United States Court of Appeals For the First Circuit
UNITED STATES OF AMERICA,
JOSE LUIS RIVERA-CRUZ,
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Lynch and Lipez, Circuit Judges, and Ponsor, District Judge.*
Merritt Schnipper, with whom Schnipper Hennessey was on brief, for appellant. Francisco A. Besosa-Martínez, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
December 22, 2017
* Of the District of Massachusetts, sitting by designation.
LYNCH, Circuit Judge. Police officers were searching a
mall for a motorcyclist who had violated traffic laws when they
were spotted by Jose Luis Rivera-Cruz. Upon seeing the police
officers, Rivera-Cruz took off, yelling "police!" into a walkie-
talkie. The officers recovered a loaded revolver with an
obliterated serial number from a fanny pack that Rivera-Cruz had
tossed onto the ground during his flight.
On the eve of trial, Rivera-Cruz pleaded guilty to being
a felon in possession of a firearm. The Sentencing Guidelines
calculations in his plea agreement included a three-level
reduction in offense level for acceptance of responsibility. The
plea agreement permitted Rivera-Cruz to argue for a sentence of 96
months, and the government to argue for a statutory-maximum
sentence of 120 months.
The Guidelines calculations in the presentence
investigation report ("PSR") also contained a three-level
reduction for acceptance for responsibility. But unlike the plea
agreement, the PSR contained a four-level enhancement in offense
level because the gun recovered from Rivera-Cruz had an obliterated
serial number. The resulting Guidelines sentencing range ("GSR")
in the PSR was 110 to 137 months. At sentencing, Rivera-Cruz
argued for a 96-month sentence and the government argued for a
120-month sentence, consistent with the plea agreement. The
- 2 -
district court ultimately adopted the PSR's calculations, and
sentenced Rivera-Cruz to 120 months in prison.
On appeal, Rivera-Cruz argues that the plea agreement is
invalid because it lacked consideration. As such, he argues that
he should be entitled to withdraw his plea. Because we find that
the government provided adequate consideration for Rivera-Cruz's
guilty plea, we affirm.
On October 31, 2015, municipal police officers in
Barceloneta, Puerto Rico were searching the Maranata Mall for an
unidentified individual who had violated the Puerto Rico Transit
Law by riding a motorcycle on a state road without any lights on,
with his face covered, and without a helmet. Rivera-Cruz was in
the mall's parking area during the search. Upon seeing the
officers approaching, Rivera-Cruz fled, yelling "police!" into a
walkie-talkie. The police gave chase and, during the pursuit, saw
Rivera-Cruz toss a fanny pack onto the ground between some bushes
and the main entrance of a nearby building. When the fanny pack
hit the ground, a loaded Colt .38 caliber revolver with an
obliterated serial number spilled out. An inquiry into Rivera-
Cruz's criminal history revealed that he had been convicted of a
number of crimes punishable by a term of imprisonment exceeding
one year, including, inter alia, robbery, attempted robbery, and
attempted aggravated breaking and entering.
B. District Court Proceedings
A grand jury indicted Rivera-Cruz, charging him with
possession of a firearm by a convicted felon in violation of 18
U.S.C. § 922(g)(1). Following unsuccessful plea negotiations, the
district court scheduled Rivera-Cruz's trial to begin on Monday,
April 11, 2016. On Friday, April 8, 2016, Rivera-Cruz's attorney
filed a motion stating that Rivera wished to request "a hearing
where he [could] explain to the Court the reasons behind his
dissatisfaction with his undersigned counsel." Rivera-Cruz
claimed that he was dissatisfied with defense counsel because the
only plea offer defense counsel was able to extract from the
government was "a recommendation for fifteen years as an armed
career criminal," which Rivera-Cruz believed left him with "no
choice but to exercise his right to a jury trial."
On April 10, 2016, the eve of trial, Rivera filed a
motion to change his plea to guilty, pursuant to a plea agreement.
The plea agreement's Guideline calculation indicated that Rivera-
Cruz had a total offense level ("TOL") of twenty-one, which
incorporated a base offense level of twenty-four under U.S.S.G.
§ 2K2.1(a)(1) and a three-level reduction for acceptance of
responsibility per U.S.S.G. § 3E1.1. The plea agreement stated
that the statutory maximum for the charged offense was ten years,
under 18 U.S.C. § 924(a)(2).
With respect to sentencing, the plea agreement permitted
Rivera-Cruz to argue for a sentence of ninety-six months of
imprisonment, and the government to argue for a sentence of 120
months, regardless of Rivera-Cruz's criminal history category at
the time of sentencing. The plea agreement also contained a
waiver-of-appeal provision, under which Rivera-Cruz agreed to
waive his appellate rights if the district court sentenced him
according to the terms, conditions, and recommendations of the
A change-of-plea hearing was held on April 11, 2016.
At the hearing, the district court reviewed the plea agreement
with Rivera-Cruz and confirmed that Rivera-Cruz was satisfied with
the services of defense counsel. After finding that Rivera-Cruz
was competent to plead, that there was a factual basis for the
elements of the charged crime, and that Rivera-Cruz offered his
guilty plea "intelligently, willingly[,] and voluntarily," the
district court accepted the plea.
Following the change-of-plea hearing, the U.S. Probation
Officer filed a PSR. The PSR stated that Rivera-Cruz had a base
offense level of 24, which was subject to a three-level reduction
for acceptance of responsibility under U.S.S.G. § 3E1.1 and a four-
level enhancement pursuant to U.S.S.G. § 2K2.1(b)(4)(B) because
the firearm seized from Rivera-Cruz had an obliterated serial
number. The resulting TOL was 25. The PSR also determined that
Rivera-Cruz had a criminal history category ("CHC") of VI due to
his prior convictions. The PSR specified that given Rivera-Cruz's
TOL of 25 and CHC of VI, the applicable GSR was 110-137 months'
Rivera-Cruz's sentencing hearing was held on October 25,
2016. Defense counsel began by addressing the disparity between
sentence-recommendation range in the plea agreement (96 to 120
months) and the GSR calculated in the PSR (110 to 137 months) --
a difference that was caused by the obliterated-serial-number
enhancement, which was included in the PSR's GSR calculation but
not in the plea agreement's GSR calculation. Defense counsel
explained that at the time the parties had entered into the plea
agreement, both parties had "[known] of the potential for a four
level enhancement due to the fact that the firearm had an
obliterated serial number," but that "the parties . . . [had]
understood that a guideline range of 96 months to 120 months [was]
sufficient but not more th[a]n necessary." Defense counsel then
argued for a sentence of 96 months. When the district asked the
government to present its position, the government stated that it
was "stand[ing] by the plea agreement" and argued for a sentence
of 120 months.
After hearing from both parties, the district court
adopted the GSR calculation from the PSR, including the four-level
obliterated-serial-number enhancement, the three-level
acceptance-of-responsibility reduction, and the finding that
Rivera-Cruz had a criminal history category of VI. The district
court noted that the applicable GSR was 110 to 137 months. After
considering the sentencing factors under § 3553(a), the district
court sentenced Rivera-Cruz to 120 months' imprisonment and three
years of supervised release. Rivera-Cruz timely appealed.
On appeal, Rivera-Cruz argues that his plea agreement is
invalid because he received no consideration for his guilty plea.
He also claims that he is entitled to withdraw his plea because
there is a reasonable probability that he would not have pleaded
guilty had he known that his plea agreement lacked consideration.
The parties dispute the standard of review applicable to
these claims. Rivera-Cruz advocates for de novo review, whereas
the government argues that the appropriate standard of review is
plain error because Rivera-Cruz is seeking to withdraw his plea
for the first time on appeal. See United States v. Ramos-Mejía,
721 F.3d 12 , 14 (1st Cir. 2013). We need not resolve this dispute,
however, because Rivera-Cruz's claims fail under either standard.
In arguing that his plea agreement was unsupported by
consideration, Rivera-Cruz points to (1) the fact that the
government did not promise to reduce or dismiss any of its charges
against him, (2) the fact that the government reserved the right
to argue for a statutory-maximum sentence, and (3) the plea
agreement's failure to stipulate the applicable criminal history
category and offense level.
It is well-settled that we interpret plea agreements
according to contract law principles. United States v. Tanco-
Pizarro, 873 F.3d 61 , 65 (1st Cir. 2017) (quoting United States v.
Marchena-Silvestre, 802 F.3d 196 , 202 (1st Cir. 2015)). As Rivera-
Cruz correctly points out, we have recognized that "[a] plea
agreement is a contract under which both parties give and receive
consideration." United States v. Conway, 81 F.3d 15 , 17 (1st Cir.
1996). Specifically, "[t]he government obtains a conviction that
it otherwise might not have" and "[t]he defendant,
correspondingly, receives less, or a chance at less, than he
otherwise might have." Id.
Despite his arguments to the contrary, we conclude that
Rivera-Cruz received adequate consideration for entering into his
plea agreement. The plea agreement provided him with at least
three separate benefits, each of which independently constituted
sufficient consideration. First, the government afforded Rivera-
Cruz a non-mandatory three-level reduction for acceptance of
responsibility. Second, the government did not seek a four-level
obliterated-serial-number enhancement. And third, the government
forwent its pursuit of a sentence under the Armed Career Criminal
1. Acceptance-of-Responsibility Reduction
Under U.S.S.G. § 3E1.1(a), a defendant who "clearly
demonstrates acceptance of responsibility for his offense" may
receive a two-level reduction in his offense level. Under U.S.S.G.
§ 3E1.1(b), a defendant who qualifies for a reduction under
subsection (a), and who has an offense level of at least 16 prior
to the subsection (a) reduction, may receive an additional one-
upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently . . . .
Id. Rivera-Cruz argues that his three-point § 3E1.1 reduction was
"available without action of either party at the discretion of
probation," and that the government "did not take or refrain from
taking, or promise to take or refrain from taking, any actions"
relevant to the § 3E1.1 reduction. Not so. In the plea agreement,
the government agreed to submit a GSR calculation that afforded
Rivera-Cruz a full three-point reduction under § 3E1.1, including
the two-point deduction under subsection (a) and the one-point
deduction under subsection (b). The government was under no
obligation to provide Rivera-Cruz with the latter reduction, given
that Rivera-Cruz had refused to plead guilty until the eve of
trial. Cf. United States v. Mateo-Espejo, 426 F.3d 508 , 511 (1st
Cir. 2005) (finding no error in a district court's decision not to
award a one-point reduction under § 3E1.1(b) because it properly
viewed the defendant's "eleventh-hour decision to plead
guilty . . . as failing to satisfy the applicable criterion");
United States v. Donovan, 996 F.2d 1343 , 1345 (1st Cir. 1993) (per
curiam) (affirming district court's determination that § 3E1.1(b)
was inapplicable because "the plea agreement was reached only on
the eve of the second trial date," and noting that the delay
deprived the government of the benefits of avoiding trial
preparation). While it is true that the PSR also concluded that
Rivera-Cruz should have been afforded a full three-point reduction
under § 3E1.1, the government's voluntary agreement to submit the
same three-point reduction, rather than a two-point reduction,
certainly gave Rivera-Cruz a better "chance at less" in front of
the district court. Conway, 81 F.3d at 17.
2. Obliterated-Serial-Number Enhancement
For similar reasons, the government's agreement not to
include a four-point obliterated-serial-number enhancement under
U.S.S.G. § 2K2.1(b)(4)(B) in the plea agreement was sufficient
consideration. Rivera-Cruz faults the government for "sa[ying]
nothing" when it realized that the PSR's calculation of the offense
level included the four-point enhancement. But Rivera-Cruz points
to no authority imposing an affirmative obligation on the
government to object to the enhancement at sentencing. In any
case, the government's voluntary agreement not to include the
§ 2K2.1(b)(4)(B) enhancement in the plea agreement improved
Rivera-Cruz's chances of obtaining a more lenient sentence, and
accordingly constituted sufficient consideration for his plea.1
3. Decision Not to Pursue ACCA Sentence
The government also provided consideration in the form
of its decision not to seek an ACCA sentence. Shortly before
trial, Rivera-Cruz voiced his dissatisfaction with then-defense
counsel's inability to extract any concessions from the government
other than "a recommendation for fifteen years as an armed career
1 In arguing that the plea agreement lacked consideration, Rivera-Cruz draws attention to the fact that the government reserved the right to advocate for a statutory-maximum sentence of 120 months, even though the highest possible sentence in the plea agreement's GSR calculations table was 96 months. It is true that based on (1) the TOL of twenty-one submitted in the plea agreement and (2) a criminal history category of VI (the highest), the applicable GSR is 77-96 months. However, had the government either (1) excluded the one-point § 3E1.1(b) deduction or (2) included the four-point obliterated-serial-number enhancement in the plea agreement's calculations, the applicable GSR would have also increased, thereby reducing Rivera-Cruz's chances of successfully arguing for a sentence below the statutory maximum.
criminal." The government was under no obligation to drop its
pursuit of an ACCA sentence. Its decision to do so in the plea
agreement -- a decision that lowered Rivera-Cruz's exposure from
a statutory minimum of fifteen years, 18 U.S.C. § 924(e)(1), to a
statutory maximum of ten years, 18 U.S.C. § 924(a)(2) -- certainly
provided Rivera-Cruz with a "chance at less" during sentencing.2
Conway, 81 F.3d at 17. That alone is sufficient consideration.
B. Ineffective Assistance of Counsel
Rivera-Cruz claims that he is entitled to withdraw his
plea because there is a reasonable probability that he would not
have pleaded guilty had he known that his plea agreement lacked
consideration. He asks us to view this claim "through the lens of
ineffective assistance of counsel." In the context of a guilty
plea, a successful ineffective assistance of counsel claim
requires a defendant to show that (1) "counsel's representation
fell below an objective standard of reasonableness," Hill v.
Lockhart, 474 U.S. 52 , 57 (1985) (quoting Strickland v. Washington,
466 U.S. 668 , 687-88 (1984)); and (2) "there is a reasonable
2 At oral argument, defense counsel claimed for the first time that there was no possibility of an ACCA sentence given the nature of Rivera-Cruz's prior convictions. He later elaborated on this point in a Rule 28(j) letter. By failing to raise this argument in his briefing, however, Rivera-Cruz has waived it. See United States v. Velez-Luciano, 814 F.3d 553 , 563 (1st Cir.), cert. denied, 137 S. Ct. 192 (2016) (citation omitted). Even if defense counsel's untimely ACCA argument had not been waived, it would be unavailing because there is ample evidence in the record of other consideration to support the plea agreement.
probability that, but for counsel's errors, [the defendant] would
not have pleaded guilty and would have insisted on going to trial,"
id. at 59.
We "generally will not address ineffective assistance on
direct appeal, but rather require that they be raised
collaterally." United States v. Neto, 659 F.3d 194 , 203 (1st Cir.
2011) (quoting United States v. Rivera–González, 626 F.3d 639 , 644
(1st Cir. 2010)). We consider ineffective assistance of counsel
claims on direct appeal only where "fact-specific inquir[ies]" are
"unnecessary because the attorney's ineffectiveness is 'manifestly
apparent from the record.'" Rivera–González, 626 F.3d at 644
(first quoting United States v. Ofray–Campos, 534 F.3d 1 , 34 (1st
Cir. 2008), then quoting United States v. Wyatt, 561 F.3d 49 , 52
(1st Cir. 2009)).
There is no evidence from the record indicating that
Rivera-Cruz's attorney was manifestly ineffective. Rivera-Cruz's
ineffective assistance of counsel claim dovetails with his
consideration argument. In particular, the former claim stands on
two related premises: (1) the plea agreement provided Rivera-Cruz
with no benefits in exchange for the rights he surrendered, leaving
him worse off than if he had pled guilty without a plea agreement;
and (2) informing Rivera-Cruz of this alleged fact would have
created a reasonable probability that he would have gone to trial
instead of pleading guilty. Because we have already rejected the
first premise, the second one necessarily fails.3 That leaves
Rivera-Cruz's ineffective assistance of counsel claim without a
leg to stand on.
For the reasons stated above, we affirm.
3 Moreover, Rivera-Cruz's claim that the plea agreement left him in a worse position than if he had pleaded guilty without a plea agreement is belied by the following facts in the record: (1) prior to his change of plea, Rivera-Cruz complained that he was dissatisfied with defense counsel for the sole reason that defense counsel was unable to convince the government to drop its pursuit of an ACCA sentence; (2) the government ultimately dropped its pursuit of an ACCA sentence in the plea agreement; and (3) after the prospect of an ACCA sentence was eliminated, Rivera-Cruz confirmed that he was satisfied with defense counsel's representation, both in the plea agreement itself and at the sentencing hearing.