United States Court of Appeals
For the First Circuit
No. 02-2303
UNITED STATES OF AMERICA,
Appellee,
v.
IVAN VAZQUEZ-ALOMAR,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
José R. Franco and José R. Franco Law Office on brief for
appellant.
H.S. Garcia, United States Attorney, Sonia I. Torres-Pabón,
Chief, Criminal Division, and Nelson Pérez-Sosa, Assistant United
States Attorney, on brief for appellee.
August 22, 2003
SELYA, Circuit Judge. Constancy is a virtue, and he who
vacillates often pays a price for his indecision. This sentencing
appeal illustrates the point.
We extract the relevant facts from the plea agreement,
the change-of-plea colloquy, the transcript of the disposition
hearing, and the documents in the record. See United States v.
Martinez-Vargas, 321 F.3d 245, 247 (1st Cir. 2003); United States
v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991).
Defendant-appellant Ivan Vazquez-Alomar has a history of
trouble with the law. Pertinently, he pled guilty to federal drug
trafficking and money laundering charges on June 11, 1999. The
United States District Court for the District of Puerto Rico
sentenced him to serve a 70-month incarcerative term in a federal
correctional facility. On May 24, 2000, he pled guilty in the same
court to additional drug-trafficking violations and to transporting
firearms. He received a 78-month sentence, to be served
concurrently with his previous sentence.
The charges underlying this appeal stem from a protracted
investigation by federal agents into the laundering of drug
proceeds. This probe revealed that for a period of roughly ten
months commencing around December of 1998, the appellant
participated in the laundering of drug money within the United
States and abroad. On August 21, 2000, a federal grand jury
sitting in the District of Puerto Rico returned an indictment
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charging the appellant (who was then incarcerated as a result of
the sentences imposed in June 1999 and May 2000) with money
laundering in violation of 18 U.S.C. §§ 1956-1957.
Immurement did not check the appellant's penchant for
criminal activity. In November of 2000, while still incarcerated,
he engaged in telephone conversations concerning money laundering
and the importation and distribution of multi-kilogram quantities
of cocaine. He did not inform the authorities of these
conversations, as federal law requires. See id. § 4.
On November 21, 2001, the grand jury returned a
superseding indictment that charged the appellant with, inter alia,
conspiracy to commit money laundering.1 Id. §§ 1956(a)(1)(A)(i),
1956(a)(2)(A), 1956(h), 1957. After initially proclaiming his
innocence, the appellant entered a guilty plea to the money
laundering count on May 1, 2002. On the same date, the government
charged him, by information, with misprision of a felony, id. § 4
— a charge based on the in-prison telephone calls. The appellant
pled guilty to that charge as well.
Coincident with these developments, the parties entered
into a non-binding plea agreement (the Agreement). See Fed. R.
Crim. P. 11(e)(1)(C). The Agreement spelled out certain proposed
offense level adjustments and, based on those stipulations,
1
The indictment also contained drug-related charges, but those
charges were later dismissed. Accordingly, they need not concern
us.
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memorialized an agreement "that the appropriate disposition of this
case" would be a sentence of 135 months' imprisonment. The length
of this proposed sentence derived from the following calculation
(made by the government, acquiesced in by the appellant, and
eventually adopted by the district court). The calculation started
with the base offense level for laundering monetary instruments:
level 23. USSG §2S1.1(a)(1).2 The base offense level was
increased by six levels because the funds in question exceeded
$2,000,000. Id. §2S1.1(b)(2)(G). Three more levels were added due
to the appellant's knowledge that the funds represented the
proceeds of an unlawful activity involving the distribution of
controlled substances. Id. §2S1.1(b)(1). That subtotal (32) was
reduced by three levels for acceptance of responsibility. Id. §
3E1.1. Given the appellant's adjusted offense level (29) and
criminal history category (III), the projected guideline sentencing
range was 108-135 months. The sentence that the parties agreed to
recommend to the court reflected the top of that range.
The parties also agreed (i) that the government would
request that the two new sentences (one for money laundering and
the other for misprision) be served concurrently;3 (ii) that "no
2
All references to the sentencing guidelines are to the
November 2000 edition, which was in effect when the instant
offenses were committed. See United States v. Harotunian, 920 F.2d
1040, 1041-42 (1st Cir. 1990).
3
The relevant section of the Agreement states that "[t]he
United States will request at the time of sentencing that the
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further adjustments or departures to the base offense level would
be sought;" and (iii) that "any request by [the appellant] for any
further guideline adjustments . . . will be considered by the
United States as a breach of this [Agreement]." The Agreement
neither referred to the appellant's previous crimes nor mentioned
his existing incarceration.
At the time that he signed the Agreement, the appellant
was represented by two experienced defense lawyers. He
subsequently retained yet a third attorney, José R. Franco-Rivera,
to work in conjunction with them. If two were company, three
proved to be a crowd: on September 3, 2002, Franco-Rivera, without
the assent of his two co-counsels, filed a motion seeking to have
the new sentence run concurrently with the unexpired portions of
the appellant's existing sentences. In this motion, the appellant
argued that USSG §5G1.3(b) required that result.4 In the
sentence imposed in Criminal No. 00-692(CCC) [money laundering] be
imposed concurrent with that in Criminal No. 01-379 (JAF)
[misprision of a felony]." Because the sentence for money
laundering substantially exceeded the sentence for misprision, we
henceforth refer to the former as "the new sentence."
4
USSG § 5G1.3 provides in pertinent part:
(a) If the instant offense was committed while the
defendant was serving a term of imprisonment . . . the
sentence for the instant offense shall be imposed to run
consecutively to the undischarged term of imprisonment.
(b) If subsection (a) does not apply, and the
undischarged term of imprisonment resulted from
offense(s) that have been fully taken into account in the
determination of the offense level for the instant
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appellant's view, his previous drug-trafficking convictions had
been fully taken into account in the determination of the offense
level for his new sentence by reason of the three-level enhancement
for his knowledge that the laundered funds were drug proceeds.
The disposition hearing took place on September 4, 2002.
The appellant's three attorneys were present to represent their
common client.
The district court first addressed the September 3
motion. The court quickly ascertained that the appellant's
original lawyers, Marlene Aponte Cabrera and Rafael Castro Lang,
had no input into the filing of that motion. Aponte then stated
that she believed the motion contravened the Agreement. Castro
concurred with that assessment. The court asked the appellant what
he wished to do in view of the fact that the motion was deemed
inadvisable by two of his three attorneys. The appellant replied
that he desired to "withdraw the motion . . . [and] proceed with
the sentencing."
offense, the sentence for the instant offense shall be
imposed to run concurrently to the undischarged term of
imprisonment.
(c) (Policy Statement) In any other case, the sentence
for the instant offense may be imposed to run
concurrently, partially concurrently, or consecutively to
the prior undischarged term of imprisonment to achieve a
reasonable punishment for the instant offense.
USSG §5G1.3.
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Despite this blunt disavowal, the district judge
conducted a thorough inquiry. She questioned the government on its
interpretation of the Agreement, heard again from the appellant,
and listened to his battery of attorneys. In the end, the judge
noted that the only mention of concurrent sentences in the
Agreement was the linkage between the money laundering and
misprision charges, see supra note 3, and that the Agreement made
no reference to other criminal cases or sentences. The judge
concluded that, under the circumstances, granting the motion would
be an "unwarranted modification of the plea agreement" and,
therefore, denied it.
From that point forward, the disposition hearing
proceeded smoothly. In line with the Agreement, the district court
sentenced the appellant to a 135-month incarcerative term for money
laundering and a 36-month incarcerative term for misprision of a
felony. The court ordered those terms to run concurrently with
each other but consecutive to the undischarged portions of the
earlier sentences.
On September 12, 2002, the appellant filed a timely
notice of appeal. In this venue, he argues that his motion for the
imposition of concurrent sentences should not have been denied
because the Agreement did not speak to this aspect of the matter
and, therefore, granting the motion would not have been
inconsistent with the Agreement. Moreover, the applicable
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provisions of the sentencing guidelines mandated running the
sentences concurrently. See USSG §5G1.3, quoted supra note 4.
The government's first line of defense is that the
appellant waived this claim. Waiver is the "intentional
relinquishment or abandonment of a known right." United States v.
Olano, 507 U.S. 725, 733 (1993) (citing Johnson v. Zerbst, 304 U.S.
458, 464 (1938)); see also United States v. Rodriguez, 311 F.3d
435, 437 (1st Cir. 2002). What constitutes a waiver depends in the
first instance on the nature of the right at issue. See New York
v. Hill, 528 U.S. 110, 114 (2000). Criminal defendants may waive
most rights as long as they do so "voluntarily and with knowledge
of the general nature and consequences of the waiver." United
States v. Teeter, 257 F.3d 14, 21 (1st Cir. 2001). When a criminal
defendant identifies an issue and then declines to pursue it, he
normally will be deemed to have waived that issue for the purpose
of appellate review. See Rodriguez, 311 F.3d at 437; United States
v. Ross, 77 F.3d 1525, 1542 (7th Cir. 1996).
The record here is transparently clear that the September
3 motion brought the possibility of a broadly concurrent sentence
— one that would have encompassed both the new sentence and the
undischarged portions of the earlier terms — squarely before the
district court. Having raised the issue, however, the appellant
then retreated and stated unequivocally that he wished to withdraw
his motion. The appellant's trio of attorneys acquiesced in this
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decision (indeed, two of them had opposed the filing of the motion
from the moment that they learned of it, and the third — the
motion's original proponent — ultimately agreed with this course of
action).
The withdrawal of the motion constituted an express
waiver, and the appellant is bound by that waiver. See Rodriguez,
311 F.3d at 437; United States v. Mitchell, 85 F.3d 800, 807 (1st
Cir. 1996). His appeal therefore fails.
We hasten to add that, even if we were willing to
overlook the waiver, the appeal would not bear fruit. Stripped of
rhetorical flourishes, the appellant's position is that the lower
court had the duty to make his new sentence run concurrently with
the unexpired portions of his earlier sentences. This position is
simply wrong.
The Agreement is silent (and, therefore, not dispositive)
as to how the appellant's new sentence should be aligned with the
unexpired portions of his earlier sentences. For present purposes,
however, the important fact is that nothing in the Agreement
demands that the court run the sentences concurrently. By like
token, nothing in the sentencing guidelines requires such an
outcome. We explain briefly.
The new sentence was based on the appellant's money
laundering conviction. See supra note 3. The appellant's argument
depends on the notion that the new sentence gave full effect to the
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drug trafficking that formed the basis for his earlier sentences.
We disagree: the three-level upward adjustment under USSG
§2S1.1(b)(1) was grounded not on the appellant's involvement per se
in drug trafficking, but, rather, on his knowledge of illegal
activity.5 See United States v. Rivera-Rodriguez, 318 F.3d 268,
278-79 (1st Cir. 2003); United States v. Bierd, 217 F.3d 15, 23
(1st Cir. 2000); cf. United States v. Lombardi, 5 F.3d 568, 571
(1st Cir. 1993) (holding that mail fraud and money laundering
convictions should not be grouped even though offense level for
money laundering was increased based on defendant's knowledge that
funds were proceeds of mail fraud). It is, therefore, readily
evident that the earlier sentences did not result from conduct that
had been "fully taken into account in the determination of the
offense level for the [offense of conviction]." USSG §5G1.3(b).
In situations, like this one, that are not covered by the
first two subsections of USSG §5G1.3, subsection (c) applies.
Under this proviso, the court, in its discretion, may impose a
sentence concurrently, partially concurrently, or consecutively.
See id. §5G1.3(c), cmt. (n.3). The end result need only be
"reasonable." United States v. Caraballo, 200 F.3d 20, 28 (1st
Cir. 1999). The default rule in such situations is for the
5
The relevant guideline provides that "[i]f the defendant knew
or believed that the [laundered] funds were the proceeds of an
unlawful activity involving the manufacture, importation, or
distribution of narcotics," the sentencing court should boost the
offense level by three levels. USSG §2S1.1(b)(1).
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sentences to run consecutively. See 18 U.S.C. § 3584(a); see also
United States v. Quinones, 26 F.3d 213, 216-17 (1st Cir. 1994);
United States v. Flowers, 995 F.2d 315, 316-17 (1st Cir. 1993).
In this instance, the district court hardly can be
faulted for following the default rule. After all, the court had
good reason to conclude that granting the concurrent sentence
motion would impugn the spirit, if not the letter, of the
Agreement. The Agreement mentioned only the offenses of conviction
(money laundering and misprision of a felony) and provided that the
sentences for those two crimes should run concurrently with each
other. Given that level of specificity, it was reasonable for the
district court to conclude that the parties did not intend to have
those sentences run concurrently with the unexpired portion of any
previous sentence.
This conclusion is bolstered by three facts. First, the
Agreement included a standard integration clause signifying that it
contained the entire agreement among the parties and their counsel.
Second, the Agreement explicitly warned 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 . . . not stated here." Third, the concurrent sentence
motion, if granted, would have resulted, as a practical matter, in
a considerably more lenient sentence than that called for by the
Agreement — a result that would seem odd given the government's
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extraction of a promise that the appellant would seek no further
guideline adjustments or departures.
To say more would be to paint the lily. USSG §5G1.3(c)
governs here, and the district court had discretion as to whether
to make the new sentence run concurrently or consecutively vis-à-
vis the undischarged portions of the earlier sentences. On this
record, the sentencing court had ample reason to deny the motion
and hold the appellant to the spirit of the Agreement. Any claim
that the court abused its discretion in following that course would
be an exercise in futility.
We need go no further. The record reveals that the
district court appropriately questioned the appellant and his
phalanx of attorneys regarding the concurrent sentence motion and
gave the appellant a choice as to how to proceed. The appellant
elected to withdraw the motion. Given that explicit election, the
doctrine of waiver bars the appellant's belated attempt to
resurrect the issue on appeal. In any event, the lower court acted
well within the realm of its discretion in refusing to shape its
sentence to fit the contours proposed in the concurrent sentence
motion.
Affirmed.
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United States v. Vazquez-Alomar
Court: Court of Appeals for the First Circuit
Date filed: 2003-08-22
Citations: 342 F.3d 1
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