United States Court of Appeals
For the First Circuit
No. 05-2374
UNITED STATES OF AMERICA,
Appellee,
v.
RAFAEL TURBIDES-LEONARDO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Selya, Circuit Judge.
Cyr and Stahl, Senior Circuit Judges.
William W. Fick and Foley Hoag LLP on brief for appellant.
Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson
Pérez-Sosa and Thomas F. Klumper, Assistant United States
Attorneys, on brief for appellee.
November 14, 2006
SELYA, Circuit Judge. Defendant-appellant Rafael
Turbides-Leonardo (Turbides) pleaded guilty to one count of
illegally reentering the United States following an earlier
deportation after his conviction for an aggravated felony. In this
sentencing appeal, Turbides attacks both the district court's
calculation of his guideline sentencing range (GSR) and the
reasonableness of his 48-month sentence. After careful
perscrutation, we affirm.
I. BACKGROUND
Turbides is a native and citizen of the Dominican
Republic. In 1999, the Immigration and Naturalization Service
deported him from the United States following his 1997 felony
conviction in the Puerto Rico courts. He illegally reentered the
United States sometime between July 2003 and July 2004. On January
31, 2005, the authorities apprehended him as part of an ongoing
investigation into drug smuggling, narcotics trafficking, and money
laundering. An indictment for illegal reentry followed. See 18
U.S.C. § 1326.
Once Turbides pleaded guilty to the charge, a probation
officer prepared a presentence investigation report (PSI Report).
The PSI Report contemplated a total offense level (TOL) of 21, a
criminal history category of II, and a GSR of 41-51 months. In
arriving at the TOL, the probation officer factored in a 16-level
enhancement pursuant to USSG §2L1.2(b)(1)(A) (2004). The
-2-
enhancement rested upon a determination that Turbides's 1997
conviction, which carried a sentence in excess of 13 months,
constituted a conviction for a drug trafficking offense within the
purview of the aforementioned sentencing guideline.
Turbides did not object to this determination, nor did he
protest any of the other guideline calculations limned in the PSI
Report. He did, however, beseech the sentencing court to deviate
downward from the GSR. The court demurred and imposed a 48-month
incarcerative term. This timely appeal ensued.
II. ANALYSIS
In this forum, the appellant calumnizes both the 16-level
enhancement and the overall sentence. We discuss these claims of
error sequentially.
A. The Enhancement.
USSG §2L1.2 directs a 16-level increase in offense level
for illegal reentry cases "[i]f the defendant previously was
deported . . . [after] a conviction for a felony that is . . . a
drug trafficking offense for which the sentence imposed exceeded 13
months . . . ." The commentary to this guideline, set forth in the
margin,1 defines the term "drug trafficking offense" broadly. The
1
The commentary states:
[A]n offense under federal, state, or local law that
prohibits the manufacture, import, export, distribution,
or dispensing of a controlled substance (or a counterfeit
substance) or the possession of a controlled substance
(or a counterfeit substance) with intent to manufacture,
-3-
PSI Report recommended such an enhancement on the ground that the
appellant had committed the charged crime after an earlier
"conviction for a drug trafficking offense."
In support of that recommendation, the PSI Report stated
that, in 1997, Turbides, while represented by counsel, had been
convicted in the Puerto Rico Superior Court of a controlled
substance violation. Although the PSI Report explained that
details concerning the prior conviction were not readily available,
it described the underlying offense as a possession with intent to
distribute violation, which had been reduced to two counts of
"conspiracy w/intent to dist[ribute] cocaine." The PSI Report
further noted that, on December 15, 1997, the appellant received a
sentence of "4 years in prison as to each count to be served
concurrently with each other."
The appellant offered no objection either to the PSI
Report's description of his prior conviction or to its proposed 16-
level enhancement. At sentencing, the district court, again
without objection, embraced the PSI Report's characterization of
the prior conviction as a drug trafficking offense, adopted the
suggested GSR, and imposed a within-the-range sentence (48 months).
Before us, the appellant sings a significantly different
tune. He argues, for the first time, that there was no information
import, export, distribute, or dispense.
USSG §2L1.2, cmt. (n.1(B)(iv)).
-4-
in the district court record concerning his specific offense
conduct in relation to the 1997 conviction. He adds that the
Puerto Rico statute undergirding that conviction encompasses not
only conduct that would qualify as drug trafficking but also
conduct that would not qualify;2 and that the district court
treated his prior conviction as a conviction for a drug trafficking
offense without examining either the court documents in the earlier
case or the elements of the applicable Puerto Rico statute.
Building on this foundation, he asserts that, absent an inquiry
into the record of conviction, his prior offense — though
admittedly an aggravated felony — could not be deemed a drug
trafficking offense. Thus, it should have carried no more than an
8-level enhancement, see USSG §2L1.2(b)(1)(C), which would have
resulted in a GSR of 15-21 months and, presumably, a more lenient
sentence.
The appellant concedes that he neither objected to the
PSI Report's guidelines calculations nor favored the lower court
with the argument that he now stitches together. He nonetheless
implores us to treat the argument as forfeited, not waived, and
2
The principal statute of conviction, P.R. Laws Ann. tit. 24,
§ 2401, criminalizes not only paradigmatic drug trafficking
offenses (e.g., distribution, dispersal, and possession with intent
to distribute of controlled substances) but also actions that are
less obviously drug trafficking offenses (e.g., concealment of a
controlled substance). The other statute mentioned in the PSI
Report, P.R. Laws Ann. tit. 24, § 2406, refers to attempts or
conspiracies to commit offenses such as those limned in section
2401.
-5-
therefore to review it for plain error. See United States v.
Olano, 507 U.S. 725, 733-34 (1991) (differentiating between waivers
and forfeitures); United States v. Rodriguez, 311 F.3d 435, 437
(1st Cir. 2002) (same). The government disagrees; it sees the
appellant's serial failures as a waiver, which would preclude him
from raising the argument on appeal. See Rodriguez, 311 F.3d at
437.3
There is a powerful case for waiver here. See D.P.R.R.
132 (stating that objections to a PSI Report must be filed "within
14 days of its disclosure" and warning that, absent a finding "that
the basis for the objection was not reasonably available prior to
th[at] deadline," the affected party "waives any objection to the
[report] by failing to comply with this rule"). This rule cries
out for enforcement: a defendant who eschews a warrantable
objection to a conclusion reached in a presentence report lulls
both the prosecution and the sentencing court into what will prove
3
In Rodriguez, we wrote:
A party waives a right when he
intentionally relinquishes or abandons it.
This is to be distinguished from a situation
in which a party fails to make a timely
assertion of a right — what courts typically
call a "forfeiture." The difference is
critical: a waived issue ordinarily cannot be
resurrected on appeal, whereas a forfeited
issue may be reviewed for plain error.
311 F.3d at 437 (citations omitted).
-6-
to be a false sense of security if he is later allowed to do an
about-face.
This case is a good example: given the appellant's ready
acquiescence in the characterization of his earlier conviction as
a drug trafficking offense, few prosecutors would have felt a need
to bring in the original record of conviction and few judges would
have felt a responsibility to probe the point more deeply. As we
observed in United States v. Morillo, 8 F.3d 864, 872-73 (1st Cir.
1993), "[a] defendant who accepts the probation department's
configuration of the sentencing record without contesting the facts
set forth in the PSI Report can scarcely be heard to complain when
the sentencing court uses those facts in making its findings." All
things considered, we think that what transpired here amounted to
a waiver.
Even were we to assume that the appellant's
tergiversation comprised no more than a forfeiture, his late-
blooming argument would not flourish in the hothouse of plain error
review. Such review "entails four showings: (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 the
judicial proceedings." United States v. Duarte, 246 F.3d 56, 60
(1st Cir. 2001). As we explain below, the appellant cannot carry
the burden that this standard of review imposes.
-7-
To put the appellant's claim of error into perspective,
we must take a step backward. The Supreme Court has devised a
categorical approach for determining whether a prior conviction
subsumes a predicate offense. See Taylor v. United States, 495
U.S. 575, 600 (1990); see generally Conteh v. Gonzales, 461 F.3d
45, 53 (1st Cir. 2006). The categorical approach consists of two
steps. See Taylor, 495 U.S. at 602.
Where a violation of the statute underlying the prior
conviction necessarily involves every element of an enumerated
predicate offense, the mere fact of conviction establishes that the
prior conviction qualifies as a conviction for the predicate
offense. Where, however, the underlying statute spans, but is
broader than, the elements of the enumerated offense (i.e., where
the statute encompasses both conduct that would constitute a
predicate offense and conduct that would not), the prior conviction
qualifies as a conviction for the predicate offense only when "the
jury was actually required to find all of the elements" of the
predicate offense. Id. This same approach applies, with
variations necessitated by context, to cases in which the prior
conviction resulted from a guilty plea rather than a jury verdict.
See Shepard v. United States, 544 U.S. 13, 19-20 (2005).
At the second step of the Taylor analysis, an inquiring
court cannot retry the original case but, rather, must restrict its
probing to the record of conviction. See Taylor, 495 U.S. at 602;
-8-
Conteh, 461 F.3d at 53. In a tried case, the record of conviction
will consist mainly of the charging document, jury instructions,
and verdict form; in the guilty plea context, the record of
conviction will consist mainly of the charging document, written
plea agreement, and transcript of the change-of-plea colloquy. See
Shepard, 544 U.S. at 26. In all events, the information used to
characterize the putative predicate offense must be "confined to
the records of the convicting court." Id. at 23. Thus, a
presentence report in a subsequent case ordinarily may not be used
to prove the details of the offense conduct that underlies a prior
conviction. See, e.g., United States v. Sanders, 404 F.3d 980, 989
(6th Cir. 2005); United States v. Pimentel-Flores, 339 F.3d 959,
968 (9th Cir. 2003); see also Conteh, 461 F.3d at 59 (applying the
Taylor-Shepard analysis in the immigration context).
In light of the appellant's agreeable acquiescence in the
characterizations and computations contained in the PSI Report, it
is difficult to find any error. See, e.g., United States v.
Arrieta-Buendia, 372 F.3d 953, 955-56 (8th Cir. 2004) (explaining
that, absent an objection, a PSI Report may be a permissible source
of information about a prior conviction for sentence enhancement
purposes). Under the circumstances, the district court's approach
seems perfectly reasonable. And, even were we to assume, for the
sake of argument, that the sentencing court committed clear or
obvious Shepard error, see Shepard, 544 U.S. at 19-20, that would
-9-
only get the appellant halfway home: a party asserting plain error
must carry the devoir of persuasion as to all four elements of the
formulation. United States v. Padilla, 415 F.3d 211, 218 (1st Cir.
2005) (en banc); United States v. Vega Molina, 407 F.3d 511, 521
(1st Cir. 2005). Here, regardless of how we resolve the first two
elements, the appellant stumbles over the third.
Under plain error review, the third required showing is
that the claimed error affected the complaining party's substantial
rights. See Duarte, 246 F.3d at 60. The Supreme Court has
explained that "in most cases [this phrase] means that the error
must have been prejudicial: it must have affected the outcome of the
district court proceedings." Olano, 507 U.S. at 734. This
prejudicial effect on the outcome of the proceeding must be
"substantial and injurious." United States v. Dominguez Benitez,
542 U.S. 74, 81 (2004) (quoting Kotteakos v. United States, 328 U.S.
750, 776 (1946)). In other words, the complaining party must show
"a reasonable probability that, but for [the error claimed], the
result of the proceeding would have been different." Padilla, 415
F.3d at 221 (quoting Dominguez Benitez, 542 U.S. at 81). This means
that, in a sentencing appeal, a defendant who presses a forfeited
claim of error must limn circumstances indicating a reasonable
probability that, but for the error, the district court would have
imposed a different, more favorable sentence. United States v.
Antonakopoulos, 399 F.3d 68, 78 (1st Cir. 2005). Put another way,
-10-
the "defendant must . . . satisfy the judgment of the reviewing
court, informed by the entire record, that the probability of a
different result is sufficient to undermine confidence in the
outcome of the proceeding." Id.
The appellant cannot surmount this hurdle. His argument,
taken in its most attractive light, presents us with an unknown
variable: the contents of the record of the prior conviction. He
does not claim that this record, if obtained, would show that his
prior offense was other than a drug trafficking offense; he does not
claim that the record would be either ambiguous or inscrutable as
to this point; and, finally, he nowhere asserts that, factually,
his prior offense conduct would fall outside the guidelines'
definition of a drug trafficking offense. Rather, he claims only
that, under the statute of conviction, see supra note 2, his prior
offense — about which we know next to nothing — would not
necessarily encompass all the elements needed to constitute a drug
trafficking offense under USSG §2L1.2.
At bottom, then, we are left to guess whether, had a
timely objection sparked a thorough examination of the record of
conviction, the district court would or would not have found that
the prior conviction qualified as a conviction for a drug
trafficking offense. With no articulation, let alone
substantiation, of what the record of conviction might reveal, there
is no way for the appellant to show a reasonable probability that
-11-
he would be better off from a sentencing standpoint had the district
court not committed the claimed Shepard error. It follows
inexorably that the appellant has not satisfied the third prong of
the plain error test.4 See Jones v. United States, 527 U.S. 373,
394-95 (1999) ("Where the effect of an alleged error is so
uncertain, a defendant cannot meet his burden of showing that the
error actually affected his substantial rights."); Padilla, 415 F.3d
at 221 (holding that where the defendant could not show a likelihood
that he was worse off because of the alleged sentencing error, he
perforce could not show that the error affected his substantial
rights).
B. Reasonableness.
The appellant has a fallback position. He maintains that,
even if the district court correctly calculated the GSR, his 48-
month sentence is unreasonable. Relatedly, he suggests that the
district court erred in not explaining why that long a sentence was
warranted.
In United States v. Booker, 543 U.S. 220 (2005), the
Supreme Court rendered the sentencing guidelines advisory. See id.
at 245. We review sentences imposed under an advisory guidelines
regime for reasonableness, regardless of whether they fall inside
4
Since a defendant must carry the devoir of persuasion on all
four aspects of plain error review, Padilla, 415 F.3d at 218, this
failing renders it unnecessary for us to consider the fourth prong
of the test.
-12-
or outside the applicable GSR. See United States v. Jiménez-Beltre,
440 F.3d 514, 519 (1st Cir. 2006) (en banc).
We start this aspect of our analysis with a bow to the
statutory requirement that a sentencing court must "state in open
court the reasons for its imposition of the particular sentence."
18 U.S.C. § 3553(c). This directive does not mean that the
sentencing court's explanation need be precise to the point of
pedantry. While the court ordinarily should identify the main
factors upon which it relies, its statement need not be either
lengthy or detailed. United States v. Navedo-Concepción, 450 F.3d
54, 58 (1st Cir. 2006). By the same token, a sentencing court is
not required to address frontally every argument advanced by the
parties, nor need it dissect every factor made relevant by 18 U.S.C.
§ 3553 "one by one, in some sort of rote incantation, when
explicating its sentencing decision." United States v. Dixon, 449
F.3d 194, 205 (1st Cir. 2006). Even silence is not necessarily
fatal; "a court's reasoning can often be inferred by comparing what
was argued by the parties or contained in the presentence report
with what the judge did." Jiménez-Beltre, 440 F.3d at 519.
Of particular pertinence here, we have recognized that
sentences that fall inside a properly calculated guideline
sentencing range require a lesser degree of explanation than those
that fall outside the guideline sentencing range (whether above or
below). United States v. Smith, 445 F.3d 1, 4 (1st Cir. 2006).
-13-
Accordingly, a district court's statement of reasons for imposing
a within-the-range sentence need not be as cogent as its reasons for
imposing an outside-the-range sentence. Cf. id. (explaining that
"the farther the judge's sentence departs from the guidelines
sentence . . . the more compelling the justification . . . the judge
must offer" (citation omitted)).
This is consistent with pre-Booker practice. In that era,
when the guidelines calculations were correct, the sentence imposed
was within the computed range, and the range encompassed less than
a 24-month spread, a sentencing court was not obliged to give any
reasons for imposing a within-the-range sentence. See, e.g., United
States v. Mansur-Ramos, 348 F.3d 29, 31 (1st Cir. 2003) (citing 18
U.S.C. § 3553(c)). After Booker, when those preconditions are
satisfied a district court arguably is not required to cite any
reasons for imposing a within-the-range sentence. See Jiménez-
Beltre, 440 F.3d at 519 (suggesting that, post-Booker, 18 U.S.C. §
3553(c) remains in full force); see also Booker, 543 U.S. at 258-65
(striking down certain provisions of the Sentencing Reform Act but
leaving section 3553(c) intact). We say "arguably" because, in this
case, we need not answer that interesting question. For now, it
suffices that the sentencing transcript and the PSI Report make the
district court's rationale for the length of the sentence
sufficiently clear.
-14-
Beyond a lack of explanation, the appellant's campaign
against the reasonableness of his sentence is waged on three fronts.
None of his forays is persuasive.
First, the appellant claims that the district court
violated the parsimony principle — the statutory directive that
sentences should be no higher than necessary to achieve the
statutory goals of sentencing. See 18 U.S.C. § 3553(a); see also
United States v. Scherrer, 444 F.3d 91, 95 (1st Cir. 2006) (en
banc). This claim is baseless. It will be the rare case in which
a within-the-range sentence can be found to transgress the parsimony
principle.
In all events, the sentencing court in this case
acknowledged its awareness of the parsimony principle during the
disposition hearing, stating that it had taken section 3553(a) into
account in arriving at the 48-month sentence. On these facts, no
more is exigible.
Next, the appellant asserts that the district court failed
to consider several mitigatory arguments that he made at sentencing.
The record does not bear out this assertion. At the disposition
hearing, the district court began appropriately by calculating the
GSR. See United States v. Rivera Rangel, ___ F.3d ___; ___ (1st
Cir. 2006) [No. 06-2042, slip op. at 14-15]; Jiménez-Beltre, 440
F.3d at 518. The court then addressed, albeit briefly, the
arguments advanced by the appellant. We discern no failure of
-15-
consideration. After all, with respect to a sentencing court's duty
of explanation, brevity is not to be confused with inattention.
Finally, the appellant argues that the district court
failed to appreciate that he posed a reduced risk of recidivism.
In mounting this self-serving argument, the appellant theorized that
because he was an older person (49) who had learned a painful
lesson, he would never again return to the United States for fear
of what might ensue. While the district court did not address this
theorem directly, the record permits a commonsense inference that
the court was unimpressed.
The appellant's illegal entry followed a recent
deportation, which indicates that he was aware of some of the
potential consequences of illegal entry, yet, persisted in
returning. On these facts, it suffices that the district court's
unwillingness to accept this argument was both plausible and
defensible. See Dixon, 449 F.3d at 204; Jiménez-Beltre, 440 F.3d
at 519.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we reject the appellant's assignments of error.
Affirmed.
-16-