APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. José Antonio Fusté, U.S. District Judge.
Ines McGillion, on brief for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, Francisco A. Besosa-Martí nez, Assistant United States Attorney, and Rosa Emilia Rodríguez-Vélez, United States Attorney, on brief for appellee.
Before Lynch, Thompson, and Kayatta, Circuit Judges.
KAYATTA, Circuit Judge.
Carlos Luis Alvira-Sanchez alleges that the district court in this case made several errors in accepting and entering his guilty plea. Alvira-Sanchez made no objections to any of those purported errors at the time, nor did he thereafter seek to withdraw his plea, even after he was sentenced. He now asks that we vacate the acceptance of his plea. Although several of Alvira-Sanchez's claims of error are meritorious, no shortcoming in the district court's acceptance of his plea caused him any harm. Accordingly, we deny Alvira-Sanchez's request for reversal. At the same time, because the parties agree that Alvira-Sanchez is entitled to seek a sentencing
reduction under Amendment 782 to the Drug Quantity Table of the United States Guidelines, we remand solely for consideration of that request.
On October 24, 2013, law enforcement officers entered a residence located roughly 168 feet from a school to arrest Alvira-Sanchez on two outstanding warrants. On entry, officers found, among other things, a loaded Zombie rifle, approximately 2.87 grams of cocaine, approximately 1.3486 grams of cocaine base, approximately 2.0247 grams of marijuana, and drug paraphernalia. On October 30, 2013, Alvira-Sanchez was charged with four counts: (1) possession of a firearm in a school zone, in violation of 18 U.S.C. § 922(q); (2) possession of cocaine in a school zone, with intent to distribute, in violation of 21 U.S.C. § 841; (3) possession of marijuana in a school zone, with intent to distribute, in violation of 21 U.S.C. § 841; and (4) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c).
On February 19, 2014, Alvira-Sanchez came before the court to enter a straight guilty plea--i.e., a plea not the product of a plea bargain--on all counts. After verifying Alvira-Sanchez's competence to plead, the court explained that pleading guilty waived the right to trial by jury, the presumption of innocence, the right to a public trial, and the right to remain silent. The court next listed the elements of each of the four charged crimes and verified Alvira-Sanchez's understanding. The court did not, however, expressly inform Alvira-Sanchez of his right to persist in a plea of not guilty. See Fed. R. Crim. P. 11(b)(1)(B).
Turning to the penalties, the court stated that " the gun counts may require a consecutive sentence." The court then described the penalties " regarding the drugs" as, in relevant part, " [i]mprisonment of not more than 20 years," " [s]upervised release of at least three years," and " the payment of a special monetary assessment," and the penalties " regarding the gun" as, in relevant part, " at least five years, statutory minimum; not more than life imprisonment," " supervised release that can go as high as five years," and " the payment of a special monetary assessment[.]" The court concluded by explaining that parole would not be available, that the court was not bound by the recommendations of the United States Sentencing Guidelines (" USSG" ), and that Alvira-Sanchez would serve a term of supervised release that " will never be more than five years." The court did not, however, inform Alvira-Sanchez that any sentence imposed for count 1 (possession of a firearm in a school zone), up to a maximum of five years, was statutorily mandated to run consecutively to any other sentence, or that count 1 would carry its own concurrent term of supervised release and special monetary assessment. After Alvira-Sanchez accepted the government's factual proffer, the court entered his plea and ordered a Presentence Investigation Report (" PSR" ).
The PSR as ultimately amended grouped counts 1-3 and calculated a total offense level of 14 for those counts. For criminal history, the PSR listed five prior arrests, including one arrest for pending
criminal charges and three arrests for past dismissed charges. The PSR also noted that Alvira-Sanchez had pled guilty to four unlisted juvenile offenses. The PSR concluded that Alvira-Sanchez fell within Criminal History Category (CHC) I, corresponding to a recommended sentence of 15-21 months for grouped counts 1-3. Count 4 carried a mandatory minimum sentence of 60 months. It was mandatory that ...