Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Marin-Echeverri

United States Court of Appeals, First Circuit

January 25, 2017

UNITED STATES OF AMERICA, Appellee,
v.
HERNANDO MARIN-ECHEVERRI, Defendant, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Aida M. Delgado-Colón, U.S. District Judge]

          Victoria M. Bonilla-Argudo on brief for appellant.

          Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Juan Carlos Reyes-Ramos, Assistant United States Attorney, on brief for appellee.

          Before Kayatta, Selya, and Barron, Circuit Judges.

          KAYATTA, Circuit Judge.

         The defendant, Hernando Marín-Echeverri, pled guilty to violating 21 U.S.C. §§ 952(a) and 963 and 18 U.S.C. § 1956(a)(1)(B)(i) and 1956(h), by participating in a conspiracy to import one or more kilograms of heroin[1] into the United States and to launder the proceeds of that activity. The district court sentenced Marín to 262 months in prison. Marín appeals, arguing that the government violated the plea agreement during the sentencing hearing and that he received constitutionally ineffective assistance of counsel. We affirm the sentence and dismiss the ineffective assistance of counsel claim without prejudice to its reassertion in a collateral proceeding.

         I. Background

         This appeal does not turn on the details of the crime, so we only briefly sketch the facts, drawing from "the uncontested portions of the change-of-plea colloquy, presentence report, and sentencing hearing." United States v. Gall, 829 F.3d 64, 67 n.1 (1st Cir. 2016). We set out the procedural background at greater length because it is central to Marín's arguments on appeal.

         Between August 2012 and April 2013, Marín participated in a conspiracy to import between ten and thirty kilograms of heroin into Puerto Rico. Members of the conspiracy packed suitcases full of heroin in Colombia and transported those suitcases to couriers in Venezuela. The couriers brought those suitcases into the United States. Members of the conspiracy also sent heroin to Puerto Rico via the U.S. Postal Service. Sometimes they physically transported the proceeds from the sale of the drugs from Puerto Rico back to Venezuela and Colombia, and sometimes they sent the proceeds via wire transfers. They disguised the nature of these transfers by sending and receiving the proceeds using the names of individuals who were not part of the conspiracy.

         A grand jury returned a three-count indictment against Marín, charging conspiracy to possess one kilogram or more of heroin with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(i), and 846 (count I), conspiracy to import one kilogram or more of heroin into the United States, in violation of 21 U.S.C. §§ 952(a) and 963 (count II), and conspiracy to launder the proceeds of these controlled substance offenses, in violation of 18 U.S.C. § 1956(a)(1)(B)(i) and 1956(h) (count III). Marín agreed to plead guilty to counts II and III and the government agreed to dismiss count I. The resulting written plea agreement contains two sections germane to this appeal.

         Section 7, captioned "Sentencing Guidelines Calculations, " explains that because the sentencing court is required to consider the guidelines sentencing range, "the United States and the defendant submit the following advisory Sentencing Guidelines calculations as to COUNTS TWO and THREE of the Indictment, " directing the reader to "U.S. Sentencing Commission Worksheets A, B and D attached to the instant Plea Agreement." Those worksheets calculate Marín's total offense level to be thirty-four. The worksheets report the guidelines sentencing range as 151 to 188 months because, as the plea agreement explains, "[t]he sentencing guideline calculation contained [in the worksheets] is assuming a criminal history category I but there is no stipulation as to the defendant's criminal history category."[2]

         Section 8, captioned "Sentence Recommendation, " states that "[t]he parties agree and recommend that the Court sentence the defendant to a term of imprisonment at the lower end of the applicable guideline range determined by the Court."

         At Marín's change-of-plea hearing, both the Assistant U.S. Attorney (AUSA) and the magistrate judge mentioned the guidelines calculation in the worksheets. After submitting the worksheets to the court and explaining how they reached a total offense level of thirty-four, the AUSA confirmed that "[t]he recommendation in this case . . . would be that the defendant will serve a term of imprisonment at the lower end of the applicable guideline range determined by the Court, depending on the defendant's criminal history category." The magistrate judge later made sure Marín understood that "[i]n determining your sentence, the presiding judge will consider but may not follow the guidelines calculations, those calculations contained in your agreement in those worksheets. . . . [T]hese guidelines are of an advisory nature . . . and the presiding judge may follow or may not follow them . . . ."

         The presentence report (PSR) filed after the change-of-plea hearing but prior to the sentencing hearing placed Marín in criminal history category III. At the same time, it disagreed with the total offense level calculation in the worksheets submitted with the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.