United States v. Rivera-Cruz

2017 | Cited 0 times | First Circuit | December 22, 2017

United States Court of Appeals For the First Circuit

No. 16-2398





Defendant, Appellant.


[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.

I. Background

A. Facts

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

plea agreement.

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.

II. Analysis

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.

A. Consideration

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

Act ("ACCA").

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-

level reduction:

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.

III. Conclusion

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.

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