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United States v. Carbajal-Valdez

United States Court of Appeals, First Circuit

November 3, 2017



          Daniel N. Marx, Foley Hoag LLP, and Fick & Marx LLP on brief for appellant.

          Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Mainon A. Schwartz, Assistant United States Attorney, on brief for appellee.

          Before Lynch, Selya and Stahl, Circuit Judges.


         In this appeal, defendant-appellant Juan Francisco Emilio Carbajal-Váldez advances two claims of error. First, he contends that the district court erred in imposing a sentencing enhancement based largely on his admission that he captained the cocaine-laden boat used in the smuggling attempt. Second, he contends that the government breached a plea agreement between the parties both in responding to the district court about the prospective enhancement and in supporting the resultant sentence on appeal. Concluding, as we do, that these contentions are unpersuasive, we affirm.

         I. BACKGROUND

         Because this appeal follows a guilty plea, "we draw the facts from the plea colloquy, the uncontested portions of the presentence investigation report, and the sentencing transcript." United States v. Nuñez, 852 F.3d 141, 143 (1st Cir. 2017). After accepting an offer of $50, 000 to transport drugs from Venezuela to Puerto Rico, the appellant embarked on an ill-fated voyage with two fellow seamen and a large quantity of cocaine. Just before midnight on March 16, 2015, a Puerto Rico Police Department maritime patrol boat spied their vessel operating without navigation lights off the coast of Puerto Rico. When the police stopped the vessel and boarded it, they saw a number of sacks containing white brick-shaped objects in plain view. A field test, conducted while at sea, revealed these bricks to be cocaine. In total, the police recovered approximately 1, 434 kilograms of cocaine.

         The police seized the boat and arrested the three men on board: the appellant, José Miguel Váldez-Vázquez, and Ramón Pache. The government alleges (and the appellant does not dispute) that at the moment of interdiction, the appellant identified himself as the captain of the craft.

         The authorities proceeded to file criminal complaints against all three seafarers, charging that they possessed and conspired to possess with intent to distribute five kilograms or more of cocaine. See 21 U.S.C. §§ 841(a)(1), 846. In short order, a federal grand jury indicted the trio on the same charges. At first, the appellant resisted the indictment, maintaining his innocence. His codefendants adopted a similar stance.

         After defense counsel met with the prosecutor and obtained discovery, the appellant and his codefendants decided to change their pleas and entered into substantially identical plea agreements with the government. During a joint change-of-plea hearing, each man pleaded guilty to a single count of conspiring to possess five or more kilograms of cocaine with intent to distribute. The appellant's plea agreement (the Agreement) contemplated a base offense level of 38, premised largely on drug quantity. It also contemplated a three-level reduction for acceptance of responsibility, see USSG §3E1.1(a), and left open the possibility of a further two-level reduction if the appellant proved to satisfy the requirements for the so-called safety valve, see id. §2D1.1(b)(17). Both sides pledged not to seek any further adjustments or departures, up or down.

         The Agreement took no position as to the appropriate criminal history category and, thus, did not forecast a specific guideline sentencing range. The government, though, agreed that when the guideline range was established, it would recommend a within-the-range sentence. The Agreement made pellucid that any such recommendation would not be binding on the sentencing court.

         Once the district court had accepted all three guilty pleas, the probation office prepared a separate presentence investigation report (PSI Report) for each defendant. When those reports were compiled, the probation office recommended a sentencing enhancement for the appellant that it did not recommend for either of his codefendants: a two-level enhancement as captain of the boat under USSG §2D1.1(b)(3)(C). This enhancement was appropriate, the probation office stated, because the appellant had been identified as the master of the vessel and had admitted to the probation officer that his job had been to get the boat, bring it to the loading port, and "steer the vessel and transport the drugs to [Puerto Rico]."

         Neither the appellant nor the government objected in writing to any of the findings or recommendations contained in the PSI Report. At the disposition hearing, the district court - rejecting the exhortations of both the appellant and the government - adopted the guideline calculations limned in the PSI Report. These calculations included the captain enhancement, which ratcheted up the appellant's adjusted offense level and produced a higher guideline range. The court then imposed a 168-month term of immurement.[1]

         Earlier the same day, the district court held separate sentencing hearings for each of the appellant's codefendants. The court did not tag either of them with the captain enhancement. In the absence of that enhancement, the court sentenced each man to 135 months' imprisonment.

         This timely appeal ensued. The waiver-of-appeal clause contained in the Agreement offers no impediment: that clause is contingent upon the district court imposing a sentence within the sentence recommendation provisions of the Agreement, and the appellant's ...

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