United States v. Gonzalez-Arimont

United States Court of Appeals
For the First Circuit

No. 00-1598

UNITED STATES,

Appellee,

v.

ALBERT GONZALEZ-ARIMONT,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.

Mauricio Hernandez-Arroyo for appellant.
Nelson Perez-Sosa, Assistant United States Attorney, with
whom Guillermo Gil, United States Attorney, and Jorge E. Vega-
Pacheco, Assistant United States Attorney, were on brief for
appellee.

October 11, 2001
 STAHL, Senior Circuit Judge. Defendant-appellant

Albert Gonzalez-Arimont appeals his conviction and sentencing

for aiding and abetting in an armed carjacking resulting in

death, 18 U.S.C. § 2119(3), and for use of a firearm during and

in relation to a crime of violence, 18 U.S.C. § 924(c).

Gonzalez-Arimont raises several issues. First, he appeals a

district court order denying a motion to dismiss his indictment

for failure of the government to bring him to trial within

seventy days of indictment as required by the Speedy Trial Act,

18 U.S.C. §§ 3161-3174. Second, Gonzalez-Arimont argues that

his indictment and conviction for two separate counts involving

the same criminal conduct violate the Double Jeopardy Clause of

the Fifth Amendment. Although represented by counsel, appellant

has also filed a pro se brief, arguing that his attorney's

failure to raise the Double Jeopardy issue constitutes

ineffective assistance of counsel. Finally, Gonzalez-Arimont

appeals his sentence on the grounds that the district court

erred in using his juvenile adjudications in determining his

criminal history and in reducing his criminal history category

to II rather than I. We affirm.

I. Background

On December 30, 1996, Gonzalez-Arimont and an

unindicted (now deceased) coconspirator approached Santo Santos

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Jordan and "carjacked" him at gunpoint. Gonzalez-Arimont and

the coconspirator took Santos Jordan to an ATM machine where

they forced him to withdraw cash from his bank account. Ten or

fifteen minutes later they attempted to force Santos Jordan to

withdraw additional cash from a second ATM but were unable to do

so. Santos Jordan was shot and killed at some point that night.

The next day, after a brief chase, police apprehended Gonzalez-

Arimont and his coconspirator in Santos Jordan's car.

On June 11, 1997, Gonzalez-Arimont was arrested and

charged as a juvenile. That case was assigned number 97-141 and

a U.S. Magistrate ordered the appellant detained without bail.

On October 16, 1998, almost a year and a half later, the

district court issued an order transferring Gonzalez-Arimont's

case to adult status under the same case number. Subsequently,

on November 23, 1998, a grand jury issued a two count indictment

charging him with aiding and abetting in an armed carjacking

resulting in death, in violation of 18 U.S.C. § 2119(3) (Count

I) and with use of a firearm during and in relation to a crime

of violence in violation of 18 U.S.C. § 924(c) (Count II). This

case was assigned a new number of 98-249. Apparently due to the

confusion about the correct case number (which led the district

clerk's office to designate the already incarcerated defendant

as a fugitive in the adult case), Gonzalez-Arimont was not

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arraigned under the new indictment and hence did not enter a

plea.

On February 1, 1999, the seventieth day after the

return of the indictment, the United States filed a motion

requesting a status conference on criminal case number 97-141,

the juvenile case. In turn, Gonzalez-Arimont filed a motion to

dismiss the indictment in the adult case number 98-249 the next

day, on grounds of the alleged Speedy Trial Act violation. The

district court denied the motion to dismiss the indictment on

two alternative grounds. First, the court found that, because

Gonzalez-Arimont had never entered a not-guilty plea with

respect to the adult charges, the Speedy Trial Act clock had not

begun to run. Second, the court held that, even if the Speedy

Trial Act clock began running on the day the grand jury returned

the indictment on the adult charge, the government's request for

a status conference, albeit mistakenly filed under the juvenile

case number, was sufficient to stop the clock on the seventieth

day after the indictment. United States v. Gonzalez-Arimont,

Crim. No. 98-249(SEC), R. Doc. 8 at 3-4 (D.P.R. March 8, 1999).

Here, appellant requests review of the district court's

determination that there was no Speedy Trial Act violation.

After the motion to dismiss was denied, Gonzalez-

Arimont was arraigned and entered a plea of not guilty to the

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charges. Subsequently, on June 16, 1999, he pleaded guilty to

both counts of the indictment. At the change of plea hearing,

Gonzalez-Arimont did not raise his Double Jeopardy objection

(i.e., being indicted and convicted under two separate counts

involving the same criminal conduct), but brings this issue

before us on appeal. The record further indicates that Gonzalez-

Arimont did not seek to preserve his right to appeal the Speedy

Trial Act issue.

The presentence report recommended that Gonzalez-

Arimont's sentence for Count I be based on a criminal history

category of IV, yielding a sentencing range of 360 months to

life imprisonment. In arriving at this determination, the

probation department relied on information from the court for

Minors Affairs in Caguas, Puerto Rico, showing three juvenile

adjudications involving trespassing, a fight, and the possession

of a single joint of marijuana.

At the sentencing hearing on March 23, 2000, the Court

heard an objection by Gonzalez-Arimont that criminal history

category IV over-represented his past history and that the

designation should be adjusted downward to category I. Although

the court agreed that there should be an adjustment, it reduced

the criminal history category to II rather than I and then

determined that the appropriate imprisonment range for Count I

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was 324 to 405 months. The court sentenced Gonzalez-Arimont to

a term of 405 months on Count I, with an additional 60 months

for count II, to be served consecutively. The inclusion of

Gonzalez-Arimont's juvenile adjudications in his criminal

history and the determination of the court that Gonzalez-

Arimont's criminal history should be downgraded to category II

rather than category I, are the final issues Gonzalez-Arimont

raises on appeal.

II. Speedy Trial Act

Gonzalez-Arimont first asserts that the district court

erred in denying his motion to dismiss the indictment for

failure of the government to bring him to trial within the 70

days from indictment required by the Speedy Trial Act. 1 We

review the legal findings underlying a district court's Speedy

Trial Act ruling de novo and review factual findings for clear

error. See United States v. Rodriguez, 63 F.3d 1159, 1162 (1st

Cir. 1995). As a preliminary matter, however, the government

argues that by voluntarily pleading guilty and by not

1 18 U.S.C. § 3161(c)(1) provides in pertinent part: "In any
case in which a plea of not guilty is entered, the trial of a
defendant charged in an information or indictment with the
commission of an offense shall commence within seventy days from
the filing date . . . of the information or indictment, or from
the date the defendant has appeared before a judicial officer of
the court in which such charge is pending, whichever date last
occurs."

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simultaneously reserving the right to appeal any speedy trial

issue, Gonzalez-Arimont waived his right to appeal the district

court's determination. We agree.

This court has not previously ruled on the question of

whether a guilty plea precludes a defendant from appealing the

denial of his right to a speedy trial. See United States v.

Garcia-Martinez, 254 F.3d 16, 19 (1st Cir. 2001) (finding it

unnecessary to rule on the waiver question because the

substantive Speedy Trial Act claim lacked merit); Acha v. United

States, 910 F.2d 28, 30 (1st Cir. 1990) (same). But the

prevailing position in other circuits has been that an

unconditional guilty plea waives Speedy Trial Act claims on

appeal. Taylor v. United States, 204 F.3d 828, 829 (8th Cir.

2000) (holding that appellant's Speedy Trial Act claim was

waived by his plea of guilty); United States v. Bell, 966 F.2d

914, 915 (5th Cir. 1992) (holding that a defendant who knowingly

and voluntarily enters a guilty plea waives all

nonjurisdictional defects and that a Speedy Trial Act violation

is such a nonjurisdictional defect); United States v. Bohn, 956

F.2d 208, 209 (9th Cir. 1992) (same); United States v. Gines,

964 F.2d 972, 976 (10th cir. 1992) (same); United States v.

Pickett, 941 F.2d 411, 416-17 (6th Cir. 1991) (same); Lebowitz

v. United States, 877 F.2d 207, 209 (2d Cir. 1989) (same);

-8-
United States v. Yunis, 723 F.2d 795, 796 (11th Cir. 1984)

(same).

The Federal Rules of Criminal Procedure specify "that

if a plea of guilty . . . is accepted by the court there will

not be a further trial of any kind, so that by pleading guilty

. . . the defendant waives the right to a trial . . .." Fed. R.

Crim. P. 11(c)(4). In the course of the change of plea hearing,

the court asked Gonzalez-Arimont whether he understood that "by

entering a plea of guilty . . . there will be no trial and [he]

will have waived or given up [his] right to a trial as well as

those other rights associated with the trial . . .. " (Tr. of

Change of Plea, No. 98-249(SEC), R. Doc. 42 at 5 (D.P.R., June

16, 1999).) Gonzalez-Arimont answered in the affirmative. We

have previously held that, by waiving the right to a trial

through a guilty plea, the defendant waives all

nonjurisdictional defenses. See United States v. Cordero, 42

F.3d 697, 699 (1st Cir. 1994); Acevedo-Ramos v. United States,

961 F.2d 305, 308 (1st Cir. 1992); Valencia v. United States,

923 F.2d 917, 920 (1st Cir. 1991). We now join with our sister

circuits and hold that a claim under the Speedy Trial Act is a

nonjurisdictional defense that is waived with an unconditional

guilty plea.

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 A defendant may, "[w]ith the approval of the court and

the consent of the government, . . . enter a conditional plea of

guilty . . ., reserving in writing the right, on appeal from the

judgment, to review of the adverse determination of any

specified pretrial motion." Fed. R. Crim. P. 11(a)(2). See

United States v. Caraballo-Cruz, 52 F.3d 390, 392 (1st Cir.

1995) (holding that the waiver of all nonjurisdictional defects

under a guilty plea is overcome when the parties enter a

conditional plea agreement that expressly preserves the

defendant's right to raise an issue on appeal). But Gonzalez-

Arimont made no attempt at the time of his guilty plea to

reserve the Speedy Trial Act issue and we accordingly find that

he has waived his right to raise it on appeal.2 See United

States v. Coffin, 76 F.3d 494, 497 (2d Cir. 1996) (finding that

the defendant could not bring a Speedy Trial Act issue on appeal

where he had not reserved the right to appeal at the time of the

guilty plea).

2 There may be cases in which denying the right to bring a
Speedy Trial Act claim on appeal, even in the absence of an
express reservation, will lead to a significant miscarriage of
justice. While we are concerned that Gonzalez-Arimont spent
almost a year and a half in detention as a juvenile, without an
arraignment, only then to be indicted as an adult, we see no
real miscarriage of justice. In any case, the year and a half
that elapsed between Gonzalez-Arimont's arrest and indictment is
not an issue on appeal before us and we accordingly do not
address it.

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 Gonzalez-Arimont additionally contends that the

district court's substantive holdings on the Speedy Trial Act

question were erroneous. Because we find that Gonzalez-

Arimont's guilty plea precluded him from raising the speedy

trial issue on appeal, we need not address the substantive

findings of the district court.

III. Double Jeopardy

Gonzalez-Arimont's second argument is that his

indictment and conviction for violations of both 18 U.S.C. §§

2119(3) and 924(c) violate the Double Jeopardy Clause of the

Fifth Amendment because the two counts concern the same criminal

conduct. In making this argument, appellant relies primarily on

a district court case which was reversed by this court, United

States v. Centeno-Torres, 857 F. Supp. 168 (D.P.R. 1994), rev'd,

50 F.3d 84 (1st Cir. 1995). Centeno-Torres involved the same

statutory provisions at issue in this case. We found on appeal

that Congress intended § 924(c)'s firearm violation "to serve as

a cumulative punishment in addition to that provided for the

underlying violent crime" and that the Double Jeopardy Clause

was therefore not offended. 50 F.3d at 85 (citing Missouri v.

Hunter, 459 U.S. 359, 367 (1983)). In a multi-panel circuit,

uniformity of decision is achieved only by strict adherence to

previous holdings, with the function of overturning precedent

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reserved for the court sitting en banc. See Williams v. Ashland

Eng'g Co., Inc., 45 F.3d 588, 592 (1st Cir. 1995); Lacy v.

Gardino, 791 F.2d 980, 985 (1st Cir. 1986). We accordingly are

bound by Centeno-Torres's holding that there is no Double

Jeopardy Clause violation in appellant's case; in any event, we

see nothing in appellant's argument to convince us that Centeno-

Torres was wrongly decided.3

In a separate but related claim set forth in his pro

se brief, appellant further argues that his counsel rendered

ineffective assistance by failing to raise the Double Jeopardy

question discussed above. Notwithstanding our usual practice of

requiring ineffective assistance issues to be reserved for a

collateral attack, United States v. Mala, 7 F.3d 1058, 1063 (1st

Cir. 1993) (citing cases), we can dispose of Gonzalez-Arimont's

ineffective assistance of counsel claim now. The attorney's

failure to raise the Double Jeopardy question can hardly be

considered ineffective assistance in light of the fact that the

argument would have been contrary to clear precedent in this

Circuit. We have recognized an exception to the preference for

3Because appellant's Double Jeopardy claim is contradicted
by clear precedent in this Circuit, and thus easily dismissed,
we do not reach the government's alternative argument that
Gonzalez-Arimont forfeited his right to have the claim
considered on appeal by failing to first raise it in front of
the district court.

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resolving ineffective assistance arguments via collateral attack

where "the critical facts are not genuinely in dispute and the

record is sufficiently developed to allow reasoned consideration

of an ineffective assistance claim." United States v. Natanel,

938 F.2d 302, 309 (1st Cir. 1991). Gonzalez-Arimont's claim

falls squarely within that exception and we find that it is

meritless.

IV. Criminal History

Gonzalez-Arimont has appealed his sentence on two

grounds, both concerning the evaluation of his criminal history.

First, he argues that the three misdemeanors on his juvenile

record should not have been taken into consideration because

they were "expunged convictions" within the meaning of U.S.S.G.

§ 4A1.2(j), and thus not to be counted in calculating his

criminal history. Alternatively, the appellant contends that,

even if the district court correctly included the misdemeanors

in its criminal history determination, it should have reduced

his criminal history category to I rather than II.

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A. Expungement Question

In reviewing a sentence under the United States

Sentencing Guidelines ("the Guidelines"), "[w]e first determine

the applicability of [each guideline] to a particular case de

novo. After determining the guideline's scope and meaning, we

review the district court's factual determinations for clear

error . . .." United States v. Cali, 87 F.3d 571, 575 (1st Cir.

1996) (citations and internal quotation marks omitted). At

issue in Gonzalez-Arimont's appeal is the scope and meaning of

U.S.S.G. § 4A1.2(j); we therefore review the district court's

determination de novo.

The Guidelines specifically provide for certain

juvenile adjudications to be considered in evaluating the

defendant's criminal history. U.S.S.G. § 4A1.2(d).4 But the

4U.S.S.G. § 4A1.2(d) provides as follows:
(d) Offenses Committed Prior to Age Eighteen
(1) If the defendant was convicted as an adult and
received a sentence of imprisonment exceeding one year
and one month, add 3 points under §§4A1.1(a) for each
such sentence.
(2) In any other case,
(A) add 2 points under §4A1.1(b) for each adult
or juvenile sentence to confinement of at least
sixty days if the defendant was released from
such confinement within five years of his
commencement of the instant offense;
(B) add 1 point under §4A1.1(c) for each adult or
juvenile sentence imposed within five years of
the defendant's commencement of the instant
offense not covered in (A).

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guidelines also provide that "sentences for expunged convictions

are not counted . . .." U.S.S.G. § 4A1.2(j). Gonzalez-Arimont

contends that juvenile adjudications, under Puerto Rico law, are

"expunged convictions" within the meaning of § 4A1.2(j). We

find his argument unpersuasive.

The Commentary to § 4A1.2(j) provides as follows:

A number of jurisdictions have various procedures
pursuant to which previous convictions may be set
aside or the defendant may be pardoned for reasons
unrelated to innocence or errors of law, e.g., in
order to restore civil rights or to remove the stigma
associated with a criminal conviction. Sentences
resulting from such convictions are to be counted.
However, expunged convictions are not counted.
U.S.S.G. §4A1.2 cmt. n. 10.

The Puerto Rico Rules of Procedure for Minors' Matters (the

"Rules") order juvenile records of minors to be sealed. 34 P.R.

LAWS ANN. App. I-A R. 10.6 (1991). The law contemplates extensive

confidentiality and severely restricts access to the records.

Id., App. I-A R. 10.2; see also, id., § 2237(d). However, only

"where no probable cause has been determined, where no offense

has been perpetrated, or where complaints have been dismissed"

are the court records actually destroyed. Id., App. I-A R. 10.6.

The Rules thus suggest that juvenile records under

Puerto Rico law are sealed and kept confidential for reasons

that are not related to "innocence or errors of law," as

contemplated by the Commentary (since a concern with innocence

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or error instead leads to destruction of the records). The

Rules specify that they are to be interpreted in part according

to the purpose of "provid[ing] for the care, protection,

development, habilitation and rehabilitation of minors," Id., §

2202(a), App. I-A R. 1.2, suggesting that the confidentiality of

records is designed to remove stigma and encourage

rehabilitation. We held in United States v. Fosher, 124 F.3d

52, 57-58 (1st Cir. 1997), that a set-aside under the Federal

Youth Corrections Act is "for reasons unrelated to innocence or

errors of law" and therefore not expungement. We now similarly

hold that Gonzalez-Arimont's juvenile adjudications, while

sealed and kept confidential under Puerto Rico law, most likely

for reasons of encouraging rehabilitation, were not "expunged"

within the meaning of the Guidelines and were properly included

in the calculation of his criminal history.5 In taking this

position, we are in agreement with the majority of the circuits

that have considered the meaning of expungement under §

4A1.2(j). See, e.g., United States v. Hines, 133 F.3d 1360,

1362-67 (10th Cir. 1998) (holding that "Application Note 10

5
The confidentiality of juvenile records contemplated by
Puerto Rico law is not threatened by our holding. The records
were provided to the sentencing court only, strictly for the
purpose of a determination concerning defendant's criminal
history. We see no inconsistency between this process and the
policy of confidentiality.

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requires sentencing courts to analyze the true basis for

expungement under state law rather than relying on the varied

nomenclature among jurisdictions"); United States v. Nicolace,

90 F.3d 255, 258 (8th Cir. 1996) (finding that the set aside

under the Federal Youth Corrections Act was enacted to

"encourage a youth's evolution into productive citizenship" and

is therefore properly included in calculating the criminal

history score); United States v. McDonald, 991 F.2d 866, 871-72

(D.C. Cir. 1993) (holding that a set aside under the District of

Columbia Youth Rehabilitation Act is for the social objective of

rehabilitating juvenile offenders and therefore not

expungement).

B. Criminal History Category

In an alternative attack on the criminal history

calculation, Gonzalez-Arimont contends that, even if the

district court properly took account of his juvenile

adjudications, it should have assigned him a criminal history

category of I rather than II. He argues that, given the minor

nature of the offenses and the young age at which they were

committed, even a category of II over-represents his criminal

history.

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 "[A] district court's discretionary refusal to depart

downward is unreviewable unless the court believed it lacked the

authority to do so." United States v. Patrick, 248 F.3d 11, 28

(1st Cir. 2001), petition for cert. filed (U.S. Aug. 1, 2001)

(No. 01-5868). In this case, the district court undisputably

recognized its authority to depart from a strict application of

the Guidelines, since it did so in reducing Gonzalez-Arimont's

criminal history category from IV to II. We therefore decline

to review the court's determination.

Affirmed.

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