United States v. Santiago

2014 | Cited 0 times | First Circuit | December 24, 2014

United States Court of Appeals For the First Circuit

No. 14-1219





Defendant, Appellant.


[Hon. William E. Smith, U.S. District Judge]


Lynch, Chief Judge, Howard and Barron, Circuit Judges.

Victoria M. Bonilla-Argudo, with whom Bourbeau & Bonilla, LLP was on brief, for appellant. Donald C. Lockhart, Assistant U.S. Attorney, with whom Peter F. Neronha, United States Attorney, was on brief, for appellee.

December 24, 2014

LYNCH, Chief Judge. This case involves the guilty plea

of a coconspirator, Jose Alibal Santiago, in a 2010 murder in Rhode

Island. This court earlier issued an en banc decision about the

state's obligation to honor a federal detainer in this same murder

for his codefendant, Jason Pleau. See United States v. Pleau, 680

F.3d 1 (1st Cir. 2012) (en banc).

On September 5, 2013, Jose Alibal Santiago pleaded guilty

to conspiracy to commit robbery affecting commerce; robbery

affecting commerce; and possessing, using, carrying, and

discharging a gun in relation to a crime of violence with death

resulting. See 18 U.S.C. §§ 924, 1951(a). The government concedes

that the district court erred at the change-of-plea hearing by

omitting sufficient notice of the possible sentence accompanying

the third charge, which involved both a consecutive sentence and a

ten-year mandatory minimum. Counsel for the government also failed

to provide such notice in his description of the case at that

hearing. On plain error review, we find that Santiago's

substantial rights were not affected by this error and affirm.


On September 20, 2010, Santiago and a coconspirator,

Kelley Lajoie, drove from Springfield, Massachusetts to Woonsocket,

Rhode Island to accomplish a planned-out crime. There, they met

their coconspirator, Jason Pleau. The three planned to rob a gas


station manager, David Main, of the Woonsocket Shell Station's

receipts as he went to deposit them at a nearby Citizens Bank.

Santiago, Pleau, and Lajoie first went to the Shell

Station. There, Santiago spoke with the cashier, who was an

acquaintance. The three saw Main and identified a car they

believed belonged to him. They then split up into assigned tasks:

Santiago drove his truck to an apartment complex near the Citizens

Bank, Pleau waited with his gun near the bank, and Lajoie observed

the gas station.

Just after 11:00 a.m., two and a half hours later, Lajoie

called Pleau and told him that she saw Main leaving the gas

station. Main traveled to the bank, just down the road, with the

receipts. At the outside of the bank, he encountered an armed and

masked Pleau, who demanded the money. Main did not comply but ran

toward the bank doors. Pleau followed him, shooting repeatedly.

Main was struck in the head and collapsed at the entrance to the

bank. Pleau took the money ($12,542) and ran to Santiago, who

drove them away in his waiting car. Two witnesses identified

Santiago as driving the truck.

The two drove to Pleau's house in Providence, where they

met Lajoie and Pleau's girlfriend and divided the money. Santiago

and Lajoie made their way back to Springfield. Santiago, after

attempting to evade capture for two days, surrendered himself on

September 22 to the Woonsocket police.


On December 14, the grand jury indicted Santiago, Pleau,

and Lajoie for (1) conspiracy to commit robbery affecting commerce

(in violation of the Hobbs Act), 18 U.S.C. § 1951(a); (2)

committing robbery affecting commerce (in violation of the Hobbs

Act), id.; and (3) possessing, using, carrying, and discharging a

gun in relation to a crime of violence with death resulting, id.

§ 924(c)(1)(A), (j)(1).1 The first two counts of the indictment

each have no mandatory minimum and a twenty-year statutory maximum.

Id. § 1951(a). The third count carried a possible death sentence

and required a mandatory minimum of ten years, to be served

consecutively to any other sentence. Id. § 924(c)(1)(A)(iii),

(D)(ii), (j)(1). The government gave notice that it would not seek

the death penalty as to Santiago.

On December 9, 2011, Lajoie pleaded guilty to the three

charges and agreed to cooperate. She was sentenced to 188 months.

On July 31, 2013, Pleau pleaded guilty to the three charges. Pleau

was sentenced to life in prison without the possibility of parole.

On September 4, 2013, the district court began voir dire

for Santiago's trial. The next day, Santiago changed his plea to

guilty, without a plea agreement. On February 13, 2014, the

district court sentenced him to forty years: twenty for the first

1 The indictment also included accomplice liability, 18 U.S.C. § 2, for the second and third charges.


two counts, served concurrently, and twenty for the third count,

served consecutively. This appeal followed.


Santiago seeks to vacate his plea on the grounds that, at

the change-of-plea hearing, he was informed of the statutory maxima

for the three charges, but was not informed of the mandatory

minimum for Count Three nor the requirement that the Count Three

sentence be served consecutively. This omission, he argues, is a

violation of Fed. R. Crim. P. 11(b)(1)(I), and the government

agrees. See id. ("[T]he court must inform the defendant of, and

determine that the defendant understands . . . any mandatory

minimum penalty . . . ."); United States v. Rivera-Maldonado, 560

F.3d 16 , 19 (1st Cir. 2009) ("Change of plea colloquies are

governed by Federal Rule of Criminal Procedure 11 . . . .").

As Santiago failed to object at the hearing or to move to

set aside his plea in the district court, we review for plain

error. See Rivera-Maldonado, 560 F.3d at 19. To satisfy plain

error review, the defendant must show "1) there was an error, 2)

the error was plain, 3) the error affected substantial rights, and

4) the error seriously affect[ed] the fairness, integrity or public

reputation of judicial proceedings." Id. (alteration in original)

(quoting United States v. Vonn, 535 U.S. 55 , 62-63 (2002))

(internal quotation marks omitted). The government concedes that


a Rule 11 error occurred and that it was plain. The next issue is

whether it affected Santiago's substantial rights.

To satisfy the third prong, Santiago "must show a

reasonable probability that, but for the error, he would not have

entered the plea." United States v. Dominguez Benitez, 542 U.S.

74 , 83 (2004). We must be satisfied, after review of the entire

record, "that the probability of a different result is 'sufficient

to undermine confidence in the outcome' of the proceeding." Id.

(quoting Strickland v. Washington, 466 U.S. 668 , 694 (1984));

United States v. Ortiz-García, 665 F.3d 279 , 286 (1st Cir. 2011).

Santiago's arguments on this prong have no merit. The

record shows what Santiago knew before, during, and after the Rule

11 hearing. Considered cumulatively, the record clearly shows that

Santiago was aware at the time of that hearing of the mandatory

ten-year minimum for Count Three and that it was consecutive. We

see scant probability that he would not have entered his plea had

he been informed of those facts at the Rule 11 hearing.

Before the Rule 11 Hearing

On May 8, 2012, before the Rule 11 hearing, Santiago

wrote a letter explaining, "I'm facing a life sentence if I am

found guilty at trial, and 40 years if I plead guilty." Santiago

accurately predicted his sentence upon pleading guilty. It is

likely he predicted serving some time consecutively for Count


Three, in light of the twenty-year statutory maximum for Counts One

and Two.2

The defendant emphasizes Santiago's pro se filing on

August 13, 2013, only weeks before trial. There, in the course of

raising concerns about his attorney, Santiago's filing stated that

"[i]f convicted, I am facing a sentence between 30-40 years in

prison." Santiago argues that, since he thought he faced thirty to

forty years if convicted at trial, he presumably assumed that he

would receive a lower sentence upon pleading guilty. That is one

possible inference; another is that he thought he would receive a

sentence toward the lower bound of that range following a guilty

plea. And even taking Santiago's inference as true, he may well

have thought that his guilty plea would lead to a sentence below

thirty years by adding short sentences on Counts One and Two (which

have no mandatory minimum) to a ten-year consecutive sentence on

Count Three. His reliance on this filing adds little to our


During the Rule 11 Hearing

Though the error occurred at the Rule 11 hearing, the

judge did ask Santiago whether he had spoken with his lawyer "about

the Federal Sentencing Guidelines and how they are likely to apply

2 Santiago challenges the authenticity of the letter, which is signed "Ho-Ho" and was filed by Pleau. In denying Pleau's motion to sever, the district court accepted Pleau's submission that Santiago was the author of that letter.


in this case," to which Santiago answered, "Yes." The likely

application of the Guidelines would assuredly have included the

consecutive ten-year mandatory minimum for Count Three. The

district court also warned Santiago that the Presentence

Investigation Report (PSR) "is a very important document . . . in

determining what the appropriate sentence is," a comment which

Santiago indicated that he understood.

After the Rule 11 Hearing

On December 5, 2013, the Probation Office released an

initial PSR, which explicitly referenced Count Three's ten-year

mandatory minimum and required sequential sentencing. On February

6, 2014, Santiago filed several objections to the initial PSR,

including to its use of uncharged conduct, but no objection to the

ten-year mandatory minimum, the consecutive sentence requirement,

or the Guidelines sentencing range. The same day, the Probation

Office released a final PSR, again explicitly referencing the ten-

year consecutive mandatory minimum.

The Sentencing Hearing

At sentencing on February 13, the court asked the defense

lawyer whether he "had the opportunity to review the [PSR] with

[his] client and [had] been able to answer all of [the client's]

questions." The defense counsel replied in the affirmative. At no

point during the sentencing hearing did Santiago express surprise


at the application of the Guidelines, the consecutive sentences, or

his ultimate sentence.

Santiago relies on United States v. Ortiz-García, which

held that the district court there had committed Rule 11 error by

failing to inform the defendant of the maximum sentence -- a life

sentence -- for the charge to which he pleaded guilty. 665 F.3d at

285-86. On plain error review, we found that the error affected

substantial rights even though the PSR contained the correct

maximum penalty. Id. at 288. We reasoned that "[i]f the record

clearly established [a defendant] had reviewed the PSR with his

attorney prior to the sentencing hearing" and failed to object,

"that might indeed negate" the defendant's claim of Rule 11 error.

Id. at 287. The record there "reveal[ed] no such thing, because

the district court failed to confirm . . . that [the defendant] had

read and discussed the PSR with his attorney." Id. Indeed, given

the record before this court, it assumed the first time the

defendant ever learned he might receive a life sentence was at his

sentencing hearing. Id. Based on that assumption, this court in

Ortiz-García declined to draw an inference that the defendant knew.

Id. at 287-88. In this case, unlike in Ortiz-García, the record

reveals that the district court confirmed that the defendant had,

at the least, reviewed the PSR with his attorney and disproves his

contention that he was caught by surprise.


Santiago says for the first time in his reply brief in

this appeal that the district court also erred because it must

confirm that the defendant "read and discussed the [PSR]" with his

attorney under the language of Fed. R. Crim. P. 32(i)(1)(A)

(emphasis added). See Ortiz-García, 665 F.3d at 287. Santiago

reads that language to impose two distinct requirements: (1) the

court must confirm that the defendant personally read the PSR, and

(2) the court must confirm that the defendant discussed it with his


Fed. R. Crim. P. 32(i)(1)(A) does require that "[a]t

sentencing, the court . . . must verify that the defendant and the

defendant's attorney have read and discussed the presentence report

and any addendum to the report." This is a change from the 1994

version of the rule, which required only that the court "determine

that the defendant and the defendant's counsel have had the

opportunity to read and discuss" the PSR. Ortiz-García, 665 F.3d

at 287 (quoting United States v. Cruz, 981 F.2d 613 , 619 n.9 (1st

Cir. 1992)) (internal quotation marks omitted).

Nonetheless, to the extent that Santiago newly argues for

reversal on the basis of a Rule 32 error, the argument is waived.

United States v. Martí-Lón, 524 F.3d 295 , 299 n.2 (1st Cir. 2008)

("Issues 'advanced for the first time in an appellant's reply brief

are deemed to have been waived.'" (quoting United States v. Eirby,

515 F.3d 31 , 36 n.4 (1st Cir. 2008))). Insofar as this argument


arises within the Rule 11 analysis, we note that Santiago did not

object to the district court's use of the term "reviewed" and does

not say that the attorney actually failed to review the PSR with

him. This argument adds nothing to his argument that there is a

reasonable probability that but for the error, he would not have

entered the plea.

As this court has said,

There is no doubt "that it is the better practice for trial courts to address the defendant directly in order to establish that he or she has had the opportunity to read the [PSR] and to discuss it with his/her counsel. This simple practice will avoid unnecessary challenges and help ensure fairness in the sentencing procedure."

United States v. DeLeon, 704 F.3d 189 , 196 (1st Cir. 2013)

(alteration in original) (quoting United States v. Manrique, 959

F.2d 1155 , 1157-58 (1st Cir. 1992)); see id. at 196 & n.7

(explaining on plain error review that failure to follow that

practice is not per se Rule 32 error, even under the current

language of the Rule).

The other cases Santiago cites are distinguishable, as

they involved affirmative misrepresentations by the government (in

the written plea agreement) and by the district court (at the

change-of-plea hearing) to the defendant. See Rivera-Maldonado,

560 F.3d at 17-19, 21 (defendant assured by government and court

before pleading guilty of three-year maximum supervised release,

but PSR stated lifetime maximum supervised release); United States


v. Santo, 225 F.3d 92 , 93-96 (1st Cir. 2000) (defendant assured by

government and court before pleading guilty of five-year mandatory

minimum, but PSR applied ten-year mandatory minimum).

Finally, Santiago does not say that he was actually

unaware of the consecutive mandatory minimum. Indeed, after the

district court explicitly mentioned the ten-year consecutive

mandatory minimum for Count Three at the sentencing hearing,

Santiago personally addressed the district court without indicating

any concern about that information.

Since it is quite clear that Santiago was aware of the

information, it defies logic to say that he would not have pleaded

guilty had the information been given explicitly.


On these facts, Santiago has not shown a reasonable

probability that, had he been informed at the Rule 11 hearing of

the mandatory minimum on Count Three, he would not have entered the

guilty plea. See Dominguez Benitez, 542 U.S. at 83. The

conviction and sentence are affirmed.

So ordered.


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