Department
maritime patrol boat spied their vessel operating without
navigation lights off the coast of Puerto Rico. When the police
stopped the vessel and boarded it, they saw a number of sacks
containing white brick-shaped objects in plain view. A field test,
conducted while at sea, revealed these bricks to be cocaine. In
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total, the police recovered approximately 1,434 kilograms of
cocaine.
The police seized the boat and arrested the three men on
board: the appellant, José Miguel Váldez-Vázquez, and Ramón Pache.
The government alleges (and the appellant does not dispute) that
at the moment of interdiction, the appellant identified himself as
the captain of the craft.
The authorities proceeded to file criminal complaints
against all three seafarers, charging that they possessed and
conspired to possess with intent to distribute five kilograms or
more of cocaine. See 21 U.S.C. §§ 841(a)(1), 846. In short order,
a federal grand jury indicted the trio on the same charges. At
first, the appellant resisted the indictment, maintaining his
innocence. His codefendants adopted a similar stance.
After defense counsel met with the prosecutor and
obtained discovery, the appellant and his codefendants decided to
change their pleas and entered into substantially identical plea
agreements with the government. During a joint change-of-plea
hearing, each man pleaded guilty to a single count of conspiring
to possess five or more kilograms of cocaine with intent to
distribute. The appellant's plea agreement (the Agreement)
contemplated a base offense level of 38, premised largely on drug
quantity. It also contemplated a three-level reduction for
acceptance of responsibility, see USSG §3E1.1(a), and left open
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the possibility of a further two-level reduction if the appellant
proved to satisfy the requirements for the so-called safety valve,
see id. §2D1.1(b)(17). Both sides pledged not to seek any further
adjustments or departures, up or down.
The Agreement took no position as to the appropriate
criminal history category and, thus, did not forecast a specific
guideline sentencing range. The government, though, agreed that
when the guideline range was established, it would recommend a
within-the-range sentence. The Agreement made pellucid that any
such recommendation would not be binding on the sentencing court.
Once the district court had accepted all three guilty
pleas, the probation office prepared a separate presentence
investigation report (PSI Report) for each defendant. When those
reports were compiled, the probation office recommended a
sentencing enhancement for the appellant that it did not recommend
for either of his codefendants: a two-level enhancement as captain
of the boat under USSG §2D1.1(b)(3)(C). This enhancement was
appropriate, the probation office stated, because the appellant
had been identified as the master of the vessel and had admitted
to the probation officer that his job had been to get the boat,
bring it to the loading port, and "steer the vessel and transport
the drugs to [Puerto Rico]."
Neither the appellant nor the government objected in
writing to any of the findings or recommendations contained in the
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PSI Report. At the disposition hearing, the district court —
rejecting the exhortations of both the appellant and the government
— adopted the guideline calculations limned in the PSI Report.
These calculations included the captain enhancement, which
ratcheted up the appellant's adjusted offense level and produced
a higher guideline range. The court then imposed a 168-month term
of immurement.1
Earlier the same day, the district court held separate
sentencing hearings for each of the appellant's codefendants. The
court did not tag either of them with the captain enhancement. In
the absence of that enhancement, the court sentenced each man to
135 months' imprisonment.
This timely appeal ensued. The waiver-of-appeal clause
contained in the Agreement offers no impediment: that clause is
contingent upon the district court imposing a sentence within the
sentence recommendation provisions of the Agreement, and the
appellant's sentence — increased by the captain enhancement — did
not trigger that contingency.
1
The guideline sentencing range recommended by the probation
office (168-210 months) included offense-level reductions for both
acceptance of responsibility and the safety valve. The sentence
imposed by the district court was at the bottom of this range.
Had the court not applied the enhancement, the guideline range
would have been 135-168 months.
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II. ANALYSIS
Generally speaking, appellate review of a federal
criminal sentence is imbued with a "frank recognition of the
substantial discretion vested in a sentencing court." United
States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013). More
specifically, though, such review is bifurcated: a reviewing court
must first determine whether a challenged sentence is procedurally
sound and then must determine whether it is substantively
reasonable. See United States v. Ruiz-Huertas, 792 F.3d 223, 226
(1st Cir. 2015). In evaluating the procedural integrity of a
sentence, we afford de novo review to the district court's
interpretation and application of the sentencing guidelines,
appraise its factfinding for clear error, and evaluate its judgment
calls under an abuse-of-discretion rubric. See id.
The usual standards of appellate review are altered when
a party fails to preserve claims of sentencing error in the
district court. In that event, appellate review is solely for
plain error. See United States v. Rodríguez-Milián, 820 F.3d 26,
34 (1st Cir.), cert. denied, 137 S. Ct. 138 (2016). This rigorous
standard requires an appellant to 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
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proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.
2001).
Against this backdrop, we turn to the case at hand. The
appellant presses two separate claims of procedural error. We
address them sequentially.
A. Imposition of the Enhancement.
The appellant's principal challenge is to the district
court's imposition of the captain enhancement under USSG
§2D1.1(b)(3)(C). This challenge takes dead aim at the factual
finding that the appellant acted as the captain of the cocaine-
laden ship. One problem, however, is that the PSI Report contained
such a finding and recommended the concomitant enhancement, but
the appellant did not seasonably object to these statements. Such
an omission normally would constitute a waiver or, at least, a
forfeiture, thus paving the way for plain error review. See United
States v. Turbides-Leonardo, 468 F.3d 34, 38 (1st Cir. 2006); see
also Fed. R. Crim. P. 32(f) (requiring objections to presentence
report within 14 days); D.P.R.R. 132(b)(3)(A) (similar).
Here, however, there is a potentially countervailing
consideration. At the disposition hearing, defense counsel
disputed both the effect of the appellant's characterization of
himself as the captain and the application of the enhancement.
Neither the government nor the district court questioned the
timeliness of these objections, and a colorable argument can be
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made that the objections sufficed to preserve the claim of error.
See, e.g., United States v. Perkins, 89 F.3d 303, 306-07 (6th Cir.
1996).
In all events, courts should not rush to untangle knotty
legal questions when there is no real need to do so. So it is
here: because the standard of review is not decisive with respect
to this issue, we assume, favorably to the appellant, that his
objections were preserved.
The claim of error turns, of course, on the
supportability of the sentencing court's factual finding. That
finding is reviewed for clear error. See Ruiz-Huertas, 792 F.3d
at 226. Clear error is not an appellant-friendly standard; it is
"satisfied only if, 'upon whole-record-review, an inquiring court
form[s] a strong, unyielding belief that a mistake has been made.'"
Nuñez, 852 F.3d at 144 (alteration in original) (quoting United
States v. Cintrón-Echautegui, 604 F.3d 1, 6 (1st Cir. 2010)). The
government bears the burden of proving sentence-enhancing factors
by a preponderance of the evidence. See id. Raw facts contained
in unchallenged portions of a presentence report are ordinarily
"considered reliable evidence for sentencing purposes." United
States v. Morrillo, 8 F.3d 864, 872 (1st Cir. 1993); see United
States v. Fernandez-Cabrera, 625 F.3d 48, 54 (1st Cir. 2010);
United States v. Garcia, 954 F.2d 12, 18 (1st Cir. 1992).
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Here, the sentencing court found that the captain
enhancement applied. The court, though, did not spell out its
subsidiary findings. Such inattention to subsidiary findings
invites confusion. The better practice is for a sentencing court
to make reasonably specific findings as to why an enhancement is
appropriate. See, e.g., United States v. McDowell, 918 F.2d 1004,
1012 (1st Cir. 1990).
Nevertheless, we are reluctant to exalt form over
substance. Notwithstanding our preference for explicit findings,
we have recognized that the absence of such findings is not always
fatal. See United States v. Van, 87 F.3d 1, 3 (1st Cir. 1996). A
reviewing court may uphold a sentencing court's conclusion if it
seems apparent that the sentencing court adopted, albeit
implicitly, relevant findings contained in a presentence
investigation report and those findings provide a sufficient basis
for the conclusion. See United States v. Schultz, 970 F.2d 960,
963 n.7 (1st Cir. 1992); McDowell, 918 F.2d at 1011-12. The key
is whether the sentencing record, taken as a whole, reliably shows
that the relevant factual questions were "implicitly resolved" by
the sentencing court. Van, 87 F.3d at 3.
In the case at hand, the district court stated at the
disposition hearing that it agreed with the probation officer
concerning the enhancement. This statement, coupled with the
court's explanation that the captain enhancement was applied
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because the appellant "acted as the captain aboard the vessel which
carried controlled substances," makes manifest that the court
impliedly adopted the findings contained in the PSI Report.
Consequently, the question reduces to the sufficiency of those
findings.
The PSI Report, fairly read, offers enough information
to eliminate any guesswork about what facts the sentencing court
envisioned as the basis for the captain enhancement. To begin,
the PSI Report captures the appellant's admission that it was his
role to procure the boat in Maracaibo, Venezuela, and take it to
another port (where the drugs were brought on board). He then
received instructions to undertake the voyage to Piñones, Puerto
Rico. During that voyage, he steered the vessel (although at least
one of his codefendants helped with the steering). We think that
these facts justified the sentencing court's decision to apply the
enhancement to this defendant and not to his codefendants.
To cinch the matter, defense counsel acknowledged during
the disposition hearing that, at the time of interdiction, the
appellant admitted that he was the captain. Counsel indicated
that he had confirmed the veracity of this admission with the
appellant. Consistent with this self-identification, the PSI
Report denominated the appellant as the "master of the vessel."
That designation, in turn, became part of the predicate that
undergirded the captain enhancement.
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Faced with these data points, the appellant never denied
that he had identified himself as the captain. Instead, he argued
in the district court that "the title doesn't make . . . the
description of the specifics of this case." Before us, the
appellant makes essentially the same argument, suggesting that the
captain enhancement should not depend on the title alone, but on
the functions that he performed. Although this suggestion
possesses a patina of plausibility, it fails on the facts.
The sentencing guidelines do not define the word
"captain." Since undefined terms in the guidelines should
customarily be given their plain and ordinary meaning, see Chapman
v. United States, 500 U.S. 453, 461-62 (1991); United States v.
Brewster, 1 F.3d 51, 54 (1st Cir. 1993), the sentencing court was
entitled to give the appellant's "captaincy" admission some
weight. Here, moreover, the appellant's self-identification,
considered alongside his actual conduct in procuring the vessel,
taking it to the loading point, receiving the itinerary, and
steering the boat, furnished an adequate predicate for the court
below to apply the captain enhancement. See United States v.
Guerrero, 114 F.3d 332, 346 (1st Cir. 1997) (upholding pilot
enhancement under USSG §2D1.1(b)(3)(C); cf. United States v.
Trinidad, 839 F.3d 112, 115-16 (1st Cir. 2016) (upholding navigator
enhancement under USSG §2D1.1(b)(3)(C) where defendant had relied
on GPS to keep the boat on course for some part of voyage).
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To sum up, this is not a case in which we are left "to
fend for ourselves" in order to understand the basis on which the
district court concluded that the captain enhancement was
appropriate. McDowell, 918 F.2d at 1012. The PSI Report and the
transcript of the disposition hearing, taken together, furnish
clear guidance as to the basis on which the court rested the
enhancement. Because that basis was plausible, "we cannot say
that [the sentencing court's] conclusions were unfounded or
clearly erroneous." United States v. Ruiz, 905 F.2d 499, 508 (1st
Cir. 1990) (quoting United States v. Jimenez-Otero, 898 F.2d 813,
815 (1st Cir. 1990)).2
B. Alleged Breach of Plea Agreement.
This brings us to the appellant's claim that the
government breached the Agreement. Since the appellant failed to
raise this claim below, our review is for plain error. See United
States v. Almonte-Nuñez, 771 F.3d 84, 89 (1st Cir. 2014).
2
The appellant argues in his reply brief that applying the
enhancement resulted in an unwarranted sentencing disparity
between himself and his codefendants. This argument is doubly
flawed. In the first place, "issues raised for the first time in
an appellant's reply brief are generally deemed waived." United
States v. Torres, 162 F.3d 6, 11 (1st Cir. 1998). In the second
place, the "general rule of thumb is that a defendant is not
entitled to a lighter sentence merely because his co-defendants
received lighter sentences." United States v. Reyes-Santiago, 804
F.3d 453, 467 (1st Cir. 2015). Here, only the appellant declared
himself to be the boat's captain and only the appellant received
the captain enhancement. Because there is no basis for an "apples
to apples" comparison among the three defendants, the claim of an
unwarranted sentencing disparity founders on the merits. Id.
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A defendant who enters into a plea agreement and
thereafter pleads guilty to a criminal charge waives an array of
important rights. The government, of course, is expected to carry
out its side of the bargain. Consequently, courts long have held
prosecutors to "meticulous standards of both promise and
performance." Correale v. United States, 479 F.2d 944, 947 (1st
Cir. 1973); see Santobello v. New York, 404 U.S. 257, 262 (1971).
They must do more than merely pay "lip service" to the covenants
undertaken in plea agreements. Almonte-Nuñez, 771 F.3d at 89.
Withal, a prosecutor's duty to observe and carry out the
undertakings memorialized in a plea agreement does not exist in a
vacuum. A prosecutor has a corollary duty: a "concurrent and
equally solemn obligation" to provide relevant information to the
sentencing court. Id. at 90. These twin obligations must
necessarily coexist, with the result that "prosecutors must manage
them so as to give substance to both." United States v. Saxena,
229 F.3d 1, 6 (1st Cir. 2000).
In this instance, the appellant zeros in on certain
statements made by the prosecutor during the disposition hearing.
Specifically, the appellant calumnizes the prosecutor for
responding affirmatively to the court's inquiry about whether the
appellant had identified himself as the captain of the boat and
for conceding that the probation officer, given his findings and
conclusions, had correctly calculated the guideline range. These
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statements, the appellant asserts, worked a breach of the
Agreement.
This assertion will not wash. We repeatedly have held
that actions such as merely responding in factual terms to the
sentencing court's questions or acknowledging the correctness of
admittedly accurate guideline calculations do not amount to a
breach of a plea agreement. See, e.g., United States v. Marín-
Echeverri, 846 F.3d 473, 479 (1st Cir. 2017); Almonte-Nuñez, 771
F.3d at 90.
The appellant attempts to skirt these precedents by
arguing that the government "unnecessarily prompted" the
discussion about the appellant's role as captain. This argument
rings hollow. The PSI Report recommended application of the
captain enhancement, which put the issue squarely in play — so
much so that the appellant's own counsel began the disposition
hearing by asserting that "all three persons indicted in this case
all were captains."3 When the district court turned to the
government for a response to defense counsel's argument, the
prosecutor acknowledged that the appellant had identified himself
3 Before us, the appellant's newly appointed counsel renews
the claim that all three defendants were peas in a pod. The record
does not validate that claim. Only the appellant identified
himself as the boat's captain, and an examination of the
presentence reports for all three defendants supports a reasonable
inference that the appellant was the leader of the crew. Indeed,
one of his codefendants, Váldez-Vázquez, also identified the
appellant as the boat's captain.
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as the captain. That was a fact — and the prosecutor's duty of
candor to the court left him no choice but to acknowledge it.
So, too, the prosecutor had no legitimate alternative
but to confirm that, given the probation officer's proposed
findings and conclusions, the guideline calculations limned in the
PSI Report were correct. In the spirit of the Agreement, the
prosecutor immediately followed this statement by asking the court
to impose the same sentence on the appellant that it had imposed
on his codefendants. The prosecutor also offered a number of
reasons why the lower sentence contemplated by the Agreement should
be imposed. Taken in their entirety, the prosecutor's statements
with respect to the enhancement did not cross the border into
forbidden terrain. See Almonte-Nuñez, 771 F.3d at 90. Though the
court chose to take a different path, that was not within the
prosecutor's control.
We have recognized before, and today reaffirm, that the
government's dual obligations at sentencing are in tension and,
therefore, must be balanced carefully. See Saxena, 229 F.3d at 5-
6. In this case, though, the government has carried out the
required "legal funambulism." Id. at 6. Accordingly, we hold
that the prosecutor's statements at sentencing did not breach the
Agreement.
The appellant has one more shot in his sling: he suggests
that the government breached the Agreement by defending the
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sentence on appeal. For two reasons, this shot sails well wide of
the mark.
First, the government does not waive anywhere in the
Agreement the right to defend, on appeal, whatever sentence the
district court lawfully may impose. The absence of such a
restriction is significant because plea agreements are interpreted
with the aid of contract-law principles, see United States v.
Atwood, 963 F.2d 476, 479 (1st Cir. 1992), and the Agreement itself
provides that "[t]he United States has made no promises or
representations except as set forth in writing in this plea
agreement and den[ies] the existence of any other term and
conditions not stated herein." The appellant — like the government
— is bound by the terms of the plea agreement. See United States
v. Tilley, 964 F.2d 66, 70 (1st Cir. 1992). And in view of the
language quoted above, there is simply no basis for extending the
government's obligations in the manner suggested by the appellant.
As an appellee, the government is tasked, in effect,
with defending the district court's judgment when a criminal
defendant appeals.4 In our view, the government normally should
be free, on appeal, to support a ruling of the district court even
4 Of course, there are narrow exceptions to this rule, such
as when the government is obligated to confess error in the
judgment. See, e.g., Berger v. United States, 295 U.S. 78, 88
(1935); United States v. Leahy, 668 F.3d 18, 21 (1st Cir. 2012).
No such exception pertains here.
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though a plea agreement precluded it below from arguing the
position that underpins the ruling. See United States v. Colón,
220 F.3d 48, 51-52 (2d Cir. 2000). Consequently, the government
was free to argue in this court — as it has done — in support of
the imposition of the captain enhancement. It has not violated
the Agreement by doing so.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the sentence is
Affirmed.
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