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