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United States v. Diaz-Rodriguez

United States Court of Appeals, First Circuit

March 17, 2017

UNITED STATES OF AMERICA, Appellee,
v.
FERNANDO DÍAZ-RODRÍGUEZ, Defendant, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]

          Joshua L. Solomon and Pollack, Solomon, Duffy LLP on brief for appellant.

          Tiffany V. Monrose, Assistant United States Attorney, Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee.

          Before Torruella, Thompson, Kayatta, Circuit Judges.

          THOMPSON, Circuit Judge.

         Appellant Fernando Díaz-Rodríguez ("Díaz") pled guilty to aiding and abetting others in the possession of a firearm that was discharged during a robbery in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and 2. On appeal, Díaz argues that his sentence should be vacated for lack of a factual basis to support his guilty plea. After careful review, we affirm the district court's sentence.

         Background [[1]]

         The facts of this case are largely undisputed. On September 1, 2010, two employees of the Ranger American Armored Services were driving an armored truck on their normal delivery route. When they arrived at the Morovena Credit Union in Morovis, Puerto Rico to deliver $80, 000 to the bank, they were attacked by several armed robbers who pulled up behind them in a dark-grey Toyota. Díaz was one of the robbers. During the course of the heist, one robber struck the employee who had exited the armored truck with the cash in the back of the head, while another robber pointed a .357 Magnum at that employee. The employee ultimately threw the bag of money to the ground and one robber picked it up. Díaz then grabbed the employee in a bear-hug from behind and the employee noticed that he, too, was carrying a gun. The robber wielding the .357 Magnum then fired shots in the direction of both the employee and Díaz. Díaz was struck in the left arm and left leg, the employee was shot in the abdomen, and they both collapsed to the ground. Another rifle-toting robber fired at the second Ranger American employee who had remained inside the armored truck, but he managed to drive away and escape the scene. Then the robbers attempted to shoot the remaining wounded employee in the head. Fortunately, the robbers were out of ammunition and the employee was able to escape. The robbers, including Díaz, then re-entered the dark-grey Toyota and drove off, but were later apprehended by authorities.

         On March 3, 2011 the government filed a superseding two-count indictment charging Díaz with aiding and abetting others in the robbery of a bank armored truck in violation of 18 U.S.C. §§ 1951 and 2 (Count One) and with carrying and using a firearm that was discharged during and in relation to the robbery in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2 (Count Two). Count Two did not actually use the words "aiding and abetting" as Count One did; however, it did cite to the aiding and abetting statute at 18 U.S.C. § 2 (which specifically provides that "[w]hoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal").

          On October 3, 2014, the parties entered into a plea agreement (the "Agreement"). By the precise terms of the Agreement, Díaz agreed to plead guilty to Count One, which "charge[d] that [Díaz], aiding and abetting others, did obstruct, delay, and affect commerce, and the movement of articles and commodities in such commerce, by robbery in violation of 18 U.S.C. §§ 1951 and 2." Díaz also agreed to plead guilty to Count Two, which "charge[d] that [Díaz], aiding and abetting others, did knowingly carry and use a firearm, which firearm was discharged, during and in relation to [the robbery charged in Count One]." The parties also agreed to the statutory penalties applicable to both counts. In relevant part, the parties agreed that Count One had a statutory maximum imprisonment term of no more than twenty years (or 240 months) pursuant to 18 U.S.C. § 1951. The parties also agreed that Count Two had a mandatory minimum term of not less than ten years (or 120 months) and a potential maximum of life imprisonment pursuant to 18 U.S.C. § 924(c)(1)(A)(iii).

         For the purposes of calculating Díaz's sentence under the United States Sentencing Guidelines Manual ("Guidelines"), the parties further agreed to a total offense level of 28 for Count One, made no determination as to the applicable criminal history category, and agreed that Count Two was subject to a 120-month (or ten year) mandatory minimum to run consecutively to Count One. The Agreement also contained a waiver-of-appeal clause which provided that Díaz knowingly and voluntarily waived the right to appeal the judgment and sentence in his case, provided that he was sentenced in accordance with the terms and conditions set forth in the sentencing recommendation provisions of the Agreement.

         On October 3, 2014, Díaz pled guilty to both counts of the indictment and on February 18, 2015, finding an applicable criminal history category of III and a total offense level of 28, the court sentenced Díaz in accordance with the terms of the plea agreement to 120 months as to Count One and another 120 months as to Count Two, to be served consecutively. Díaz did not challenge the court's sentencing nor did he attempt to withdraw his guilty plea.

         Díaz now appeals his sentence, arguing that the court incorrectly sentenced him to 120 months as to Count Two (Díaz does not challenge the court's sentence as to Count One). Díaz argues that although he signed a plea agreement with a waiver-of-appeal clause and was sentenced in accordance with that agreement, his sentence on Count Two should be reversed because the court did not properly calculate the applicable Guidelines range. Specifically, Díaz argues that there was an insufficient factual basis for the court's acceptance of his guilty plea as to Count Two.

         Discussion

         Before turning to the merits of this appeal, we pause to note that the Agreement contained a waiver-of-appeal provision that foreclosed any appeal so long as Díaz was sentenced in accordance with the agreement's terms. Accordingly, the government argues that because Díaz was sentenced in accordance with the terms of his plea agreement, he has waived his right to appeal. Díaz contends that his arguments on appeal are not within the scope of the waiver-of-appeal clause because the district court improperly calculated the applicable Guidelines range. We need not tarry with the parties' waiver arguments. Because Díaz's claims can be easily resolved on the ...


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