As Amended July 28, 2015.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Juan M. Pérez-Giménez, U.S. District Judge.
Charles Allan Hope and Cunha & Holcomb, P.C., on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Tiffany V. Monrose, Assistant United States Attorney, on brief for appellee.
Before Torruella, Lynch, and Lipez, Circuit Judges.
LYNCH, Circuit Judge.
Melvin Hernández-Maldonado pled guilty in October 2013 to being a prohibited person in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and was sentenced to 115 months imprisonment.
He now seeks to vacate his plea because the district court did not warn him that he could not withdraw his plea if the court did not follow the parties' sentencing recommendations, as required by Federal Rule of Criminal Procedure 11(c)(3)(B), though the plea agreement did contain this warning. Under the plea agreement, the government agreed to recommend 92 months imprisonment, and Hernández-Maldonado agreed to request 60 months. The plea agreement specified the sentencing guideline range was between 92 and 115 months, with a maximum penalty of 120 months. Hernández-Maldonado also challenges his 115 month sentence as unreasonable.
We affirm Hernández-Maldonado's conviction and sentence. Hernández-Maldonado has failed to demonstrate a reasonable probability that, but for the district court's failure to advise him that he could not withdraw his plea if it did not follow the government's recommendation, he would not have entered the plea. Furthermore, the sentence the district court imposed was procedurally and substantively reasonable.
We confine our discussion of the facts to those necessary to frame the issues on appeal. The relevant facts are not in dispute. On March 23, 2012, a woman told two Puerto Rico Police Department agents that a man was being robbed and pointed to him. The agents observed three individuals in a 2001 Ford Explorer SUV wearing masks. When the individuals in the SUV saw the agents, they left the scene, first in the SUV and then on foot. The agents pursued the individuals and saw the driver was carrying a firearm. One agent saw the driver toss the firearm and then remove his mask and shirt as he ran. The agent recovered the firearm -- a pistol with an attached " chip," which allowed the pistol to fire automatically. The driver was later identified as Hernández-Maldonado. The investigation revealed that the SUV was stolen and that Hernández-Maldonado had previously been convicted on two occasions of crimes punishable by more than one year imprisonment. One of these convictions was for murder. Hernández-Maldonado was on probation for that crime when he was arrested.
Hernández-Maldonado, through different counsel, seeks to vacate his guilty plea because the district court failed to meet the requirement of Federal Rule of Criminal Procedure 11(c)(3)(B) that, " [t]o the extent the plea agreement is of the type specified in Rule 11(c)(1)(B), the court must advise the defendant that the defendant has no right to withdraw the plea if the court does not follow the recommendation or request." Because there was no objection, the district court's failure to give the required warning is reviewed for plain error. See United States v. Dominguez Benitez, 542 U.S. 74, 76, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004); United States v. Borrero-Acevedo, 533 F.3d 11, 15 (1st Cir. 2008) (citing United States v. Vonn, 535 U.S. 55, 58-59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002)). Hernández-Maldonado must prove " (1) an error, (2) that is clear or obvious, (3) which affects his substantial rights . . . and which (4) seriously impugns the fairness, integrity, or public reputation of the proceeding." United States v. Correa-Osorio, 784 F.3d 11, 18 (1st Cir. 2015).
Because it is clear that the defendant has established the first two prongs, this case turns on the third prong of the plain error test, effect on substantial rights.
See Borrero-Acevedo, 533 F.3d at 17. To meet the third prong of the plain error test, " a defendant who seeks reversal of his conviction after a guilty plea, on the ground that the district court committed plain error under Rule 11, must show a reasonable probability that, but for the error, he would not have ...