United States Court of Appeals For the First Circuit
Nos. 21-1540 21-1541
UNITED STATES,
Appellee,
v.
ARGENIS ERCIDES BRUZÓN-VELÁZQUEZ, a/k/a/ Cuajo,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Barron, Chief Judge, Lynch and Kayatta, Circuit Judges.
Lydia Lizarribar Masini on brief for appellant. Julia M. Meconiates, Assistant United States Attorney, W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee.
September 15, 2022 LYNCH, Circuit Judge. Argenis Ercides Bruzón-Velázquez
admitted under oath that, in the course of a carjacking, he forced
the car's owner into the vehicle at gunpoint, drove to a remote
location, and repeatedly and fatally shot the owner. He also
confessed to firing a rifle while attempting a separate carjacking
two months later. As part of a plea agreement with the government,
he pleaded guilty to discharging a firearm during and in relation
to a crime of violence resulting in death, see 18 U.S.C.
§ 924(c)(1)(A)(iii), (j), and to attempted carjacking, see id.
§ 2119(1). Four months later, Bruzón-Velázquez, through counsel,
filed a motion seeking to withdraw his guilty plea. The district
court denied that motion and a motion for reconsideration of that
denial. At a later sentencing hearing, the court sentenced
Bruzón-Velázquez to consecutive sentences of life imprisonment for
the firearm offense and fifteen years' imprisonment for the
carjacking offense.
Bruzón-Velázquez raises two issues on appeal. First, he
challenges the district court's denial of his motion to withdraw
his guilty plea.1 Second, he argues that the district court erred
procedurally and substantively in imposing his sentence.
We find no error and affirm.
He does not appeal the district court's denial of his 1
motion for reconsideration of the denial of his withdrawal motion.
- 2 - I.
A.
Because this appeal follows a guilty plea, "we draw the
facts from the plea colloquy, the unchallenged portions of the
presentence investigation report [(PSR)], and the transcript of
the sentencing hearing." United States v. De la Cruz, 998 F.3d
508, 509 (1st Cir. 2021) (quoting United States v. Padilla-Colón,
578 F.3d 23, 25 (1st Cir. 2009)).
On April 14, 2017, Bruzón-Velázquez discussed the
possibility of committing a robbery with four other individuals:
two women, Candy Cedeño-González and Tatiana Yari Giusti-Saldaña,
and two men, Ariel González-Alméstica and an adult known as
"Cachete."2 Giusti-Saldaña mentioned that she knew people in a
certain area might have money, and the group drove to the location
she suggested.
There, Bruzón-Velázquez and Cachete watched as
Cedeño-González and Giusti-Saldaña spoke to a series of men at a
bar. When Giusti-Saldaña left the bar with a male patron, David
Dubique, and walked toward Dubique's Ford Transit,
Bruzón-Velázquez followed.
2 Cedeño-González, Giusti-Saldaña, and González-Alméstica were later indicted as Bruzón-Velázquez's codefendants in one of the cases underlying this appeal, arising out of the events of April 14, 2017.
- 3 - When Dubique and Giusti-Saldaña reached the Transit,
Bruzón-Velázquez and Cachete forced Dubique into the vehicle at
gunpoint. Bruzón-Velázquez then drove the Transit, with Cachete
and Dubique inside, to a remote area. There, Bruzón-Velázquez
forced Dubique to get out of the car. Bruzón-Velázquez then
fatally and repeatedly shot Dubique in the head with a .40 caliber
Glock pistol.
After killing Dubique, Bruzón-Velázquez, accompanied by
Cachete, drove the Transit away from the scene, stopping at a
location a short distance away, where the remainder of the group
met them in González-Alméstica's car. Bruzón-Velázquez and
Cachete searched the Transit while Giusti-Saldaña tried to wipe
down the front passenger door. The group then abandoned the stolen
vehicle, leaving together in González-Alméstica's car.
Bruzón-Velázquez boasted to the others present: "Did you see how
the guy stayed there[?] . . . I opened up his brains."
Roughly two months later, on June 21, 2017,
Bruzón-Velázquez and another individual attempted forcibly to take
possession of a Mercedes-Benz automobile while brandishing
firearms -- a rifle for Bruzón-Velázquez and a handgun for the
other individual. When an armed third party intervened,
Bruzón-Velázquez fired his rifle and fled the scene.
- 4 - B.
In July 2017, a federal grand jury indicted
Bruzón-Velázquez on five counts arising out of the April shooting,
including discharging a firearm during and in relation to a crime
of violence resulting in death.3 See 18 U.S.C.
§ 924(c)(1)(A)(iii), (j). Later that year, a grand jury charged
him in a separate case with two offenses related to the June
incident, including attempted carjacking.4 See id. § 2119(1). The
two cases were transferred to the docket of the same district court
judge. Bruzón-Velázquez initially pleaded not guilty on all
counts.
The district court gave notice to the parties of a
"[p]retrial [c]onference . . . or . . . change of plea hearing."
The conference/hearing was held on January 16, 2020. When the
hearing commenced, Bruzón-Velázquez's counsel requested an
opportunity to confer with her client about a new plea offer from
the government. Under the government's proposal, Bruzón-Velázquez
would plead guilty to discharging a firearm during and in relation
3 The indictment also charged Bruzón-Velázquez with carjacking resulting in death, see 18 U.S.C. § 2119; kidnapping resulting in death, see id. § 1201(a); discharging of a firearm during and in relation to a crime of violence, see id. § 924(c)(1)(A)(iii); and possession of a machinegun, see id. § 922(o)(1), 924(a)(2). 4 The grand jury also charged Bruzón-Velázquez with discharge of a firearm during and in relation to a crime of violence. See 18 U.S.C. § 924(c)(1)(A)(iii).
- 5 - to a crime of violence resulting in death in connection with the
April shooting and to attempted carjacking in connection with the
June incident. In exchange, the prosecution would dismiss the
remaining counts and agree to a sentencing recommendation; the
offer would allow the government to recommend a total sentence of
no more than 433 months, while the defense could recommend a total
sentence of no less than 360 months.5
At defense counsel's request, the court recessed for an
hour for Bruzón-Velázquez to review the offer with his attorney.
Once court resumed, defense counsel indicated that
Bruzón-Velázquez would accept the government's proposed plea
agreement and plead guilty but "want[ed] to call his mother" first.
Bruzón-Velázquez's attorney further expressed that she "th[ought]
we should take [the plea] today while we are here" after the call.
The prosecution stated that it "ha[d] no problem waiting," and the
court recessed for an additional two-and-a-half hours.
After this second recess, during which Bruzón-Velázquez
spoke with his wife and mother, Bruzón-Velázquez's counsel
5 The plea agreement also included a waiver of Bruzón-Velázquez's right to appeal "if the imprisonment sentence imposed by the Court is of 433 months or less." The parties agree, as do we, that the waiver does not bar this appeal because "[e]ven a knowing and voluntary appeal waiver only precludes appeals that fall within its scope." United States v. McCoy, 508 F.3d 74, 77 (1st Cir. 2007). Bruzón-Velázquez's ultimate sentence of imprisonment for life plus 180 months exceeds 433 months in length, placing this appeal outside the scope of the waiver.
- 6 - announced that Bruzón-Velázquez was "ready for his plea," and the
district court began an extensive plea colloquy. In response to
the court's questions, Bruzón-Velázquez stated, among other
things, that he was not under the influence of medication, drugs,
or alcohol; that he had discussed the charges and the plea offer
with his counsel; that he understood the charges against him, his
rights, and the terms and consequences of the plea offer; and that
he wanted to plead guilty. He also admitted that he had fatally
shot Dubique with a pistol during the April carjacking and used a
rifle in the June attempted carjacking. Satisfied that
Bruzón-Velázquez was "fully competent and capable of entering an
informed plea, . . . and that his plea of guilty [was] a knowing
and voluntary one," the court accepted the plea.
Four months later, Bruzón-Velázquez filed a motion under
Federal Rule of Criminal Procedure 11(d) to withdraw his guilty
plea, arguing that he was "surprised" by the plea offer and
"pressured" into accepting it by the purportedly limited time
available to consider the offer and the fact that his wife and
mother were "very upset and crying" when he spoke with them about
the potential plea bargain. The government opposed the motion.
The district court denied the motion without a hearing.6
See United States v. Brúzon-Velázquez, 475 F. Supp. 3d 86 (D.P.R.
6 Bruzón-Velázquez does not challenge the district court's decision not to hold a hearing on appeal.
- 7 - 2020). The court reasoned that "[t]ime pressures" and "[o]ther
external . . . stressors" are "usually not dispositive" in
determining whether to allow withdrawal of a guilty plea, as "[t]he
relevant question" is "whether the decision to plead was voluntary,
i.e., a product of free will." Id. at 90 (quoting United States
v. Pellerito, 878 F.2d 1535, 1541 (1st Cir. 1989)). It concluded
that the multiple recesses during the change-of-plea hearing, as
well as Bruzón-Velázquez's responses during his plea colloquy,
established that his guilty plea had been knowing, voluntary, and
intelligent. See id. The court also observed that
Bruzón-Velázquez had not made a credible claim of actual innocence
and that the timing of his request, months after he entered the
plea at issue, did not warrant allowing him to withdraw the plea.7
See id. at 90-91.
While this motion was pending, the probation officer
produced an initial PSR, which determined that the United States
Sentencing Guidelines ("Guidelines") provided a recommended
sentencing range of 324-405 months. This calculation included a
reduction in the offense level due to Bruzón-Velázquez's admission
of responsibility during his plea colloquy. Bruzón-Velázquez
filed several objections to this initial PSR; in particular,
7 Bruzón-Velázquez, through counsel, filed a motion for reconsideration of the district court's decision, which the district court denied.
- 8 - consistent with his motion to withdraw his guilty plea, he objected
to its factual assertions about his guilt. The probation officer
then filed an amended PSR that, among other changes, removed the
offense-level reduction for Bruzón-Velázquez's acceptance of
responsibility because Bruzón-Velázquez now contested his guilt.
This change increased the Guidelines sentencing range to life in
prison. Bruzón-Velázquez did not object to the amended PSR's
Guidelines calculations.
At the sentencing hearing on June 30, 2021,
Bruzón-Velázquez, through counsel, argued again that he should be
allowed to withdraw his guilty plea. The district court rejected
this argument. Defense counsel then presented mitigating factors,
including Bruzón-Velázquez's being born and raised in a high-crime
area and lack of familial support and educational opportunities.
Both the defense and prosecution requested a sentence in line with
the plea agreement. The victim's brother and sister, in contrast,
both asked the district court to "apply the full extent of the
law" in sentencing. Bruzón-Velázquez himself said only that he
"would like to go to trial."
The district court accepted the amended PSR's Guidelines
calculations and recognized that the Guidelines sentencing range
for the firearm offense was life imprisonment, while the carjacking
offense carried a maximum penalty of fifteen years' imprisonment.
The court explained that it had "considered the other sentencing
- 9 - factors set forth in [18 U.S.C. § 3553(a)]," the parties' arguments
and recommendations, "the statements by the victim's family
members, and [Bruzón-Velázquez's] short allocution." It also
noted Bruzón-Velázquez's age, education, employment history, and
past substance abuse. And it emphasized that Bruzón-Velázquez had
"murdered Mr. Dubique . . . by shooting him several times" and
then "boasted[,] . . . 'Did you see how the guy stayed
there[?] . . . I opened up his brains.'" In light of all these
considerations, the court concluded that consecutive sentences of
life imprisonment for the firearm offense and fifteen years'
imprisonment for the carjacking offense would "reflect the
seriousness of the offenses, promote respect for the law, protect
the public from further crimes by [Bruzón-Velázquez], and
address[] the issues of deterrence and punishment." It sentenced
Bruzón-Velázquez accordingly. Bruzón-Velázquez did not object to
the district court's sentencing procedure.
Bruzón-Velázquez timely filed these consolidated
appeals.
II.
Bruzón-Velázquez first challenges the denial of his
motion to withdraw his guilty plea. We review the denial of a
motion to withdraw a guilty plea before sentencing for abuse of
discretion. United States v. Valdez, 975 F.3d 63, 67 (1st Cir.
2020). "The burden is on the defendant to prove that there is a
- 10 - 'fair and just reason' to withdraw the guilty plea prior to
sentencing." Id. (quoting United States v. Rodríguez-Morales, 647
F.3d 395, 398-99 (1st Cir. 2011)). The relevant factors, which
the district court thoroughly analyzed, see 475 F. Supp. 3d at 89-
91, are "whether the plea was voluntary, intelligent, knowing and
in compliance with Rule 11; the strength of the reasons offered in
support of the motion; whether there is a serious claim of actual
innocence; the timing of the motion; and any prejudice to the
government if the withdrawal is allowed," United States v. Isom,
580 F.3d 43, 52 (1st Cir. 2009). On appeal, Bruzón-Velázquez
focuses primarily on the first factor, arguing that his plea was
not voluntary because of surprise, time pressure, and "family
duress." We reject these contentions for the reasons given by the
district court.
First, Bruzón-Velázquez claims he was "surprised" by the
plea offer because the hearing when it was made "was a pretrial
[conference,] not a change of plea [hearing]." But the district
court had noted in its previous orders that the scheduled hearing
could be either a pretrial conference or a change-of-plea hearing.
Nor do the filing of pretrial motions, or other indications that
Bruzón-Velázquez wished to go to trial, negate the voluntariness
of his plea. See United States v. Sanchez-Barreto, 93 F.3d 17, 23
(1st Cir. 1996) (upholding denial of motion to withdraw pleas
entered on the morning trial was scheduled to begin).
- 11 - Bruzón-Velázquez's argument that he was "rushed" into
pleading guilty fares no better. "A defendant seeking to unravel
a guilty plea . . . must show that he pleaded guilty 'under so
much duress that [his plea] could no longer be considered a product
of free will.'" United States v. Adams, 971 F.3d 22, 39 (1st Cir.
2020) (alteration in original) (quoting United States v.
Caramadre, 807 F.3d 359, 369 (1st Cir. 2015)). Bruzón-Velázquez
cannot meet that standard. As a factual matter, the record does
not support the claim that he lacked adequate time to consider the
plea offer: The district court repeatedly recessed to allow
Bruzón-Velázquez to consult with his attorney and family, and the
prosecution indicated that it had "no problem waiting" for him to
do so. During the plea colloquy, Bruzón-Velázquez affirmed that
he had had the opportunity to discuss the plea with his attorney,
understood his rights and the agreement's terms and consequences,
and intended to plead guilty. And as a legal matter, facing time
pressure "is common among criminal defendants, and hardly
exceptional enough to evince an overbearing of [a defendant's]
will." United States v. Marrero-Rivera, 124 F.3d 342, 350 (1st
Cir. 1997) (holding time pressure did not render guilty plea
entered within an hour of deadline involuntary). Bruzón-Velázquez
offers no reason to treat the time pressure in this case as
"exceptional." Id.
- 12 - Bruzón-Velázquez's contention that "family duress"
rendered his plea involuntary similarly fails. "Evidence of
agitation arising out of familial circumstances does not, without
more, show duress or lack of voluntariness." Adams, 971 F.3d at
39. Adams, for example, concluded that pressure stemming from
"'the prospect of a life sentence' and the potential hardship such
a sentence would inflict on '[the defendant's] ailing mother and
his children'" did not render a defendant's plea involuntary. Id.
Both in the district court and on appeal, Bruzón-Velázquez alleges
generally that he was "confused" because of how "upset" his wife
and mother were when he spoke with them before accepting the plea.
These allegations contain nothing "more" than "agitation arising
out of familial circumstances" and do not render his plea
involuntary. Id.
The district court did not abuse its discretion in
denying Bruzón-Velázquez's motion to withdraw his guilty plea.8
8 Bruzón-Velázquez's brief also includes a short discussion of the timing of his motion to withdraw his plea, explaining that the months-long delay in the motion's filing was the product of transfers between correctional facilities, difficulty communicating with counsel, and complications resulting from the pandemic. The district court considered similar arguments in denying the withdrawal motion and correctly concluded that, whatever the reason for the delay, "[w]ithout other factors weighing in [Bruzón-Velázquez's] favor, the timing of the motion is not a strong enough factor on its own to warrant a withdrawal of [his] plea." 475 F. Supp. 3d at 91; see United States v. Merritt, 755 F.3d 6, 11 (1st Cir. 2014) ("[T]iming alone is not enough to tip the scales.").
- 13 - III.
Bruzón-Velázquez also challenges both the procedural and
substantive reasonableness of his sentence. "Where challenges are
to the procedural and substantive reasonableness of a sentence,
'[o]ur review process is bifurcated: we first determine whether
the sentence imposed is procedurally reasonable and then determine
whether it is substantively reasonable.'" United States v.
Flores-Quiñones, 985 F.3d 128, 133 (1st Cir. 2021) (quoting United
States v. Reyes-Torres, 979 F.3d 1, 6-7 (1st Cir. 2020) (alteration
in original) (internal quotation marks omitted)). "In the
sentencing context, we evaluate claims of unreasonableness in
light of the totality of the circumstances." Id. (quoting United
States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013)).
We turn first to Bruzón-Velázquez's procedural
challenges. "Typically, we review sentences . . . for abuse of
discretion," but "[w]hen a defendant fails to preserve an objection
below, the plain error standard supplants the customary standard
of review."9 United States v. Arroyo-Maldonado, 791 F.3d 193, 197
9 "Under the plain error standard, the appellant must show '(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant's substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.'" United States v. Viloria-Sepulveda, 921 F.3d 5, 8 n.1 (1st Cir. 2019) (quoting United States v. Soto-Soto, 855 F.3d 445, 448 (1st Cir. 2017)).
- 14 - (1st Cir. 2015) (alteration in original) (quoting United States v.
Fernández-Hernández, 652 F.3d 56, 71 (1st Cir. 2011)).
Bruzón-Velázquez did not raise any procedural objections during
sentencing proceedings, so we review his procedural arguments for
plain error. We find no error, plain or otherwise.
Bruzón-Velázquez first argues that the district court
"did not consider" his claim that he "didn't kill anyone." But
the record shows that the court discussed this claim with
Bruzón-Velázquez's counsel during the sentencing hearing and
reasonably rejected it based on Bruzón-Velázquez's admission of
guilt during his plea colloquy. See United States v. Gates, 709
F.3d 58, 69-70 (1st Cir. 2013) ("A defendant is normally bound by
the representations that he himself makes in open court at the
time of his plea.").
Bruzón-Velázquez next contends that his "due process
rights were violated" during sentencing because "he had no options"
but to accept a plea bargain. Even assuming that the district
court's reliance on Bruzón-Velázquez's earlier guilty plea could
qualify as a procedural error during sentencing, this argument
fails for the same reasons as his appeal of the denial of his
motion to withdraw the plea itself: the guilty plea was voluntary,
intelligent, and knowing.
Nor is any other procedural error apparent from the
record. "In assessing procedural reasonableness, '[w]e must
- 15 - ensure that the district court did not commit any "significant
procedural error" to arrive at a sentence.'" Flores-Quiñones, 985
F.3d at 134 (alteration in original) (quoting United States v.
Sayer, 916 F.3d 32, 37 (1st Cir. 2019)). Such errors include
failing to calculate (or improperly calculating) the [Guidelines sentencing range], treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence -- including an explanation for any deviation from the Guidelines range.
Id. (alterations in original) (quoting Flores-Machicote, 706 F.3d
at 20). Bruzón-Velázquez "does not argue that the district court
failed to calculate or miscalculated the Guidelines sentencing
range, treated the Guidelines as mandatory, or selected a sentence
based on clearly erroneous facts," and "the district court
expressly referenced and analyzed the § 3553(a) factors" and
explained its reasons for imposing the challenged sentence, which
fell within the Guidelines range. Id. There was no significant
procedural error.
B.
Finally, we address Bruzón-Velázquez's argument that his
sentence is substantively unreasonable. Because Bruzón-Velázquez
preserved the issue by arguing for a shorter sentence in the
district court, we review the sentence's substantive
reasonableness for abuse of discretion. See United States v.
- 16 - Ramos-David, 16 F.4th 326, 335 (1st Cir. 2021). "A sentence is
substantively reasonable so long as the sentencing court has
provided a 'plausible sentencing rationale' and reached a
'defensible result.'" Flores-Quiñones, 985 F.3d at 133 (quoting
Sayer, 916 F.3d at 39). A sentence "within the Guidelines
range . . . deserves 'a presumption of reasonableness.'" United
States v. Llanos-Falero, 847 F.3d 29, 36 (1st Cir. 2017) (quoting
United States v. Cortés-Medina, 819 F.3d 566, 572 (1st Cir. 2016)).
Bruzón-Velázquez's sentence easily passes muster under
this standard. The district court provided a "plausible sentencing
rationale," Flores-Quiñones, 985 F.3d at 133 (quoting Sayer, 916
F.3d at 39), citing, among other considerations, the Guidelines,
the § 3553(a) factors, the requests by the victim's family that
the court "apply the full extent of the law" in sentencing, and
the facts that Bruzón-Velázquez admitted as part of the plea
agreement. And the resulting sentence is certainly "defensible."
Id. (quoting Sayer, 916 F.3d at 39). Not only does it fall within
the presumptively reasonable Guidelines range, Llanos-Falero, 847
F.3d at 36, but it also reflects the callousness and brutality of
Bruzón-Velázquez's offenses. As the district court observed
during sentencing, Bruzón-Velázquez "forced" his victim, Dubique,
into a stolen vehicle at gunpoint; "drove . . . to a desolate
area"; "forced Dubique to exit [the vehicle;] and shot him multiple
times with a .40 caliber Glock pistol." After executing Dubique,
- 17 - Bruzón-Velázquez "boasted" about having "opened up his brains."
The district court selected a sentence that appropriately
"reflect[s] the seriousness of the offenses" and "protect[s] the
public from further crimes by [Bruzón-Velázquez]."
Bruzón-Velázquez's arguments against the sentence's
reasonableness are unpersuasive. He notes that the district court
"imposed the highest possible sentence . . . [under] the
[G]uidelines," but does not dispute that the sentence is within
the presumptively reasonable Guidelines range. See Llanos-Falero,
847 F.3d at 36. He further contends that the district court
"barely touched upon the mitigating factors argued" by the defense.
But "the allocation of weight as among sentencing factors is --
within wide margins -- a matter committed to the district court's
informed discretion," United States v. deJesús, 6 F.4th 141, 149
(1st Cir. 2021), and the district court cogently explained its
reasons for striking the balance as it did. Finally, he argues
that "a group of people . . . acted together" to cause "the death
of Mr. Dubique," and suggests -- without citation to the
record -- that Bruzón-Velázquez received the harshest sentence of
all the individuals involved. Even assuming this assertion is
true, the district court adequately explained the considerations
particular to Bruzón-Velázquez that rendered the sentence
appropriate, including the fact that he, alone among his
codefendants, repeatedly shot Dubique and boasted about doing so.
- 18 - Bruzón-Velázquez has not met his burden to show that his sentence
falls outside the "universe of reasonable sentences." United
States v. Rivera-González, 776 F.3d 45, 52 (1st Cir. 2015).
Affirmed.
- 19 -