Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
Nos. 15-1943
15-1944
UNITED STATES OF AMERICA,
Appellee,
v.
RAMÓN MOLINA-QUINTERO,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Lynch, Lipez, and Thompson,
Circuit Judges.
Paul M. Glickman and Glickman Turley 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.
March 20, 2017
.
THOMPSON, Circuit Judge.
PREFACE
Ramón Molina-Quintero ("Molina") believes the government
breached a plea agreement he had entered into with the government
and so says he should get resentenced by a different district
judge. Spying no plain error, we affirm.
BACKGROUND1
Plea Agreement
Molina pleaded guilty to drug and firearm charges under
a nonbinding plea agreement that resolved two indictments filed
against him. After working through some adjustments, the agreement
arrived at a total offense level 33 for the two drug charges. The
agreement did not specify either his criminal history score or
criminal history category, though it did forecast possible
sentencing ranges for the drug charges based on criminal history
categories I (135-168), II (151-188), and III (168-210).2 For the
drug charges, the parties promised to jointly recommend a sentence
at "the lower end of the applicable guideline range for a total
1 As per usual, we draw the background facts from the plea
agreement, the unobjected-to parts of the presentence report, and
the transcripts from the relevant court hearings. See, e.g.,
United States v. Romero-Galindez, 782 F.3d 63, 65 n.1 (1st Cir.
2015).
2 These ranges were for the drug charges together, because
they were grouped for sentencing purposes, as required by the
guidelines. See U.S.S.G. § 3D1.2(d).
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offense level 33." And for the firearm charge, the parties
promised to jointly recommend a 60-month term, to run consecutively
to whatever sentence the judge imposed on the drug charges. "Any
recommendation other than what is stated herein," the agreement
added, "constitute[s] a breach of the plea agreement."
Presentence Report
Probation also found that Molina's total offense level
was 33, which included a 2-level enhancement because the drug
trafficking occurred near a protected location. And probation
calculated his criminal-history category as II because of his 1994
conviction for carrying a weapon without a license. All of this
produced a proposed sentencing range of 151-188 months.
Sentence
At sentencing, Molina's lawyer asked the judge to
(a) jettison the protected-location enhancement because the plea
agreement "did not contemplate" adding "points" for that
enhancement; (b) lower his offense level by 2 levels based on
Amendment 782 to the sentencing guidelines;3 and (c) reduce his
criminal-history score because of the 1994 conviction's supposed
remoteness. The judge asked the prosecutor for her response. And
3 That amendment retroactively lowered by 2 levels the base
offense levels for many drug crimes. See United States v.
Alejandro-Montañez, 778 F.3d 352, 362 (1st Cir. 2015).
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she started off with some background about the plea negotiations,
saying that "we lowered the amount of drugs" attributed to him to
reach an agreement. She conceded that the plea agreement did not
mention the possibility of a protected-location enhancement.
Noting how the plea agreement contained a stipulated total offense
level of 33, she also said — wrongly, it turns out, without being
contradicted by defense counsel then and there — that "the parties
agreed that each party was going to argue for a sentence within
the range." But, she quickly added, "the government at this time
is standing by what was recommended in the plea agreement" and so
would not push for a protected-location enhancement. The
government would not oppose the 2-level reduction under Amendment
782, she intimated, even though that would result in a total
offense level lower than the one spelled out in the plea agreement.
But she argued against Molina's bid to have the judge reduce his
criminal-history category, saying he should "be considered a
criminal history category II."
And now we come to the money quote, as Molina sees it.
After saying all this to the judge, the prosecutor then said that
Molina "should be sentenced to the higher end of the applicable
range." As she started to go into the stipulated facts — which
she noted included his "preserv[ing] and protect[ing] the
narcotics and profits of the organization through the use of
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intimidation" — the judge interrupted and asked her follow-up
questions about the defense's push for a lower guidelines
calculation. Among her responses, the prosecutor stressed that
the government could not ask for a protected-location enhancement
because "that would be a breach of the plea agreement." During
this back-and-forth between the prosecutor and the judge, Molina's
lawyer broke in to object to the prosecutor's misstated
recommendation for a sentence at the higher end of the sentencing
range. But the judge said that he was "still trying to resolve
the . . . objections you have with the presentence report."
After explaining why the protected-location enhancement
applied and the prior conviction counted toward his criminal-
history points,4 the judge gave defense counsel a chance to finish
his comment on the government's sentence recommendation. The
prosecutor's "upper end of the guideline" recommendation, defense
counsel said, was "in clear breach" of the plea agreement,
"[u]nless she wishes to withdraw that, I don't know." The
prosecutor responded immediately, saying "that is correct. And we
stand correct[ed]." She then explained her mistake, saying that
most of the plea agreements in this multi-defendant drug-
conspiracy matter specified a sentencing range rather than a point
4
We need not get into the judge's reasons because Molina does
not challenge the ruling on those two issues here.
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within that range but that Molina's agreement was different: "[W]e
withdraw that because . . . we usually do that within a range.
But in this particular case, in order to reach a recommendation,
we agreed that . . . the government was going to agree for the
lower end of the applicable guideline range."
Taking a belt-and-suspenders approach, the judge made
doubly sure what the government's recommendation was:
THE COURT: That [Molina] be sentenced to the lower end
of the applicable guideline range . . . [t]hat is the
recommendation of the government?
[THE PROSECUTOR]: Yes.
THE COURT: So the statement you previously made to the
higher end, referring to the higher end of the guideline
—
[THE PROSECUTOR]: We withdraw that one.
THE COURT: — you withdraw that?
[THE PROSECUTOR]: Yes, Your Honor.
Molina's counsel did not object to the prosecutor's
revised recommendation, despite being given the chance to voice
his objection. And counsel did not say that the prosecutor's error
was incurable, that the cure was not effective, or that his client
should be sentenced by a judge who had not heard the misstated
recommendation.
After listening to each side's lawyers, the judge
proceeded to impose Molina's sentence. The 2-level increase for
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a protected location and the 2-level decrease pursuant to Amendment
782 effectively cancelled each other out. And skipping over
details not relevant to this appeal, we see that the judge
eventually settled on a total offense level of 33 (mirroring the
total offense level set out in the plea agreement). Paired with
a criminal-history category of II, Molina's sentencing range was
151-188 months. After considering the offense elements, the
parties' plea agreement, and the pertinent 18 U.S.C. § 3553(a)
sentencing factors,5 the judge sentenced Molina to concurrent 188-
month sentences for the two drug charges and a consecutive 60-
month term for the firearm charge.
From this sentence, Molina appeals, arguing that because
the government breached the plea agreement, we must vacate and
remand to a different judge for resentencing. The government
argues otherwise, unsurprisingly.6
5 The judge noted, for example, that this was Molina's
"seventh known arrest and his fourth conviction" and that he had
proven to be a serial probation violator.
6 The government insists "that the corrected misstatement was
not a breach," or, "if it was a breach," that "it was
satisfactorily cured." But this distinction does not matter,
since, either way, a sentencing remand is not called for. Cf.
United States v. Oppenheimer-Torres, 806 F.3d 1, 4 (1st Cir. 2004)
(concluding both that the prosecutor's misstatement "did not
constitute a breach of the agreement" and that it was "not obvious
that there was a breach that was not adequately corrected").
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DISCUSSION
Standard of Review
The parties dispute which standard of review governs, de
novo — Molina's preferred standard; or plain error — the
government's preferred standard. We side with the government:
Molina never suggested to the judge that the prosecutor's misstep
was incurable or that her correction was not enough to cure the
error. And he did not ask for the relief he now wants —
resentencing before a different judge. So we review only for plain
error, see Oppenheimer-Torres, 806 F.3d at 4 — a famously
difficult-to-satisfy standard, which requires Molina to show
"error, plainness, prejudice to [him,] and the threat of a
miscarriage of justice," see United States v. Torres–Rosario, 658
F.3d 110, 116 (1st Cir. 2011); see also Puckett v. United States,
556 U.S. 129, 142 n.4 (2009).
Analysis
In bygone days we routinely said that a prosecutor's
"erroneous sentencing recommendation in breach of a plea agreement
was not cured by withdrawal in favor of a belatedly compliant
recommendation." Oppenheimer-Torres, 806 F.3d at 4 (citing United
States v. Kurkculer, 918 F.2d 295, 302 (1st Cir. 1990), for our
old approach). But then along came Puckett, where the high Court
explained that "some [plea agreement] breaches may be curable upon
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timely objection — for example, where the prosecution simply forgot
its commitment and is willing to adhere to the agreement." 556
U.S. at 140.
With this in mind, and assessing the prosecutor's
misstep in light of the transcript as a whole, we see "no obvious
error in the [judge's] decision to proceed following the
prosecution's unambiguous correction of its initial error." See
Oppenheimer-Torres, 806 F.3d at 4. Remember: Before the
prosecutor made the complained-about recommendation, she took
pains to explain that the government intended to fulfill its plea-
agreement obligations, as evidenced by her saying that the
prosecution stood by the agreement's recommendations — which is
why, for example, she refused to push for a protected-location
enhancement (because the agreement did not include that
enhancement). Avoiding a breach was a major goal of hers, we can
fairly infer from the transcript. And although she got the
recommendation wrong at first — asking for the high end instead of
the low end of the sentencing range — she corrected the error when
made aware of it. She also did so readily and forcefully — not
grudgingly or misleading, as Molina suggests. It is safe to say,
then, that all the sentencing-hearing participants "knew plainly
and correctly that the government's considered recommendation was
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as in the [a]greement." See id. All of which means that Molina
cannot show plain error. See id.
Arguing against this conclusion, Molina blasts the
prosecutor for not calling her "breach . . . inadvertent." But
the prosecutor did make an inadvertence claim. Recall: The
prosecutor explained to the judge that other recommendations in
this multi-defendant case were for sentences within certain
ranges, rather than for a specific point within that range.
Molina's case, it turns out, did involve dozens of defendants.
And Molina was not the only defendant surnamed Molina-Quintero.
Interestingly, the other Molina-Quintero's plea agreement called
for a sentence recommendation "within the applicable guideline
range for a total offense level of thirty three (33)" — for what
it is worth, the misstated recommendation here would have been
perfectly proper under that agreement. All in all, looking at the
whole picture, we view the prosecutor's unfortunate misstatement
as an indication of confusion on her part — not as "a sign that
the government had second thoughts" about the plea agreement's
recommendation. See id.
Insisting that the prosecutor neither "defend[ed]" the
agreement's "low-range" recommendation nor "counteract[ed] the
premises" undergirding her "high-range" proposal, Molina relies on
pre-Puckett caselaw — Kurkculer, for example — to argue that the
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prosecutor's withdrawal of the offending recommendation with a
substitution of the agreed-upon one could not "cure" the problem
because "[t]he damage had already been done." But the Supreme
Court's Puckett decision and our decision in Oppenheimer-Torres
knock the legs out from under that argument. See Oppenheimer-
Torres, 806 F.3d at 4 (noting how Puckett changed the law in this
circuit).
The bottom line is that Molina fails the plain-error
test because, as in Oppenheimer-Torres, "it is not obvious that
there was a breach that was not adequately corrected as the Supreme
Court anticipated in Puckett." See Oppenheimer-Torres, 806 F.3d
at 4.
CONCLUSION
Our work over, we affirm Molina's sentence.
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