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United States v. Acevedo-Sueros

United States Court of Appeals, First Circuit

June 17, 2016

UNITED STATES OF AMERICA, Appellee,
v.
SANTOS ACEVEDO-SUEROS, Defendant, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO Hon. José Antonio Fusté, U.S. District Judge.

          Guillermo A. Macari-Grillo, on brief for appellant.

          Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Francisco A. Besosa-Martínez, Assistant United States Attorney, on brief for appellee.

          Before Lynch, Lipez, and Thompson, Circuit Judges.

          LIPEZ, CIRCUIT JUDGE.

         Santos Acevedo-Sueros appeals the sentence imposed following his guilty plea to four felony counts related to a conspiracy to import over 1, 300 kilograms of cocaine. We affirm.

         I.

         Charged on December 18, 2013, Acevedo-Sueros informed the court of his intention to plead guilty on February 12, 2014, and entered a straight guilty plea on March 12, 2014. The Presentence Investigation Report ("PSR") calculated his Total Offense Level ("TOL") at 34, including a two-level downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1(a). It did not mention the additional one-level decrease potentially available for "timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial." U.S.S.G. § 3E1.1(b).

         Acevedo-Sueros did not object to the PSR, nor did his sentencing memorandum mention a possible one-level decrease under § 3E1.1(b) or suggest that his total offense level should be 33 rather than 34. At his sentencing hearing, the court asked whether the correct total offense level was 34, and his counsel agreed. The court did not ask Acevedo-Sueros whether he had reviewed the PSR and discussed it with his attorney. The court ultimately sentenced him to concurrent prison terms of 151 months for each of the four counts, the low end of the guidelines sentencing range given a TOL of 34 and Criminal History Category ("CHC") I. Acevedo-Sueros challenges his sentence, claiming that it is procedurally unreasonable on two grounds. We address those grounds in turn.

         II.

         Acevedo-Sueros avers that the district court should have given him the benefit of an additional one-level reduction in his offense level pursuant to § 3E1.1(b). Before addressing the merits of his argument, we address a waiver argument raised by the government.

         A. Waiver

         The government urges that Acevedo-Sueros waived the one-level reduction issue by failing to raise it below, and hence we should not address the issue at all. See generally United States v. Olano, 507 U.S. 725, 733-34 (1993) (explaining that "[w]hereas forfeiture is the failure to make the timely assertion of a right, waiver is the 'intentional relinquishment or abandonment of a known right;'" the former may be reviewed for plain error, whereas the latter may not be reviewed on appeal (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938))); United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002) (finding waiver of an objection to a sentencing guidelines calculation where defendant "consciously waived the issue").

         The government argues that, in its words, "Acevedo-Sueros' serial failures to raise this issue at various points throughout the proceedings below constitute a waiver, rather than a mere forfeiture." As the government points out, he did not object to the PSR, which mentioned § 3E1.1(a) but not § 3E1.1(b); and he did not raise § 3E1.1(b) in his sentencing memorandum or at the sentencing hearing.[1] Acevedo-Sueros does not dispute that he failed to object to the guidelines calculation as recommended in the PSR, or to ask the district court to apply the § 3E1.1(b) offense level adjustment at sentencing. In Acevedo-Sueros' view, however, this was a mere "lapse in the computation of the offense level, " and despite his omission the issue may be reviewed for plain error under Olano.

         Ultimately, we need not decide the waiver issue. Where a defendant's claim would fail even if reviewed for plain error, we have often declined to decide whether the defendant's failure to raise the issue below constituted waiver or mere forfeiture. See, e.g., United Statesv.Aguasvivas-Castillo, 668 F.3d 7, 13-14 (1st Cir. 2012). So it is here. Even if ...


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