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United States v. Rodriuez-Adorno

United States Court of Appeals, First Circuit

March 29, 2017

UNITED STATES OF AMERICA, Appellee,
v.
RUBÉN RODRÍGUEZ-ADORNO, Defendant, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Juan M. Pérez-Giménez, U.S. District Judge]

          Virginia G. Villa on brief for appellant.

          Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, on brief for appellee.

          Before Howard, Chief Judge, Selya and Barron, Circuit Judges.

          SELYA, Circuit Judge.

         Defendant-appellant Rubén Rodríguez-Adorno, represented by newly-appointed counsel, attempts to reinvent his case on appeal. His appellate briefing is long on rhetoric and short on facts, and none of the issues that he advances was raised below. Discerning no plain error, we affirm the challenged conviction and sentence.

         I. BACKGROUND

         We briefly rehearse the background and travel of the case, drawing the facts from the change-of-plea colloquy, the uncontested portions of the presentence investigation report (PSI Report), and the sentencing transcript. See United States v. Dávila-González, 595 F.3d 42, 45 (1st Cir. 2010); United States v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991).

         For about eight years, beginning around 2002, the appellant participated in a drug-trafficking conspiracy run out of a public housing project in Carolina, Puerto Rico. The drug ring dealt in a cornucopia of controlled substances, including crack cocaine, powder cocaine, heroin, marijuana, and assorted prescription medications. The appellant functioned mostly as a retail seller, peddling drugs throughout the project and its environs. At other times, he served as a lookout, standing watch while his confederates completed sales.

         In May of 2010, a federal grand jury returned a six-count indictment charging 70 persons (including the appellant) with a laundry list of offenses. As relevant here, count one charged the appellant and others with conspiring to possess with intent to distribute a panoply of controlled substances within a protected location. See 21 U.S.C. §§ 841(a)(1), 846, 860. Other counts charged the appellant with aiding and abetting the distribution of heroin, cocaine, and marijuana within 1, 000 feet of a public housing project and with conspiring to possess a firearm and ammunition during and in relation to the commission of drug-trafficking crimes.

         The appellant was not arrested until June of 2014. Roughly four months later, he entered into a written plea agreement (the Agreement), agreeing to plead guilty to count one. As part of the bargain, the government agreed to dismiss the other charges against him.

         In the Agreement, the parties stipulated that the appellant possessed at least 500 grams, but less than 2, 000 grams, of cocaine, notwithstanding that the drug ring was alleged to have distributed "multiple kilograms" of several different kinds of drugs. As a result, the appellant faced a statutory maximum sentence of eighty years in prison. See 21 U.S.C. §§ 841(b)(1)(B), 860(a).

         The Agreement included a number of provisions bearing upon the appellant's prospective sentence (acknowledging, though, that the sentencing court was neither bound nor constrained by any of these provisions). Of particular pertinence for present purposes, the parties suggested a total offense level of 25, but they did not stipulate to any criminal history category (CHC). Instead, they agreed that if the appellant's CHC proved to be I or II, he could argue for a sentence as low as sixty months and the government could argue for a sentence as high as seventy months. If, however, the appellant's CHC equaled or exceeded III, both parties would recommend a sentence at the low end of whatever guideline sentencing range (GSR) resulted. Regardless of what his CHC turned out to be, the appellant promised not to ask for a sentence of less than sixty months.

         At the change-of-plea hearing, the court began by offering to read the charges. The appellant declined the offer, indicating that he knew the nature of the charges against him. The court nonetheless proceeded to describe the relevant charges in detail and also described the manner and means by which the appellant and his coconspirators had allegedly carried out their illicit activities. The appellant acknowledged that he had acted in the manner that the court portrayed and confirmed that he wished to plead guilty to the conspiracy count.

         The court reminded the appellant that it was not bound by the Agreement but, rather, was obliged to make its own guideline calculations and could impose "any sentence provided by the law." The appellant confirmed that he understood the court's position. In due course, the court accepted the appellant's guilty plea and ordered the preparation of the PSI Report.

         When the final version of the PSI Report emerged, it identified four clusters of convictions aggregating to more than ten individual convictions, two of which the probation officer thought sufficient to serve as predicates for a career offender enhancement under the sentencing guidelines. With this in mind, the report recommended that the court set the appellant's ...


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