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United States v. Marte-de la Cruz

United States Court of Appeals, First Circuit

December 4, 2017

UNITED STATES OF AMERICA, Appellee,
v.
SANTOS MARTE-DE LA CRUZ, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO Hon. Daniel R. Domínguez, U.S. District Judge

          Robert Herrick and Nicholson Herrick LLP, on brief for appellant.

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

          Before Torruella, Thompson, and Kayatta, Circuit Judges.

          KAYATTA, CIRCUIT JUDGE.

         Pursuant to a plea agreement, Santos Marte-de la Cruz pled guilty to attempted illegal reentry into the United States following removal subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(b)(2). He was sentenced to thirty-three months' imprisonment. He now appeals his conviction and sentence on the basis that his prior conviction was not an aggravated felony or crime of violence. Because Marte-de la Cruz waived his right to appeal as part of his plea agreement, we dismiss his appeal.

         I. Background

         We draw the facts from the parties' agreed-upon statement, attached to the plea agreement. In January 2016, a United States Coast Guard patrol intercepted a vessel travelling toward Puerto Rico. Marte-de la Cruz was on board. He identified himself as a Dominican Republic national and presented no documentation that would permit him to enter the United States or remain therein. The authorities subsequently learned that in 2010, Marte-de la Cruz had been charged with robbery in the Superior Court of San Juan, Puerto Rico, and sentenced to five years' imprisonment. Subsequent to that conviction, he was served with an order of removal and on September 24, 2014, he was removed from the United States.

         On January 13, 2016, a criminal complaint issued against Marte-de la Cruz. The same day, counsel was appointed to represent him. On May 2, 2016, following Marte-de la Cruz's waiver of his right to an indictment, the United States filed a criminal information, charging Marte-de la Cruz with violating 8 U.S.C. § 1326(b)(2), which criminalizes re-entry or attempted re-entry into the United States by an individual who was previously removed following a conviction for an aggravated felony. The same day, Marte-de la Cruz filed a plea agreement.

         The plea agreement contained the following provisions: First, Marte-de la Cruz agreed to plead guilty to one count of attempted illegal reentry following removal subsequent to a conviction for an aggravated felony, in violation of section 1326(b)(2). Second, the parties agreed to recommend that Marte-de la Cruz's total offense level be set at nineteen. They arrived at this figure by starting with a base offense level of eight, adding sixteen levels for the fact that Marte-de la Cruz had been previously removed following a conviction for a crime of violence, and subtracting three levels for acceptance of responsibility and two more levels for participation in a fast-track plea program. Third, Marte-de la Cruz agreed "that the facts contained in the attached government's version of facts are true and correct, and that had the matter proceeded to trial, the United States would have proven those facts beyond a reasonable doubt." Finally, the agreement stated that Marte-de la Cruz "knowingly and voluntarily waive[d] the right to appeal the judgment and sentence in this case, provided that [he was] sentenced in accordance with the terms and conditions set forth in the Sentence Recommendation provisions of th[e] Plea Agreement." The agreement was signed by both Marte-de la Cruz and his attorney, and contained further sworn statements from each of them stating that Marte-de la Cruz's attorney had discussed the plea agreement with him in Spanish, that it had been translated for Marte-de la Cruz, and that Marte-de la Cruz "ha[d] no doubts as to the contents of the agreement." At his change-of-plea hearing, Marte-de la Cruz again affirmed that the plea agreement and attached document had been translated, that his attorney had explained the documents to him, and that he understood the terms of the agreement and attached document. The government was asked to describe the essential terms of the agreement, and stated that the parties had agreed to a base offense level of eight and an increase of sixteen levels "because the Defendant was previously removed after a conviction for a crime of violence, " accompanied by reductions for acceptance of responsibility and his participation in a fast-track disposition program, for a total offense level of nineteen. Marte-de la Cruz's attorney was asked if he agreed with the government's representations and Marte-de la Cruz himself was asked if the government had accurately described the agreed-upon sentencing recommendations; both answered in the affirmative. The magistrate judge also asked: "are you pleading guilty of your own free will because you are, in fact, guilty?" Again, Marte-de la Cruz responded in the affirmative. Later in the hearing, the magistrate judge stated: "I want to point out to you that . . . your plea agreement[] contain[s] a waiver-of-appeal paragraph, and, in that, you are agreeing to waive your right to appeal both the judgment and the sentence." He then asked if Marte-de la Cruz "voluntarily agree[d] to waive [his] right to appeal both [his] conviction and [his] sentence, " and Marte-de la Cruz again responded that he was aware of this waiver and agreed to it. The magistrate judge specifically noted that Marte-de la Cruz had been charged with attempting to enter the United States following removal "subsequent to a conviction for an aggravated felony" and Marte-de la Cruz acknowledged that he was pleading guilty to this specific offense. The magistrate judge then asked the government to state its version of the facts, which included the statement that "background checks . . . reveal[] that . . . Marte-de la Cruz . . . was arrested and charged for robberies, and, on March 24, 2010, he was sentenced to five years imprisonment in the Superior Court of San Juan, . . . making the crime an aggravated felony under the Immigration and Nationality Act." Following this statement, the magistrate judge asked whether Marte-de la Cruz "agree[d] with and admit[ted] to all of the facts the Prosecutor just described." Again, Marte-de la Cruz answered in the affirmative. The magistrate judge recommended that the district court accept the plea of guilty and the district court accepted the recommendation.

         The matter proceeded to sentencing on August 18, 2016. At sentencing, the district court expressed concern about Marte-de la Cruz's prior conduct because his prior conviction "was not only a burglary, but a burglary entering into a house of a lady and pointing a knife at her." The district court was troubled that Marte-de la Cruz had been permitted to take part in the fast-track plea program given his prior conduct, but the government noted that it was aware of the conduct and Marte-de la Cruz's counsel stated "the criminal complaint reflects the fact that the government knew about the robbery conviction -- actually, an aggravated felony." Following this reassurance, the district court sentenced Marte-de la Cruz to thirty-three months' imprisonment. It also told Marte-de la Cruz that "[i]n this particular case, you agreed that if the Court sentenced you to Level 19 you were waiving your right to appeal. And in this case, the Court has sentenced you not only to Level 19, but also to the lower end of 19, which is what the parties specifically agreed."

         Four days later, Marte-de la Cruz filed a notice of appeal from his conviction and sentence.

         II. Discussion

         Marte-de la Cruz's argument on appeal is that his prior offense was not an aggravated felony or crime of violence, despite agreement by the parties that it was. Specifically, he argues that he was convicted of second-degree burglary, not robbery, which he contends is not an aggravated felony or crime of violence. He argues that the allegedly erroneous determination that his prior conviction was for robbery resulted in two flaws in his conviction and sentence. First, if his prior offense was not an aggravated felony (and he submits that Puerto Rico burglary is not), then he was not guilty of violating 8 U.S.C. § 1326(b)(2), which only applies to those removed following a conviction for such a felony. Second, if his prior offense was not a crime of violence ...


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