United States v. Valdez-Vazquez

2017 | Cited 0 times | First Circuit | November 6, 2017

United States Court of Appeals For the First Circuit

No. 15-2120





Defendant, Appellant.


[Hon. Francisco A. Besosa, U.S. District Judge]


Lynch, Selya and Stahl, Circuit Judges.

Daniel N. Marx, Foley Hoag LLP, and Fick & Marx 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.

November 3, 2017

SELYA, Circuit Judge. In this appeal, defendant-

appellant Juan Francisco Emilio Carbajal-Váldez advances two

claims of error. First, he contends that the district court erred

in imposing a sentencing enhancement based largely on his admission

that he captained the cocaine-laden boat used in the smuggling

attempt. Second, he contends that the government breached a plea

agreement between the parties both in responding to the district

court about the prospective enhancement and in supporting the

resultant sentence on appeal. Concluding, as we do, that these

contentions are unpersuasive, we affirm.


Because this appeal follows a guilty plea, "we draw the

facts from the plea colloquy, the uncontested portions of the

presentence investigation report, and the sentencing transcript."

United States v. Nuñez, 852 F.3d 141 , 143 (1st Cir. 2017). After

accepting an offer of $50,000 to transport drugs from Venezuela to

Puerto Rico, the appellant embarked on an ill-fated voyage with

two fellow seamen and a large quantity of cocaine. Just before

midnight on March 16, 2015, a Puerto Rico Police Department

maritime patrol boat spied their vessel operating without

navigation lights off the coast of Puerto Rico. When the police

stopped the vessel and boarded it, they saw a number of sacks

containing white brick-shaped objects in plain view. A field test,

conducted while at sea, revealed these bricks to be cocaine. In

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total, the police recovered approximately 1,434 kilograms of


The police seized the boat and arrested the three men on

board: the appellant, José Miguel Váldez-Vázquez, and Ramón Pache.

The government alleges (and the appellant does not dispute) that

at the moment of interdiction, the appellant identified himself as

the captain of the craft.

The authorities proceeded to file criminal complaints

against all three seafarers, charging that they possessed and

conspired to possess with intent to distribute five kilograms or

more of cocaine. See 21 U.S.C. §§ 841(a)(1), 846. In short order,

a federal grand jury indicted the trio on the same charges. At

first, the appellant resisted the indictment, maintaining his

innocence. His codefendants adopted a similar stance.

After defense counsel met with the prosecutor and

obtained discovery, the appellant and his codefendants decided to

change their pleas and entered into substantially identical plea

agreements with the government. During a joint change-of-plea

hearing, each man pleaded guilty to a single count of conspiring

to possess five or more kilograms of cocaine with intent to

distribute. The appellant's plea agreement (the Agreement)

contemplated a base offense level of 38, premised largely on drug

quantity. It also contemplated a three-level reduction for

acceptance of responsibility, see USSG §3E1.1(a), and left open

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the possibility of a further two-level reduction if the appellant

proved to satisfy the requirements for the so-called safety valve,

see id. §2D1.1(b)(17). Both sides pledged not to seek any further

adjustments or departures, up or down.

The Agreement took no position as to the appropriate

criminal history category and, thus, did not forecast a specific

guideline sentencing range. The government, though, agreed that

when the guideline range was established, it would recommend a

within-the-range sentence. The Agreement made pellucid that any

such recommendation would not be binding on the sentencing court.

Once the district court had accepted all three guilty

pleas, the probation office prepared a separate presentence

investigation report (PSI Report) for each defendant. When those

reports were compiled, the probation office recommended a

sentencing enhancement for the appellant that it did not recommend

for either of his codefendants: a two-level enhancement as captain

of the boat under USSG §2D1.1(b)(3)(C). This enhancement was

appropriate, the probation office stated, because the appellant

had been identified as the master of the vessel and had admitted

to the probation officer that his job had been to get the boat,

bring it to the loading port, and "steer the vessel and transport

the drugs to [Puerto Rico]."

Neither the appellant nor the government objected in

writing to any of the findings or recommendations contained in the

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PSI Report. At the disposition hearing, the district court —

rejecting the exhortations of both the appellant and the government

— adopted the guideline calculations limned in the PSI Report.

These calculations included the captain enhancement, which

ratcheted up the appellant's adjusted offense level and produced

a higher guideline range. The court then imposed a 168-month term

of immurement.1

Earlier the same day, the district court held separate

sentencing hearings for each of the appellant's codefendants. The

court did not tag either of them with the captain enhancement. In

the absence of that enhancement, the court sentenced each man to

135 months' imprisonment.

This timely appeal ensued. The waiver-of-appeal clause

contained in the Agreement offers no impediment: that clause is

contingent upon the district court imposing a sentence within the

sentence recommendation provisions of the Agreement, and the

appellant's sentence — increased by the captain enhancement — did

not trigger that contingency.

1 The guideline sentencing range recommended by the probation office (168-210 months) included offense-level reductions for both acceptance of responsibility and the safety valve. The sentence imposed by the district court was at the bottom of this range. Had the court not applied the enhancement, the guideline range would have been 135-168 months.

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Generally speaking, appellate review of a federal

criminal sentence is imbued with a "frank recognition of the

substantial discretion vested in a sentencing court." United

States v. Flores-Machicote, 706 F.3d 16 , 20 (1st Cir. 2013). More

specifically, though, such review is bifurcated: a reviewing court

must first determine whether a challenged sentence is procedurally

sound and then must determine whether it is substantively

reasonable. See United States v. Ruiz-Huertas, 792 F.3d 223 , 226

(1st Cir. 2015). In evaluating the procedural integrity of a

sentence, we afford de novo review to the district court's

interpretation and application of the sentencing guidelines,

appraise its factfinding for clear error, and evaluate its judgment

calls under an abuse-of-discretion rubric. See id.

The usual standards of appellate review are altered when

a party fails to preserve claims of sentencing error in the

district court. In that event, appellate review is solely for

plain error. See United States v. Rodríguez-Milián, 820 F.3d 26 ,

34 (1st Cir.), cert. denied, 137 S. Ct. 138 (2016). This rigorous

standard requires an appellant to show "(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 judicial

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proceedings." United States v. Duarte, 246 F.3d 56 , 60 (1st Cir.


Against this backdrop, we turn to the case at hand. The

appellant presses two separate claims of procedural error. We

address them sequentially.

A. Imposition of the Enhancement.

The appellant's principal challenge is to the district

court's imposition of the captain enhancement under USSG

§2D1.1(b)(3)(C). This challenge takes dead aim at the factual

finding that the appellant acted as the captain of the cocaine-

laden ship. One problem, however, is that the PSI Report contained

such a finding and recommended the concomitant enhancement, but

the appellant did not seasonably object to these statements. Such

an omission normally would constitute a waiver or, at least, a

forfeiture, thus paving the way for plain error review. See United

States v. Turbides-Leonardo, 468 F.3d 34 , 38 (1st Cir. 2006); see

also Fed. R. Crim. P. 32(f) (requiring objections to presentence

report within 14 days); D.P.R.R. 132(b)(3)(A) (similar).

Here, however, there is a potentially countervailing

consideration. At the disposition hearing, defense counsel

disputed both the effect of the appellant's characterization of

himself as the captain and the application of the enhancement.

Neither the government nor the district court questioned the

timeliness of these objections, and a colorable argument can be

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made that the objections sufficed to preserve the claim of error.

See, e.g., United States v. Perkins, 89 F.3d 303 , 306-07 (6th Cir.


In all events, courts should not rush to untangle knotty

legal questions when there is no real need to do so. So it is

here: because the standard of review is not decisive with respect

to this issue, we assume, favorably to the appellant, that his

objections were preserved.

The claim of error turns, of course, on the

supportability of the sentencing court's factual finding. That

finding is reviewed for clear error. See Ruiz-Huertas, 792 F.3d

at 226. Clear error is not an appellant-friendly standard; it is

"satisfied only if, 'upon whole-record-review, an inquiring court

form[s] a strong, unyielding belief that a mistake has been made.'"

Nuñez, 852 F.3d at 144 (alteration in original) (quoting United

States v. Cintrón-Echautegui, 604 F.3d 1 , 6 (1st Cir. 2010)). The

government bears the burden of proving sentence-enhancing factors

by a preponderance of the evidence. See id. Raw facts contained

in unchallenged portions of a presentence report are ordinarily

"considered reliable evidence for sentencing purposes." United

States v. Morrillo, 8 F.3d 864 , 872 (1st Cir. 1993); see United

States v. Fernandez-Cabrera, 625 F.3d 48 , 54 (1st Cir. 2010);

United States v. Garcia, 954 F.2d 12 , 18 (1st Cir. 1992).

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Here, the sentencing court found that the captain

enhancement applied. The court, though, did not spell out its

subsidiary findings. Such inattention to subsidiary findings

invites confusion. The better practice is for a sentencing court

to make reasonably specific findings as to why an enhancement is

appropriate. See, e.g., United States v. McDowell, 918 F.2d 1004 ,

1012 (1st Cir. 1990).

Nevertheless, we are reluctant to exalt form over

substance. Notwithstanding our preference for explicit findings,

we have recognized that the absence of such findings is not always

fatal. See United States v. Van, 87 F.3d 1 , 3 (1st Cir. 1996). A

reviewing court may uphold a sentencing court's conclusion if it

seems apparent that the sentencing court adopted, albeit

implicitly, relevant findings contained in a presentence

investigation report and those findings provide a sufficient basis

for the conclusion. See United States v. Schultz, 970 F.2d 960 ,

963 n.7 (1st Cir. 1992); McDowell, 918 F.2d at 1011-12. The key

is whether the sentencing record, taken as a whole, reliably shows

that the relevant factual questions were "implicitly resolved" by

the sentencing court. Van, 87 F.3d at 3.

In the case at hand, the district court stated at the

disposition hearing that it agreed with the probation officer

concerning the enhancement. This statement, coupled with the

court's explanation that the captain enhancement was applied

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because the appellant "acted as the captain aboard the vessel which

carried controlled substances," makes manifest that the court

impliedly adopted the findings contained in the PSI Report.

Consequently, the question reduces to the sufficiency of those


The PSI Report, fairly read, offers enough information

to eliminate any guesswork about what facts the sentencing court

envisioned as the basis for the captain enhancement. To begin,

the PSI Report captures the appellant's admission that it was his

role to procure the boat in Maracaibo, Venezuela, and take it to

another port (where the drugs were brought on board). He then

received instructions to undertake the voyage to Piñones, Puerto

Rico. During that voyage, he steered the vessel (although at least

one of his codefendants helped with the steering). We think that

these facts justified the sentencing court's decision to apply the

enhancement to this defendant and not to his codefendants.

To cinch the matter, defense counsel acknowledged during

the disposition hearing that, at the time of interdiction, the

appellant admitted that he was the captain. Counsel indicated

that he had confirmed the veracity of this admission with the

appellant. Consistent with this self-identification, the PSI

Report denominated the appellant as the "master of the vessel."

That designation, in turn, became part of the predicate that

undergirded the captain enhancement.

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Faced with these data points, the appellant never denied

that he had identified himself as the captain. Instead, he argued

in the district court that "the title doesn't make . . . the

description of the specifics of this case." Before us, the

appellant makes essentially the same argument, suggesting that the

captain enhancement should not depend on the title alone, but on

the functions that he performed. Although this suggestion

possesses a patina of plausibility, it fails on the facts.

The sentencing guidelines do not define the word

"captain." Since undefined terms in the guidelines should

customarily be given their plain and ordinary meaning, see Chapman

v. United States, 500 U.S. 453 , 461-62 (1991); United States v.

Brewster, 1 F.3d 51 , 54 (1st Cir. 1993), the sentencing court was

entitled to give the appellant's "captaincy" admission some

weight. Here, moreover, the appellant's self-identification,

considered alongside his actual conduct in procuring the vessel,

taking it to the loading point, receiving the itinerary, and

steering the boat, furnished an adequate predicate for the court

below to apply the captain enhancement. See United States v.

Guerrero, 114 F.3d 332 , 346 (1st Cir. 1997) (upholding pilot

enhancement under USSG §2D1.1(b)(3)(C); cf. United States v.

Trinidad, 839 F.3d 112 , 115-16 (1st Cir. 2016) (upholding navigator

enhancement under USSG §2D1.1(b)(3)(C) where defendant had relied

on GPS to keep the boat on course for some part of voyage).

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To sum up, this is not a case in which we are left "to

fend for ourselves" in order to understand the basis on which the

district court concluded that the captain enhancement was

appropriate. McDowell, 918 F.2d at 1012. The PSI Report and the

transcript of the disposition hearing, taken together, furnish

clear guidance as to the basis on which the court rested the

enhancement. Because that basis was plausible, "we cannot say

that [the sentencing court's] conclusions were unfounded or

clearly erroneous." United States v. Ruiz, 905 F.2d 499 , 508 (1st

Cir. 1990) (quoting United States v. Jimenez-Otero, 898 F.2d 813 ,

815 (1st Cir. 1990)).2

B. Alleged Breach of Plea Agreement.

This brings us to the appellant's claim that the

government breached the Agreement. Since the appellant failed to

raise this claim below, our review is for plain error. See United

States v. Almonte-Nuñez, 771 F.3d 84 , 89 (1st Cir. 2014).

2 The appellant argues in his reply brief that applying the enhancement resulted in an unwarranted sentencing disparity between himself and his codefendants. This argument is doubly flawed. In the first place, "issues raised for the first time in an appellant's reply brief are generally deemed waived." United States v. Torres, 162 F.3d 6 , 11 (1st Cir. 1998). In the second place, the "general rule of thumb is that a defendant is not entitled to a lighter sentence merely because his co-defendants received lighter sentences." United States v. Reyes-Santiago, 804 F.3d 453 , 467 (1st Cir. 2015). Here, only the appellant declared himself to be the boat's captain and only the appellant received the captain enhancement. Because there is no basis for an "apples to apples" comparison among the three defendants, the claim of an unwarranted sentencing disparity founders on the merits. Id.

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A defendant who enters into a plea agreement and

thereafter pleads guilty to a criminal charge waives an array of

important rights. The government, of course, is expected to carry

out its side of the bargain. Consequently, courts long have held

prosecutors to "meticulous standards of both promise and

performance." Correale v. United States, 479 F.2d 944 , 947 (1st

Cir. 1973); see Santobello v. New York, 404 U.S. 257 , 262 (1971).

They must do more than merely pay "lip service" to the covenants

undertaken in plea agreements. Almonte-Nuñez, 771 F.3d at 89.

Withal, a prosecutor's duty to observe and carry out the

undertakings memorialized in a plea agreement does not exist in a

vacuum. A prosecutor has a corollary duty: a "concurrent and

equally solemn obligation" to provide relevant information to the

sentencing court. Id. at 90. These twin obligations must

necessarily coexist, with the result that "prosecutors must manage

them so as to give substance to both." United States v. Saxena,

229 F.3d 1 , 6 (1st Cir. 2000).

In this instance, the appellant zeros in on certain

statements made by the prosecutor during the disposition hearing.

Specifically, the appellant calumnizes the prosecutor for

responding affirmatively to the court's inquiry about whether the

appellant had identified himself as the captain of the boat and

for conceding that the probation officer, given his findings and

conclusions, had correctly calculated the guideline range. These

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statements, the appellant asserts, worked a breach of the


This assertion will not wash. We repeatedly have held

that actions such as merely responding in factual terms to the

sentencing court's questions or acknowledging the correctness of

admittedly accurate guideline calculations do not amount to a

breach of a plea agreement. See, e.g., United States v. Marín-

Echeverri, 846 F.3d 473 , 479 (1st Cir. 2017); Almonte-Nuñez, 771

F.3d at 90.

The appellant attempts to skirt these precedents by

arguing that the government "unnecessarily prompted" the

discussion about the appellant's role as captain. This argument

rings hollow. The PSI Report recommended application of the

captain enhancement, which put the issue squarely in play — so

much so that the appellant's own counsel began the disposition

hearing by asserting that "all three persons indicted in this case

all were captains."3 When the district court turned to the

government for a response to defense counsel's argument, the

prosecutor acknowledged that the appellant had identified himself

3 Before us, the appellant's newly appointed counsel renews the claim that all three defendants were peas in a pod. The record does not validate that claim. Only the appellant identified himself as the boat's captain, and an examination of the presentence reports for all three defendants supports a reasonable inference that the appellant was the leader of the crew. Indeed, one of his codefendants, Váldez-Vázquez, also identified the appellant as the boat's captain.

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as the captain. That was a fact — and the prosecutor's duty of

candor to the court left him no choice but to acknowledge it.

So, too, the prosecutor had no legitimate alternative

but to confirm that, given the probation officer's proposed

findings and conclusions, the guideline calculations limned in the

PSI Report were correct. In the spirit of the Agreement, the

prosecutor immediately followed this statement by asking the court

to impose the same sentence on the appellant that it had imposed

on his codefendants. The prosecutor also offered a number of

reasons why the lower sentence contemplated by the Agreement should

be imposed. Taken in their entirety, the prosecutor's statements

with respect to the enhancement did not cross the border into

forbidden terrain. See Almonte-Nuñez, 771 F.3d at 90. Though the

court chose to take a different path, that was not within the

prosecutor's control.

We have recognized before, and today reaffirm, that the

government's dual obligations at sentencing are in tension and,

therefore, must be balanced carefully. See Saxena, 229 F.3d at 5-

6. In this case, though, the government has carried out the

required "legal funambulism." Id. at 6. Accordingly, we hold

that the prosecutor's statements at sentencing did not breach the


The appellant has one more shot in his sling: he suggests

that the government breached the Agreement by defending the

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sentence on appeal. For two reasons, this shot sails well wide of

the mark.

First, the government does not waive anywhere in the

Agreement the right to defend, on appeal, whatever sentence the

district court lawfully may impose. The absence of such a

restriction is significant because plea agreements are interpreted

with the aid of contract-law principles, see United States v.

Atwood, 963 F.2d 476 , 479 (1st Cir. 1992), and the Agreement itself

provides that "[t]he United States has made no promises or

representations except as set forth in writing in this plea

agreement and den[ies] the existence of any other term and

conditions not stated herein." The appellant — like the government

— is bound by the terms of the plea agreement. See United States

v. Tilley, 964 F.2d 66 , 70 (1st Cir. 1992). And in view of the

language quoted above, there is simply no basis for extending the

government's obligations in the manner suggested by the appellant.

As an appellee, the government is tasked, in effect,

with defending the district court's judgment when a criminal

defendant appeals.4 In our view, the government normally should

be free, on appeal, to support a ruling of the district court even

4 Of course, there are narrow exceptions to this rule, such as when the government is obligated to confess error in the judgment. See, e.g., Berger v. United States, 295 U.S. 78 , 88 (1935); United States v. Leahy, 668 F.3d 18 , 21 (1st Cir. 2012). No such exception pertains here.

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though a plea agreement precluded it below from arguing the

position that underpins the ruling. See United States v. Colón,

220 F.3d 48 , 51-52 (2d Cir. 2000). Consequently, the government

was free to argue in this court — as it has done — in support of

the imposition of the captain enhancement. It has not violated

the Agreement by doing so.


We need go no further. For the reasons elucidated above,

the sentence is


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