FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO Hon. José Antonio Fusté, U.S.
Guillermo A. Macari-Grillo, on brief for appellant.
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.
Lynch, Lipez, and Thompson, Circuit Judges.
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.
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.
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
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.
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
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. 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.
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
F.3d 7, 13-14 (1st Cir. 2012). So it is here. Even if