United States Court of Appeals
For the First Circuit
No. 06-1553
UNITED STATES OF AMERICA,
Appellee,
v.
VIRGILIO JIMENEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, Senior U.S. District Judge]
Before
Lipez, Circuit Judge,
Selya, Senior Circuit Judge,
and Howard, Circuit Judge.
Elaine Pourinski on brief for appellant.
Robert Clark Corrente, United States Attorney, Donald C.
Lockhart and Stephen G. Dambruch, Assistant United States
Attorneys, on brief for appellee.
December 27, 2007
SELYA, Senior Circuit Judge. In this criminal appeal,
defendant-appellant Virgilio Jimenez ascribes a litany of errors to
the district court proceedings that resulted in his conviction and
sentence on a drug-trafficking charge. Finding none of his
arguments compelling, we affirm the judgment below.
Because the appellant's conviction and sentence followed
the entry of a guilty plea, we draw the essential facts from the
change-of-plea colloquy and the uncontroverted portions of the
presentence investigation report (PSI Report). See United States
v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991).
On June 15, 2002, a federal grand jury sitting in the
District of Rhode Island returned a single-count indictment
charging the appellant with possession of five grams or more of
cocaine base with intent to distribute. See 21 U.S.C. § 841(a)(1).
The indictment followed a warrant-backed search of the appellant's
home, during which the authorities discovered approximately 39.22
grams of cocaine base hidden inside a can of "Carpet Fresh." The
same search revealed a digital scale, drug-packaging supplies, and
video surveillance equipment. After being advised of his Miranda
rights, see Miranda v. Arizona, 384 U.S. 436, 444 (1966), the
appellant confessed to his involvement in a drug-trafficking
enterprise and admitted ownership of the cocaine base and drug
paraphernalia.
-2-
Despite these admissions, the appellant originally
pleaded not guilty to the lone count of the indictment. He later
revised his plea. During the change-of-plea colloquy, he confirmed
what he had related at the time of the search. At a subsequent
stage of the colloquy, he expressed some confusion anent his
potential sentencing exposure. The district court patiently
explained the dimensions of that exposure. Particularly, the court
told the appellant that if the government was able to prove that he
had prior drug-related felony convictions, he would be facing a
minimum ten-year term of immurement and a maximum penalty of life
imprisonment. The appellant assured the court that he understood
his situation.
In due course, the court found the appellant's guilty
plea to be knowing and voluntary. The court therefore accepted it
and invited the appellant, if he so elected, to mount a challenge
at the disposition hearing to his prior convictions and the nature
of the trafficked substance. The court then commissioned the
preparation of the PSI Report.
In its final form, the PSI Report classified the
appellant's prior convictions as controlled substance offenses and
on that basis characterized him as a career offender within the
purview of the federal sentencing guidelines. See USSG §4B1.1. At
the disposition hearing, the appellant did not challenge this
taxonomy.
-3-
The district court explained that, as a career offender,
the appellant's guideline sentencing range (GSR) would be 292 to
365 months in prison. The appellant voiced no objection to this
determination. After listening to the arguments of counsel and the
appellant's allocution, the court imposed a sentence at the bottom
of the GSR (292 months). This timely appeal followed.
In this venue, the appellant begins by arguing that he
should be permitted to withdraw his guilty plea because he did not
knowingly enter that plea. He claims that he was confused about
its consequences throughout the hearing. This argument implicates
Federal Rule of Criminal Procedure 11, which sets the template for
the acceptance of guilty pleas in federal criminal cases.
Because the appellant raises the issue about the
integrity of his plea for the first time on appeal, our review is
for plain error. See United States v. Vonn, 535 U.S. 55, 58-59
(2002); United States v. Jiminez, 498 F.3d 82, 85 (1st Cir. 2007);
United States v. Mercedes-Mercedes, 428 F.3d 355, 358 (1st Cir.
2005). Plain-error review places a burden on an appellant to show
(i) that an error occurred, (ii) which was clear and obvious, (iii)
which affected his substantial rights, and (iv) which seriously
impaired the fairness, integrity, or public perception of the
proceeding. See Johnson v. United States, 520 U.S. 461, 466-67
(1997); United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).
-4-
A party who aspires to demonstrate plain error faces a
steep uphill climb, and the appellant cannot scale that pinnacle.
To be sure, his basic premise — that a guilty plea must be knowing
in order to satisfy the strictures of the Constitution — is
impeccable. See Bousley v. United States, 523 U.S. 614, 618
(1998); United States v. Delgado-Hernandez, 420 F.3d 16, 19 (1st
Cir. 2005). Moreover, to satisfy that standard, the accused must
have understood the charges against him and the spectrum of
possible penalties to which an admission of guilt will expose him.
See Jiminez, 498 F.3d at 85; United States v. Gandia-Maysonet, 227
F.3d 1, 3 (1st Cir. 2000). But to recite these general
propositions is not to say that they were disregarded in this
instance.
The appellant labors mightily to portray his case as
falling beyond the pale. His principal plaint is that he started
out confused and remained confused as to his sentencing exposure
throughout the proceedings below. The district court's attempts at
clarification, he adds, did not dispel the haze. Despite the
appellant's rhetorical flourishes, however, the record belies his
animadversions.
A review of the transcript corroborates that the
appellant at one point labored under a misconception about the
possible parameters of his sentence: he thought that a five-year
-5-
mandatory minimum rather than a ten-year mandatory minimum
pertained, telling the district court:
Jimenez: So I don't understand why they say
ten years as my mandatory minimum. That's
what I don't understand. Because I look at
the guidelines and it doesn't put me at a ten
year minimum.
But that was only a momentary aberration. The transcript shows with
conspicuous clarity that the district court promptly corrected this
misimpression, advising the appellant that if he did have prior
felony drug convictions, as the government represented, "then your
mandatory minimum would be ten years, not five years." The court
proceeded to explore the margins of the possible sentencing options
and to explicate the considerations that bore on sentencing. The
completeness and the transparency of this explanation ensured that
the appellant, well before the court accepted his changed plea, had
come to comprehend the full extent of his sentencing exposure.
The sockdolager is that the appellant proceeded to
acknowledge as much. The final aspect of the relevant exchange
tells the tale:
Jimenez: I understand what you're saying now,
right. For instance, I plead guilty now, so
what you're saying [is] a ten year minimum,
right? The ten year minimum?
The Court: I have to inform you that you could
be facing a ten year mandatory minimum. Now
whether you are or not subject to the ten year
mandatory minimum, I don't know. I'm telling
you that's a possibility.
Shortly thereafter, the following colloquy occurred:
-6-
The Court: And do you also understand . . .
that if your guilty plea is accepted, you
could face a penalty of at least ten years and
up to life in prison, followed by a period of
supervised release of at least eight years and
up to life, a fine of up to $4 million, and a
special assessment of at least $100. Do you
understand that you could receive sentences up
to that amount?
Jimenez: Yes.
A defendant's acknowledgment, during a change-of-plea proceeding,
that he understands a lucid explanation of his potential sentencing
exposure is powerful evidence of the knowing nature of his guilty
plea. See Jiminez, 498 F.3d at 86.
Given the tenor of the discourse here, this case finds a
close analog in United States v. Isom, 85 F.3d 831 (1st Cir. 1996),
in which the defendant pleaded to drug-related charges and
thereafter sought to withdraw his plea on the ground that he had
misunderstood the extent of the possible penalties. See id. at
833-34. After examining the transcript of the change-of-plea
colloquy, we rejected Isom's appeal, noting that the lower court
had thoroughly explored whether he understood his situation. See
id. at 836. Similarly, the lower court in this case took pains to
ascertain that the appellant understood the dimensions of his
sentencing exposure.
We summarize succinctly. While the appellant started
with an inaccurate impression of what his minimum sentence could
be, the district court set him straight. At and after that point,
-7-
the appellant repeatedly reassured the court that he understood his
potential sentencing exposure. The record bears out that he did.
The bottom line, then, is that we can discern no error,
plain or otherwise, with respect to the Rule 11 colloquy. It
follows, as night follows day, that there is no reason to allow
withdrawal of the appellant's guilty plea. See Mercedes-Mercedes,
428 F.3d at 359 (explaining that the fact that a defendant receives
a harsher sentence than the one he anticipated is not a basis for
setting aside a plea).
The appellant next contends that his sentence should be
vacated on the ground that the two prior convictions that the
sentencing court used as predicates for his career offender
designation were inadequately substantiated. We examine this
contention.
In order to qualify as a career offender, a defendant,
among other things, must have at least two prior felony convictions
for crimes of violence or controlled substance offenses. USSG
§4B1.1(a). This latter category is restricted to drug offenses
that involve something more than simple possession; manufacture,
import, export, distribution, or dispensation of a controlled
substance qualifies, as does possession with intent to do any of
the foregoing. Id. §4B1.2(b).
In this case the government, in advance of the change-of-
plea hearing, filed an information pursuant to 21 U.S.C. §
-8-
851(a)(1).1 That information described three prior felony
convictions for narcotics offenses and suggested that these prior
convictions warranted sentencing the appellant to an enhanced
prison term of no less than ten years, see 21 U.S.C. §
841(b)(1)(B)(iii). Later, the PSI Report characterized two of
those convictions as controlled substance offenses within the
purview of the sentencing guidelines and used that characterization
as a basis for classifying the appellant as a career offender. See
USSG §4B1.1. Thus, we train the lens of our inquiry on those two
convictions.2
Both convictions occurred in New York. The first was for
possession of a controlled substance in the third degree; it arose
under N.Y. Penal Law § 220.16, a statute that criminalizes, inter
1
That statute provides in pertinent part:
No person who stands convicted of an offense under [the
federal drug-trafficking laws] shall be sentenced to
increased punishment by reason of one or more prior
convictions, unless before trial, or before entry of a
plea of guilty, the United States attorney files an
information with the court (and serves a copy of such
information on the person or counsel for the person)
stating in writing the previous convictions to be relied
upon. . . .
21 U.S.C. § 851(a)(1).
2
The record reflects that the appellant had yet a third
conviction — this one for criminal possession of a controlled
substance in the fourth degree, in violation of N.Y. Penal Law §
220.09. We need not consider this third conviction in connection
with this appeal.
-9-
alia, knowing and unlawful possession of a stimulant weighing one
gram or more with intent to sell the same. The second, arising
under N.Y. Penal Law § 220.39, was for the unlawful sale of a
controlled substance in the third degree. After the appellant
chose not to dispute either the PSI Report's account or its
characterization of these convictions at the disposition hearing,3
the district court classified him as a career offender, established
a GSR of 292 to 365 months, and imposed a 292-month incarcerative
term.
Before us, the appellant posits that the district court
erred when it relied on the PSI Report for proof of these prior
convictions. He notes that the PSI Report supports one conviction
by purporting to summarize a police report about the underlying
crime and provides no documentation at all for the other charge.
This skimpy substantiation, he maintains, falls short of the
evidentiary bar established by the Supreme Court in Shepard v.
United States, 544 U.S. 13, 20 (2005). Shepard holds that in
determining whether a prior conviction resulting from a guilty plea
is a proper predicate conviction for purposes of the Armed Career
Criminal Act, 18 U.S.C. § 922, a sentencing court's inquiry should
be "confined to records of the convicting court." Shepard, 544
3
Without limiting the generality of the foregoing, it is
worthy of special note that the appellant has made no argument that
either of these convictions is for an offense that falls outside
the contemplation of the career offender provisions.
-10-
U.S. at 23. These were said to include "the terms of the charging
document, the terms of a plea agreement or transcript of colloquy
between judge and defendant in which the factual basis for the plea
was confirmed by the defendant, or . . . some comparable judicial
record of this information." Id. at 26; see Conteh v. Gonzales,
461 F.3d 45, 53 (1st Cir. 2006) (discussing Shepard).
At the disposition hearing, the appellant never lodged an
objection to the inclusion of either of these prior convictions in
the PSI Report. By the same token, he did not object to the
district court's designation of him as a career offender. These
omissions are all the more striking because, at multiple times
during the Rule 11 hearing, the district court expressly invited
the appellant to take the opportunity provided by the disposition
hearing to challenge any supposed mischaracterization of his prior
criminal record or any overly ambitious attempt to invoke career
offender status.
For example, at one point in the Rule 11 proceeding, the
following colloquy occurred:
Jimenez: Okay. So right now I'm just pleading
guilty right now to this charge here?
The Court: Correct.
Jimenez: I'm not signing no paper that says
I'm doing ten years or nothing like that yet?
The Court: That's right.
Jimenez: I'm just pleading guilty to this
right now.
-11-
The Court: That's correct. That's correct.
Jimenez: Then the next time I come to court,
we'll discuss that time situation after that?
The Court: That's right. The determination as
to whether you have three prior convictions or
not would be made later.
Jimenez: Okay. So right now, I just want to
get it straight, because I don't want to have
no mix-up. I'm pleading guilty to five grams
or more of a controlled substance. That's
what I'm pleading guilty to?
The Court: Correct.
Jimenez: My past history will be discussed
later on to determine my sentencing?
The Court: That's right.
Jimenez: All right.
Later, the following exchange occurred:
The Court: And as I said earlier, whether you
do or do not [face penalties of at least ten
years and up to life in prison], I guess
remains to be seen until these issues, . . .
namely, whether you have three prior
convictions, whether the substance that you
possessed was cocaine base or crack cocaine.
Do you understand that?
Jimenez: Yes.
The Court: But you understand that if those
issues are resolved against you, that as
things stand, that you could be looking at a
mandatory minimum of ten years?
Jimenez: And if they're resolved the way I'm
saying, it . . . could bring me down to a five
year minimum, right?
-12-
The inevitable conclusion from this history is that the
appellant — having been expressly invited to object on the ground
that his predicate convictions did not qualify him for career
offender status and having eschewed the opportunity — waived that
objection. See United States v. Olano, 507 U.S. 725, 733 (1993)
(describing waiver as the "intentional relinquishment or
abandonment of a known right") (quoting Johnson v. Zerbst, 304 U.S.
458, 464 (1938)); United States v. Rodriguez, 311 F.3d 435, 437
(1st Cir. 2002) (finding a waiver where defendant initially
objected to prior convictions but later withdrew his objection).
We use the term "waiver" advisedly. A waiver is unlike a
forfeiture, for the consequence of a waiver is that the objection
in question is unreviewable. See Rodriguez, 311 F.3d at 437;
United States v. Mitchell, 85 F.3d 800, 807 (1st Cir. 1996). Not
even plain-error review is available to a party who has waived a
claim of error. So it is here.
We add a coda. Even if this claim of Shepard error were
properly before us, we would reject it. Where, as here, the
characterization of an offense contained in a presentence report is
not disputed before the sentencing court, the report itself is
competent evidence of the fact stated and, thus, is sufficient
proof of that fact. See United States v. Pelletier, 469 F.3d 194,
202-03 (1st Cir. 2006) (explaining that "in the absence of any
objection, a statement in a presentence report is sufficient to
-13-
prove the fact proposed"); United States v. Cordero, 42 F.3d 697,
701 (1st Cir. 1994) (upholding reliance on description in PSI
Report for proof of predicate conviction).4 That is the situation
here. Shepard is, therefore, inapposite.
The fact that the government sufficiently proved the two
prior convictions does not necessarily end our inquiry. In some
circumstances, the question would remain whether the underlying
offenses qualify as controlled substance offenses within the
meaning of the applicable sentencing guideline. See USSG
§4B1.2(b). Here, however, the appellant has made no argument,
either in the lower court or in this court, that his prior
convictions, if properly substantiated, do not qualify as
convictions for controlled substance offenses. He has, therefore,
effectively conceded this point. See United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990) (warning that a party "has an obligation
to spell out its arguments squarely and distinctly, or else forever
hold its peace") (internal quotation marks omitted).
We turn next to the appellant's residual claims of
sentencing error. The first of these is his asseveration that the
district court transgressed his constitutional rights by sentencing
him on the basis that he had possessed crack cocaine. To bolster
4
The absence of any timeous challenge to the PSI Report
distinguishes the case at hand from our recent decision in United
States v. Brown, ___ F.3d ___, ___ (1st Cir. 2007) [No. 05-2830,
slip op. at 31-37].
-14-
this asseveration, he notes that he pleaded guilty only to
possessing generic cocaine base, and that the government presented
no scientific evidence addressing the composition of the cocaine
base that was seized from his dwelling. This issue was not raised
below and, thus, engenders plain-error review. See Duarte, 246
F.3d at 60.
There was no plain error here. Although the sentencing
guidelines make numerous distinctions that depend upon the type of
drug involved in the offense of conviction, there is no such
distinction between crack cocaine and cocaine base under the career
offender guideline. That is critically important because the
appellant was not sentenced as a garden-variety drug-trafficker but
as a career offender. Since his offense level, calculated without
reference to the career offender provisions, was less than his
offense level calculated in accordance with those provisions,5 the
latter trumped the former. See USGG §4B1.1(b) (directing that "if
the offense level for a career offender from the [career offender]
table . . . is greater than the offense level otherwise applicable,
the offense level from the [career offender] table . . . shall
apply").
5
The appellant's base offense level as a career offender was
37, regardless of the type of drug involved in the offense of
conviction. See USSG §4B1.1(b). Absent career offender status,
his base offense level would have been calculated under section
2D1.1(c) of the guidelines; even if the district court treated his
offense as involving crack cocaine, the base offense level under
that guideline would not have exceeded 32.
-15-
The career offender provisions do not distinguish between
crack cocaine and other forms of cocaine base. See id.
Consequently, regardless of whether the appellant possessed 39.22
grams of crack cocaine or 39.22 grams of some other form of cocaine
base, his GSR as a career offender would have been the same.
To say more on this point would be supererogatory. In
the circumstances at hand, the sentencing court's treatment of the
seized contraband as crack cocaine could not have constituted plain
error. See Duarte, 246 F.3d at 61-62 (explaining that the plain
error doctrine requires that the alleged error must have affected
the appellant's substantial rights).
In a last-ditch effort to secure vacation of his
sentence, the appellant asserts that the 100:1 crack-to-powder
ratio embedded within the sentencing guidelines is unreasonable and
unjust.6 Even while voicing this assertion, he acknowledges in his
brief that a recent decision of this court decides the issue
adversely to him. See United States v. Pho, 433 F.3d 53, 54, 61-65
(1st Cir. 2006). He nonetheless exhorts us to reconsider the
question.
The legal landscape anent the crack/powder disparity
changed significantly on December 10, 2007, when the Supreme Court
6
In the interim since the briefs in this appeal were
submitted, amendments to the sentencing guidelines were ratified by
Congress, becoming effective as of November 1, 2007. Even more
recently, the Sentencing Commission has made those amendments
retroactive (as of March 3, 2008).
-16-
held that a district court can deviate from a properly calculated
guideline sentencing range on the basis of that disparity. See
Kimbrough v. United States, ___ S. Ct. ___, ___ (2007) [No. 06-
6330, slip op. at 21].
Although the appellant sought this exact legal
peripeteia, its arrival does not benefit him at all. As we have
explained, the crack/powder dichotomy is irrelevant to the career
offender sentence actually imposed in this case. Consequently, the
decision in Kimbrough — though doubtless important for some cases
— is of only academic interest here.
That ends this aspect of the matter. A federal appellate
court, reviewing a criminal conviction, has no business answering
purely academic questions. See United States v. Padilla, 415 F.3d
211, 225 (1st Cir. 2005) (en banc) (Boudin, C. J., concurring);
United States v. Pighetti, 898 F.2d 3, 5 n.2 (1st Cir. 1989). That
rule governs here.
We need go no further. For the reasons elucidated above,
we uphold the appellant's conviction and sentence.
Affirmed.
-17-